Week in Review

IN THE NEWS

• Facebook CEO Mark Zuckerberg testified before Congress about his company’s use of data, facing questions about news that Cambridge Analytica, a political data firm, had reportedly collected data from over 87 million Facebook users and used it to influence the 2016 presidential election. In his testimony, Zuckerberg called regulations on social media “inevitable” but warned that regulators should be “careful” in crafting those rules so that companies both large and small can comply. At one of his hearings, Senator Amy Klobuchar (D-Minn.)—who co-sponsors the Honest Ads Act, a bill to “enhance transparency and accountability for online political advertisements”—called the data collection “a breach” and advocated for “laws and rules” for this kind of technology.
• Attorney General Jeff Sessions issued a memorandum directing federal prosecutors along the southwest border of the United States to adopt a “zero-tolerance policy” for illegal border crossings. The memorandum came on the heels of a report by the U.S. Department of Homeland Security (DHS) showing a 37 percent increase in U.S. Customs and Border Protection border apprehensions from February 2018 to March 2018. DHS issued a statement highlighting the “urgent need to address the ongoing situation at the border.”
• In an executive order, President Donald Trump called for federal agencies to raise or establish work requirements for certain individuals who benefit from welfare. The executive order called for heads of certain departments to submit a report within 90 days detailing their recommended changes. NAACP president and CEO Derrick Johnson reportedly criticized the order, stating that “there shouldn’t be barriers for those who are in need when they can’t work.”
• The U.S. Department of the Treasury and the Office of Management and Budget (OMB) have agreed to a new framework for reviewing tax regulations. Under the agencies’ new Memorandum of Agreement (MOA), OMB’s Office of Information and Regulatory Affairs (OIRA) will review a subset of Treasury’s tax regulatory actions. Specifically, OIRA will review tax regulatory actions that conflict with another agency’s action, implicate novel legal or policy issues, or have an annual non-revenue economic impact of $100 million or more. The MOA replaces a 1983 agreement between Treasury and OMB on tax regulations.
• The U.S. Food and Drug Administration imposed new safety requirements, including a label change, on Essure, the only contraceptive on the market that can be implanted without surgery. The new safety requirements require doctors to review a patient-doctor discussion checklist with their patients and sign an acknowledgement form before implanting the device.
• President Donald Trump announced that he will lift travel restrictions on the nation of Chad. President Trump had added Chad to his travel ban proclamation in September because of security issues and a shortage of DHS-approved passport paper. Last month, former Secretary of State Rex Tillerson visited Chad and noted its progress in dealing with these issues.
• Fourteen federal agencies have agreed to coordinate on environmental reviews of major infrastructure projects, the White House announced. The One Federal Decision Memorandum of Understanding (MOU), signed by several federal agencies including the U.S. Environmental Protection Agency, assigns one federal agency to lead every major infrastructure project through the federal environmental review and permitting process. The other agencies will conduct their reviews concurrently with the lead’s, and the lead will seek concurrences from the other agencies. The MOU’s design is intended to minimize interagency disputes.
• The video game industry’s self-regulatory group, Entertainment Software Ratings Board (ESRB), proposed modifications to its compliance obligations for children’s online privacy regulations. Among other changes, ESRB seeks to amend the definition of “personal information and data” to comport with Federal Trade Commission (FTC) guidance on its Children’s Online Privacy Protection Rule. The FTC is seeking public comment on ESRB’s proposed changes until May 9, 2018.
• Chinese President Xi Jinping reportedly promised during a speech at the Boao Forum for Asia to reduce tariffs on imports, especially automobiles. Although he never specifically mentioned the United States, the South China Morning Post reported that Jinping “stressed throughout his speech the need for all countries to embrace globalisation [sic] and multilateralism.” On the same day, China filed a complaint with the World Trade Organization opposing U.S. tariffs on steel and aluminum.
• The state of New York, along with 16 other states and the District of Columbia, sued the U.S. Environmental Protection Agency (EPA) and EPA Administrator Scott Pruitt for failing to establish methane emissions standards for existing sources in the oil and natural gas industry. The states allege that EPA has “unreasonably delayed” publication of these guidelines, in violation of the Clean Air Act. New York Attorney General Eric T. Schneiderman stated that EPA’s “continued refusal to do so is not only illegal, but threatens our public health and environment.”

WHAT WE’RE READING THIS WEEK

• Mark Penn, Microsoft’s former chief strategy officer, wrote in an op-ed for The New York Times that Facebook’s mishandling of personal data stemmed in part from an absence of adequate federal regulation. Penn highlighted the contrast between the well-developed regulatory framework governing traditional media, such as radio and television, and the lack of federal oversight of Internet-based media platforms. If Facebook and other sites continue disseminating news content and allowing paid advertisements, Penn argued, they should be subject to legislation designed to promote accountability and protect the internet as a public good.
• In a forthcoming article in the Vanderbilt Law Review, William J. Moon, assistant professor at the New York University School of Law, discussed how recent U.S. Supreme Court cases have limited statutes only to the United States, which in turn has allowed corporations “to circumvent regulation by incorporating in offshore jurisdictions.” Moon argued that this practice inhibits private lawsuits against these corporations.
• Writing for the George Washington University’s Regulatory Studies Center, Stuart Shapiro, professor at the Rutgers Edward J. Bloustein School of Planning and Public Policy, discussed how the “ossification” of rulemaking procedure is affecting the Trump Administration’s push for deregulation. Shapiro found that the Administration’s carelessness with respect to procedural issues has caused courts to resist various deregulatory actions.