The US Supreme Court just ended its term with a torrent of controversial decisions, squashing efforts to take Donald Trump off the ballot and extending presidential immunity.
The court term was also monumental for tech. Although the Court avoided making tough decisions about how to deal with hate and dangerous speech, it gutted the power of expert Executive Branch agencies – creating a giant obstacle to regulation. It moved that power to slow-moving courts that lack expertise in technology.
The European Union has been racing to regulate tech. New regulations bolster control over artificial intelligence, increase platforms’ responsibility for combatting illegal content, and bolster antitrust oversight of the largest digital companies. The Supreme Court ensures the US won’t be able to enforce similar regulations until dozens (or hundreds) of court cases are resolved.
Here’s why: the court overturned a 40-year-old legal precedent called the Chevron doctrine. Under Chevron, regulatory agencies enjoyed the power to interpret the law. When the law was unclear, courts deferred to agencies to clarify. From now on, agency interpretations no longer receive deference; instead, the courts control disputes.
The Chevron doctrine started with a disagreement over the term “source” in the Clean Air Act; The Supreme Court decided the Environmental Protection Agency, not the judiciary, should interpret the term. In his decision, former Justice John Paul Stevens argued agencies were best positioned to interpret the Clean Air Act because agencies had expertise, were elected and accountable, and the Constitution locates these responsibilities in the “political branches.”
Although Chevron dealt with environmental regulation, it gave all administrative agencies the power to interpret and apply the law to do their jobs without constantly having to litigate every under-defined term in the law. This is crucial for technology. Technologies change and develop faster than Congress legislates; the law is always a few steps behind the newest technology. Administrative agencies enforce regulations and figure out how old laws apply.
Consider cryptocurrencies. No clear law regulates them, so the Securities and Exchange Commission must interpret past laws to address new problems. From now on, instead of giving deference to the SEC, disputes will be kicked over to the courts. Agencies will have to go through slow, expensive lawsuits over the wording of vague statutes, arguing to judges about whether historical terms in law apply to new technologies. And judges’ grasp of technology is, at best, questionable.
Of course, Congress could legislate, but that’s not likely. Congress is slow, especially when the chambers are divided. Congress also has serious issues with tech literacy. Even if legislators got their act together, new regulations would still be subject to expensive lawsuits.
By hobbling agencies, the Supreme Court slowed and muddied the long road to regulate technologies. If the Federal Communications Commission says a term should be interpreted one way and a telecom company like Time Warner or Comcast says it should be interpreted differently, the courts must decide. In previous oral arguments, Elena Kagan pointed out that the nine Supreme Court justices are not “the nine greatest experts on the Internet.” But they’re now responsible for determining how existing law applies to the Internet.
In other decisions, the Court constructed other obstacles to US tech regulation. It preserved the right of social media platforms to moderate their platforms. Conservatives had aimed to stop what they derided as “censorship.” Both Texas and Florida passed laws restricting Facebook and YouTube. A tech industry’s trade group, NetChoice, demanded that the laws be struck down. However, the Supreme Court decided it didn’t have enough information, kicking the cases back to the circuit courts for further litigation.
In her decision for the majority on NetChoice’s lawsuit against Florida, Justice Kagan said that the platforms enjoy First Expression rights when they moderate user posts. Texas and Florida are not entitled to violate these rights just because they don’t like decisions made by Facebook and YouTube. The platforms are free to host or take down posts as they see fit. A state “may not interfere with private actors’ speech to advance its own vision of ideological balance,” Kagan wrote.
All in all, the Supreme Court has ensured that US tech regulation will remain light touch. Its rulings will make it hard to reach a common transatlantic vision for the Internet. Europe is developing robust regulations; the US will remain the Wild West.
Joshua Stein recently completed a postdoctoral fellowship at the Georgetown Institute for the Study of Markets and Ethics. His work focuses on ethics, technology, and economics.
Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
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