FTC rulemaking and space satellites and FISA — oh my!
Plus, our takes on the common carrier theory and Section 230.
While the 2000s are often considered the second golden age of television (feel free to debate this point with Edie Falco’s three Emmys for “The Sopranos”), the 2020s may be emerging as a new golden age for reality TV. Rather than just showing us footage of wacky people doing silly things with each other à la Jersey Shore, reality shows are developing increasingly complex — and often interesting — premises. The season finale of “The Circle,” a show centered around contestants, isolated in separate apartments, angling to impress each other as catfish or their real selves over a custom social media network, aired this week on Netflix. Believe it or not, this show concept came about before COVID-19.
However, some things never change. The upcoming season of “The Bachelorette” comes out in mid-October, and while the Bachelor franchise has been around for almost 20 years, poking a bit of fun at its eccentric contestants never gets old. This season, Bachelorette Michelle will be treated to Jack, a military man who (one must hope) passed basic training but can’t be near a humble onion without getting sick. She’ll also meet JoMarri, who allegedly eats a whole watermelon every morning. Quirky! And they said D.C. dating was bad…
FTC. We filed comments on two FTC petitions for rulemaking filed by the Open Markets Institute. Jim explains why jumping right to a rulemaking proceeding aimed at banning non-compete clauses is not supported by adequate evidence, and will probably harm workers by reducing wages and opportunities to receive stock options and/or equity in exchange for agreeing to not compete directly for a limited period of time. Bilal explains that the proposed ban on exclusionary contracts applied to companies with a market share above 30% isn’t remotely supported by the cases Open Markets cites, which all involve cases involving companies with much, much higher market shares. Rather, the OMI Petition seeks to eliminate the right of firms to present efficiency justifications for entering into exclusive agreements, in matters before the FTC. Berin and Corbin explain, in detail, why the FTC just doesn’t have the legal authority to make rules defining unfair methods of competition — and why the 1973 case the FTC invokes is a “pile of sand.” We’ll also soon be announcing an exciting new project related to the FTC’s operations and scope of authority — stay tuned!
Common Carriage. We never tire of pointing out the flaws in the theory that social media can be treated like common carriage. Last Friday, Corbin was at it again in a new essay, published as a “Legal Backgrounder” by Washington Legal Foundation, that critiques the common carrier theory through the lens of the litigation over Florida’s (now-blocked) online speech code. As Corbin explains, that litigation has confirmed that “various arguments in favor of the common carrier theory don’t work,” and that “the orthodox view, under which social media websites enjoy a First Amendment right of editorial control, remains sturdy and sound.” Web version of the essay here. Print (pdf) version here. Coverage of Corbin’s paper at The Volokh Conspiracy can be found here.
Space Law. Lawyers wait their whole careers to write a brief on a topic like “Does law [x] apply in space?” Our time has come! This week, in the D.C. Circuit, we opposed a business rival’s cynical effort to use a procedural law to obstruct SpaceX’s satellite Internet project. The party using the National Environmental Policy Act to oppose SpaceX’s satellite project is a competitor whose ultimate goal is … to launch its own satellites. As we argue, NEPA does not apply in space to begin with. Also, if we hobble American satellite Internet projects, other nations, such as China, will fill the space (as it were). The full brief is here. Also check out the press release, the Twitter thread, and Corbin’s earlier article on the case at The Bulwark.
Domestic Surveillance. We joined an amicus brief in FBI v. Fagaza, a Supreme Court case on the scope of the Foreign Intelligence Surveillance Act’s special review procedures for “state secrets” evidence. The dispute revolves around whether those procedures can be used in a suit brought against the government by a private civil plaintiff. But the brief we joined focuses on a more fundamental issue: the government’s long history of misleading the secret FISA court into letting the government engage in sweeping and illegal surveillance. As the brief explains, this pattern of abuse highlights the importance of a private civil remedy for parties subjected to unwarranted government snooping. We’re grateful to the Brennan Center, the brief’s principal party, for letting us join in their call for a more accountable national-security surveillance system.
Antitrust. Next Thursday, October 7, Corbin will be speaking at an event alongside former FTC commissioner Joshua Wright. They’ll be discussing the value of clear and predictable antitrust rules (starting, of course, with the consumer welfare standard). Register here.
Section 230. Business school professors, like everyone else, have a tendency to write about Section 230 without actually understanding Section 230. Last week, Ari took on the genre's latest entry. In a Twitter thread, he dissected MIT professor Michael Cusumano's article in Communications of the ACM Magazine, explaining everything from the basics of Section 230 (no, there's no neutrality requirement), to political science 101 (no, the Department of Justice can't write laws), to First Amendment law (no, you can't generally sue or arrest people for misinformation), and even a little bit of philosophy (no, general user trust in “the Internet” isn’t a common resource vis-a-vis tragedy of the commons)!