The Federal Trade Commission (FTC) recently announced proposed changes to Hart-Scott-Rodino (HSR) premerger notification form. This proposal, alongside proposed changes to federal merger guidelines, is part of the Biden Administration’s more aggressive approach to U.S. merger law. Although the merger guideline revisions are receiving most of the attention, the proposed HSR premerger notification form revisions could well have the more substantial lasting impacts.

Read the full piece here.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss commitments made last week by leaders of the artificial-intelligence (AI) industry to political leaders in Washington, as well the European Commission’s struggles to get other jurisdictions to adopt the EU’s regulatory framework for AI.

Other topics included the Federal Communication Commission’s new cybersecurity label for IoT devices, the Environmental Protection Agency’s regulations for water-system cybersecurity, and the latest U.S. Justice Department/Federal Trade Commission draft merger-review guidelines.

The full episode is embedded below.

Introduction

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas—that the solution to bad speech is more, better, speech. This basic idea is well-established in both judicial and scholarly writing—but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech—indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.”

This thesis has important implications. First, it offers a poignant critique of the marketplace-of-ideas aphorism introduced by Justice Holmes in his Abrams dissent. If the marketplace of ideas is subject to significant market failure, correctives may be justified. Market failures, after all, are a standard justification for regulatory intervention. But, second, my contribution goes a step farther, suggesting not only that there are circumstances in which good speech may fail as a corrective to bad speech but also that there are circumstances in which the addition of seemingly good speech may only yield more bad speech. In such cases, the only solution to bad speech may be less speech—encouraging more speech may actually be detrimental to our speech values. If that is the case, then correctives may be not only justified but needed to satisfy an important societal interest. And, third, this chapter presents solutions for content-neutral ways in which to implement such correctives.

The insight underlying this thesis builds on my prior work applying the insights of Claude Shannon’s information theory to social media. That piece applied Shannon’s work to social media to argue that, at least at a metaphorical level and potentially at a cognitive level, our capacity to communicate is governed by Shannon’s channel-capacity theorem. This theorem tells us that the capacity of a communications channel is limited by that channel’s signal-to-noise ratio. Critically, once that capacity is exceeded, any additional signal is indistinguishable from noise—and this has the effect of worsening the signal-to-noise ratio, further reducing the communications capacity. In other words, after a certain threshold, additional speech isn’t merely ineffective: It creates a negative externality that interferes with other speech.

Other scholars have made similar arguments, which can casually be framed as exploring the effects of “too much information” or “information overload.” But the negative-externality element of this argument goes a step further. A “too much information” argument suggests that listeners are overwhelmed by the quantity of speech to which they may be subject. This argument suggests that speakers can—deliberately or otherwise—exercise a veto over other speakers by saturating listeners’ information sources. For the listener, it is not merely a question of filtering out the good information from the bad (the signal from the noise): At the point of saturation, signal cannot be differentiated from noise and any filtering necessarily must occur upstream from the listener.

Filtering—reducing the overall amount of speech—has always been a key tool in fighting bad speech. All platforms must filter. Indeed, this is nothing new: Editorial processes have always been valuable to listeners. The question is how they do it, with a related question of the law surrounding that filtering. Under the current approach (facilitated through Section 230 of the Communications Decency Act and built upon First Amendment principles), platforms have substantial discretion over what speech they host. This chapter’s normative contribution is to argue that liability shield should be contingent upon platforms using “reasonable best-available technology” to filter speech—a standard that most platforms, this chapter also argues, likely already meet.

The discussion in this chapter proceeds in four parts. It begins in Part I by introducing technical concepts from the field of information theory—most notably the ideas of channel capacity and the role of the signal-to-noise ratio in defining a channel’s capacity. Part II then introduces the traditional “marketplace of ideas” understanding of the First Amendment and builds on lessons from information theory to argue that this “marketplace” may in some cases be subject to negative externalities—noisy speech externalities—and that such externalities may justify some forms of corrective regulation. It also considers other arguments that have a similar feeling (“too much information,” “information overload,” and “listeners’ rights”), and explains how the negative-externalities consequence of exceeding a channel’s carrying capacity presents an even greater concern than is advanced by those ideas. Parts III and IV then explore the First Amendment and regulatory responses to these concerns, arguing that the negative-externalities concern might justify limited regulatory response. In particular, Part IV argues that platforms can reasonably be expected to implement “reasonable best available technologies” to address noisy speech externalities.

While persistent gridlock continues to bedevil Congress, federal agencies have been busy pushing the boundaries of their authority. The Federal Trade Commission (FTC) is trying to ban noncompete agreements. The Securities and Exchange Commission (SEC) is puzzling over cryptocurrencies. The Environmental Protection Agency (EPA) is pushing regulations to address climate change.

At the same time, the U.S. Supreme Court is telling agencies that they cannot act without clear congressional authority. What’s an agency to do? The answer is disarmingly simple: nothing, until Congress clearly directs them otherwise.

Read the full piece here.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss the Federal Trade Commission’s (FTC) recent settlement with Amazon of a claim regarding children’s privacy, as well as separate FTC efforts to rewrite its 2019 consent decree with Meta over children’s advertising and services.

Other topics included Amazon settling another FTC  complaint over security failings at its Ring doorbell operation; Microsoft losing a data protection case in Ireland; and whether automated tip suggestions should be condemned as “dark patterns.”

The full episode is embedded below.

ICLE Director of Law & Economics Programs Gus Hurwitz joined Tech Policy Press’ The Sunday Show podcast to discuss, among other topics, the relationship between technology and the law and the role and politics of the Federal Trade Commission. The full episode is embedded below.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss the U.S. Supreme Court’s Gonzalez v. Google LLC case, the court’s first opportunity in a quarter century to construe the limits of Section 230 of the Communications Decency Act.

Other topics included likely U.S. Justice Department challenges to Adobe’s $20 Billion Figma deal and to JetBlue’s proposed acquisition of Spirit; the Federal Trade Commission’s (FTC) proposed ban on noncompete clauses; the FTC’s challenge to the Meta-Within merger; a European Union consultation designed to make U.S. platforms pay more of European telecom networks’ costs; Apple’s progress in devising a blood glucose monitor; and whether artificial intelligence is coming for lawyers’ jobs.

The full episode is embedded below.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast to discuss, among other topics: the electronic surveillance capabilities of the downed Chinese spy balloon; the brief but pointed calls for antitrust and data privacy reform in President Joe Biden’s State of the Union address; the Federal Trade Commission’s (FTC) recent loss in court on its challenge to Meta’s acquisition of Within; and other issues that may be on the horizon for FTC enforcement later this year. The full episode is embedded below.

ICLE Director of Law & Economics Programs Gus Hurwitz joined Steptoe & Johnson LLP’s The Cyberlaw Podcast, offering two explanations for the Federal Aviation Administration recent system outage, which grounded planes across the country, as well as puzzling over the Federal Trade Commission’s peculiar determination to write regulations that will outlaw most non-compete clauses. The full podcast episode is embedded below.