From the abstract for President Trump’s War on Regulatory Science, Harvard Environmental Law Review, Forthcoming, by Albert Lin:

The Trump administration has taken numerous actions that appear hostile to scientists, scientific research, and scientific data, leading some observers to assert that a war on science is underway. A more precise characterization is that the Trump administration is engaging in a war on regulatory science, as these actions take aim specifically at regulatory science — i.e., knowledge production and synthesis carried out by the Environmental Protection Agency and other government agencies in the course of developing government regulations. The Administrative Procedure Act and other laws may constrain some aspects of the war on regulatory science, provided that they are subject to judicial review. Internal administrative law and agency norms also can promote rule of law values, but their success depends largely on the good faith of executive branch actors and the willingness of Congress and the public to push back when norms of administrative legality are ignored. Absent such pushback, the Trump administration’s war on regulatory science could lead to irrational policies and threaten democratic governance.

From the introduction to Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register (2016):

Certain methods of quantifying regulatory activity, however, may provide an imperfect portrayal of the total federal rulemaking burden. For example, the number of final rules published each year is generally in the range of 2,500-4,500, according to the Office of the Federal Register. Some of those rules have a large effect on the economy, and others have a significant legal and/or policy effect, even if the costs and benefits are minimal. On the other hand, many federal rules are routine in nature and impose minimal regulatory burden, if any. In addition, rules that are deregulatory in nature and those that repeal existing rules are still defined as “rules” under the Administrative Procedure Act  (APA, 5 U.S.C. §§551 et seq.) and are therefore included in that total.

From the introduction to Agency Delay: Congressional and Judicial Means to Expedite Agency Rulemaking (Oct. 5, 2018):

Congress has a number of means at its disposal to reduce the likelihood of agency delays in rulemaking. Even if Congress does not impose any specific timing requirements for an agency to act, the Administrative Procedure Act’s (APA’s) default rule requires that the agency act “within a reasonable time.” If Congress wishes to impose more stringent requirements, it can enact nonbinding time frames or hard statutory deadlines for particular agency rulemakings. Finally, if timing is of primary importance, Congress may impose statutory penalties on the agency should it fail to meet deadlines.

From the abstract for Elizabeth G. Porter and Kathryn A. Watts, Visual Rulemaking, 91 New York University Law Review 1183 (2016):

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders — including agencies, the President and members of the public — are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media channels. While this new universe, which we call “visual rulemaking,” might appear to be wholly distinct from the textual rulemaking universe on which administrative law has long focused, the two are not in fact distinct. Visual politics are seeping into the technocracy.

This Article argues that visual rulemaking is a good thing. It furthers fundamental regulatory values, including transparency and political accountability. It may also facilitate participation by more diverse stakeholders — not merely regulatory insiders who are well-equipped to navigate dense text. Yet we recognize that visual rulemaking poses risks. Visual appeals may undermine the expert-driven foundation of the regulatory state, and some uses may threaten or outright violate key legal doctrines, including the Administrative Procedure Act and longstanding prohibitions on agency lobbying and propaganda. Nonetheless, we conclude that administrative law theory and doctrine ultimately can and should welcome this robust new visual rulemaking culture.

— Joe

An excerpt from the summary of Indexing Capital Gains Taxes for Inflation (R45229, July 24, 2018):

Recently, proposals to index capital gains for inflation have re-entered the public debate. The proposed change would eliminate the part of capital gains that reflects inflation by increasing the basis (i.e., the amount subtracted from sales price to determine capital gains) by inflation occurring since acquisition of the asset. President Trump’s head of the White House National Economic Council, Larry Kudlow, has long proposed the indexation of capital gains for inflation through regulation, and Americans for Tax Reform has urged Treasury Secretary Steven Mnuchin to index capital gains. Senators Ted Cruz and James Inhofe have introduced S. 2688, the Capital Gains Inflation Relief Act of 2018, which would index the basis of assets for purposes of the capital gains tax. Similar bills, H.R. 2017 and H.R. 6444, have been introduced in the House by Representative Jack Emmer and Representative Devin Nunes. Chairman of the House Ways and Means Committee, Kevin Brady, has indicated that some discussion of this issue is ongoing.

