Supreme Court Hides US Technical Regulations

As Europe races ahead with digital regulation, a series of Supreme Court rulings are blocking U.S. efforts to combat the internet’s problems.

The United States Supreme Court just ended its term with a series of controversial decisions, thwarting efforts to remove Donald Trump from the ballot and extending his presidential immunity.

The court’s tenure was also monumental for technology. While the court avoided making tough decisions about how to deal with hate and dangerous speech, it stripped expert agencies of power from the executive branch—creating a giant obstacle to regulation. It transferred that power to slow-moving courts that lacked technology expertise.

The European Union is racing to regulate technology, with new rules tightening controls on artificial intelligence, holding platforms accountable for cracking down on illegal content and strengthening antitrust oversight of the largest digital companies. The Supreme Court is ensuring that the United States won’t be able to enforce similar rules until dozens (or hundreds) of lawsuits are resolved.

Here’s why: The court overturned a 40-year-old legal precedent known as the Chevron Doctrine. Under Chevron, regulatory agencies had the authority to interpret the law. When the law was unclear, courts would refer it back to the agencies for clarification. Since then, agency interpretations have no longer been treated with deference; instead, courts control disputes.

The Chevron Doctrine began with a misunderstanding of the term “source” in the Clean Air Act; the Supreme Court ruled that the Environmental Protection Agency, not the judiciary, should interpret the term. In his decision, former Justice John Paul Stevens argued that agencies are best positioned to interpret the Clean Air Act because they have the expertise, are elected, and are accountable, and the Constitution places those responsibilities with “political branches.”

Although Chevron was concerned with environmental regulation, it gave all administrative agencies the authority to interpret and apply the law to carry out their duties without having to constantly litigate every vague term in the law. This is essential for technology. Technologies change and develop faster than Congress can legislate; the law is always a few steps behind the latest technology. Administrative agencies enforce the regulations and determine how old laws apply.

Consider cryptocurrencies. There is no clear law governing them, so the Securities and Exchange Commission must interpret old laws to solve new problems. Instead of paying homage to the SEC, disputes will now be thrown into the courts. Agencies will have to go through slow, expensive lawsuits over the wording of obscure statutes, arguing before judges whether historical legal terms apply to new technologies. And judges’ understanding of the technology is questionable at best.

Sure, Congress could pass legislation, but that’s unlikely. Congress is slow, especially when the chambers are divided. Congress also has serious technological competence issues. Even if lawmakers got to work, new regulations would still be subject to expensive lawsuits.

By limiting agencies, the Supreme Court has slowed and muddied the long road to regulating technology. If the Federal Communications Commission says a term should be interpreted one way and a telecommunications company like Time Warner or Comcast says it should be interpreted another way, the courts must decide. In previous oral arguments, Elena Kagan pointed out that the nine justices of the Supreme Court are not “the nine greatest experts on the Internet.” But now they are responsible for determining how the existing law applies to the Internet.

In other decisions, the court has constructed other barriers to tech regulation in the U.S. It has preserved the right of social media platforms to moderate their platforms. Conservatives sought to rein in what they derided as “censorship.” Both Texas and Florida have passed laws restricting Facebook and YouTube. A tech industry trade group, NetChoice, has sought to overturn those laws. But the Supreme Court has ruled there was insufficient information, sending the cases back to the district courts for further litigation.

In her majority decision in NetChoice v. Florida, Justice Kagan found that platforms enjoy First Expression rights when they moderate user posts. Texas and Florida have no right to violate those rights simply because they disagree with decisions made by Facebook and YouTube. The platforms are free to host or remove posts as they see fit. The state “may not interfere with private speech in order to advance its own vision of ideological balance,” Kagan wrote.

In short, the Supreme Court has ensured that US tech regulation will remain benign. Its rulings will make it harder to achieve a shared transatlantic vision for the internet. Europe is developing robust regulation; 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 technology policy cooperation. All opinions are the author’s own and do not necessarily reflect the position or views of the institutions they represent or the Center for European Policy Analysis.