Today the Supreme Court hears oral argument in Van Buren v. United States, which presents the Court with its first opportunity to interpret the Computer Fraud and Abuse Act (CFAA), a 1986 federal statute that punishes unauthorized access of computers. The Committee for Justice filed an amicus brief with the Court in support of Nathan Van Buren, a police officer who was charged with a felony under the CFAA for obtaining a license plate number for personal reasons from a law enforcement database he was otherwise authorized to use.
Our panel of experts discuss antitrust federalism, the complexities of state enforcement actions, and how state antitrust law can differ from federal law (and why that’s potentially a problem). We also delve into the current investigations as well as one of the last major multi-state antitrust actions, Ohio v. American Express.
On October 7th, the Supreme Court heard oral arguments in Google v. Oracle, as the two companies battle over 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 discuss any insights from oral argument.
On October 7, 2020, the Federalist Society's Pennsylvania Student Chapter and the Regulatory Transparency Project co-sponsored an event on "Antitrust Populism and the Conservative Movement." During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. “In law school, I never understood [antitrust law],” Scalia explained, “I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.” Some contend that the much-needed coherency in antitrust law was brought about by the Chicago School revolution and the adoption of the consumer welfare standard.
Today, the Committee for Justice provided a statement for inclusion in the record of the Subcommittee’s September 15th hearing, “Stacking the Tech: Has Google Harmed Competition in Online Advertising?” The letter was submitted by a group of legal experts, economists, and consumer and taxpayer advocates who believe in the importance of promoting competitive markets and defending the rule of law.
Committee for Justice president Curt Levey issued the following statement:
Washington, D.C. -- The Committee for Justice decided to get involved in this case because several of the issues at stake – including overcriminalization, fair notice, the rule of lenity, and the federal-state balance in criminal law – are at the heart of CFJ's mission of promoting the rule of law and preserving the Constitution's limits on federal power and its protection of individual liberty.
While the language of the CFAA is arguably ambiguous, the government's reading, which would make it a crime merely to access a computer or the internet for an unauthorized purpose, cannot be correct. As our brief points out, its reading would "weaponiz[e] every set of computer use guidelines and every website’s terms of service, it would make a criminal of nearly everyone—public officials and ordinary citizens alike."
Commissioner O’Rielly served for many years as a leading policy analyst and advisor to the House and Senate Commerce Committees. At the FCC, Commissioner O’Rielly has stayed true to a Constitutionalist regulatory philosophy focused on the rule of law and economic freedom, and regulatory intervention only when it is justified and narrowly tailored. He has built an impressive record of achievements with distinguished leadership on many critical issues including spectrum; 5G and wireless services; broadcast and media; regulatory modernization; FCC process reform; internet freedom; and combatting corruption, waste, fraud, and abuse.
Our panel last month discussed Robert Bork’s consumer welfare standard, which has heavily influenced the evolution of antitrust analysis and enforcement over the past 42 years, and how Bork’s paradigm is under attack. Many defenders of the rule of law are concerned with the populist notion that competition law should be weaponized and used as a tool to address broader socio-economic concerns. Furthermore, adopting populist proposals that seek to rewrite antitrust law would upend more than a century of legal and economic learning and progress. This week, we will dive deeper into the recent populist antitrust movement and how the failure to distinguish between the proper and improper uses of antitrust laws poses a threat to the rule of law.
Only Congress can remove 230, so the EO empowers the administrative state, said Committee for Justice Director-Public Policy Ashley Baker. “It’s also notable that it does so by asking the NTIA to direct the FCC to make rules,” she said. “Since the FCC is an independent agency, the president cannot directly order it to do this.”
Curt Levey, president of the limited government nonprofit Committee for Justice, said fact-checking becomes a “no-win situation” for social media companies if they face legal challenges for their decisions. “We don’t know what the 230 landscape is going to look like years from now,” he said. “The safest thing to do would be to stop fact-checking. No one is going to sue you for not fact-checking...”
Journalists and academics seem convinced that artificial intelligence is often biased against women and racial minorities. If Washington’s new facial recognition law is a guide, legislators see the same problem. But is it true? It’s not hard to find patterns in AI decisions that have a disparate impact on protected groups. Is this bias? And if so, whose?
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.