Why Have We Let State AGs Become De Facto Internet Regulators?
from the grandstanding-is-no-way-to-make-laws dept
For quite some time we've called attention to the fact that various state Attorneys General have taken it upon themselves to pressure internet companies to change their policies, often with little or no actual legal authority to do so. It usually takes the form of very public shaming and grandstanding suggesting something illegal has been done, even if that's not the case. Last year, we highlighted a must read piece by Topix CEO Chris Tolles, who had just been on the receiving end of such grandstanding by a bunch of state AGs. The story is disturbing, but enlightening. In the end, he realized it was impossible to fight this, and like most others, he caved. It was the only reasonable response. As Tolles pointed out, at no point in this process was Topix ever explicitly accused of breaking any laws:
Pissed off people, not illegality, is the issue to watch -- At no time during this process were we accused of breaking any laws. The Attorneys General have interpreted their mandate of consumer protections very broadly, and if a lot of people *think* you are doing something wrong, you are likely to be headed for a problem.This is worrying for any number of reasons. Adam Thierer is pointing out how it appears that state AGs have effectively become the internet's new regulators, with little actual legal authority. He focuses on how many of these actions seem to also involve National Center for Missing and Exploited Children (NCMEC) -- a group that actually does plenty of really good work. I'd argue that it goes way beyond NCMEC, as we've seen this happen beyond just that group's complaints. Thierer's reasonably concerned about the questions this raises, even in cases where law enforcement should be stepping in and helping. The problem is that this isn't the role that AGs are really meant to play. It opens all sorts of questions about the actual enforceability and legality of the "settlement" agreements that come out of these attacks, and whether they represent any real precedent. More importantly, it would seem that many of these agreements could very well violate the Commerce Clause, as states are not supposed to be able to regulate interstate commerce. This is a worrying trend that I'm sure we'll be hearing plenty more about in the near future.