Gus is joined by Neil Chilson, a senior research fellow for technology and innovation at Stand Together. Prior to his current role, Neil was the Federal Trade Commission’s (FTC) chief technologist. Together they discuss the FTC’s recently released ANPR (Advanced Notice of Proposed Rulemaking) on commercial surveillance and data security.
Follow Neil on Twitter @neil_chilson
Links
Neil Chilson
Nebraska Governance and Technology Center
Text of the Notice of Proposed Rulemaking Regarding the Commercial Surveillance and Data Security
Gus is joined by Neil Chilson, a senior research fellow for technology and innovation at Stand Together. Prior to his current role, Neil was the Federal Trade Commission’s (FTC) chief technologist. Together they discuss the FTC’s recently released ANPR (Advanced Notice of Proposed Rulemaking) on commercial surveillance and data security.
Follow Neil on Twitter @neil_chilson
Links
Neil Chilson
Nebraska Governance and Technology Center
Text of the Notice of Proposed Rulemaking Regarding the Commercial Surveillance and Data Security
This is Tech Refactored, a podcast in which we explore the ever changing relationship between technology society and the law. I'm your host, Gus Hurwitz, the Menard director of the Nebraska governance and technology center.
On this episode of tech refactored, I talk with Neil Chilson. I am currently the senior research fellow for technology and innovation that stand together. Prior to that, Neil was the federal trade commission's chief technologist. In that role, he focused on understanding the economics of privacy, convening a workshop on informational injury and establishing the federal trade commission's blockchain working group among other things prior to his appointment.
As chief technologist, Neil was an advisor to then acting FTC chair Maureen Ohlhousen. "In those two roles I interacted with pretty much everything that the FTC did on privacy and data security during that time, which is about four years." Our topic today is the federal trade commission's recently announced advanced notice of proposed rule making on commercial surveillance and data security.
And yes, that is quite a mouthful. And it turns out that almost every one of those words has meaning advanced notice of proposed rule making. And then the topic is commercial surveillance and data security. So what's going on with this? Last week, the federal trade commission basically told us that they are thinking about issuing rules that deal with how technology companies or even any company that uses technology to collect or use customer data goes about collecting, using, storing, uh, that data, what they do with it as explained by the FTC and document that released last week, they're doing this.
Because recent commission actions, news reporting, and public research suggests that harmful commercial surveillance and lacks data security practices may be prevalent and increasingly unavoidable. The concern is that as a result, consumers, you and me are being harmed. Now it turns out this is a pretty controversial set of rules that the federal trade commission is considering.
And that's gonna be our topic today, the federal trade commission, when they announced this. They are a five member commission made up of both Democrats and Republicans and only the three democratic commissioners supported this document. This announcement, the two Republican commissioners, they declined to support it.
We're going to be exploring what's going on with this a NPRM and also talking a lot about what an a NPRM is, and really the, the procedure and all the background of how the federal trade commission and other federal agencies go about trying to issue rules like these.
I'm just going to put a, a bit of a, a disclosure on this discussion, which is, I think it's fair to say that both Neil and I are pretty public and vocal critics of a lot of what the federal trade commission is doing nowadays, uh, in areas relating to technology and, uh, privacy included. Yeah. Do, do you think that's a, a fair disclaimer?
Uh, Yeah, although I will say, uh, the FTC did surprise me, uh, on Monday and released a document that the staff had done out of OPPP. It's not privacy related. It's antitrust related. Uh, it's about hospital certificates of public accommodation, or public need, uh, depending on the ones and, uh, That was pretty good.
I was shocked. It was good. I, I, I had to, I had to tweet, uh, kudos to them. Uh, it was, it was great. So not always critics, um, not diehard critics looking for good stuff outta the FTC, a big fan of the institution. Maybe I am a little bit more a fan of the institution than, than you are Gus, but yeah, certainly disappointed with, uh, what's been going on there.
Can you, uh, tell us a bit about, uh, what came out of the federal trade commission last Thursday that is known as the A N P R ? M uh, on , um, commercial surveillance. Yeah. So, uh, so the FTC last Thursday kicked off a rule making. Uh, releasing a document called at advanced notice of proposed rule making, which they have abbreviated and an ANPR.
