The United States is in the process of rolling out a sweeping regulation for personal data transfers. But the rulemaking is getting limited attention, perhaps because it targets transfers to our rivals in the new Cold War – China, Russia, and their allies. Adam Hickey whose old office is drafting the rules, explains the history of the initiative, which stems from endless CFIUS efforts to impose such controls on a company-by-company basis.
Now, with an executive order as the foundation, DOJ has published an advance notice of proposed rulemaking that promises what could be years of slow-motion regulation. Faced with a similar issue – the national security risk posed by connected vehicles, particularly those sourced in China – the Commerce Department has issued a laconic notice whose telegraphic style contrasts sharply with the highly detailed Justice draft.
I take a stab at the riskiest of ventures – predicting the results in two Supreme Court cases about social media regulations adopted by Florida and Texas. Four hours of strong appellate advocacy and a highly engaged Court make predictions risky, but here goes. I divide the Court into two camps – on one hand the Justices (Thomas, Alito, probably Gorsuch) who think that the censorship we should worry about comes from powerful speech-monopolizing platforms and on the other hand the Justices (Kavanagh, the Chief) who see the cases through a lens that values corporate free speech. Many of the remainder (Kagan, Sotomayor, Jackson) see social media content moderation as understandable, consistent with their own biases, and justified, but they're uneasy about the power of large platforms and reluctant to grant a sweeping immunity from regulation to those companies. To my mind, this foretells a decision striking down the laws insofar as they restrict content moderation, but one that won't resolve all the issues raised by the two laws and won't overturn them entirely on the current record. There are too many provisions in those laws that some of the Justices considered reasonable for Netchoice to win a sweeping victory. So I look for an opinion that rejects regulation aimed at "private censorship" but expressly leaves open or even approves other, narrower measures disciplining platform power, leaving the lower courts to deal with them on remand.
