Your weekly dose of tech policy
Did you miss us since last week? This time around, we covered satellite systems, the Universal Service Fund, Elon Musk's purchase of Twitter, disputes over the power of the FTC, and more!
Boy, do I have a lot of news to share with you this week! We at TechFreedom have been wonderfully busy—though maybe not quite as busy as Elon Musk, who apparently tuned in for a 10pm meeting on engine design for SpaceX the day he bought Twitter.
For the sake of your time, I’ll keep things brief up here and share with you one of my favorite recent tech developments to read about: DALL-E. DALL-E is a neural network that allows users to type in a description and generate a matching image, often with an incredible degree of detail. A new iteration, DALL-E 2, builds on the original concept and includes new capacities, too, like image editing. It’s interesting stuff! But, like any other innovation, it could also be used nefariously. Let me know what you think: Will DALL-E 2 be an artistic renaissance, a misinformation catalyst, or both?
FCC. On Monday, Jim submitted reply comments to the FCC regarding efficient ways for Non-Geostationary Orbit (NGSO) satellite systems to share spectrum between licensees within the same processing round. In his comments, Jim discusses that we are in the midst of a satellite revolution that requires the Commission to demand and reward innovation in spectrum efficiency and sharing. The agency should implement changes which lead to a more frictionless regulatory system, including implementation of the the shortest sunset period of protection for early-round licensees without imposing undue costs on operators.
On the latest Tech Policy Podcast, Jim and Corbin discuss the Universal Service Fund. Though its goal—to help bridge the digital divide—is laudable, the USF is a badly structured, badly run, wasteful, much abused, unsustainable program. Jim and Corbin had a good rant about it! We’ve been doing a lot of work in this area. For more, see Jim’s piece for the Regulatory Transparency Project, “The Arrival of the Federal Computer Commission?”; Corbin’s piece at Law & Liberty, “No Legislation Without Representation”; our recent comments to the FCC on the future of the USF; and our recent amicus brief on the unconstitutionality of the private entity that oversees the USF, the Universal Service Administrative Company.
Berin was quoted in the Washington Examiner on Monday regarding the delayed confirmation for nominees at the FCC and FTC. Berin notes that it seems the White House may not care that much about their tech agenda and doesn’t see it as a priority because the clock is ticking. He also notes that time is short for the administration to move forward with their agenda because rule-making requires an extensive process and there will be challenges and court cases.
Innovation. On Tuesday, Andy appeared on the Young Voices radio program, “Moving Forward.” Andy discussed his op-ed in Techdirt from earlier this month, which encouraged the federal government to consider a regulatory sandbox for technology start-ups. No need to scroll ahead in the video interview as Andy was the first speaker!
Content Moderation. So it looks like Elon Musk really is buying Twitter. City Journal published Corbin’s take—a follow-up to his earlier piece—shortly after the deal was announced. Musk “is promising to make speech on Twitter ‘as free as is reasonably possible,’” Corbin writes, “and that ‘reasonably’ will be doing a lot of work.” Musk simply doesn’t seem to understand how difficult content moderation is. The day after his piece went up, Corbin appeared on City Journal’s weekly podcast, 10 Blocks. The topic of the show—to use City Journal’s billing—was “Elon Musk’s successful bid for Twitter and its implications for free speech, tech regulation, and the Internet.”
Ari appeared on WTTW’s “Chicago Tonight” television program to add his thoughts about how Musk’s purchase could impact Twitter’s policies and the challenges he might encounter bringing his vision for the platform to fruition.
Content moderation and the First Amendment also factored into recent news with Ron DeSantis’s war on Disney for daring to criticize recent legislation. Last week, he announced that the state would (and the legislature did) eliminate the theme park owner exception in Florida’s since-enjoined social media law, and strip Disney of its special tax district. Ari was quoted in Spectator World and Hot Air explaining that DeSantis’s crusade of revenge against protected speech would be hard for judges to ignore, and made a constitutional question out of legislative moves that might otherwise be permissible.
FTC. Lacking a full set of commissioners, the FTC has been rather quiet lately. But that is likely to change soon. Still on the horizon: a dispute over whether the FTC can use Section 6(g) of the FTC Act to issue binding substantive rules. This week, Corbin participated in a symposium on that question hosted by our friends at the Truth on the Market blog. One (and only one) judicial authority—National Petroleum Refiners v. FTC (D.C. Cir. 1973)—supports the notion that the FTC has Section 6(g) substantive rulemaking authority. Corbin’s contribution to the symposium is a detailed critique of that decision, as well as a paean to the far superior trial court decision that it overturned. For more on why Section 6(g) is not a “substantive” rulemaking provision—including why such a reading would violate Article I of the Constitution—see Corbin’s essay in City Journal, “Is Lina Khan Courting a SCOTUS Rebuke?”, his essay at Law & Liberty, “Pride Before the Fall at the FTC?”, his appearance at the FedSoc event “FTC’s Revolution Through Rulemaking,” and, above all, Berin and Corbin’s September 2021 comments to the FTC.
Earlier today, Andy also got in on some FTC action, live-tweeting the FTC’s April open meeting. Most notably, the meeting included a presentation on Section 13(b) of the FTC Act. The presentation focused on the Supreme Court’s decision in AMG v. FTC, which held that Section 13(b) of the FTC Act does not authorize the Commission to seek, or a court to award, equitable monetary relief like restitution or disgorgement. Although the Commissioners agreed on the importance of 13(b) and requested a statutory fix, Commissioner Wilson warned the agency against stepping beyond its statutory authority. “I'm not confident the current Commission leadership has demonstrated the leadership to walk that path, which would be a detriment of the FTC.”
Follow us on Twitter! Corbin @CorbinKBarthold; Bilal @BilalKSayyed; Andy @AndyJungTech; Jason @JasonKuznicki; me (Rachel) @MillionthRachel; Berin @BerinSzoka; Ari @AriCohn.