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ICLE Director of Innovation Policy Kristian Stout was quoted by Racket about Minnesota’s new right-to-repair law. You can read the full piece here. Not everyone . . .
ICLE Director of Innovation Policy Kristian Stout was quoted by Racket about Minnesota’s new right-to-repair law. You can read the full piece here.
Not everyone is as enthusiastic about right-to-repair legislation. Kristian Stout is a programmer and lawyer who is the director of innovation policy at the International Center for Law & Economics. Stout loves to tinker with computers, but he’s not convinced that the right to repair makes sense for people who aren’t as technically inclined. According to Stout, restricting repair to shops that have a special deal with a manufacturer can mean more peace of mind for consumers, because not every shop will have the resources to protect consumer data. “There’s more incentive for smaller firms to actually not invest as much in cybersecurity and data privacy,” he says. Stout uses the example of Apple, which keeps a tight lid on its repair network in order to protect their business. “They want to make sure that consumer devices and data, specifically, are protected.” He adds that this isn’t just out of the goodness of their hearts, either—big tech companies want to protect their own brand by preventing things from going wrong with their devices.
Not everyone is as enthusiastic about right-to-repair legislation. Kristian Stout is a programmer and lawyer who is the director of innovation policy at the International Center for Law & Economics. Stout loves to tinker with computers, but he’s not convinced that the right to repair makes sense for people who aren’t as technically inclined.
According to Stout, restricting repair to shops that have a special deal with a manufacturer can mean more peace of mind for consumers, because not every shop will have the resources to protect consumer data. “There’s more incentive for smaller firms to actually not invest as much in cybersecurity and data privacy,” he says.
Stout uses the example of Apple, which keeps a tight lid on its repair network in order to protect their business. “They want to make sure that consumer devices and data, specifically, are protected.” He adds that this isn’t just out of the goodness of their hearts, either—big tech companies want to protect their own brand by preventing things from going wrong with their devices.
TOTM Last week was the occasion of the “spring meeting”; that is, the big annual antitrust convention in Washington, D.C. hosted by the American Bar Association . . .
Last week was the occasion of the “spring meeting”; that is, the big annual antitrust convention in Washington, D.C. hosted by the American Bar Association (ABA) Antitrust Section. To engage in a bit of self-plagiarism (efficient for me, at least), I had this to say about it last year…
Read the full piece here.
ICLE President Geoffrey A. Manne was cited in a column in Forbes about his proposal for a “choice-of-law” system for privacy law. You can read . . .
ICLE President Geoffrey A. Manne was cited in a column in Forbes about his proposal for a “choice-of-law” system for privacy law. You can read the full piece here.
A legislative alternative that could avoid difficult cost-benefit analysis while reducing the growing burden of proliferating state privacy regulation has been advanced by scholars Geoffrey Manne of the International Center for Law and Economics and Jim Harper of the American Enterprise Institute: “[W]e propose a federal statute requiring states to recognize contractual choice-of-law provisions, so companies and consumers can choose what state privacy law to adopt. Privacy would continue to be regulated at the state level. However, the federal government would provide for jurisdictional competition among states, and companies operating nationally could comply with the privacy laws of any one state. Unlike a single federal privacy law, this approach would provide 50 competing privacy regimes for national firms. Protecting choice of law can trigger competition and innovation in privacy practices while preserving a role for meaningful state privacy regulation.”
A legislative alternative that could avoid difficult cost-benefit analysis while reducing the growing burden of proliferating state privacy regulation has been advanced by scholars Geoffrey Manne of the International Center for Law and Economics and Jim Harper of the American Enterprise Institute:
“[W]e propose a federal statute requiring states to recognize contractual choice-of-law provisions, so companies and consumers can choose what state privacy law to adopt. Privacy would continue to be regulated at the state level. However, the federal government would provide for jurisdictional competition among states, and companies operating nationally could comply with the privacy laws of any one state. Unlike a single federal privacy law, this approach would provide 50 competing privacy regimes for national firms. Protecting choice of law can trigger competition and innovation in privacy practices while preserving a role for meaningful state privacy regulation.”
ICLE President Geoffrey A. Manne was quoted by Legal Newsline in a story about the Federal Trade Commission’s antitrust suits and the way that they . . .
ICLE President Geoffrey A. Manne was quoted by Legal Newsline in a story about the Federal Trade Commission’s antitrust suits and the way that they gerrymander relevant markets. You can read the full piece here.