— Joe

As you may recall, PublicResource.org has been making available technical standards incorporated by reference in federal law contrary to the wishes of standards organizations that promulgate the standards. Yesterday, the DC circuit appeals court ruled that standards industry groups cannot control publication of binding laws and standards.

The federal district court for the District of Columbia ruled in favor of the standards organizations in 2017, and ordered PublicResorce.org not to post the standards. A three-judge panel of the Court of Appeals for the D.C. Circuit reversed that decision, ruling that the district court did not properly consider copyright’s fair use doctrine. It rejected the injunction and sent the case back to district court for further consideration of the fair use factors at play. “[I]n many cases,” wrote the court, “it may be fair use for [PublicResource.org] to reproduce part or all of a technical standard in order to inform the public about the law.”

As Judge Katsas wrote in his concurrence, the demands of the industry groups for exclusive control of the law “Cannot be right: access to the law cannot be conditioned on the consent of a private party.”

Here’s the text of the DC Circuit opinion in ASTM v. PublicResource.org. — Joe

From the FCC public notice dated May 21, 2018:

As required by the Restoring Internet Freedom Order the FCC’s Consumer and Governmental Affairs Bureau, in coordination with the Wireline Competition Bureau, establishes a portal for Internet service provider (ISP) transparency disclosures. The Order becomes effective on June 11, 2018, and the revised transparency rule – 47 CFR § 8.1(a) – requires ISPs to publicly disclose information about their service in one of two ways – by providing the disclosure on a publicly available, easily accessible website or by submitting it to the FCC for posting.

ISPs choosing to submit their required disclosures to the FCC should do so electronically, in a format that is accessible to people with disabilities, through http://www.fcc.gov/isp-disclosures. On May 29, 2018, this portal will be available for both ISPs submitting their disclosures to the FCC and consumers searching for any disclosures submitted to the FCC.

An ISP that does not submit its required disclosure to the FCC through this portal will be deemed as having elected to provide it on a publicly available, easily accessible website of its choosing. An ISP that submits its required disclosure to the FCC and later elects to provide it on a publicly available, easily accessible website of its choosing should inform the FCC of this change by filing via the FCC portal a clear statement of the change, including the website where consumers can find the required disclosure.

Consumers will be able to use the FCC portal to access ISP disclosures or information on where to find the disclosure for each ISP that previously submitted a disclosure to the FCC. For an ISP that has made no submissions through the FCC portal, consumers should contact the ISP or search for its disclosure on the web.

H/T to Gary Price’s InfoDocket post. — Joe

The General Data Protection Regulation (GDPR) is a regulation in EU law on data protection and privacy for all individuals within the European Union. It also addresses the export of personal data outside the EU. The GDPR aims primarily to give control to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. It was adopted on April 14 2016, and after a two-year transition period, becomes enforceable on May 25 2018. Any company that stores or processes personal information about EU citizens within EU states must comply with the GDPR, even if they do not have a business presence within the EU.

What types of privacy data does the GDPR protect?

  • Basic identity information such as name, address and ID numbers
  • Web data such as location, IP address, cookie data and RFID tags
  • Health and genetic data
  • Biometric data
  • Racial or ethnic data
  • Political opinions
  • Sexual orientation

Kelly LeBlanc’s Europe’s GDPR to Set New Standards in Data Protection and Privacy Law focuses on the GDPR’s over-arching purpose and mission, common misconceptions, and the road to compliance. Recommended. — Joe

S.J.Res.52 restores net neutrality by nullifying the rule submitted by the Federal Communications Commission entitled “Restoring Internet Freedom.” The rule published on February 22, 2018: (1) restores the classification of broadband Internet access service as a lightly-regulated “information service”; (2) reinstates private mobile service classification of mobile broadband Internet access service; (3) requires Internet service providers to disclose information about their network management practices, performance characteristics, and commercial terms of service; and (4) eliminates the Internet Conduct Standard and the bright-line rules. There is no expectation that the joint resolution will pass in the House. — Joe

Pew reports that 21.7 million comments were submitted electronically to the FCC in response to the Commission’s call for comments on the FCC’s net neutrality rule. “[Pew] Center’s analysis of these submissions finds that the comments present challenges to anyone hoping to understand the attitudes of the concerned public regarding net neutrality. It also highlights the ways in which individuals and groups are using modern digital tools to engage in the long-standing practice of speaking out in order to influence government policy decisions” according to Public Comments to the Federal Communications Commission About Net Neutrality Contain Many Inaccuracies and Duplicates (Nov. 29, 2017).