Um, but given my background at FCC, uh, where they call notices of proposed rulemakings NPRMs, I, I found, I, I, I found that was a bit of a, a weird moniker and maybe, maybe just a slight indication that they, uh, haven't done a lot of rule makings in the past. Uh, anyways, but outside of that very, very minor, uh, stylistic critique.
Um, the AMPR kicks off a process of the FTC making rules in the privacy and data security space. the FTC has made rules in the privacy and data security space in the past, uh, when Congress has authorized it to do so in various specific spheres, such as, uh, children's online privacy and some other areas, but this is a general rule making.
And this is the very earliest document that might come out of this. So it asks a bunch of questions. It doesn't provide any guidance as to what the agency is thinking of doing. Specifically, but it certainly has a tone that suggests that they are highly critical of the use of data in businesses. Uh, especially when that data is data about people.
And so, uh, just from the framing that calling it, uh, commercial surveillance evokes a, a certain, um, stink around, uh, the use of data by business, and so they certainly are, uh, opinionated, even though this is very early in the rulemaking process on the substance, this is all questions, right? The document is all questions.
It has some forward material that just talks about the prevalence of the use of data in business in largely pejorative terms, um, but then it runs through a whole list of questions. Uh, in a bunch of different categories and, and asks for people to weigh in. So that's what they did. It came out on a three, two vote, which is very strange, um, very strange, uh, for it to be a split decision on something that is just asking questions.
One would think that you could get a group to gather, to say, Hey, lay, let's ask some questions around this space. And I think traditionally in ANPRMs or what the FCC would call notices of inquiry, they're almost always unanimous because all you have to do is put in the questions from all the commissioners and then
um, then you get their vote. So it's a bit weird that this one was a three, two split. Um, but when you look at the questions, it's actually not that surprising, cuz the questions are all pretty much aimed towards one thing. How do businesses harm consumers online by using their data a whole lot that, uh, is queued up right there.
Yes. I'm actually going to jump right in and come to the defense of the FTC on this ANPR. Abbreviation question. I know this seems very trivial, but it, it actually is really interesting, uh, because Neil, you, um, viewed up a central critique here. Um, a number of people have said, well, agencies like the FCC abbreviate, this NPRM does the, FTCC just not know what it's doing.
And I actually did, uh, Do some searches in legal databases, going back to the 1980s and agencies do use both abbreviations, ANPR, and if you think rule making is one word, it should just be R . Um, and uh, a lot use a NPRM, uh, which I, I think, uh, actually goes to a really different, fascinating point about the administrative state and how federal agencies do this strangulation, which is that
there's a lot of idiosyncrasies between different agencies. We think that, Hey, all these agencies are doing the same sort of thing, they should be doing it in the same way and in fact, there's a, a law, the APA that tries to do that and normalize these procedures. But, uh, in reality, every agency kind of does its own thing, which is, uh, fascinating in its own way.
I wonder, Neil, uh, another thing that you queued up for us is, uh, a question of authority. So you gave the example of children's privacy rule makings, and the FTC has specific authority under a statute called kapa, um, to, uh, regulate children's privacy related issues. And then you said this is under the agency's general authority.
Yeah. Can you tell us a little bit about what you mean? It's general authority. Yeah. So, uh, the FTC has, uh, under section five of the FTC act has authority to police unfair and deceptive acts and practices. This is its UDAAP authority and it's as general as it sounds, right? That's pretty broad; unfair, deceptive acts and practices.
And so the commission has done a lot of things in this space, including a lot of enforcement actions in the privacy space, um, in the privacy space, those tend to look like companies making promises. And then breaking those promises. Uh, the promises are typically made in, um, you know, privacy policies and the commission has brought enforcement actions.
They most often do not turn into court litigated cases. They most often turn into settlements, um, but has brought, uh, enforcement actions against companies who said one thing in their privacy policy and did something different. So that's a traditional deception authority enforcement. In the data security space,
they have looked at, um, actions that cause under their, their rubric for unfairness, that cause substantial injury to consumers, that's unavoidable and isn't outweighed by the benefits to consumers or competition, um, and have brought some cases and enforcement actions, uh, under that. But those aren't rules, right?
