Mind you, the same question could be “why a commission in the first place? Won’t the commissioners of the same party vote together?” Which raises the first point, this isn’t just about minority commissioners. As the Supreme Court observed back when it was less sold on the “Imperial Presidency,” commissioners cannot make independent decisions with the “Damocles’ sword of removal” hanging over their heads. Also, as anyone who remembers the first several years of the Biden Administration will recall, an independent agency (in this case, the Federal Communications Commission) can get stuck with an equal number of members of both parties – creating a deadlock on important issues. So assuming we like independent commissions for certain things (a topic for another time), the question in Trump v. Slaughter is important for its own sake.  

But let’s consider the way an independent commission is supposed to work rather than the broader question of independence generally or the specific case where the president’s party doesn’t have a majority. Why do minority commissioners matter? Won’t they just get outvoted?

Independent Commissioners Used to Actually Be Independent – and May Be Again Someday.

As always, people who don’t follow this for a living assume that the way it is today is the way it’s always been. Commissioners of the same party vote in lockstep, so the chair automatically gets a majority. But this wasn’t always the case. Until relatively recently, you saw members of the chairman’s party refusing to support an item or demanding significant changes. As this usually happens behind the scenes, it doesn’t get much attention from outsiders. But this can only happen when commissioners have security to tell the chair “no” without worrying about being fired.

But this independence also created a world where a member of the chair’s party would dissent, but the chair could build a majority by reaching across the aisle. When I started back during the late Clinton Administration and Bill Kennard was chair, we saw this quite frequently. You would have Chairman Kennard get a majority with Commissioner Susan Ness (D) and then-Commissioner (later Chairman) Michael Powell, while the more liberal Commissioner Gloria Tristani (D) and more conservative Commissioner Harold Furchgot-Roth would dissent (either in whole or in part). Some years later, I would see Chairman Kevin Martin team with Democrats Michael Copps and Jonathon Adelstein to vote out the first net neutrality order. 

More commonly, commission chairs found value in bipartisan votes and the increased legitimacy of a bipartisan opinion. After all, a bipartisan opinion is easier to defend before a congressional oversight hearing (especially when the party that controls the Senate or the House is not the one that controls the White House and therefore the commission majority). And while courts don’t explicitly say they respect a unanimous, or at least bipartisan, decision more than a party-line vote, there seems to be some validity to the assumption (see more below on the role of dissenting commissioners). This allowed minority commissioners to trade a vote in exchange for modifications or concessions. Even if one minority commissioner couldn’t support an item, you could get changes to produce a 4-1 vote. And in a world where precedent is important and precision matters, even things that seem trivial at the time can be vitally important in the long run.

But let’s set aside the idea of a golden age of genuine independence and take our worst case scenario of today. You have a chairman vetted to support the president no matter what, and other commissioners of the same party who will always vote with the chairman and obey the chairman’s commands. Why, then, does a minority commissioner matter?

What Minority Commissioners Actually Do?

I want to work backward from the most obvious to the less obvious. 

What do minority commissioners actually contribute? If you’ve never paid attention to how these agencies work, you might think minority commissioners are just along for the ride, casting futile dissenting votes as the majority does what it wants.

But that misses much of what is important about how these agencies function. The agencies must vote (and get a majority vote) and explain their actions in an opinion. A dissent can have real power. Sometimes it is a moral statement that highlights (at least in the opposing view) what makes the order not simply wrong, but bad. Additionally, dissents often raise legal arguments and facts in the record that contradict the story the majority wishes to tell. This last is particularly important because the Administrative Procedure Act (APA) requires an agency decision to address all issues raised in record. Failure to do so means the court will reverse the majority decision as arbitrary and capricious. 

A well-written dissent, therefore, serves multiple purposes. It highlights legal flaws, or facts the majority would prefer to ignore, forcing the majority to either modify the opinion or justify its reasoning in ways that create accountability to the public, Congress, and the courts. Sometimes the strength of these arguments can force the majority to modify its decision. But at the least, a minority opinion provides an important counter-narrative. This points out another function of a dissenting opinion – dissents as policy development for the future. When a minority commissioner writes a dissent, they’re creating a potential roadmap for opponents to develop and pursue when political control shifts. As we have seen a number of times in the last year, today’s dissent can become tomorrow’s majority position. 

