FedSoc Forums

Cisco and other industry leaders estimate that the Internet of Things (the “IoT”) has the potential to inject trillions of dollars of value over the next decade into both the public and private sectors. It holds tremendous promise to transform and improve our lives, generating unprecedented opportunities in the way we govern and are governed, the way we do business, and the way we manage our daily activities. We stand at the cusp of an era in which everything from cars to cows can be given an Internet address and connected to the IoT network. -- This rapid expansion of new technologies and capabilities brings new technical, legal, and policy challenges to the forefront. The IoT has undoubtedly caught the attention of federal policy makers, as demonstrated by the National Telecommunications and Information Administration’s (“NTIA”) recent request for comments. There are many potential touchpoints in the IoT ecosystem for regulators and policymakers, from addressing spectrum requirements to ensuring the security of systems to establishing data protection frameworks. Unfortunately, the risk of overregulating or promulgating inconsistent regulations runs high. -- Our experts discussed the current and future regulatory landscape of the IoT. Is the NTIA’s proceeding a harbinger for more regulation in this nascent space? What is the correct framework to ensure the successful deployment of the IoT? Is there any role for government? What policy decisions could make or break the evolution of the IoT? -- Featuring: Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission; Jamie Susskind, Legislative Counsel, Senator Deb Fischer; and Eric Wenger, Director for Cybersecurity and Privacy Policy, Global Government Affairs, Cisco. Moderator: Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP.

Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity. -- It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances. -- Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant? -- Featuring: Howard W. Cox, Adjunct Professor, George Washington University and Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law.

On June 10, U.S. Sens. Ted Cruz, John Cornyn, Orrin Hatch, James Lankford, and Mike Lee introduced the Stop Settlements Slush Fund Act. The Act would prohibit the Department of Justice from enforcing settlements that allow parties to give money to outside parties chosen by the administration instead of the Treasury. Many of these outside parties have been non-profits that Congress had recently removed from federal funding. -- Featuring: Paul J. Larkin Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation and Prof. David Min, Assistant Professor of Law, University of California, Irvine School of Law.

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts discussed the legislation and broader issues relating to property rights and the sharing economy. -- Featuring: Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC and Christina Sandefur, Executive Vice President, Goldwater Institute.

The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents. According to PTO statistics, to date, nearly 50,000 patent claims have been challenged under IPR, and nearly 11,000 (22.4%) of those claims have been invalidated. On June 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the Patent Trial and Appeal Board's (PTAB) interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard. -- Important outstanding questions about the constitutionality of IPR and PGR remain, however. Specifically, once the Patent and Trademark Office has granted a patent, does a decision made by an administrative judge within the executive branch to invalidate the patent under IPR/PGR amount to a taking under the 5th Amendment of the U.S. Constitution? Moreover, does such a procedure by which issued patents are reviewed for validity by non-Article III judges raise separation of powers issues? -- Professor Greg Dolin participated in the Teleforum to elucidate the argument that he and Irina Manta make in their recent article, Taking Patents, that PGR and IPR decisions invalidating patents do indeed amount to takings under the 5th Amendment. Professor Camilla Hrdy and Yale Information Society Law Project Fellow Ben Picozzi believe that PTAB decisions invalidating patents under IPR and PGR do not raise takings problems. These patent experts also discussed separation of powers issues related to IPR and PGR. -- Featuring: Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law; Prof. Camilla Hrdy, Center for Technology, Innovation & Competition Fellow, University of Pennsylvania Law School; Prof. David S. Olson, Associate Professor of Law, Boston College Law School; and Mr. Ben Picozzi, Student Fellow, Information Society Project, Yale Law School.

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today. -- Featuring: Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine; James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board; and Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law.

After a bailout that arguably helped keep them afloat, the United States government has effectively nationalized two of the nation's largest financial institutions, Fannie Mae and Freddie Mac. Attorney David Thompson, managing partner of Cooper and Kirk, surveyed the legal landscape, which includes numerous suits across the United States advancing different challenges to the government's actions. -- Featuring: David H. Thompson, Managing Partner, Cooper & Kirk PLLC

United States foreign policy regarding terrorism, China, Iran, North Korea, Russia, and international trade are at the center of the election debate this year. Professor Henry Nau, the author of Conservative Internationalism: Armed Diplomacy Under Jefferson, Polk, Truman, and Reagan, has offered a framework for thinking about these geopolitical challenges. Avoiding the twin perils of overstretch and retrenchment, Professor Nau believes that the combination of force, diplomacy, and compromise used by these four presidents is the surest path to securing America’s interests while also promoting freedom. During this Teleforum, Professor Nau discussed his book, this year’s election, and how foreign policymakers should be thinking about America’s role in the world. -- Featuring: Professor Henry R. Nau, Professor of Political Science and International Affairs, Elliott School of International Affairs, The George Washington University and Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International.

In this teleforum, FCC Commissioner Ajit Pai talked about the FCC’s proposed rulemaking to transform the pay television industry and competition for the television set-top boxes sitting in millions of homes across the country. The proposed rule seeks to unbundle the sale of programming from the sale of set-top boxes. The FCC wants third party technology companies to “build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface.” The proposal has sparked tremendous debate among pay-television providers, technology companies, state and federal lawmakers, the Administration, and others. Advocates for the proposal think it could spur competition and unlock value for consumers with better and cheaper solutions for accessing video programming. Others believe the Commission’s proposal interferes with free market forces, creates more problems than it solves, and could compromise consumer privacy. -- What is the FCC’s proposal? What are the implications for consumer privacy, advertising, and free market competition? Is a compromise possible? Commissioner Pai will explore these and other issues in this important teleforum, explain his dissent to the proposal, and offer us his vision for moving forward. -- Featuring: Hon. Ajit V. Pai, Federal Communications Commission and Interviewer: Alexander P. Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP.

On July 1, 1991, President George H. W. Bush nominated Clarence Thomas for the Supreme Court of the United States. In anticipation of the 25th anniversary of the nomination, the Federalist Society hosted a panel of legal experts, including a number of Justice Thomas' former law clerks, to offer their personal remembrances and assessments of the Justice's contributions to the law and the Court. -- Featuring: Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Hon. Gregory G. Katsas, Partner, Jones Day (Clerked 1991-1992); Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network (Clerked 2007-2008); and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law (Clerked 1994-1995).