Those are enforcement actions under its general authority, so the argument here is that the commission is going to write rules now under this very general authority and has not been told by Congress to write rules. Uh, about all of privacy, separate from, you know, the types of authority that it has relied upon to bring deception and unfairness actions in the past.
And so I think there is a serious question about whether or not the FTC even has the authority to do this. I, I, I would say, I'll show my hand, I don't think they do; I don't think Congress has tasked them with this. And I think recent court cases suggest that the Supreme court would be extremely skeptical of this type of broad rule making based on a, uh, very vague statute that does not seem to
uh, delegate this question to the commission at all. So you're, uh, talking there about the Supreme court's recent West Virginia v. EPA case, or the so-called major questions doctrine case where the court rejected a EPA rule that basically would have required. The entire energy industry to transition away from, uh, coal, um, based upon, uh, the EPAs authority to regulate air quality.
And the, the court basically said, look, you have the ability to regulate the industry as it exists, but we can't imagine that Congress would've empowered you to completely restructure the entire energy industry without being clear in saying that. Um, and here the federal trade commission, they have this unfair, uh, and deceptive acts and practices, um, authority, which traditionally has been used to go on a case by case basis after really narrow, uh, and pretty clear abuses that harm consumers in discrete sort of ways.
And here they're potentially they're asking questions that suggest they're interested in completely restructuring the entire tech sector. So that kind of seems like similar to this West Virginia EPA case. If Congress wanted you to completely restructure a, uh, extent industry that's billions, trillions of dollars of commerce.
Um, we think Congress probably should have been a bit more clear about it. Yes. Uh, and I think the Supreme court, uh, thinks that as well. So it's not just you and me Gus. Yes. Um, well, let's, uh, probe this a bit more and I'm, I'm going to, uh, challenge you a little bit, uh, here, Neil. I, I think a lot of consumers are
kind of concerned about big tech, uh, technology generally. Um, there's a lot of bipartisan concern about, uh, the tech sector, a lot of calls to regulate the tech sector. Isn't it fair that the federal trade commission should be trying to do something to protect consumers against, uh, these harms? And a lot of them are about privacy practices and a lot of them are about big tech companies that have
done things that the federal trade commission has gone after them before for. And, uh, a lot of those consent agreements, uh, sent decrees, uh, folks would say, have been violated, um, by, uh, the tech industry or individual companies in the tech industry. Doesn't that suggest that the FTC's prior approach hasn't been up to, uh, snuff and maybe the commission should do these big rule makings instead of one off settlements?
Yeah. So, I mean, that's certainly the argument in the document, although I will say that I don't think that the ANPR singles out big tech, uh, or the big tech companies. It, it talks pretty, um, broadly about the entire, all the different types of data use. And it doesn't seem to single out big companies from small companies.
I think it's- it calls it all surveillance. And so anytime that you as a customer are giving information to a company, uh, it seems to fall within the scope of, uh, the, ANPR, at least what they're considering as commercial surveillance. And so it's not really, uh, for these purposes about big tech, although certainly people will see it in that context.
You know, the FTC has done a lot in this space, hundreds of, uh, you know, enforcement actions, as I mentioned before, And this current administration, like on the antitrust side, seems to think none of that work has done anything, but I, I, I don't think that's quite right. I mean, the companies have actually tightened up a lot as far as what they do, how they keep track of things, what they disclose about how they use data.
It's increasingly been, uh, seen that consumers want some assurances about this and companies are trying to do that. And some of that is driven by the enforcement actions that the FTC has done in the past. You know, there's always a critique of case by case enforcement as not being able to stop things from happening that are harmful.
And I think that's correct, I mean, that is a critique of after the matter, um, enforcement, but prescriptive rule making, uh, can address some of that, but it has its own problems. And I think, uh, we've seen that. However, There are lots of prescriptive rules out there and there's more every day, the states as the, uh, ANPR points out, uh, Europe has a bunch of prescriptive laws in this space.
A lot of the states have prescriptive laws. And right now Congress is probably the closest that it has been to, to, uh, agreement around a federal general privacy law. And so it's somewhat, um, inauspicious timing that the FTC is also jumping into the fray to write rules, uh, when Congress is right in the middle of doing this.
