Administrative Agencies & Their Role in Technological Regulation

By: Chi Kim

On January 7, 2023, Kevin McCarthy became Speaker of the House after his colleagues from the House of Representatives held fifteen separate voting sessions. The House demonstrated an equally impressive and depressing feat given the inability of our current elected officials to achieve results for even seemingly mundane decisions. While many liberal observers may have rejoiced at the chaos, the fifteen votes is emblematic of an overall trend of inefficiency within the legislative branch and political processes, especially when tackling more fluid concepts and problems within the technology sector. Creating regulations requires large amounts of information, lobbying, and time to convince policymakers with inflexible positions and procedures around fluid and emerging technologies of the merits of the proposed regulations. In addition to the typical policy lag, the timeline for proposed technological regulations are further exacerbated by the following intrinsic and extrinsic factors. 

Intrinsically, Congress is not equipped to handle technological regulation by design. Although our most recent Congress is younger than its predecessor by one year, this small change alone is a historical anomaly. The 118th Congress is the third oldest since 1789 and generally has been climbing since the early 1980s.The average ages in the Senate and House are 63.9 and 57.5, respectively. While this could be the result of modern medical advancements, the increasing age of our elected officials bodes negatively for the hope that our policymakers will understand the technology that they are regulating. Remember, for instance, the famous Facebook hearings? Even the generally unpopular Mark Zuckerberg looked relatable when forced into the position of explaining a new technology to an older person. Beyond the general lack of subject matter expertise, congressional officials cannot invest the requisite time to learn about these issues while also tackling persistent issues within voting rights legislation, labor and supply chain constraints from international pressures, and a looming recession creeping closer layoff by layoff. 

Extrinsically, big tech still has a massive voice within our congressional chambers. During the 2020 election cycle fifteen major tech companies, including Amazon, Facebook, Google, Microsoft, Oracle, and others, spent $96.3 million to influence forthcoming bills like the National Defense Authorization Act, Fairness for High Skilled Immigrants Act, and the CHIPS for America Act. While Congress receives input from stakeholders, there is often a cost to frame their political positions. 

Despite our political gridlock, the American government is not completely unarmed against big tech. In political law, hydraulics is the concept that political energy is never destroyed but rather manifests into new forms, finding new gaps and openings within the regulatory or political landscape, much like water does on earth. In the context of the technological landscape, the responsibility of passing regulations has flowed to administrative bodies. The Federal Trade Commission (FTC), for example, influences technology policy in a number of different ways. The FTC recently filed a lawsuit against data broker Kochava Inc. for selling geolocation data from millions of mobile devices. If the FTC is successful, such a ruling would likely affect the overall data broker industry. Notably, the FTC leadership impacts the policy direction advanced by the agency. For FTC Commissioner, President Biden appointed Alvaro Bedoya, who previously served as the founding director of the Center on Privacy and Technology at Georgetown Law Center where he worked at the intersection of privacy and civil rights. Additionally, as of the writing of this article, the FTC is accepting public comments for a proposed rule to ban non-compete clauses. This rule is intended to increase worker earnings and create more competition among big tech. While administrative agencies do have their own procedural “policy lags,” the FTC can still actively tackle issues while receiving input from internal and external industry experts without being directly tainted by lobbying efforts. 

Law and technology are often portrayed as incompatible ideas — rising technology  meeting archaic regulations. However, policymakers need to realize that law and technology are not so different — both policymaking and technology development require troubleshooting and reiterations over time. However, unlike the software engineers in the companies that they regulate, policymakers do not have endless opportunities to sandbox their regulations before fully staking their political careers and capital. The responsibility of making such regulations has often flowed to administrative agencies that can take measured steps on the daunting task of regulating big tech companies. However, Congress should build on administrative agency efforts by passing bills based on the failures or successes of the agency actions. Doing so could result in more relevant and long-lasting technology regulations. 

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