The slicing and dicing of relevant markets is an “unfortunate trend,” antitrust scholar Geoffrey Manne has said, although it also could signal the weakness of the FTC’s case. “An artificially narrow and gerrymandered market definition is a double-edged sword,” Manne wrote. “If the court accepts it, it’s much easier to show market power. But the odder the construction, the more likely it is to strain the court’s credulity.”
The slicing and dicing of relevant markets is an “unfortunate trend,” antitrust scholar Geoffrey Manne has said, although it also could signal the weakness of the FTC’s case.
“An artificially narrow and gerrymandered market definition is a double-edged sword,” Manne wrote. “If the court accepts it, it’s much easier to show market power. But the odder the construction, the more likely it is to strain the court’s credulity.”
ICLE Senior Scholar Mikolaj Barczentewicz was quoted by IAPP News on the European Data Protection Board’s ruling that so-called “pay-or-consent” models will in most cases . . .
ICLE Senior Scholar Mikolaj Barczentewicz was quoted by IAPP News on the European Data Protection Board’s ruling that so-called “pay-or-consent” models will in most cases not comply with General Data Protection Regulation. You can read the full piece here.
University of Surrey associate professor of Law Miko?aj Barczentewicz said that had the EDPB issued a stronger opinion against pay-or-consent models, it would have “contradicted what the CJEU said last July” in the Meta v. Bundeskartellamt case. “The most important take-away is that the EDPB — however grudgingly — confirmed that ‘pay-or-consent’ models are, in principle, compatible with the GDPR,” Barczentewicz told The Privacy Advisor. In the opinion, Barczentewicz said, “the EDPB does not provide much clarity, speaking only of what they think is or isn’t allowed for large online platforms in ‘most cases.’ This opinion will certainly be considered by national data protection authorities in their investigations of Meta, but the opinion doesn’t prejudge what will be the final decisions that, for example, the Irish DPC will take.”
University of Surrey associate professor of Law Miko?aj Barczentewicz said that had the EDPB issued a stronger opinion against pay-or-consent models, it would have “contradicted what the CJEU said last July” in the Meta v. Bundeskartellamt case.
“The most important take-away is that the EDPB — however grudgingly — confirmed that ‘pay-or-consent’ models are, in principle, compatible with the GDPR,” Barczentewicz told The Privacy Advisor.
In the opinion, Barczentewicz said, “the EDPB does not provide much clarity, speaking only of what they think is or isn’t allowed for large online platforms in ‘most cases.’ This opinion will certainly be considered by national data protection authorities in their investigations of Meta, but the opinion doesn’t prejudge what will be the final decisions that, for example, the Irish DPC will take.”
ICLE Chief Economist Brian Albrecht was cited by IP Watchdog in a story about the Federal Trade Commission’s planned vote on rules to ban nearly . . .
ICLE Chief Economist Brian Albrecht was cited by IP Watchdog in a story about the Federal Trade Commission’s planned vote on rules to ban nearly all noncompete clauses in employment contracts. You can read the full piece here.
Brian Albrecht, Chief Economist of the International Center for Law & Economics (ICLE), said in an article for Truth on the Market that, while he recognizes the potential for abusive practices associated with noncompetes, he does not support a complete ban. “[T]here is a simple economic rationale for the contract: noncompetes encourage both parties to invest in the employee-employer relationship, just like marriage contracts encourage spouses to invest in each other,” Albrecht wrote. And in official comments submitted on the proposal, ICLE said the need for a complete ban is not supported by the evidence or the Commission’s experience.
TOTM The U.S. Justice Department’s (DOJ) recent complaint charging Apple with monopolizing smartphone markets is, according to Assistant U.S. Attorney General Jonathan Kanter, intended as a contribution to the . . .
The U.S. Justice Department’s (DOJ) recent complaint charging Apple with monopolizing smartphone markets is, according to Assistant U.S. Attorney General Jonathan Kanter, intended as a contribution to the agency’s “enduring legacy of taking on the biggest and toughest monopolies in history.”
Unfortunately, the case has fundamental weaknesses in its assessment of both Apple’s alleged monopoly power and the “exclusionary” nature of its business strategies. These infirmities have been discussed at-length by, among others, Alden Abbott, Herbert Hovenkamp, and Randall Picker.
What appears to have flown under the radar, however, is the DOJ’s flawed understanding of the goals and scope of what it calls “our system of antitrust laws.”
TL;DR TL;DR Background: There has been recent legislative movement on a pair of major bills related to children’s online safety and privacy. H.R. 7891, the Kids . . .