Oversight and accountability: Minority commissioners do more than write dissents. They ask hard questions at agency Open Meetings, questions the majority prefers to avoid. They issue public statements challenging the majority’s version of events. They have the right to demand information and analysis from agency staff, which they can then use to inform the public or members of Congress. They can sound the alarm and verify to the public when the majority is overreaching or when the reasoning falls apart. All of this creates a record that matters: for judicial review, for congressional oversight, and for public accountability. A minority commissioner can shine a spotlight on things the majority might prefer to pass unnoticed, and keep demanding action on matters that the majority would prefer to have forgotten. At a congressional oversight hearing, a minority commissioner can provide answers on the record that contradict the narrative of majority commissioners.

Stakeholder engagement: Regulated parties and public interest groups don’t always agree with whoever’s currently in charge. Minority commissioners provide an alternative point of contact. This allows diverse viewpoints (like public interest advocates!) to get heard within the agency. The minority commissioner can act as an advocate within the agency as well as providing a sympathetic audience for meetings.

But minority commissioners often take a more active role in stakeholder engagement – especially on controversial matters. Minority commissioners are often speakers at events, where they can express their views and urge stakeholders to participate in agency processes. This can create a powerful record and build political pressure. For example, FCC Commissioner Gomez has been a tireless advocate for the First Amendment, going on a “First Amendment Tour” to help mobilize public opinion against weaponizing the FCC’s power over broadcasters to silence critics. This is especially important outside of Washington D.C., where a public event or hearing by an FCC commissioner can be a very big deal, attracting hundreds of participants and making local news. In the past, minority commissioners have used outside events to mobilize the public to resist media consolidation, support net neutrality, and highlight the lack of broadband or even basic telephone service in rural areas. 

How Minority Commissioners Make Agencies Work Better

I’ve focused so far on direct opposition by minority commissioners to the agenda of the chairman with a majority. But while these head-to-head clashes get the bulk of public attention, most work of independent commissions is more technical and less ideological. Certainly there are often differences in approach among commissioners. But in these cases the presence of minority commissioners actually makes agencies function better through collaboration.

Participation in non-ideological work: Most agency work has no ideological valence at all. Technical rulemakings, routine enforcement actions, spectrum allocations, and lots more: a huge amount of this work proceeds with bipartisan agreement. Minority commissioners often contribute substantively to this work. Even if there aren’t strong ideological issues, minority commissioners often bring different approaches and different concerns based on their life experiences. Their expertise doesn’t disappear just because they’re outnumbered on some high-profile votes, and smart chairs know how to keep a good working relationship with their minority party colleagues.

Rather than a point of conflict, this difference in perspective makes the agency work better. Commissioners from different political parties often come from different backgrounds and may relate differently to different constituencies. Minority commissioners may feel more free to raise potentially controversial points with the chair, since they are not expected to be “loyal soldiers” for the chair’s agenda.

Moderating influence. Often, the differing perspectives of independent minority commissioners can also have a moderating influence on the commission’s decision-making. Again, it is important to keep in mind that the last few years where political parties seek to emphasize their differences are the exception. But even in the extreme case, having members of the opposing party in the room with whom one must deal on a regular basis on nonpartisan issues can temper the rhetoric and move the majority to a less extreme view. 

Institutional continuity. Staggered terms mean some commissioners carry over between administrations. When the minority becomes the majority, they already know the issues, the staff, and the pending matters. This institutional knowledge persists across transitions. That persistence is impossible if every administration starts from scratch. And bipartisan decisions are harder to reverse, so the minority’s participation in building consensus creates policy stability that serves everyone.

Democratic legitimacy. In our polarized era, roughly half the country is going to disagree with whoever holds the White House. The bipartisan commission structure guarantees that roughly half the country has representation in agency decision-making, including when they’re in the minority. This allows people to feel like the agency has institutional legitimacy, even when they may disagree with its specific decisions.

We Reserve Independence for When It Matters. 