And I think if I was challenges this in court, I would say that the fact that Congress is looking at doing a federal. Law is just another piece of evidence that they did not intend the FTC to be doing this type of thing, uh, right now. Yeah. So there, there are, uh, uh, two things there, this, uh, Supreme court case that says, Hey, this is may be a major question.
And now you're adding in that Congress is actively considering, um, this, uh, new privacy legislation that might address a lot of these concerns. Let, let's put that to the side. I, I want to ask a follow up hypothetical. You say Europe has all these rules that they're implementing and the, the individual states have all these rules that they're implementing.
Doesn't that suggest that maybe the FTC should be doing something? And, uh, perhaps, uh, I know you and I have a lot of concerns and criticisms of what Europe is doing, um, and I expect that you and I both have concerns about 50 individual states, uh, uh, doing their own conflicting things that will be a, a thicket of impossible rules for firms to comply with.
Um, so doesn't that suggest that maybe it's a good thing. If a federal regulator steps in takes the air out of what the states are doing and perhaps is a norm entrepreneur and leader that would be setting better standards, possibly, then what's going on in Europe? Yeah, I mean, I, I, I think I've been in support of, uh, a federal, uh, approach to privacy, to commercial privacy.
And, uh, I do think there is room for a federal action in this space. Uh, to me, the bigger question is whether or not the FTC has authority, and I know we've already talked about that. Is this the type of thing that, you know, five appointed, uh, commissioners should be deciding rather than our elected representative?
So, uh, I have some current concern there. I, I mean, I would not bet that Congress would be better at the substance than the agency necessarily, but, uh, they might be, they might not be, uh, but certainly they would have more legitimacy under our, uh, you know, our constitutional system if there was a privacy law coming from
congress rather than from the FTC. And in addition, I, I think it would be, there's a lot of interesting questions around whether or not the FTC rule, makings, whatever they, they create, um, would they claim that they preempt the states? Uh, could they claim that? And if not, then it's another layer on top of those.
Uh, state privacy. Well, I don't think there's quite 50, uh, general privacy laws yet, but it's another quilt on top of that patchwork. So how does that look from a compliance point of view? Uh, will there be conflicts and how will those be resolved? I think that raises a lot of legal questions, especially since Congress has not provided specific direction here.
It's a, a great point. Our, our federal system is so complicated with the relationship, not just between federal laws, that Congress acts, but then our regulatory laws and the questions of preemption of state laws. Uh, there are a lot of open questions about, uh, under what circumstances do federal laws preempt or not.
And you can imagine that if the FTC were to take action here, um, that could just open the door to another 5, 6, 7, 8 years of litigation, trying to figure out what their rules actually mean with respect to the states, the Nebraska governance and technology center studies, the ever-changing relationship between law and technology, how the law can regulate technology.
And how new technologies affect what the law can do. We encourage you to subscribe to tech refactored on your podcast platform of choice. New episodes are released every Friday morning. To find out more about the wide ranging work of the center, you can visit our website at ngtc.Unl.edu, and find us on socials at UNL underscore NGTC
back to our interview with Neil Chilson. Okay. Neil, uh, pop quiz time for you. Uh, can, can you just walk us through and explain a bit about, uh, the rule making process that the FTC uses, or I guess how an idea becomes a rule since it's not how a bill becomes law, what what's that process look like? Well, uh, it's different at every agency in some ways, although there is a uniform, um, federal law that tries to set out the guidelines for agencies.
The processes are slightly different everywhere, but the FTCs is, uh, more unique than all the other ones are unique, right? In some ways, uh, the, the FTC has a, uh, some would qualify it as a more burdensome process to make rules, and that is an effect of the FTC, trying to exercise, rule, making authority in the past and being very aggressive, uh, about it.
And congress having some feedback on that. Heh. Uh, and so... congress having some feedback, we, we should just say Congress actually shut down the FTC in the 1980s. Yeah. For a short period of time, uh, due to what was perceived as the FTC's very aggressive use of its, uh, authority. Yeah, and some of the procedures, you know, to, to be, to be fair, some of the procedures that the FTC is, is required to jump through are– I may not be getting my timeline exactly right here– but some of them were adopted, you know, before some of that worst behavior, uh, for certain areas.