Pew’s findings include the following:

  • 57% of the comments utilized either duplicate email addresses or temporary email addresses created with the intention of being used for a short period of time and then discarded
  • Of the 21.7 million comments posted, 6% were unique. The other 94% were submitted multiple times – in some cases, hundreds of thousands of times.
  • On nine different occasions, more than 75,000 comments were submitted at the very same second – often including identical or highly similar comments Three of these nine instances featured variations of a popular pro-net-neutrality message, while the others promoted several different anti-net-neutrality statements.

Interesting. H/T to beSpacific. — Joe

The Education Department has rescinded 72 policy documents that outline the rights of students with disabilities, reports The Washington Post.

The Office of Special Education and Rehabilitative Services wrote in a newsletter Friday that it had “a total of 72 guidance documents that have been rescinded due to being outdated, unnecessary, or ineffective — 63 from the Office of Special Education Programs (OSEP) and 9 from the Rehabilitation Services Administration (RSA).” The documents, which fleshed out students’ rights under the Individuals with Disabilities Education Act and the Rehabilitation Act, were rescinded Oct. 2.

List of Guidance Documents Rescinded (Outdated, Unnecessary, or Ineffective) October 2, 2017 — Joe

The FCC voted 2-1 along party lines to advance FCC chairman Pai’s Restoring Internet Freedom proposal, which would repeal current net neutrality protections Thursday. Politico reports “The FCC’s action Thursday doesn’t repeal the rules yet but instead launches a lengthy proceeding that will pit ISPs and conservative groups, which back Pai’s efforts, against left-leaning digital activists and leading tech companies that say the net neutrality rules are crucial to creating a level playing field online. Already, the debate has begun to echo the bitter fight over the issue two years ago, and the number of public comments filed in the proceeding has skyrocketed to 1.6 million at last count.”

From the FCC press release:

The Federal Communications Commission today took the first step toward restoring Internet freedom and promoting infrastructure investment, innovation, and choice by proposing to end utility-style regulation of broadband Internet access service.

In a Notice of Proposed Rulemaking, the FCC proposes to return to the bipartisan framework that preserved a flourishing free and open Internet for almost 20 years.  First, the Notice proposes to reverse the FCC’s 2015 decision to impose heavy-handed Title II utility-style government regulation on Internet service providers (ISPs) and return to the longstanding, successful light-touch framework under Title I of the Communications Act.

Second, the Notice proposes to return to the Commission’s original classification of mobile broadband Internet access service as a private mobile service.  Given the historical innovation and success of the wireless marketplace prior to the Title II Order, this proposal is expected to substantially benefit consumers and the marketplace.

Third, the Notice proposes to eliminate the catch-all Internet conduct standard created by the Title II Order.  Because the Internet conduct standard is extremely vague and expansive, ISPs must guess at what they are permitted to do.  Eliminating the Internet conduct standard is therefore expected to promote innovation and network investment by eliminating regulatory uncertainty.

“The FCC is proposing a rule that would reclassify broadband as an ‘information service’ rather than a ‘telecommunications service.’ FCC Chairman Ajit Pai claims that this move would protect users, but all it would really do is protect Comcast and other big ISPs by destroying the legal foundation for net neutrality rules. Once that happened, it would only be a matter of time before your ISP had more power than ever to shape the Internet” wrote Corynne McSherry in yesterday’s EFF commentary, Dear FCC: We See Through Your Plan to Roll Back Real Net Neutrality.

For background see Net neutrality: If the Internet is not a utility, what is it? on LLB. — Joe

Here’s the abstract for Rory Van Loo’s (Boston Univ. School of Law) interesting article, Rise of the Digital Regulator, 66 Duke Law Journal 1267 (2017):

The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated.

