Valentine's Day, the Super Bowl, and the EARN IT Act markup
Which of those three events (equally important, of course) has gone the best for you so far? Plus, an event and our thoughts on the Open App Markets Act, broadband, nondelegation, and more.
Happy Valentine’s Day from us at TechFreedom! This year, the holiday follows immediately after the Super Bowl — apparently, for the first time in history. As you can imagine, this scheduling has elicited some… mixed reactions. But indisputably, some form of Valentine’s Day has been around a whole lot longer (read: about a millennium and a half). Just something to remind your partner of if they forget to pick up those flowers for you this morning.
Our Valentine last week seemed to be the EARN IT Act. Despite our contentious relationship, we sure spent a lot of time together! Read further for all the Valentine’s Day tweets and letters we’ve “gifted” the bill.
EARN IT. The fight against EARN IT kicked into full gear last week, with the Senate Judiciary Committee holding a markup of the bill on Thursday. Prior to the hearing, we sent a letter to the committee proposing five amendments that would at least make the bill less terrible, and we signed on to a letter opposing the bill joined by a broad coalition of civil liberties, human rights, LGBT, and civil society groups. Ari was also quoted in Spectator World on why the bill is so bad, and the Washington Times quoted our letter to the committee. Ari and Berin both live-tweeted the painfully short and shallow committee markup, and they followed up with an article in TechDirt running down the top ten mistakes that senators made at the committee meeting (which Ari also reviewed in a Twitter thread).
Competition. Since its markup, we’ve continued to highlight the grave issues that S. 2710 (the Open App Markets Act) presents for content moderation and user safety. Bad actors could weaponize it against content moderation by portraying restrictions on their content as a guise for illegal, anticompetitive activity. As Berin pointed out in a conversation with Protocol, the only reason a rational legislator would not support an amendment to this language is if they wanted to “abuse this bill as a weapon against content moderation.” Both the Brookings Institution and the National Taxpayers Union Foundation also cited our critiques of the Open App Markets Act this week. Check out our letters to the committee and Twitter threads for more info on the bill.
On Thursday, Bilal hosted a webinar titled GAFAM Acquisition Activity: Does it Merit Special Merger Rules, with economists Liad Wagman, Jay Ezrielev, and Julie Carlson. Liad presented new research analyzing and categorizing the acquisition activity of Google, Amazon, Facebook, Apple and Microsoft (GAFAM), and compared it to the acquisition activity of seventy five other large firms — tech firms, non-tech firms, and private equity firms. Jay’s presentation argues the problem with the current debate on GAFAM acquisitions is the lack of empirical evidence from critics who argue GAFAM acquisitions could be anti-competitive — making their argument largely theoretical. And Julie’s presentation reminds us that in many cases it is more profitable for the innovator to be acquired than to compete head-to-head with the incumbent. By shutting down this exit strategy for venture-backed start-ups, you’re eliminating a key source of incentive for innovation. In short, the discussion that followed makes it very clear that there is no good support for special merger rules for the five companies. See a list of all papers discussed here.
FCC. Jim was quoted in S&P Global about the continued delay in getting Gigi Sohn confirmed to the FCC, and rumors circulating that there have been a number of recusal agreements reached. The tweet from the author sums it up: at some point the White House has to consider pulling the nomination if this drags on indefinitely, as a 2-2 FCC can’t tackle the more partisan aspects of President Biden’s communications agenda without a third commissioner.
Broadband. Jim filed comments with NTIA concerning how it will administer the $48 billion allocated by Congress as part of the Bipartisan Infrastructure Act. You can read our press release here, as well as our Twitter thread. In short, it’s an unprecedented amount of money being spent without the maps showing where it should be spent, or adequate coordination between the various federal agencies racing to spend money through multiple different programs. We ask the fundamental question: Is this just about spending money, or actually closing the Digital Divide? We have our doubts as to the latter.
Supreme Court. Last week, we discussed Corbin’s new paper exploring how the Supreme Court should revamp the constitutional bar on delegation, to administrative agencies, of Congress’s legislative authority. The original version of the paper, published at the WLF Legal Pulse, was listed in the GW Regulatory Studies Center’s Regulation Digest. Last week we republished the paper on our Substack. If you’re interested in administrative law, you should check it out. The paper is also worth a read if you follow the FTC. A critique of Lina Khan’s understanding of Section 5 of the FTC Act plays a central role in Corbin’s analysis.
Speaking of administrative law, on the latest Tech Policy Podcast, Corbin talked with a leading Supreme Court practitioner about one of the year’s most important admin law cases. Andrew Grossman, a partner at BakerHostetler and an adjunct scholar at the Cato Institute, told Corbin all about West Virginia v. EPA. On the surface, West Virginia is a tangled and arcane dispute about the meaning of an obscure provision of the Clean Air Act. But the case is likely to touch on, if not significantly change, the key administrative and constitutional law doctrines — nondelegation and major questions — that Corbin examines in his new paper.