Watching and being watched
That's right — we're talking about Netflix and next Monday's surveillance case before SCOTUS. Plus, our thoughts on the constitutionality of FTC rulemaking and the right to record police officers.
Earlier this week, many of us were obsessively watching the election results in Virginia and New Jersey come in. But with those elections behind us, we can get to watching some new polls — the interactive ones that rolled out this fall on Netflix. In September, Netflix started testing a new feature: Viewers can weigh in on deeply important reality TV controversies in real time and see if their fellow watchers agreed.
This brand of interactivity doesn’t transform Netflix’s shows into a “choose your own adventure” program, like Black Mirror’s freaky “Bandersnatch” episode. (This should come as a relief to anyone who’s played “Bandersnatch” and doesn’t fancy seeing their favorite Love Is Blind personalities murdered onscreen.) So far, it doesn’t even affect eliminations or other outcomes, like the polls on American Idol have for years. The point is to make watching TV a more interactive experience that can compete with video games for Gen Zers’ attention.
This week, while watching Too Hot to Handle with my roommate (has a more early-20s sentence ever been spoken?) I discovered that Netflix kept the polls around. We encountered such thought-provoking questions as “At the end of the day, will David make his mum go into hiding?” Hopefully Netflix uses this power responsibly. I can’t imagine polls on Squid Games would go over swimmingly.
FTC. This week Corbin was busy spreading the word that — as we argued in comments a few weeks ago and in the first panel of our fall webinar series — the FTC may not issue binding rules defining “unfair methods of competition.” In an essay published by Law & Liberty, Corbin explained that UMC rules not only aren’t permitted under the FTC Act, but also probably aren’t allowed under the Constitution. (Rules issued by an agency under an open-ended grant of authority—what does “unfair” mean?—would be “legislative” in nature, yet the Constitution gives all “legislative Powers” to Congress.) The same day the essay went up, Corbin touched on similar themes while speaking at a webinar sponsored by the Federalist Society’s Regulatory Transparency Project. Watch that event, called “FTC’s Revolution Through Rulemaking,” here.
You can also register for our next webinar on FTC rulemaking, “Should the FTC Ban Exclusive Contracts?”, here, and retweet it here.
Surveillance. On Monday, the Supreme Court will hear oral argument in FBI v. Fazaga, an important case on the meaning and scope of the Foreign Intelligence Surveillance Act. If you’d like a preview of the argument—or if you’re interested in FISA, national security, or civil liberties!—the latest episode of the Tech Policy Podcast is for you. Elizabeth (Liza) Goitein, co-director of the Brennan Center for Justice’s Liberty & National Security Program, joins the show to discuss the case, the upcoming oral argument, and the broader flaws in the FISA framework. If you like the podcast, be sure to check out the amicus brief that the Brennan Center—joined by us—filed in the case.
First Amendment. On Monday, the Supreme Court declined to review a ruling that granted qualified immunity to police officers who illegally searched a bystander's tablet in an attempt to delete videos that he took of them beating a suspect—despite the fact that the officers' training warned them that such action would violate the First Amendment. Ari explained to Reason that allowing these rulings to stand will only embolden police to violate citizens' constitutional rights even when they know what they are doing is unlawful.