Week in Review

IN THE NEWS

• A bipartisan group of senators introduced the RESTRICT Act, which would grant the U.S. Department of Commerce authority to evaluate and prevent technology transactions and communications involving potentially risky foreign actors. Many proponents of the bill cited concerns about information sharing with foreign nations on social media platforms, such as TikTok, as reasons for their support. In addition, White House National Security Advisor Jake Sullivan voiced the Biden Administration’s support for the bill, calling it a “systematic framework for addressing technology-based threats to the security and safety of Americans” that would help address today’s threats and prevent such threats from arising tomorrow.
• Tennessee governor Bill Lee signed a bill into law banning drag shows in public spaces and in locations where children could view the shows. The law restricts “adult cabaret performances,” which includes “male or female impersonators who provide entertainment that appeals to a prurient interest.” The law punishes first violations as misdemeanors and subsequent violations as felonies. Stella Yarbrough, legal director of the American Civil Liberties Union of Tennessee, argued that the law does not make drag performances illegal because it “bans obscene performances, and drag performances are not inherently obscene.” Yarbrough contended, however, that “government officials could easily abuse this law to censor people based on their own subjective viewpoints of what they deem appropriate.”
• Arkansas governor Sarah Huckabee Sanders signed a bill into law reversing some of the state’s child labor protections. The law removed the requirement for the state to verify the age of children under 16 to “streamline the hiring process” for employers. Prior to this change, the state required employers to obtain a permit from the state’s Division of Labor to hire children younger than 16. Governor Sanders contended that the permit requirement was “burdensome and obsolete.” State senator Greg Leding argued that the requirement served “an important role in protecting children in Arkansas.”
• A federal judge ruled that a Missouri state law prohibiting the enforcement of federal gun control laws is unconstitutional. Those laws include federal legislation that strengthens background checks and limits the ability of domestic violence offenders to obtain firearms. Missouri governor Mike Pearson signed the state bill in 2021, establishing a $50,000 fine for each instance that a police officer enforces a federal gun law that lacks an equivalent Missouri state law counterpart. The U.S. Department of Justice sued to block enforcement of the law. The federal judge wrote that the state law runs against the federal government’s authority to pass laws that override contradictory state laws. The Missouri attorney general Andrew Bailey announced his intention to appeal the ruling.
• The Transportation Security Administration (TSA) announced new cybersecurity measures for airports and aircraft operators. The new rule includes a mandate for airports and aircraft operators to monitor and detect potential cyber threats and attacks. TSA also called for patching and updating vulnerable flight operation systems, in addition to other security measures. These measures came in response to a 2022 incident when a hacker accessed TSA’s “No Fly List”—a list of individuals banned from traveling into or out of the United States—which was left on an unsecured server. TSA Administrator David Pekoske stated that this rule would “reduce cybersecurity risks and improve cyber resilience to support safe, secure and efficient travel.”
• The U.S. Environmental Protection Agency announced a proposal to raise standards for wastewater discharge from coal-fired power plants. The proposed rule would help control the various pollutants—including mercury and arsenic—that the power plants release through their wastewater. The pollutants endanger wildlife and increase the risk of cancer and reproductive harm in humans. The agency estimated that the raised standards would remove 584 million pounds of pollutants from power plant wastewater discharge annually.
• The U.S. Department of Agriculture proposed a rule which would bring “Made in the U.S.A.” and “Product of U.S.A.” labeling requirements for meat, poultry, and egg products in line with consumer understanding of these labels. A survey conducted in 2021 by the Agriculture Department showed that most Americans believe that these labels indicate that the product was made fully from animals born, raised, slaughtered and processed in the United States, when, in fact, only some of these steps must be met. The proposed rule would limit the use of the labels to products that are fully derived from animals born, raised, slaughtered and processed in the United States. Secretary of Agriculture Tom Vilsack stated that the proposed rule is intended to provide consumers with more accurate information on the origin of products so they can make “informed purchasing decisions.”
• The U.S. Food and Drug Administration (FDA) cleared an Abbott Laboratories blood test that would help doctors assess concussions in 18 minutes. Abbott Laboratories stated that although concussions affect millions of people in the United States each year, more than half of those who suspect they have a concussion do not get checked. The test–the first commercial laboratory blood test for concussions–would eliminate the need for CT scans in some cases.

WHAT WE’RE READING THIS WEEK

• In a working paper, Cary Coglianese, professor at the University of Pennsylvania Carey Law School and director of the Penn Program on Regulation, argued that the inherent heterogeneity in machine learning algorithms makes them more difficult, but still possible, to regulate. According to Coglianese, while machine learning algorithms, such as Chat GPT, can advance technology and improve society, the wide array of algorithms creates questions as to who should regulate and how these new technologies should be regulated. Coglianese claimed that adapting to these various algorithms will likely require existing regulatory bodies to leverage their current expertise and new regulatory bodies to be formed. Coglianese concluded that regulators should remain agile and vigilant to changes in the field to keep abreast of this rapidly changing and broad field.
• In an article in the Yale Journal on Regulation, Todd Phillips, non-resident fellow at the Duke Global Financial Markets Center, argued that most multi-member executive-branch commissions operate under a “strong chair” model. Under this model, commission chairs, such as the chair of the Federal Deposit Insurance Corporation, can direct the agency “largely without the buy-in of the non-chair commissioners.” Phillips contended that strong chairs command significant unilateral authority including directing staff attention and deciding which items develop into policy proposals. Phillips concluded “that the power structure within federal commissions is highly unequal,” and that Congress did not intend to give chairs such power.
• In an article, Veena Dubal, professor at the University of California College of the Law, San Francisco, argued that employers increasingly use algorithms to determine workers’ wages in a discriminatory manner. Dubal called this practice “algorithmic wage discrimination,” because businesses can pay workers different hourly wages according to data that they collect on their employees. These data include information on the lowest pay a worker is willing to take, Dubal explained. Dubal concluded that, because existing privacy and business laws do not adequately address algorithmic wage discrimination, regulators must take action to proscribe the practice entirely, or at least shift control of workers’ data back to the workers.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Bo Hyun Kim, then a student at Handong International Law School, discussed differing approaches to regulating video game loot boxes—boxes containing mystery items that players can purchase with real or in-game currency. Kim observed that in other foreign nations, such as Belgium, loot boxes are deemed games of chance—which can be addictive and harmful to the public interest—and are regulated by Belgium’s Gaming and Betting Act. In the United States, however, courts have yet to decide whether loot boxes are games of chance, and, as such, subject to regulation under relevant gambling laws, Kim noted. Until U.S. courts decide this issue, Kim recommended that U.S. regulators monitor developments in game designs that may promote gambling and develop guidelines for parents and underage game players who may encounter potentially harmful loot boxes.