Ruling could dampen government efforts to rein in Big Tech
The Supreme Court’s latest climate change ruling could dampen efforts by federal agencies to rein in the tech industry, which went largely unregulated for decades as the government tried to catch up to changes wrought by the Internet.
In the 6-3 decision that was narrowly tailored to the Environmental Protection Agency, the court ruled, Thursday, that the EPA does not have broad authority to reduce power plant emissions that contribute to global warming. The precedent is widely expected to invite challenges of other rules set by government agencies.
“Every agency is going to face new hurdles in the wake of this confusing decision,” said Alexandra Givens, the president and CEO of the Center for Democracy and Technology, a Washington-based digital rights nonprofit. “But hopefully the agencies will continue doing their jobs and push forward.”
The Federal Trade Commission, in particular, has been pursuing an aggressive agenda in consumer protection, data privacy and tech industry competition under a leader appointed, last year, by President Joe Biden.
Biden’s picks for the five-member Federal Communications Commission have also been pursuing stronger “net neutrality” protections banning Internet providers from slowing down or blocking access to websites and applications that don’t pay for premium service.
A former chief technologist at the FTC during President Donald Trump’s administration said the ruling is likely to instill some fear in lawyers at the FTC and other federal agencies about how far they can go in making new rules affecting businesses.
The court “basically said when it comes to major policy changes that can transform entire sectors of the economy, Congress has to make those choices, not agencies,” said Neil Chilson, who is now a fellow at libertarian-leaning Stand Together, founded by the billionaire industrialist Charles Koch.
Givens disagreed, arguing that many agencies, especially the FTC, have clear authority and should be able to withstand lawsuits inspired by the EPA decision. She noted that Chief Justice John Roberts, who wrote the opinion, repeatedly described it as an “extraordinary” situation.
Givens is among the tech advocates calling for Congress to act with urgency to make laws protecting digital privacy and other tech matters. But she said laws typically stay on the books for decades, and it’s unrealistic to expect Congress to weigh in on every new technical development that questions an agency’s mandate.
“We need a democratic system where Congress can give expert agencies the power to address issues when they arise, even when those issues are unforeseen,” she said. “The government literally can’t work with Congress legislating every twist and turn.”