Week in Review

IN THE NEWS

• The U.S. Department of Labor issued a final rule under the Employee Retirement Income Security Act of 1974 that allows fiduciaries to consider climate change and other environmental, social, and governance factors when deciding how to invest and exercise their shareholder rights. The new rule amends and clarifies two prior amendments that, according to the Labor Department, “unnecessarily restrained” retirement plan fiduciaries by forcing them to select investments based solely on pecuniary factors, such as investment risk and return. The Labor Department’s Assistant Secretary for Employee Benefits Security Lisa M. Gomez stated that “climate change and other environmental, social and governance factors can be useful for plan investors as they make decisions about how to best grow and protect the retirement savings of America’s workers.”
• The U.S. Department of Agriculture’s (USDA) Food and Nutrition Service proposed changes to its Special Supplemental Nutrition Program for Women, Infants and Children. USDA’s changes would revise the program’s dietary guidelines to reflect the National Academies of Sciences, Engineering and Medicine’s 2017 recommendations, which suggested the need for more balanced food options under the program. USDA said the changes aim to provide additional food options to participants while allowing state agencies to tailor their programs better to participants’ needs and preferences.
• For the first time, the U.S. Federal Communications Commission (FCC) removed a phone provider from phone networks for violating FCC rules against scam robocalls and malicious caller ID spoofing. The provider, Global UC, claims to provide international calling services to hundreds of businesses and millions of subscribers worldwide. The FCC found that Global UC had failed to take reasonable steps to remedy weaknesses in the company’s procedures for reducing spam robocalls. FCC Chair Jessica Rosenworcel commented that the enforcement action is part of a new FCC effort to penalize voice service companies that fail to protect their customers from fraud and phone scams.
• The National Telecommunications and Information Administration (NTIA) publicly called for more restrictions on how companies collect personal information. The NTIA submitted its recommendations to the U.S. Federal Trade Commission (FTC), which is seeking public comments on proposed privacy rules that would limit commercial surveillance of consumers. The NTIA recommended that the FTC both require businesses to minimize the information they collect from consumers and move away from using consumer consent to justify such collection. The NTIA also argued that the FTC should place the burden on companies to protect consumer privacy, including by mandating safer corporate data collection procedures.
• The U.S. Securities and Exchange Commission (SEC) initiated administrative proceedings against American CryptoFed, a cryptocurrency company, to determine whether to prohibit the offer and sale of two of the company’s cryptocurrency assets. The SEC alleged in its order that American CryptoFed’s registration filings provided misleading statements about its assets and did not include legally required business information. Chief of SEC’s Enforcement Division’s Crypto Assets and Cyber Unit David Hirsch commented that the SEC, in taking this action, seeks to “protect investors against misleading information.”
• The Consumer Product Safety Commission issued a rule that, if it goes into effect, would improve testing processes for ensuring that gasoline containers are sufficiently child-resistant. The rule would update testing requirements by broadening age ranges for adult testing, redefining ambiguous terms, such as “accessing liquid,” and removing instructions for children to use their teeth in testing. The final rule would also improve testing efficiency by allowing the U.S. Consumer Product Safety Commission to approve “families” of gasoline containers based on test results of containers that are the smallest and most likely to be child-accessible. The rule is set to go into effect December 22, 2022, unless the agency receives significant negative comments.
• The Georgia Supreme Court issued an emergency stay which temporarily reinstated the state’s ban on anyone performing abortions after six weeks of pregnancy. The order prevented a lower court—which found the ban unconstitutional—from blocking the ban until Georgia’s highest court considers the appeal. According to a statement by the American Civil Liberties Union, health care providers, who had resumed performing abortion services, are now turning patients away, forcing these patients to seek care elsewhere.
• The Georgia Supreme Court also upheld a trial judge’s ruling that permits early voting beginning Saturday, November 26, in the state’s runoff election for the U.S. Senate. The Democratic Party of Georgia argued that a state law limiting voting on certain Saturdays near federal holidays did not apply to the Saturday after this year’s Thanksgiving. The trial judge agreed, interpreting the law’s provision as not applying to the runoff. Representatives from the Georgia Secretary of State, who had defended the restriction in court, stated that the Secretary will not join other challenges to the ruling.

WHAT WE’RE READING THIS WEEK

• In an article in the Harvard Journal of Law & Technology, Andrew D. Selbst, assistant professor at the UCLA School of Law, discussed how algorithmic impact assessment (AIA) regulations could mitigate the potential harms of algorithmic systems, which use automation and machine learning to help organizations make decisions. AIAs are questionnaires or other evaluation tools that help organizations anticipate and respond to automated decision system harms. Selbst explained that AIA regulation would require companies to try to prevent harms, such as unintentional discrimination in hiring, before deploying their algorithmic systems. Selbst argued that AIA regulation is superior to self-regulation and auditing, the more common regulatory alternatives to AIAs, because AIAs focus more on limiting harms before deployment, using open-ended questions, and preserving documentation to help regulators hold organizations accountable for potential discrimination that can result from these systems.
• In an article in the Journal of Financial Regulation, Dimitri G. Demekas, a visiting senior fellow at the School of Public Policy at the London School of Economics, and Pierpaolo Grippa, a senior economist at the International Monetary Fund, argued that if regulators impose too many climate-related burdens on actors in the financial sector, potential harms to the financial sector might outweigh the benefits. Demekas and Grippa explained that if banks take on climate-related responsibilities outside the financial sector, market volatility and financial instability might be exacerbated. Demekas and Grippa advised banks and regulators to resist the call to aggressive action and instead recommended that these actors focus on maintaining stability across the financial sector. Demekas and Grippa suggested that banks and regulators could achieve this focus by engaging only in internal actions such as standardizing, measuring, and monitoring climate risk within the sector—but only when governments support these actions.
• In an article in the Yale Law Journal, Julia Hernandez and Tarek Z. Ismail, associate professors of law at the City University of New York School of Law, discussed the role of law school clinics in abolishing the “family-policing system,” which Hernandez and Ismail defined as “the interlocking administrative, social-services, and judicial structures deployed to surveil, control, and sometimes separate families.” The authorities mentioned state government investigations into child abuse, which include judicial and social-services agencies, as an example of this system. Clinics’ financial freedom, Hernandez and Ismail argued, allow for experimentation in pursuing abolition of the family-policing system. Hernandez and Ismail stated that child abuse investigations are a main focus of the authors’ abolitionist efforts because these investigations initiate families’ involvement with the family-policing system. Hernandez and Ismail contended that clinics can try different lawyering approaches that reimagine how families interact with government agencies.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Bill Baer, a visiting fellow at The Brookings Institution, and Caitlin Chin, a fellow at the Center for Strategic and International Studies, argued that antitrust law can play a role in limiting the power social media companies wield over free speech. Baer and Chin maintained that antitrust laws do not adequately address “social media’s power to affect democratic processes” and discussed proposals from members of Congress to reform those laws. Baer and Chin also suggested that lawmakers could update the liability standards in Section 230 of the 1934 Communications Act to address hate speech on social media platforms.