So what the FTC does is Magnuson Moss rule making, when it doesn't have a grant of authority from Congress to do a APA rule making. And that requires some extra things. First of all, it requires like an, A P R M like this, uh, whereas say an agency like the FCC could just start if it wanted to, with an NPRM, uh, on, on certain issues.
Uh, it also requires, uh, hearings before presiding officer and some of these requirements are in the statute, some of them are in the rules that the FTC has adopted to implement the statute, it requires hearings, open hearings, it requires a sort of adversarial process. That's kind of a generalization, but a sort of adversarial process where people can come up and, and have their say, uh, in a, in a hearing.
Um, all of these are things that regular APA rule making does not require. Although I think agencies could do them if they wanted to. Um, and so. It means that the FTC has a, uh, longer road from the start of a rule making process to getting a final rule out the door. I will say, um, the commission has not done very many of them in part because of the perception that it is hard to do.
And because the FTC generally speaking has been oriented towards enforcement rather than rule making that has been its history and its practice for a long time. It's more of an enforcement agency than a rule making. And so it doesn't have a lot of, uh, these procedures have not been exercised that many times.
So I bet the FTC itself is, uh, working, working out some of that stuff. So for other agencies, uh, real quick background, uh, it's relatively straightforward to create new rules. Assuming you have legal authority, you put out what's called a notice of proposed rule making. Um, that gives notice, uh, then there's a period during which the public can comment.
And then you use those comments and draft up rules. You publish 'em in the federal register and they're rules. Um, so pretty straightforward and. As you note, there's this, uh, Magnuson Moss the name of, uh, two legislators who, uh, drafted it back in, uh, 75, I believe creates additional steps, uh, for the FTC, this additional ANPRM notice needs to be given to, uh, congressional, uh, committees.
Uh, and the opportunity for a hearing is, uh, included in there. So a, a very different, um, process. So Neil, I understand, uh, earlier this week you were at a big conference that's held every year, um, in Colorado, uh, the TPI, uh, Aspen conference, which is a big technology regulation conference that brings together scholars, industry, regulators to talk tech policy.
I, I wonder what was the, the buzz at Aspen, um, this year about this issue? So, um, on the privacy front, there was, there was a, uh, there was a workshop. They honestly didn't spend a ton of time talking about this, I gotta be honest. Uh, they talked a lot about, uh, more national security aspects of privacy and privacy from government, uh, on that panel.
Um, I think that was in part just the makeup of the people who were in the room and, you know, the FTC crew was not hugely, uh, represented there. There was a lot of talk about antitrust more generally. And the FTCs role on that. There were a couple sessions, both with state ag. and with, uh, a panel of experts on the FTCs and the DOJs, but mostly the FTCs efforts in the antitrust space.
Uh, but didn't really talk a lot about the, the, the rule making. Um, the other buzz was obviously around commissioner, uh, Noah Phillips' announcement that he would be leaving the commission at some point to be determined. And so there was a lot of discussion about when that might happen. What, what effects does it have, who might be, um, coming into that slot?
Uh, why it's happening now? You know, just it's all rampant speculation, but there were some reporters who were, um, . Cornering me and asking, asking me, uh, uncomfortable questions. So if nominated, will you put yourself through that process and destroy your family? uh, I, I, I'm pretty sure, uh, I'm pretty sure my Twitter feed precludes me from being, uh, a Senate confirmed, um, uh, uh, well, certainly would make it more complicated.
So, uh, uh, I, I cannot imagine why, uh, not, not to say that you won't necessarily, but I cannot imagine why anyone would put themselves uh, through that miserable, miserable process. Yeah. That process, uh, you know, having, having, worked for a, a commissioner who was acting chair and was herself going through that process?
Um, I can tell you, it is, it is brutal and I'm glad good people, uh, do put themselves through that process to get, uh, into those seats. But, uh, it's a pretty brutal process of making everybody about equally unhappy so that, uh, so that including yourself, and the, the key so that nobody stands out. Yeah. The key point you just made is glad good people are willing to do it.
