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The Technology 202

A newsletter briefing on the intersection of technology and politics.

Supreme Court poised to deal a blow to Biden’s tech regulators, too

The Technology 202

A newsletter briefing on the intersection of technology and politics.

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Below: Facebook is removing posts offering abortion pills, and the pro-Trump web reacts to explosive Jan. 6 testimony. First:

Supreme Court poised to deal a blow to Biden’s tech regulators, too

The Supreme Court is widely expected to issue a ruling this week hobbling federal agencies’ regulatory powers, a move that may deal a blow to President Biden’s tech enforcers.   

While the topic of the case — the government’s ability to curb greenhouse emissions — is far removed from Silicon Valley, it’s likely to have sweeping implications for key agencies overseeing the tech sector, experts say. 

The ruling on West Virginia v. Environmental Protection Agency, expected as early as Wednesday, will tackle to what extent federal agencies can make decisions on how to implement laws for issues of major national significance, including rules about vaccine mandates, eviction moratoriums and tech regulations, like data privacy and net neutrality. 

The court is expected to narrow those powers under what’s known as the “major questions doctrine,” meaning that agencies would need to rely on more explicit congressional authorization to enact rules.

Randolph May, president of the Free State Foundation, a free market-oriented think tank, said he expects the court to argue “Congress is obligated to provide more specific direction” to federal agencies about how to carry out laws, which could complicate key Democratic priorities.

It would mark only the latest ruling to limit federal agencies’ ability to regulate, with the Supreme Court recently taking aim at issues including the government’s ability to enforce vaccine mandates for big businesses.

That could create an opening to challenge widely anticipated efforts by Democrats at the Federal Communications Commission to reinstate Obama-era net neutrality regulations.

“The effect will be that the court is less likely to again defer to the agency’s own interpretation of its authority to regulate internet access services,” May said. 

Blair Levin, a fellow at the Brookings Institution think tank who served as chief of staff to former FCC chairman Reed Hundt, said such a ruling “shifts powers from the agencies to the courts.”

While it may scuttle regulatory plans at various agencies, seemingly giving big business a reprieve, Levin said it could also create fresh uncertainty for companies that will be relying on a patchwork of rulings by different courts rather than one agency’s decisions. 

“This is going to cause chaos and confusion for a very long time as to what the rules are,” he said.

The ruling could be particularly restrictive for efforts to craft new regulations around emerging technologies, like artificial intelligence and social media, which are just gaining steam on Capitol Hill.   

“It’s hard for Congress to do anything [and] they’re trying to get Congress to write very precise rules on these issues,” said Justin Brookman, director of privacy and technology policy at the progressive nonprofit Consumer Reports.

Given these complex challenges, it may be exceedingly difficult for lawmakers to give federal agencies detailed and explicit authority to regulate, Levin said. “I think you would need a microscope to be able to see what the chance is,” he said.

It’s a concern that’s already factoring into tech discussions on Capitol Hill including around data privacy. As we’ve reported, lawmakers are concerned about advancing legislation that includes broad mandates requiring companies to treat consumer data reasonably and not use it to cause harm out of fear they will be struck down by courts skeptical of agencies making those calls. 

The dynamic could make it even harder for the United States to take the lead setting standards for the internet, Levin said. 

“We’re in a global information age economy, and we’re essentially stepping off the field and saying, ‘everybody else, go do it,’ ” he said. “Here you’re saying the leadership in the United States is essentially being hobbled.”

Our top tabs

Pro-Trump web rushed to dispute explosive Jan. 6 testimony

Former president Donald Trump’s supporters took to the web Tuesday to undercut damaging testimony from a former White House aide, Cassidy Hutchinson, who said that Trump lunged for the steering wheel of his car and tussled with security when they refused to take him to the Capitol on Jan. 6, my colleague Drew Harwell reports

“Trump supporters quickly snapped back online that they’d found an obvious sign she was lying: The presidential limousine, known as ‘the Beast,’ is so heavily fortified that they argued it would be ‘physically impossible’ for Trump to cross from the back cabin to the driver’s seat,” Drew writes. “But Trump was not riding in the limousine that day; videos show he actually rode in a Secret Service SUV, where the seats are closer together.”

Trump echoed the argument in posts on Truth Social, the platform he launched after Twitter permanently banned him over his posts on Jan. 6. “Her Fake story … is ‘sick’ and fraudulent,” he wrote, adding it “wouldn’t even have been possible to do such a ridiculous thing.”

Facebook, Instagram removing posts offering abortion pills

The social media platforms “are removing posts from users that offer help accessing abortion pills, saying they violate a policy around pharmaceuticals,” the Verge's Mia Sato reports.

In the wake of the Supreme Court ruling overturning federal abortion rights on Friday, some took to social media to offer up “mail abortion pills to people whose access to abortion has been stripped away or will be soon,” according to the report. News reports found some users were quickly restricted. 

Andy Stone, spokesman for parent company Meta, tweeted in response that, “Content that attempts to buy, sell, trade, gift, request or donate pharmaceuticals is not allowed. Content that discusses the affordability and accessibility of prescription medication is allowed.” 

He added, “We’ve discovered some instances of incorrect enforcement and are correcting these.”

Taiwan official pushes for passage of U.S. chip subsidies

“Taiwan’s biggest semiconductor manufacturer has started building a computer-chip factory in Arizona and is hiring U.S. engineers and sending them to Taiwan for training, but the pace of construction will depend on Congress approving federal subsidies,” a Taiwanese minister told my colleague Jeanne Whalen on Tuesday.

“[Taiwan Semiconductor Manufacturing Company] has already begun their construction in Arizona, basically because of trust. They believe the Chips Act will be passed by the Congress,” Ming-Hsin Kung, minister of Taiwan’s National Development Council and a TSMC board member, said in an interview in D.C.

The remarks follow similar calls by top U.S. chip manufacturers including Intel and GlobalFoundries who are urging Congress to act on a massive bipartisan package to invest billions in federal subsidies to try to combat the semiconductor shortage. 

“A global shortage of semiconductors has prompted a scramble by many countries, including the United States, to build more chip manufacturing facilities,” Jeanne writes. “In May 2020, Taiwan Semiconductor Manufacturing Company, the world’s largest chip manufacturer, agreed to build a $12 billion facility in Arizona.”

Inside the industry

Elon Musk Got Twitter’s Data Dump, Next Comes the Hard Part (Wall Street Journal)

Big Tech silent on data collection as workers call for post-Roe action (Gerrit De Vynck, Caroline O'Donovan, Nitasha Tiku and Elizabeth Dwoskin)

Pinterest CEO Is Stepping Down, Google Commerce Executive to Take Top Job (Wall Street Journal)

Chinese posed as Texans on social media to attack rare earths rivals (Joseph Menn)

Agency scanner

Bitcoin is the only coin the SEC Chair will call a commodity (Axios)


Tucker Carlson just inadvertently helped raise $14,000 for abortion rights (Steven Zeitchik)

Airbnb’s party ban is now permanent (The Verge)


  • FCC Commissioner Nathan Simington discusses net neutrality at an R Street Institute event Thursday at 3 p.m.

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