— Joe

“The theory goes something like this: as long as ISPs commit to protecting net neutrality in their terms of service, the FCC can eliminate its rules while the Federal Trade Commission would punish ISPs that fail to comply with their net neutrality promises.” — Jon Brodkin, “Unenforceable:” How voluntary net neutrality lets ISPs to call the shots, ars technica, Apr. 11, 2017.

Last Wednesday, FCC chairman Ajit Pai outlined his plans to loosen the government’s oversight of the Internet by rolling back the Commission’s Open Internet Order. See Pai’s speech on the future of Internet regulation and the chairman’s fact sheet, Restoring Internet Freedom for All Americans (Apr. 26, 2017). For a synopsis, see Ali Breland’s What killing net neutrality means for the internet, The Hill, Apr. 28, 2017. The proposal will be discussed at the FCC Open Meeting on May 18, 2017. (For background, see the FCC’s own explanation of its Open Internet Order when it was enacted.) “The chairman, Ajit Pai, said high-speed internet service should no longer be treated like a public utility with strict rules, as it is now. The move would, in effect, largely leave the industry to police itself.” Quoting from Cecilia Kang, F.C.C. Chairman Pushes Sweeping Changes to Net Neutrality Rules, NYT, Apr. 26, 2016.

In his NYT op-ed piece, Tim Wu notes that this action will be taken “despite [net neutrality’s] popularity, record of success and acceptance by most of the industry.” Quoting from Tim Wu, The ‘Fix’ for Net Neutrality That Consumers Don’t Need, NYT, Apr. 28, 2017. Writing for EFF, Kit Walsh warns “[r]olling back the FCC’s Open Internet Order would mean losing the only rules that meaningfully prevent ISPs from taking advantage of their control over your Internet connection to shape your Internet experience and the market for services and devices that rely on that Internet connection. Since most Americans have only one option for broadband service, ISPs would have unchecked power to extract tolls from you and from businesses that wish to reach you.” Quoting from FCC Announces Plan to Abandon Net Neutrality and ISP Privacy, EFF Deeplinks Blog, Apr. 26, 2017. Walsh adds

Today’s announcement cleverly pretends that the current “bright-line rules,” which clearly prohibit blocking and throttling, might survive. The law says otherwise. If Chairman Pai follows through on his intention to “reclassify” broadband service, it would be legally impossible for the FCC to enforce any such rules. How do we know this? Because the DC Circuit said so.

Last Thursday, the FCC released guidance for commenting on this rule-roll-back process. As expected advocacy groups like EFF are already speaking out in opposition. See, e.g., The FCC Wants to Eliminate Net Neutrality Protections. We Can’t Let That Happen, EFF Deeplinks Blog, Apr. 25, 2017. AALL also released a statement in opposition last week. From the press release:

“Without net neutrality, law libraries may be unable to provide equal access to the legal information their users need,” AALL President Ronald E. Wheeler Jr. said. “We oppose efforts by the new FCC chairman to roll back the Open Internet Order, and we will continue to work to protect an open internet. Without free and fair access to information, there is no access to justice.”

Only time will tell but it is not looking good for net neutrality despite its acceptance by most of the industry. — Joe

In The Price of Paid Prioritization: The International and Domestic Consequences of the Failure to Protect Net Neutrality in the United States, 16 Geo. J. Int’l Aff. 98 (2015), Arturo Carrillo and Dawn Nunziato examine international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the FCC’s 2015 Open Internet Order complies with those obligations. From the abstract:

The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the international trade and human rights treaties to which the United States is a party. … Even so, we conclude that gaps in the 2015 Rules mean that the United States may still be liable under international law for potential failures to ensure that net neutrality and nondiscrimination principles are adequately protected. In particular, the dual issues of zero-rating and interconnection remain as potential threats to strong net neutrality in this country. This is because, as a member of the World Trade Organization (WTO) and a party to the ICCPR, the United States is bound to respect principles of nondiscrimination and free expression when regulating essential communications media like the Internet. Any FCC rule that does not meaningfully protect net neutrality at all levels of interconnectivity would run afoul of these international obligations and expose the United States to legal action by other governments and individuals prejudiced by its actions.