And I, this is a complete aside from our discussion, but we need to get better in Congress and in our society in terms of bipartisanship and understanding, and respect and cordiality to dissenting views, because good people don't want to take these jobs and we need good people in these positions on both sides on, and there are more than two sides on every side.
Yeah. Um, and right now I can't imagine willingly putting themselves through a confirmation process in the current political climate. And it it's a real loss in tragedy for, uh, our country. Yeah. And I'll, I'll say just, you know, more generally, uh, well, I think the whole nomination and confirmation process has gotten more politicized that wasn't the case really for the FTC.
I mean, the FTC has been a bipartisan, not particularly political place. I mean, there's been times in its past where it's, you know, there's been, there's been disagreement. There's been always been plenty of disagreement about things, but the commission itself has had operated very non politically, and it just, wasn't a very contentious place.
And I think that has changed, uh, the current leadership. I think the environment, the political environment, the pressures on the FTC have changed, but the current leadership has seemed almost excited to lean into a politicization of the agency in a way that looks a lot more like their sister agency, the FCC.
Uh, then it does what historically the FTC had looked like. And ironically, uh, the FCC, their sister agency is, uh, uh, you call, uh, the FCC over the last two years, I think has been remarkably bipartisan and getting important work done. Um, and the fascinating element of that is the white house has failed to appoint a fifth commissioner.
So the FCC has been in a two, two Democrat, Republican appointed, uh, commissioner situation, but they they've still been getting the important work of the FCC done, which yeah. It's is fascinating in its own. Yeah, there's a, uh, I think there's a, uh, a case book or a case study to be written, uh, about the differences between the pre majority chairs, uh, position between the FTCC and the FCC between, you know, Jessica Rosen at the FCC.
And, um, uh, Lena Conn at the FTC, there, there there's quite a study in contrast there, uh, between the two agencies and what they were able to do when they had two, two splits we've mentioned, but haven't, uh, said anything, uh, much about the American data, privacy and protection act. Uh, the ADPA act. This is the congressional privacy act under consideration.
Uh, uh, curious your thoughts, both on the substance of that act, uh, and if you could say anything about, uh, the substance of it, but also how it might relate to the FTCs proceeding. Congress has been trying to pass a comprehensive privacy bill for a long time, uh, has found that very challenging. Uh, it's a complicated issue and there's a lot of state interests here given that some states have already passed laws.
And so the two sticking points are, are federal preemption and the private right of action. And this bill tries to find some compromised positions and seems to have some general support. It's always probably the best bet to say that Congress doesn't pass something new. This one probably has the most enthusiasm and support that I've seen so far.
So, uh, how that interacts with the FTC? I mean, I think there, there are provisions in here that provide, uh, authority, including rule making authority to the FTC, to implement regulations that implement the act. Uh, I think it also adds some, uh, resources to the FTC and, uh, something that I think there's been bipartisan calls for over the several decades.
Uh, uh, given that the FTC's staffing and resources are, have been relatively flat over a period in which a lot of its jurisdiction has gotten quite a bit more active. So outside of what it does, what the bill would do in substance, I think, as I mentioned before, it's strange that the FTC would be taking on a rule making at this time.
Uh, I will say I, I, I watched a press conference for the ANPRM and several of the commissioners, the democratic commissioners emphasize that they don't see this as conflicting with congressional rules. Um, and Bedoya, I think in specifically said that he would not vote for a rule that conflicted with any legislation that Congress passed.
Which I mean, I think is just a good legal yep. conclusion. Um, uh, but, uh, so I, I think the commission is very aware of this critique. Uh, the chair is, um, and I think they're trying to mitigate, um, some of the public controversy on that by saying that. This is not intended to preclude congressional action, which again, as a creature of Congress agencies probably should never try to preclude congressional action.
So that's a, that's a good position. I'm glad they're, I'm glad they're not trying to stop Congress from. Uh, doing his job though, though, it's a fascinating point. If they do adopt, uh, rules, there are some in Congress, most likely on the democratic side, who might prefer the FTCs rules over the rules that, uh, Congress is considering in, uh, uh, ADPA.
