Curt Levey — president of the Committee for Justice, a nonprofit group promoting limited government and judicial nominations — said that the executive order itself has 'limited teeth' regarding Section 230, since it requests the independent Federal Trade Commission (FTC) and Federal Communications Commission (FCC) adjust their interpretations of Section 230. Still, if the FTC were to take some action at Trump’s request, that would “surely be challenged” in the courts, he said.

The Administration cannot order the FCC and FTC, both independent agencies, to take any actions. While the executive order's more limited approach – petitioning the FCC for rulemaking and directing the FCC to 'consider taking action, as appropriate and consistent with applicable law' – is permissible, the FCC rules and FTC enforcement actions that result may be unlawful. Depending on the details, they may well violate the First Amendment rights of social media platforms or interpret Section 230 in a manner inconsistent with the statutory text, its intent, and its interpretation by the courts.

May 25, 2020 marks two years since the landmark General Data Protection Regulation (GDPR) came into force, and European regulators find themselves struggling to enforce a law that has burdened the economy through enormous compliance costs and created more confusion than clarity. Meanwhile in the US, recent concerns over contact tracing and public health data during the COVID-19 pandemic have underscored the tension between a person’s right to privacy and the public’s right to know. What lessons for U.S. policy can be learned through the mistakes of others? Three leading privacy experts take an in-the-trenches look at how our privacy laws work (or don’t), recent failures in the states and abroad, and what is on the horizon as state and federal lawmakers decide whether Europe’s privacy regulations belong on this side of the Atlantic.

It should not be a point of contention to say that the FCC is the agency of jurisdiction in commercial spectrum policy, but it appears to have become one. Federal law (and more than two decades of federal practice) makes clear the process by which federal agencies work with the FCC to construct a uniform, coherent federal policy. When those processes are not followed, as the Chair and Ranking Member of the House Energy & Commerce Committee ​recently observed​, the interests of the United States suffer and our international leadership on spectrum matters is compromised. In the case of the Ligado Networks license modification, the FCC meticulously followed these processes. The FCC fully consulted with relevant federal agencies at each stage of the process, and proceeded in a careful, deliberate, and open manner, properly balancing competing interests and protecting critical GPS operations.

Robert Bork’s consumer welfare paradigm, which has heavily influenced the evolution of antitrust analysis and enforcement over the past 42 years, is under attack. Critics from both parties assert not only that antitrust has been unable to keep up with developments in the high tech, finance, and communications industries, but also that competition law should be weaponized and used as a tool to address broader concerns such as privacy, inequality, and political viewpoint discrimination. In response, the DOJ and FTC have launched investigations into Amazon, Apple, Facebook, Twitter and Google. Meanwhile, the House Judiciary Committee has launched its own investigation into these companies and are also reviewing whether changes are necessary to existing antitrust laws. It is critical to understand the arguments at the core of the antitrust debate and what is motivating recent proposals. Will Robert Bork’s “consumer welfare” standard survive?

Robert Bork’s consumer welfare paradigm, which has heavily influenced the evolution of antitrust analysis and enforcement over the past 42 years, is under attack. Critics from both parties assert not only that antitrust has been unable to keep up with developments in the high tech, finance, and communications industries, but also that competition law should be weaponized and used as a tool to address broader concerns such as privacy, inequality, and political viewpoint discrimination. In response, the DOJ and FTC have launched investigations into Amazon, Apple, Facebook, Twitter and Google. Meanwhile, the House Judiciary Committee has launched its own investigation into these companies and are also reviewing whether changes are necessary to existing antitrust laws. It is critical to understand the arguments at the core of the antitrust debate and what is motivating recent proposals. Will Robert Bork’s “consumer welfare” standard survive? Featuring: Hon. Maureen K. Ohlhausen, Hon. Joshu...

How data privacy laws should be enforced remains a key flashpoint in the debates over potential data privacy legislation. Some argue that data protection laws will need a private right of action to have the teeth necessary to prevent consumer harm. What might the consequences of allowing litigation in this area be? What are the implications of the recent storm of litigation in state courts and in the 9th Circuit? And will we see many lawsuits coming out of the COVID-19 pandemic? Our panelists will give an update on recent data privacy litigation and discuss broader trends and implications for privacy law.

How data privacy laws should be enforced remains a key flashpoint in the debates over potential data privacy legislation. Some argue that data protection laws will need a private right of action to have the teeth necessary to prevent consumer harm. What might the consequences of allowing litigation in this area be? What are the implications of the recent storm of litigation in state courts and in the 9th Circuit? And will we see many lawsuits coming out of the COVID-19 pandemic? Our panelists will give an update on recent data privacy litigation and discuss broader trends and implications for privacy law.

In this virtual panel, legal and policy experts share their views of the court’s opinion, agency deference, and what is next in the net neutrality debate and in the courts.

Since World Intellectual Property Day is on April 26, it is a timely occasion for recognizing the vital role of copyright protections in encouraging innovation in the Digital Age. The strong protection of intellectual property in the Constitution and the Copyright Act has helped to make the U.S. the world's most prosperous society, and intellectual property protection of new technologies is particularly vital. Meanwhile, the Supreme Court is set to weigh in on the copyrightability of software in what will be the biggest copyright case in several decades. The Court’s ruling in Google v. Oracle is expected to set the standard for how thoroughly computer code is protected by copyright. In this virtual panel, legal experts weigh in on the case and share their views on the constitutional foundations of intellectual property rights and current issues in copyright law.

Last year, the D.C. Circuit issued its opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet. While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X , the Court also remanded three discrete issues for further consideration by the Commission: 1.) public safety; 2.) pole attachments; and 3.) the Lifeline program. These comments seek to address the implications of reclassification and of the Commission’s light-touch regulatory approach for public safety.

Automated valuation models (AVMs) – computer models typically employing artificial intelligence (AI) and used to estimate property values for loan decisions among other things – are at the center of one of the biggest trade secret cases and largest punitive damages awards in American history. The case, Title Source v. HouseCanary, was the subject of a recent Federalist Society teleforum.

Last year, the D.C. Circuit issued its opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s 2017 Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet.  While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X, the court also found that the agency lacked plenary preemption authority over state efforts to regulate the Internet under the FCC’s theory of the case. In this virtual panel, legal and policy experts share their views of the court’s opinion, agency deference, and what is next in the net neutrality debate.

The reauthorization comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI’s use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing “serious concerns about the accuracy and completeness” of the FBI’s FISA applications in that case.

The Committee for Justice filed comments with the Office of Management and Budget (OMB) regarding the draft memorandum to federal agencies, “Guidance for Regulation of Artificial Intelligence Applications.” The aim of our comments is to assist the executive branch in creating policies that will continue and advance America's leadership in artificial intelligence technology and innovation while also promoting America's values. Specifically, our comments address two of the "Principles for the Stewardship of AI Applications" discussed in the draft memo: 1) fairness and non-discrimination, and 2) disclosure and transparency.