Finally, it’s worth noting that independent commissions are fairly rare. Generally, Congress lets presidents select their own teams – subject to the need for confirmation. Traditionally, Congress reserves creation of an independent commission for matters that require some insulation from the president because they are highly technical, have outsized influence on the economy, or are particularly essential to democracy. The first independent commission was the Interstate Commerce Commission, created in 1887. The ICC regulated the most important industry of the time – the railroad. Other examples include the Federal Trade Commission (which potentially regulates most of the economy), the National Labor Relations Board (because the relationship between organized labor and capital is potentially subject to political meddling as well as having impact on the economy), and the Securities and Exchange Commission (responsible for ensuring capital markets work with fairness and transparency, and therefore a prime target for cronyism and political meddling with enormous influence on the economy). 

Nothing illustrates this better than the story of the creation of the Federal Radio Commission in the 1920s. Before the Federal Radio Act of 1927, radio licenses were handled by the Department of Commerce. The legislative history shows why, when Congress decided it needed to seriously consider the regulation of radio, it rejected that approach and chose to create an independent, bipartisan commission. 

By the mid-1920s, radio had exploded from a tool for ship-to-shore communication into a mass medium transforming American culture. The existing regulatory framework gave the Secretary of Commerce only ministerial duties. It was completely inadequate, and Congress needed to act. But when it considered simply expanding the Secretary’s authority, it ran into fierce opposition.

Representative Johnson of Texas captured the stakes perfectly when he told his colleagues:

There is no agency so fraught with possibilities for service of good or evil to the American people as the radio. As a means of entertainment, education, information and communication it has limitless possibilities. The power of the press will not be comparable to that of broadcasting stations when the industry is fully developed. If the development continues in the future as in the past, it will only be a few years before these broadcasting stations, if operated by chain stations, will reach an audience of over half of our entire citizenship, and bring messages to the fireside of nearly every American home. They can mold and crystalize sentiment as no agency in the past has been able to do.

[69 Cong. Rec. 5558 (Mar. 13, 1926)].

In 1926, members of Congress understood that whoever controlled the airwaves could “mold and crystalize sentiment as no agency in the past has been able to do.” The question was whether that power should sit with a political appointee serving at the president’s pleasure. They said no.

Even Herbert Hoover agreed. Hoover was then Secretary of Commerce, the very official who stood to gain power under the alternative approach. As he testified to Congress: “I have always taken the position that unlimited authority to control the granting of radio privileges was too great a power to be placed in the hands of any one administrative officer.” [H.R. Rep. No. 69-464, at 19 (1926)]. He elaborated: “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public.” [69 Cong. Rec. 5484 (Mar. 12, 1926)].

The House of Representatives initially passed a compromise that gave initial authority to the Secretary of Commerce, with oversight from an independent commission. But the Senate rejected even this half-measure. Senator Clarence Dill, Chairman of the Senate Commerce Committee, explained in the Senate Report: “The exercise of this power is fraught with such great possibilities that it should not be entrusted to any one man nor to any administrative department of the Government.” [S. Rep. No. 69-772, at 2 (1926)].

The Senate won that fight. The Federal Radio Act of 1927 created a fully independent commission with bipartisan membership, which evolved into the FCC we know today. And as we have seen over the past few months, the Senate was right. We have a president eager to use the FCC’s authority over broadcasters to shape news coverage and prevent comedians from mocking the President. The presence of Democratic Commissioner Anna Gomez has made it much more difficult for FCC Chairman Brendan Carr to advance this agenda. At every available occasion, Commissioner Gomez has sounded the alarm and created a counter-narrative to efforts to weaponize the FCC.

By contrast, there is no such opposing voice at the Federal Trade Commission. Chairman Andrew Ferguson and Commissioner Mark Meadows have been free to engage in conduct such as harassing watchdog organizations such as Media Matters who have publicly criticized the President and his allies, allowed mergers to proceed with conditions designed to favor conservative viewpoints, and to hold hearings on whether gender affirming care somehow violates the law. Without a dissenting voice such as that of Commissioner Slaughter to constantly call attention to these actions, they fly under the radar.

Conclusion: Minority Commissioners Matter.

The independence of commissions matters for its own sake. Ideally, even the majority commissioners act with freedom on important issues. But even in times such as these, when majorities work in lockstep and the chairman looks to the president for directions, the presence of independent minority commissioners makes a difference. At a minimum, minority commissioners shine a spotlight on the actions of the majority. But equally importantly, minority commissioners play an important role in the day-to-day operations of important regulatory bodies. As the last few months have shown, the FTC performs more poorly without representation of the other political party, while the FCC performs better with a minority commissioner.