Background: There has been recent legislative movement on a pair of major bills related to children’s online safety and privacy. H.R. 7891, the Kids Online Safety Act (KOSA) has 62 cosponsors in the U.S. Senate. Meanwhile, H.R. 7890, the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) also has bipartisan support within the U.S. Senate Commerce Committee. At the time of publication, these and a slate of other bills related to children’s online safety and privacy were scheduled to be marked up April 17 by the U.S. House Energy and Commerce Committee.
But… If enacted, the primary effect of these bills is likely to be less free online content for minors. Raising the regulatory burdens on online platforms that host minors, as well as restricting creators’ ability to monetize their content, are both likely to yield greater investment in identifying and excluding minors from online spaces, rather than creating safe and vibrant online ecosystems and content that cater to them. In other words, these bills could lead to minors losing the many benefits of internet usage. A more cost-effective way to address potential online harms to teens and children would be to encourage parents and minors to make use of available tools to avoid those harms and to dedicate more resources to prosecuting those who use online platforms to harm minors.
If the costs of serving minors surpass the revenues that online platforms can generate from serving them, those platforms will invest in excluding underage users, rather than creating safe and vibrant content and platforms for them.
KOSA will substantially increase the costs that online platforms bear for serving minors. The bill would require a “high impact online company” to exercise “reasonable care” in its design features to “prevent and mitigate” certain harms. These harms include certain mental-health disorders and patterns indicating or encouraging compulsive use by minors, as well as physical violence, cyberbullying, and discriminatory harassment. Moreover, KOSA requires all covered platforms to implement default safeguards to limit design features that encourage minors’ use of the platforms and to control the use of personalized recommendation systems.
A significant portion of internet content is delivered by what economists call multisided platforms. On one side of the platform, users enjoy free access to content, while on the other side, advertisers are granted a medium to reach users. In effect, advertisers subsidize users’ access to online content. Platforms also collect data from users in order to serve them targeted ads, the most lucrative form of advertising. Without those ads, there would be less revenue to fund access to, and creation of, content. This is no less true when it comes to content of interest to minors.
COPPA 2.0 would expand the protections granted by the Children’s Online Privacy Protection Act of 1998 to users under age 13 to also cover those between 13 and 17 years of age. Where the current law requires parental consent to collect and use persistent identifiers for “individual-specific advertising” directed to children under age 13, COPPA 2.0 would require the verifiable consent of the teen or a parent to serve such ads to teens.
Obtaining verifiable consent has proven sufficiently costly under the current COPPA rule that almost no covered entities make efforts to obtain it. COPPA has instead largely prevented platforms from monetizing children’s content, which has meant that less of it is created. Extending the law to cover teens would generate similar results. Without the ability to serve them targeted ads, platforms will have less incentive to encourage the creation of teen-focused content.
To comply with laws designed to protect minors, online platforms will need to verify whether its users are minors. While both KOSA and COPPA 2.0 disclaim establishing any age-verification requirements or the collection of any data not already collected “in the normal course of business,” they both establish constructive knowledge standards for violators (i.e., “should have known” or “knowledge fairly implied on the basis of objective circumstances”). Online platforms will need to be able to identify their users who are minors in order to comply with the prohibition on serving them personalized recommendations (KOSA) or targeted advertising (COPPA 2.0).
Age-verification requirements have been found to violate the First Amendment, in part because they aren’t the least-restrictive means to protect children online. As one federal district court put it: “parents may rightly decide to regulate their children’s use of social media—including restricting the amount of time they spend on it, the content they may access, or even those they chat with. And many tools exist to help parents with this.”
Educating parents and minors about those widely available practical and technological tools to mitigate the harms of internet use is a better way to protect minors online, and would pass First Amendment scrutiny. Another way to address the problem would be to increase the resources available to law enforcement to go after predators. The Invest in Child Safety Act of 2024 is one such proposal to give overwhelmed investigators the necessary resources to combat child sexual exploitation.
For more on how to best protect minors online, see “A Law & Economics Approach to Social Media Regulation” and “A Coasean Analysis of Online Age-Verification and Parental-Consent Regimes.”
TOTM In this “Age of the Administrative State,” federal agencies have incredible latitude to impose policies without much direction or input from Congress. President Barack Obama . . .
In this “Age of the Administrative State,” federal agencies have incredible latitude to impose policies without much direction or input from Congress. President Barack Obama fully pulled off the mask in 2014, when he announced “[w]e are not just going to be waiting for legislation,” declaring “I’ve got a pen, and I’ve got a phone.” Subsequent presidents have similarly discovered that they had pens and phones, too.
