Democrats To Use Republican's FTC Fix Language (Free Preview)

Democrats To Use Republican's FTC Fix Language (Free Preview)
Photo by Nick Fewings on Unsplash

Subscribe today for all the paywalled material on The Wavelength, a newsletter on the intersection of tech politics, policy, and law.

Here is the free preview of yesterday's edition of The Wavelength.

Last week, United States (U.S.) Senate Commerce, Science, and Transportation Committee Chair Maria Cantwell (D-WA) issued a staff report on and a bill to restore the Federal Trade Commission’s (FTC) historical use of authority granted under Section 13(b) of the FTC Act the Supreme Court of the U.S. (SCOTUS) struck down in AMG Capital Management, LLC v. FTC. In that case, SCOTUS found that term “permanent injunction” in 15 U.S.C. 53(b) (aka Section 13(b)) does not allow the agency to seek and receive “equitable  monetary relief such  as  restitution or  disgorgement.” For decades, the FTC has gone to court to ask for forms of equitable monetary relief like restitution or disgorgement so that bad actors are forced to return ill-gotten funds to the people they cheated or defrauded. The FTC also sought to use these powers in conjunction with illegal activity that happened in the past and was no longer ongoing.

In writing for the Court, Justice Stephen Breyer framed the issue to be decided:

Did Congress, by enacting §13(b)’s words, “permanent injunction,” grant the Commission authority to obtain monetary relief directly from courts, thereby effectively bypassing the process set forth in §5 and §19?

SCOTUS ruled that “permanent injunction” does not provide the authority to seek monetary relief:

Several considerations, taken together, convince us that §13(b)’s “permanent injunction” language does not authorize the Commission directly to obtain court-ordered monetary relief. For one thing, the language refers only to injunctions. It says, “in proper cases the Commission may seek, and after proper proof, the court may issue, a permanent injunction.” 15 U. S. C. §53(b) (emphasis added). An “injunction” is not the same as an award of equitable monetary relief… We have, however, sometimes interpreted similar language as authorizing judges to order equitable monetary relief.

However, SCOTUS did not find the language in the FTC Act permitted judges to order equitable monetary relief:

But if this language alone is not enough, there is more. The language and structure of §13(b), taken as a whole, indicate that the words “permanent injunction” have a limited purpose—a purpose that does not extend to the grant of monetary relief. Those words are buried in a lengthy pro- vision that focuses upon purely injunctive, not monetary, relief.

And, here are developments and articles from last month. Being subscribed would mean getting these in a more timely fashion.

Other Developments

Photo by Ant Rozetsky on Unsplash

The United States (U.S.) Cybersecurity and Infrastructure Security Agency (CISA), the Department of Energy (DOE), the National Security Agency (NSA), and the Federal Bureau of Investigation (FBI) released a joint Cybersecurity Advisory (CSA), “warning that certain advanced persistent threat (APT) actors have exhibited the capability to gain full system access to multiple industrial control system (ICS)/supervisory control and data acquisition (SCADA) devices using custom-made tools.”

The Netherlands’ data protection authority, De Autoriteit Persoonsgegevens (AP), “imposed a fine of €3.7 million on the tax authorities…because of the years of illegal processing of personal data in the Fraud Signaling Facility (FSV)…[w]ith often major consequences for people who were wrongly on the list.”

Out-going Privacy Commissioner of Canada Daniel Therrien wrote an op-ed on “[t]he evolution of privacy protection and the case for legislative reform,” in which he stated “[a]s my mandate draws to a close, I urge the government to move quickly to enact much-needed legislation to effectively protect the privacy rights of Canadians.”

The United States Office of Management and Budget (OMB) published “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” that “provides implementation guidance to Federal agencies on the application of: (1) a “Buy America” preference to Federal financial assistance programs for infrastructure; and (2) a transparent process to waive such a preference, when necessary.”

The United Kingdom’s Competition and Markets Authority published two papers “discussing and summarising evidence on online choice architecture (OCA) and how it potentially causes harm.”

The United States (U.S.) National Artificial Intelligence Research Resource (NAIRR) Task Force held its sixth meeting, “continuing their efforts to develop a vision and implementation plan for a NAIRR — a national cyberinfrastructure that would democratize access to the resources and tools that fuel AI research and development (R&D).”

The United Kingdom’s Financial Conduct Authority (FCA) has requested views on “[s]ynthethic data to support financial services innovation “ “to understand the existing market maturity of ‘synthetic data’ within financial services and its potential for safely opening data sharing between firms, regulators and other public bodies.”

The United States (U.S.) Department of Education’s  Office of Educational Technology (OET) and Digital Promise announced the Digital Equity Education Roundtables (DEER) Initiative, “a series of national conversations to further examine barriers faced by learner communities and identify promising solutions that can lead to real impact on their abilities to access and use technology for learning.” OET and Digital Promise “will share strategic guidance on equitable broadband adoption considerations to support states in building their digital equity plans, as well as drive community action and commitment aligned to the vision for digital equity emphasized in the publication.”

The United States (U.S.) Securities and Exchange Commission (SEC) rejected Meta/Facebook’s request that a shareholder proposal requiring a third-party report on the “potential psychological and civil and human rights harms to users” in the metaverse not be allowed to move to a vote at the annual shareholders meeting.

United States (U.S.) House Majority Whip James Clyburn (D-SC) and House Oversight and Reform Committee Chair Carolyn Maloney (D-NY) “sent a letter to CEO Blake Hall, requesting documents and information related to the company’s contracts with federal, state, and local governments for use of its facial recognition technology.”

Further Reading

Photo by Damian Patkowski on Unsplash

Facebook ‘lacks willpower’ to tackle misinformation in Africa” by Jason Burke — The Guardian

Meet the 1,300 librarians racing to back up Ukraine’s digital archives” By Pranshu Verma — The Washington Post

One year in, Meta’s civil rights team still needs a win” By Issie Lapowsky — Protocol

Crypto Industry Helps Write, and Pass, Its Own Agenda in State Capitols” By Eric Lipton and David Yaffe-Bellany — The New York Times

The debate over a privacy bill is inching forward on Capitol Hill” By Cristiano Lima — The Washington Post

“DMA: significant additions made it into the final text” By Luca Bertuzzi — Euractiv

Apple CEO escalates fight over App Store regulation in rare D.C. speech” By Cat Zakrzewski — The Washington Post

Shields Up: U.S. officials preparing for potential Russian cyberattacks” By Bill Whitaker — 60 Minutes

California's privacy law was supposed to be a model. Then lobbyists got to work.” By Ben Brody — Protocol

Midterm politicking comes for Biden’s stalled tech nominee” By John Hendel — Politico

Congress seeks compromise to boost computer chip industry” By Kevin Freking — Associated Press

Elon Musk wants a free speech utopia. Technologists clap back.” By Elizabeth Dwoskin — The Washington Post

Russia’s propaganda machine takes another hit” By Mark Scott — Politico EU