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As the country reels from a Presidential debate that left no one looking good, the Supreme Court has swooped in with what could be one of the most consequential decisions it has ever made, in the context of the tech industry. By reversing a 40-year-old decision, the court has opened up regulators to endless interference by industry and the whims of judges as compromised and out of touch as they are.<\/p>\n
The Supreme Court announced Friday morning that it had ruled 6-3 (you know who voted how) to overturn Chevron v. Natural Resources Defense Council, a case from 1984 that established a very important doctrine in federal regulation.<\/p>\n
Federal law is by necessity broad, applying as it does across so many jurisdictions. Furthermore, some laws stay on the books for decades without modification. And so each law\u2019s wording \u2014 just like the Constitution \u2014 requires interpretation, a task spread among all parties in the legal system, from lawyers to justices to amici curae<\/em>.<\/p>\n The 1984 Chevron decision established that independent agencies like the EPA, SEC, and FCC also have a say in this. In fact, the decision found, in cases where the law is ambiguous, the courts must defer to these agencies in their capacity as experts in their fields.<\/p>\n As an example, think about something like the Clean Water Act providing certain legal protections for wetlands. Who defines whether a plot of land counts as wetlands? It can\u2019t be interested parties like heavy industry or nature advocacy groups, since their interpretations will likely be mutually exclusive. And what are the chances that whatever judge gets handed the case has any expertise in the matter? Instead, in such cases, the EPA, staffed with notionally disinterested experts on wetlands, is empowered to settle ambiguities.<\/p>\n All right, so what do wetlands and the EPA have to do with technology? Well, who do you think defines \u201cencryption\u201d in law, or \u201ccommunications,\u201d \u201csearch and seizure,\u201d or \u201creasonable expectation of privacy\u201d?<\/p>\n The entire concept of net neutrality<\/a> is perched atop the FCC\u2019s interpretation of whether broadband data is an \u201cinformation service\u201d or a \u201ccommunications service,\u201d the terms written in the act empowering that agency.<\/p>\n If the FCC is not empowered to settle this ambiguity in a very old law that was written well before today\u2019s broadband and mobile networks, who is? Whatever court takes the case brought by the telecommunications industry, which hates net neutrality and would prefer an interpretation where the FCC doesn\u2019t regulate them at all. And if the industry doesn\u2019t like that court\u2019s interpretation, it gets a few more shots as the case rises towards \u2014 oh, the Supreme Court.<\/p>\n Interesting, remarked Justice Elena Kagan (as quoted by court reporter Amy Howe<\/a>), that in \u201cone fell swoop\u201d the court had granted itself \u201cexclusive power over every open issue \u2014 no matter how expertise-driven or policy-laden \u2014 involving the meaning of regulatory law.\u201d In other words, the Supreme Court assigned itself <\/a>the powers currently exercised by every regulatory agency in the country.<\/p>\n Tech\u2019s play for time pays off<\/strong><\/p>\n Why is this so consequential for tech? Because the tech industry has been facing down a wave of regulatory activity <\/a>led by these agencies, operating in the vacuum of Congressional action. Due to a lack of effective federal laws in tech, agencies have had to step up and offer updated interpretations of the laws on the books.<\/p>\n Tech leaders have loudly and repeatedly asked for federal laws<\/a> \u2014 not agency regulations \u2014 defining and limiting their industries. \u201cPlease,\u201d they cry, \u201cGive us a federal privacy law! Pass a law on location data! Pass a nice big law about how artificial intelligence should be used!\u201d<\/p>\n They know very well that Congress is almost incapable of passing any such laws, partly because tech industry lobbyists quietly fight them in the background whenever one with teeth is proposed. You will be shocked to find out that despite a decade or more of tech asking for these laws, few or none have actually appeared! And when California passes one<\/a>, they all lament: not like that<\/em>! The pleas are made with fingers crossed, purely for optics.<\/p>\n Let us be optimistic for once and imagine that Congress passes a big law on AI, protecting certain information, requiring certain disclosures, and so on. It\u2019s impossible that such a law would contain no ambiguities or purposeful vagueness to allow for the law to apply to as-yet-unknown situations or applications. Thanks to the Supreme Court, those ambiguities will no longer be resolved by experts.<\/p>\n (As an example of how this will play out, in the very decision issued today, Justice Gorsuch repeatedly referred to nitrogen oxide, a pollutant at issue, as nitrous oxide, laughing gas. This is the level of expertise we may expect.)<\/p>\n Every law has ambiguities. And at the frontiers of technology, ambiguity is even more common, since there is no precedent and lawmakers do not understand technical matters.<\/p>\n And so, looking forward, who defines \u201cartificial intelligence,\u201d or \u201cscrape\u201d or \u201cpersonal information,\u201d or \u201cinvasive\u201d? Yesterday, it might have been the FCC or FTC, which with their experts in technology, industry, markets, and so on, would have made an informed decision and perhaps even solicited public opinion, as they often do in rulemaking processes. Today, it will be a judge in whatever state an industry decides has the friendliest or most gullible bench.<\/p>\n