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PORTLAND, Ore. (April 23, 2024) – The International Center for Law & Economics (ICLE) offers the following statement on today’s vote by the Federal Communications Commission (FTC) to adopt a rule classifying internet service providers (ISPs) under Title II of the Communications Act.

The following quote can be attributed to ICLE Senior Scholar Eric Fruits:

Title II is much more than net neutrality. It is the same type of expansive and heavy-handed regulation that governs public utilities. The FCC’s rule is a sharp reversal from decades of light-touch regulation that has fostered America’s leadership in broadband innovation and investment. The industry would face the yoke of onerous federal regulation and meddling that would stifle and slow future investment and experimentation.

For more on the topic, see ICLE’s issue spotlight laying out the history of Title II and net neutrality, as well as our comments to the FCC on their notice of proposed rulemaking (NPRM). To schedule an interview with Eric about the topic, contact ICLE Media and Communications Manager Elizabeth Lincicome at (919) 744-8087 or [email protected].

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by the Associated Press in a story about President Joe Biden’s signing of a bill requiring Chinese firm ByteDance to sell its TikTok subsidiary. You can read the full piece here.

The battle could also string along for some time, with the potential for appeals that could go all the way to the Supreme Court, which would likely uphold the law due to its current composition, said Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School.

…“One of the unfortunate and really frustrating things about national-security legislation (is that) it tends to be a trump card,” Hurwitz said. “Once national-security issues come up, they’re going to carry the day either successfully or not.”

Hurwitz added that he thinks there are legitimate national-security arguments that could be brought up here. National security can be argued because it’s a federal measure, he added. That sets this scenario apart from previously unsuccessful state-level legislation seeking to ban TikTok, such as in Montana.

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by the New York Post in a story about President Joe Biden’s signing of a bill requiring Chinese firm ByteDance to sell its TikTok subsidiary. You can read the full piece here.

“Courts will likely agree that the law is an attempt to address a compelling government interest,” said Justin Hurwitz, a senior fellow and academic director at the Center for Technology, Innovation, and Competition at the University of Pennsylvania’s Carey Law School.

“The question will be whether it does so effectively, and with minimal effects on other speech.”

ICLE Senior Scholar Miko?aj Barczentewicz was quoted by Ireland’s Business Post in a story about the European Data Privacy Board’s ruling on whether so-called “pay-or-consent” business models satisfy the General Data Protection Regulation. You can read the full piece here.

Miko?aj Barczentewicz, an associate professor in law at the University of Surrey, said it was likely that the EDPB will probably have to make a binding decision, rather than just issuing an opinion, on the legality of consent or pay.

He called the opinion an “unhappy compromise” between regulators who were strongly opposed to the model – such as the Norwegian data protection agency – and those with a softer view on it like the Irish DPC.

And he criticised the wording of the opinion, calling it “extremely vague and conditional”.

“One headline version of this is that this is illegal,” he told the Business Post. “But what they [the EDPB] say is vague and conditional. So it’s likely to be illegal in most cases, but the language is very wishy-washy.”

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by The Hill in a story about President Joe Biden’s signing of a bill requiring Chinese firm ByteDance to sell its TikTok subsidiary. You can read the full piece here.

The federal law may also have a better chance than a state law like Montana’s, because “federal legislation is more likely to be seen by the courts both as responding to an addressing national security concerns,” Justin Hurwitz, a senior fellow and academic director of the University of Pennsylvania’s Center for Technology, Innovation and Competition, said in an email.

“The government has a pretty good claim that the law is written to address a compelling government interest, which is a key question for First Amendment analysis. The harder question is whether this law is an effective and narrowly tailored way to address these concerns,” Hurwitz added.

ICLE’s comments to the Federal Trade Commission on their proposed ban of noncompete agreements in employment contracts was cited in a blog post by the Competitive Enterprise Institute. You can read the full piece here.

CEI submitted comments to the proposed rulemaking in April of last year arguing that the FTC lacked the authority to promulgate substantive rules defining unfair methods of competition, as did experts from TechFreedom and the International Center for Law & Economics.

PORTLAND, Ore. (April 23, 2024) – The International Center for Law & Economics (ICLE) offers the following statement in response to today’s vote by the Federal Trade Commission (FTC) to adopt a rule banning all new noncompete clauses in employment contracts and rendering existing noncompetes unenforceable for all but senior executives.

This first quote can be attributed to ICLE Senior Scholar Daniel Gilman:

There are legitimate policy concerns about many noncompete agreements, but such agreements–and the business contexts in which they are adopted–are far from uniform. By today’s purely partisan vote–and despite varied, active, and ongoing state-policy reform on noncompetes–the FTC adopts a sweeping rule that goes way beyond its statutory authority, just as Commissioners Melissa Holyoak and Andrew Ferguson pointed out.

And the following quote can be attributed to ICLE Chief Economist Brian Albrecht:

Public policy requires a proper weighing of the costs and benefits of any decision. Instead of recognizing the tradeoffs and differences among workers and companies, this final rule from the FTC banning noncompetes for everyone–even for senior executives–rejects that balancing.

For more on the topic, see ICLE’s comments to the FTC, as well as Dan Gilman’s recent paper on physician noncompete agreements. To schedule an interview with Brian, Dan, or other ICLE scholars about the topic, contact ICLE Media and Communications Manager Elizabeth Lincicome at (919) 744-8087 or [email protected],

ICLE Senior Scholar Eric Fruits was quoted by WCPO-9 television in Cincinnati in a story about Kroger and Albertsons’ updated divestiture plan to head off a challenge to their proposed merger from the Federal Trade Commission. You can read the full piece here.

“When they go to court, they can tell the judge, ‘Look, we had this divestiture deal. The FTC pushed back on it. We responded to that pushback. And so this is as good a deal as we could come up with and still have the merger work,’” said Eric Fruits, a senior scholar who has followed the Kroger-Albertsons merger for the International Center for Law and Economics in Portland.

ICLE President Geoffrey A. Manne was quoted by BiometricUpdate.com in a story about the American Privacy Rights Act. You can read the full piece here.

Geoffrey Manne, president and founder of the International Center for Law and Economics, says that regardless of any individual state law’s quality, there is an advantage to having diversity in law. Manne believes states should be allowed to choose whether their laws would remain in effect, superseding APRA. “Neither all consumers nor all businesses have the same kind of privacy risks and preferences,” Manne says. “As a practical matter, it’s very hard to prescribe rules that are optimal for 330 million people. And that’s true with all law. Instead, you could end up with a lot of much more tailored privacy regimes, and the opportunity for companies to match their needs with privacy regimes being offered.”