Supreme Court to Hear Case Regarding Deference to Federal Agencies on Statutory Interpretation

Yesterday, the Supreme Court granted certiorari in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 17-1705.  The case began when Carlton & Harris sued PDR Network for alleged violations of the commercial fax provisions of the Telephone Consumer Protection Act (“TCPA”).  The Fourth Circuit ruled in Carlton & Harris’s favor, relying on an interpretation of the TCPA issued by the Federal Communications Commission (“FCC”).  The Supreme Court granted PDR Network’s petition to review that ruling, but limited its review to a single question: whether federal courts are bound to accept a federal agency’s interpretation of a statute such as the TCPA without considering the validity of that interpretation.  The case has important implications for administrative law that are not limited to the TCPA or to the FCC. Continue Reading

IoT Update: Who’s at the Wheel? Connected and Automated Vehicles Stakeholders Weigh In from the Mcity Congress

Last week, Covington dispatched a team of connected and automated vehicles (“CAV”) practitioners to participate in the Mcity Congress, in Ann Arbor, Michigan.  Lawyers from our Technology and IP Transactions, Public Policy, Product Safety and Liability, and Insurance practice groups presented a series of observations and insights around mitigating liability in the CAV industry, and we saw first-hand what’s happening at the cutting edge of CAV technology. Continue Reading

The CMA’s Paper on Pricing Algorithms, Collusion and Personalised Pricing

On 8 October 2018, the UK Competition and Markets Authority (“CMA”) published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalized pricing’ (the “Paper”). It follows a number of other initiatives from competition authorities regarding algorithms, including the recent German Monopolies Commission’s proposals regarding pricing algorithms, which was the subject of a Covington Competition Blog post. The CMA’s analysis reflects input from algorithm providers, other competition authorities, and the results of the CMA’s findings from pilot tests. The Paper is economic rather than legal in focus, and assesses the extent to which various algorithm models have the potential to affect competition.

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AI Updates: New Congressional Subcommittee White Paper & National Science Foundation Request for Information

Recently, key stakeholders from both the Legislative and Executive branches took steps to advance the debate over how the U.S. government should encourage the benefits and mitigate the risks of Artificial Intelligence (“AI”).  In Congress, the Chairman and Ranking Member of the House Subcommittee on Information Technology released a bipartisan white paper that made various recommendations based on findings from a three-part series of hearings focused on AI.  In the Executive branch, the National Science Foundation published a Request for Information (“RFI”) to inform an update to the National Artificial Intelligence Research and Development Strategic Plan.  Both moves signal a continuing interest in and consideration of AI development as a national priority. Continue Reading

Net Neutrality Update: California and the United States Agree to Stay Further Proceedings Pending Review of FCC Order

In exchange for a stay of the proceedings in both United States v. California and American Cable Association v. Becerra, California has agreed not to enforce its new net neutrality law, SB 822, pending the resolution of Mozilla Corp. v. FCC, the lawsuit challenging the FCC’s Restoring Internet Freedom Order (“Order”).  The Order had repealed Obama-era net neutrality rules.  SB 822, which we previously discussed here, was scheduled to go into effect on January 1, 2019, and contains the most stringent net neutrality requirements of any state.  When the law was passed on September 30, the U.S. Department of Justice immediately sued California, arguing it was preempted by the FCC’s Order.

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IoT Update: DOT Publishes Policy Statement on Automated Vehicles

On October 4, the U.S. Department of Transportation published Preparing for the Future of Transportation: Automated Vehicles 3.0 (“AV 3.0”), a policy vision statement that embraces automation as a critical tool to improve motor vehicle safety. AV 3.0 identifies several avenues to remove regulatory barriers to automated driving systems (“ADS”), including potential changes to rules that may stand in the way of driverless vehicles. These changes are of interest to automotive manufacturers, parts and systems suppliers, and technology companies. Continue Reading

AI Update: Europe Officially Joins the Race for the Next Generation of Supercomputers

On 28 September 2018 the EU reinforced its commitment to the development and deployment of high-performance computing by adopting a Regulation establishing the European High Performance Computing Joint Undertaking (“EuroHPC Joint Undertaking”). This entity is set to coordinate and pool resources to create a pan-European state-of-the-art supercomputing infrastructure.