The post Why the Minority Party Matters for Independent Agencies appeared first on Public Knowledge.

The political pressure to act is immense, with nearly every week bringing another devastating story of a child harmed after using an online platform – yet few new federal laws have passed to regulate these platforms. A previous version of KOSA passed with an astonishing 91 votes in the Senate in July 2024, only to stall in the House when Speaker Mike Johnson blocked the floor vote over free speech concerns. Many kids-focused online safety bills find a similar fate, because these are speech platforms after all, and Congress shall make no laws abridging freedom of speech. There are fundamental tradeoffs to most of the bills in the Kids Package, which makes consensus elusive. 

Complicating things, there was reporting that lawmakers considered attaching the (so far failed) AI regulation moratorium to the Kids Package, and shoehorning both into the must-pass National Defense Authorization Act (NDAA). Proponents theorized that the first attempt at an AI moratorium failed because of bipartisan concern that it could hamstring states’ ability to enact laws regulating AI and protecting kids. Under this theory, pushing through some of the bills in the Kids Package would assuage concerns about kids’ online safety. This theory is a mess for a number of reasons, even if there were a world in which many of these consistently controversial kids’ bills would miraculously gain broad support. 

For one, opposition to the AI moratorium is not limited to concerns about kids’ online safety laws. Lawmakers and advocates worry about AI’s effects on employment, discrimination, surveillance, the integrity of information, and about a million other concerns. Since states are more agile than Congress, they need the flexibility to experiment with new regulations for emerging technologies to safeguard their citizens and maintain economic competitiveness – a point reiterated in the December 2 hearing by opponents of preemption language in the Kids Package bills. 

After years of hearings about kids’ safety online, Congress has little to show for its efforts. Beyond KOSA and COPPA 2.0, the bills in the latest package are a scattershot approach, like throwing spaghetti at the wall and seeing what sticks. Proposals range from user safeguards, to privacy-invasive surveillance requirements, to outright bans on minors using certain platforms. Nearly every bill has problematic elements, with preemption language and Federal Trade Commission enforcement among the most common issues. 

State Preemption as the Poison Pill

The broad state regulation preemption language in several bills is especially concerning. Although uniform federal standards offer benefits, they also hinder states from experimenting with various approaches to children’s online safety – a critical point given our decidedly unproductive Congress. It would be unfortunate if preemption clauses in Kids Package bills set an upper limit on online safety legislation: federal law should establish minimum standards for digital regulation, setting a baseline rather than a ceiling. Many lawmakers at the December 2 hearing believe this, too, suggesting that preemption language complicates an already contentious bill negotiation, with KOSA perhaps the most contentious. 

We’ve seen many versions of KOSA since it was first introduced in 2022. This latest version of KOSA defanged the more controversial parts of the bill, specifically the “Duty of Care,” which would have held platforms responsible for reducing harms or face lawsuits. People across the political spectrum argued that the duty of care could lead platforms to overmoderate, removing broad categories of content that could be harmful for kids, but could also be useful to them. For example, a commonly discussed online harm, especially to teenage girls, is from content glorifying eating disorders. Yet, the duty of care provision could not only sweep up content that encourages eating disorders, but also content offering resources for those recovering from them. 

The current House version instead requires platforms to establish “reasonable policies, practices, and procedures” to address specific harms, including threats of violence, sexual exploitation, drug sales, gambling, and financial fraud. This change, in our view, makes the bill more workable. KOSA also includes other provisions we can get behind, such as requiring default settings for high-risk features like going live or messaging with strangers, with the option for users to opt-in to these features with parental consent or age confirmation. However, the House bill also includes language that preempts state laws related to KOSA provisions, which could hamstring more comprehensive kids online safety regulation in the states, making the House version of KOSA one we cannot support. One step forward, two steps back. 

The Problem With FTC Enforcement 

Many of these bills rely on FTC enforcement, supplemented by state attorney general actions. However, not only do these bills add substantial new responsibilities to an agency already stretched thin, but President Trump’s FTC has made no secret of its willingness to pursue culture-war issues and political vendettas rather than act in accordance with its statutory mission. This is especially true given that the FTC still lacks Democratic commissioners and that Commissioner Rebecca Slaughter remains barred from performing her appointed duties. As we asserted when the President first terminated Commissioners Slaughter and Alvaro Bedoya, “the FTC was designed explicitly as a bipartisan, independent agency to protect consumers from industry abuses.”  