Um, in which case the FTC might actually have the ability to effectively kill a congressional rule here, congressional legislation, um, Taking away the needed, uh, legislative support for it to be enacted, which is a, a fascinating dynamic to think about it. It's not illegal. Um, it's not against the rules in any way necessarily it's political hardball perhaps, but it it's a fascinating dynamic.
Well, presuming the FTC had a, uh, had the authority to do it i, I, I agree. I mean, I think if I was a Democrat, I would worry about the legal sustainability of a, a rule adopted under this ANPRM and the process, even if I agreed with it 100% in substance and was, and, and liked it a lot better than say what, what Congress might be able to get to.
Yeah. But I think that's exactly right. So I guess, uh, that response might foreshadow the answer to my next question. Time to take out the crystal ball. What does the future look like of, uh, the FTC generally I'll perhaps ask, but, uh, this set of proposed rules or the, ANPR, uh, in particular. Uh, so, uh, again, I, in, in reading the, ANPR, it does not read like something that is intended to be the start of a legally sustainable rule.
So, uh, I would expect the process to continue, but the commission to continue to take a sort of one sided view of. And I think they even sort of acknowledge that even if this doesn't produce a final rule, that they're hoping to shape the conversation, uh, there's a paragraph where they say that that would shape their future decision making and maybe even congressional action.
So it may be that the chair is seeing this as an opportunity to talk about the things the way she wants to talk about them and to frame the conversation rather than to get to a final rule. And I, I, I think that's pretty likely, so I, I, I think I, I would put you. Less than 50/ 50 that this process ends up with an actual rule.
But I do think that people who have concerns with the way that the commission has framed this, uh, and who have specific information to help, uh, address some of the questions that the commission is asking, uh, should participate, even if there is not likely to be a final rule, uh, because I do think it is important that the conversation not be as one sided as the, ANPR suggests that the commission wants it to be.
Yeah. My, my own two cents is that the, the commission has set itself up a procedurally fascinating time bomb. I, I, I think this is commissioner Phillips, uh, take as well in his, uh, uh, dissent. Um, yeah, this isn't an, a NPR. The, uh, statute magmas actually has statutory requirements for what needs to be in a advanced notice of proposed rule making that includes you need to present the alternate rules under consideration, and the agencies fail to do this, which means if this process goes on to produce any rules, it's going to be challenged in court procedurally saying, Hey, you guys never issued an, ANPR and
unless the commission at some point in the future issues, another, a NPR to kick off another rule making process. I, I don't see this actually viably surviving judicial challenge just on purely procedural grounds, um, which is just a absolutely confounding position for the commission to have put itself in.
Yeah, it. It's bad lawyering at least, uh, maybe it's intentionally bad lawyering. Uh, maybe they, they think they see the political benefits outweighing the, you know, since their, if their goal is not really to create a sustainable rule, but it, it must- I can think of some folks inside the commission who are not, I don't agree with on substance, but who are probably grinding their teeth at having to put something like this out and claim that they're gonna create a legally sustainable rule.
So I bet there's some frustration from the, the lawyers, lawyers inside of the commission. Well, Neil, uh, thank you for taking the time to chat with us. I always enjoy, uh, talking with you and, uh, I, I expect we'll have some chance in the future to talk about more antitrust, uh, unfair methods of a competition, the other side of the FTCs authority, but, uh, thanks for taking the time and, uh, I think I'm gonna enjoy
watching this, uh, entire process play out, uh, with you on the side. Yeah. We'll have to talk when they, uh, when they start doing rule makings on the UNC side. Thanks so much for having me.
Tech refactored is part of the Menard governance and technology programming series hosted by the Nebraska governance and technology center. The NGTC is a partnership led by the college of law in collaboration with the colleges of engineering business in journalism and mass communications at the university of Nebraska.
Tech refactored is hosted an executive produced by Gus Hurwitz. James Fleege is our producer. Additional production assistance is provided by the NGTC staff. The series theme music was created by Colin McCarthy. You can find supplemental information for this episode at the links provided in the show notes. To stay up to date on what's happening with the Nebraska governance and technology center,
visit our website at ngtc.unl.edu. You can also follow us on Twitter and Instagram at UNL underscore ngtc.