Recommended. For a brief LLB backgrounder, see Net neutrality: If the Internet is not a utility, what is it? — Joe

From the abstract of Mariano-Florentino Cuéllar’s Cyberdelegation and the Administrative State:

This paper explores questions and trade-offs associated with delegating administrative agency decisions to computer algorithms, neural networks, and similar examples of “artificial intelligence,” and offers the following preliminary observations to further discussion of the opportunities and risks. First, neither conventional expert systems nor neural networks (or other machine learning mechanisms) are in a position to resolve (without human intervention) context-specific debates about society’s goals for regulation or administrative adjudication – and these debates are often inherent in the implementation of statutes. Those goals must also inform whether we assign value to aspects of human cognition that contrast with what computers can (presently) accomplish, or what might be conventionally defined as rational in a decision-theoretic sense. Second, society must consider path-dependent consequences and associated cybersecurity risks that could arise from reliance on computers to make and support decisions. Such consequences include the erosion of individual and organizational knowledge over time. Third, it may prove difficult to limit the influence of computer programs even if they are meant to be mere decision support tools rather than the actual means of making a decision. Finally, heavy reliance on computer programs – particularly adaptive ones that modify themselves over time – may further complicate public deliberation about administrative decisions, because few if any observers will be entirely capable of understanding how a given decision was reached.

— Joe

While many scholarly articles warn about the potential consequences of AI-based administrative decision making, the following two recent articles point out potential benefits of algorithmic rule-making.

Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, Georgetown Law Journal (Forthcoming) by Cary Coglianese and David Lehr (both University of Pennsylvania Law School).

Abstract: Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others have the clear potential in the near-term to use algorithms to shape official decisions over both rulemaking and adjudication. It is no longer fanciful to envision a future in which government agencies could effectively make law by robot, a prospect that understandably conjures up dystopian images of individuals surrendering their liberty to the control of computerized overlords. Should society be alarmed by governmental use of machine learning applications? We examine this question by considering whether the use of robotic decision tools by government agencies can pass muster under core, time-honored doctrines of administrative and constitutional law. At first glance, the idea of algorithmic regulation might appear to offend one or more traditional doctrines, such as the nondelegation doctrine, procedural due process, equal protection, or principles of reason-giving and transparency. We conclude, however, that when machine-learning technology is properly understood, its use by government agencies can comfortably fit within these conventional legal parameters. We recognize, of course, that the legality of regulation by robot is only one criterion by which its use should be assessed. Obviously, agencies should not apply algorithms cavalierly, even if doing so might not run afoul of the law, and in some cases, safeguards may be needed for machine learning to satisfy broader, good-governance aspirations. Yet in contrast with the emerging alarmism, we resist any categorical dismissal of a future administrative state in which key decisions are guided by, and even at times made by, algorithmic automation. Instead, we urge that governmental reliance on machine learning should be approached with measured optimism over the potential benefits such technology can offer society by making government smarter and its decisions more efficient and just.

Regulation by Machine by Benjamin Alarie, Anthony Niblett and Albert Yoon (all University of Toronto, Faculty of Law).

Abstract: Legal scholars investigating artificial intelligence are preoccupied with regulation. The literature has largely focused on the need for humans to regulate the behavior of automated systems. In this paper, we focus on the converse: how artificially intelligent systems can serve to regulate human behavior. The shortcomings of human-led regulation are clear. We argue that machine learning technology can address some of these limitations. We provide examples of how machine learning can predict how courts would decide legal disputes more cheaply and accurately than human regulators. This allows regulators to streamline operations, providing fast, accurate, consistent, and reliable ex ante regulatory advice and rulings. We further explore how machine learning technology might soon be used to refine laws and reduce errors.

— Joe

Bob Ambrogi reports that Casemaker had a change of heart and is now preparing to fight Fastcase over the publishing rights to the Georgia Administrative Rules and Regulations. Casemaker, as you may recall, claims to be the only authorized distributor of Georgia Administrative Rules and Regulations by virtue of its contract with the State of Georgia. Fastcase claims that a private publisher cannot create its own exclusive rights in non-editorial, non-enhanced public law by contract with the government.

For details about this latest development, including the text of Casemaker’s answer to Fastcase’s complaint, see Bob Ambrogi’s So Much for Casemaker Saying It Will Not Fight Fastcase Lawsuit. — Joe