The JCPA Stalls Again
But tacos are forever.
Each year from September 15 to October 15, Americans observe National Hispanic Heritage Month by celebrating the histories, cultures, and contributions of Americans whose ancestors came from Spain, Mexico, the Caribbean, and Central and South America. The start of Hispanic Heritage Month coincides with the Independence Day celebrations of several Latin American nations. It was on this day in 1821 that the future countries of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua all declared their independence from Spain. Through our enthusiasm for tacos, you can expect TechFreedom to take the lead in celebrating this month in the most delicious way! If you’re looking to celebrate in the DC area, the National Museum of the American Latino will be hosting a Dance Party on Friday and a Family Day and Concert on Saturday. Check out some other options to celebrate in your own kitchen as well.
Content Moderation. On Tuesday, Berin and Ari hosted a Twitter Space on the Journalism Competition and Preservation Act (JCPA), which had been on the agenda for markup again this week—although it was ultimately pulled at the last minute. Joined by Professor Mark A. Lemley of Stanford University, Prof. Anupam Chander of Georgetown University, and Nora Benavidez of Free Press Action, they explained why the JCPA raised serious First Amendment issues, how its scheme to fund small journalism providers would lead to legally mandated funding for conspiracy and hate sites, and why the JCPA’s surest beneficiaries might turn out to be the major media conglomerates. You can find a thread of the event on Twitter.
On Wednesday, Berin and Ari were also joined by several leading academic experts in a coalition letter to the Senate Judiciary Committee in advance of yesterday’s anticipated markup. While the latest amendments to the bill had partially addressed our concern that the JCPA would amount to a “must-carry” mandate for false or corrosive content, the bill would still have invited extensive and protracted litigation over content moderation. This in turn would deter platforms from moderating in the first place. It would even have forced platforms to pay for noxious content that they would never display because it violated their content rules. You can find Ari’s analysis of the bill on Twitter as well as last week’s coalition letter. Another markup in the coming weeks seems likely. If so, we'll be ready to address it again.
FTC. On Thursday, Bilal spoke at the FTC’s open meeting to discuss a longstanding agency position that harms U.S. consumers, and which the Commission can easily address. The Agency’s International Guidelines have consistently advanced the position that the principles underlying the Noerr–Pennington doctrine apply to the petitioning of foreign governments. That is, the FTC and DOJ will not challenge genuine efforts to obtain or influence action by foreign government entities, even if the intent or effect of that effort is to restrain or monopolize trade. The adoption of this position is not required by the case law, nor is there scholarly agreement that such a position is proper or correct. The Commission, in conjunction with DOJ, should reject this position and amend the International Guidelines accordingly. Check out Bilal’s Twitter thread of his remarks and Andy’s Twitter thread of the full meeting.
Berin spoke about the staff report on "Dark Patterns" approved at Thursday’s meeting. He reiterated what a leading popularizer of the concept told the Commission's workshop last year: the term is too vague to be useful in any legal context. The Commission will have to be much more specific in its legal claims. Read more on that in Berin's Twitter thread.
Berin, Bilal, and Andy submitted comments that placed their public remarks at last week's Commercial Surveillance and Data Security Rulemaking Forum into the written record of the FTC’s Advance Notice of Proposed Rulemaking (ANPR). You can find a full transcript of their remarks on our website. A video of the event is also online. You can view Bilal’s remarks at 3:07:16, Berin’s at 3:20:00, and Andy’s at 4:57:48. We look forward to submitting our formal comments on the ANPR next month.
Complexity. “Can ‘Sludge’ Kill Societies?” That’s the question Corbin asks this week at City Journal. “Sludge,” as used here, is Cass Sunstein’s term for the rules, clearances, protocols, committees, reviews, and other red tape that are choking governments, corporations, and other institutions. As Corbin explains, the problem of sludge is bad, and it’s getting worse. The piece touches on one of Corbin’s favorite books, The Collapse of Complex Societies by Joseph Tainter—who just appeared on Tech Policy Podcast #327. Share his essay on Twitter here. For more on how complexity affects public policy, tune into “Antitrust and the End of the World,” a talk Corbin gave last October (skip to 23:15), or Tech Policy Podcast #307, with guest Neil Chilson. Neil and Corbin present a paper on these themes next month at the Mercatus Center’s Markets & Society Conference. Stay tuned.
Fifth Circuit, coming in from the top rope!