Aims of the EuroHPC Joint Undertaking

The Regulation addresses the lagging standard of high performance computing in Europe. There are concerns that the needs of both scientists and industry are not being met by the computation time available in the EU, and that parties are looking elsewhere for solutions. This creates a number of problems – for private parties these may relate to privacy and data protection; the EU stands to lose out on technological know-how, innovation, competitiveness and leadership in industry. Continue Reading

Understanding MongoDB’s New Copyleft Open Source License

MongoDB, the developer of a popular document-oriented distributed database server by the same name, has updated the open source license that applies to versions of its software published after October 16, 2018.

Previously, the MongoDB software was licensed under the GNU Affero General Public License v.3 (“AGPLv3”), which is a “strong copyleft” license. Strong copyleft licenses, among other things, require that the source code for the licensed software (including any modifications) be made available to the public, typically when the software is distributed to third parties. AGPLv3 goes further than other strong copyleft licenses in that the obligation to make source code available is triggered not only when the software is distributed, but also when it is accessed over a computer network, such as the Internet.

In an apparent response to attempts by users of MongoDB to architect their services so as to avoid the obligation to make their source code modifications available under AGPLv3, MongoDB has created a modified version of AGPLv3 (see here for a redline comparison) with broader disclosure and licensing obligations. The new license is called the Server Side Public License v.1 (“SSPLv1”).

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IoT Update: The UK publishes a final version of its Code of Practice for Consumer IoT Security

Following an informal consultation earlier this year – as covered by our previous IoT Update here – the UK’s Department for Digital, Culture, Media and Sport (“DCMS”) published the final version of its Code of Practice for Consumer IoT Security (“Code”) on Oct. 14, 2018. This was developed by the DCMS in conjunction with the National Cyber Security Centre, and follows engagement with industry, consumer associations, and academia. The aim of the Code is to provide guidelines on how to achieve a “secure by design” approach, to all organizations involved in developing, manufacturing, and retailing consumer Internet of Things ‘IoT’ products. Each of the thirteen guidelines are marked as primarily applying to one or more of device manufacturers, IoT service providers, mobile application developers and/or retailers categories.

The Code brings together what is widely considered good practice in IoT security. At the moment, participation in the Code is voluntary, but it has the aim of initiating and facilitating security change through the entire supply chain and compliance with applicable data protection laws. The Code is supported by a supplementary mapping document, and an open data JSON file which refers to the other main industry standards, recommendations and guidance.  Ultimately, the Government’s ambition is for appropriate aspects of the Code to become legally enforceable and has commenced a mapping exercise to identify the impact of regulatory intervention and necessary changes.

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IoT Update: BEREC launches public consultation on the ‘Data Economy’

On the 10th October 2018, BEREC (the Body of European Regulators for Electronic Communications) launched its public consultation on the ‘Data Economy’. This comes at a time when different regulators are increasingly discussing the importance of big data, including the opportunities and risks that it brings about, how these may evolve, and how (and increasingly who should take the responsibility) to regulate. While the data protection and competition authorities have so far been most vocal in this deepening regulatory debate, the opening of this consultation represents a clear and decisive move by European telecom regulators to ‘throw their hat’ into the ring and get included in the discussion – and potentially future regulation – of Europe’s data economy.

All interested stakeholders, including public organisations, industry actors, consumers, associations, academics, financial advisers, and other stakeholders with expertise or interest in the data economy are strongly encouraged to have their say. BEREC’s consultation video can be accessed here, and the consultation is open until 21 November 2018.

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