Yet this FTC makes no secret of its wish to act on ideological grounds rather than fulfill its congressionally mandated duties. For instance, the FTC issued a civil investigative demand into Media Matters for America, a liberal media watchdog nonprofit, for its research on X’s advertising placement next to pro-Nazi and antisemitic content. The court found the FTC acted in “retaliatory animus” and Media Matters suffered irreparable First Amendment injury. 

As Public Knowledge wrote in an amicus brief to the Supreme Court in Trump v. Slaughter, “A commission that can be directed to investigate critics, or shield allies, no longer functions as a neutral enforcer of law.” It is not hard to imagine an FTC that goes after social media companies for failing to act in ways that please the President, using its enforcement authority given by some of these kids’ safety bills as justification. 

What Next

Fortunately, although the idea of tying the AI moratorium to this Kids Package and including it in the must-pass National Defense Authorization Act was considered, it was quickly abandoned. Only a few of these bills in the Kids Package have bipartisan support, while many also face bipartisan opposition. Meanwhile, the AI moratorium itself remains unpopular, even among Republicans. Two unpopular ideas do not make a popular one.

The debate over kids’ online safety will persist, with three notable issues emerging from this most recent hearing: 1) how to handle KOSA’s duty of care, 2) whether the preemption clauses in these bills are excessive, and 3) whether the FTC enforcement provisions in these bills are suitable given the current priorities and structure of the agency. 

In the coming weeks, we will wade further into this conversation by providing a more in-depth analysis of the bills considered in this Kids Package, identifying which ideas we can get behind and which elements of these bills give us pause, through the lens of policy principles outlined in our paper “Kids Aren’t Alright: How To Build a Safer, Better Internet for Everyone.”

The post The House Throws Spaghetti at the Wall with Messy Kids Online Safety Package appeared first on Public Knowledge.

In today’s digital world, a handful of tech giants control much of what we see, buy, and say online. Companies such as Google, Amazon, Apple, and Meta dominate their markets so thoroughly that competition has become almost impossible. While this dominance can bring convenience for consumers, it also carries risk. When one platform becomes so dominant that it is the only realistic option, consumers lose meaningful alternatives, eliminating the power of choice. Furthermore, monopoly power limits innovation and quality. A lack of serious competition provides little incentive for companies to improve user experience or address harmful business practices.

In contrast with the EU, the U.S. continues to rely on enforcement through the Sherman Act, the Clayton Act, and the Federal Trade Commission Act. These laws, while foundational, were written for the industrial era, not the digital one. As a result, consumers experience harms from platform concentration long after these platforms have been entrenched. The U.S. has addressed many of these harms through multiyear litigation (and, as the recent loss in the Meta case shows, the government may invest years and millions of dollars only to walk away with nothing gained). But to remain a leader in the evolving global tech market, the U.S. needs to adopt similar future-forward digital competition policies promoting fairness, innovation, and accountability.

The European Union’s Digital Market Act’s Influence

The DMA takes a proactive approach to regulating the digital economy. Rather than relying on slow, case-by-case enforcement, it sets clear ex ante (before harm occurs) rules for large “gatekeeper” platforms to ensure fair competition. These rules ban practices like self-preferencing (favoring own products or services), tying (conditioning access to one product or service on the mandatory use of another), and leveraging dominance across markets. They also require interoperability, data portability, and greater transparency.

The DMA’s logic is rooted in the idea that markets function best when the most powerful actors are subject to proactive obligations that allow competition to flourish. This rules-based model has begun to influence digital governance worldwide in what scholars refer to as the “Brussels Effect.” Policymakers beyond Europe are adopting similar updates to address digital competition. 

Global Advancements: Case Studies on DMA’s Influence

DMA Concepts in South Korea

South Korea lacks an independent law that mirrors the DMA’s provisions, but similar reforms are underway. The Korea Fair Trade Commission (KFTC) is under the umbrella of the country’s primary competition/antitrust statute and regulates platforms under the Monopoly Regulation and Fair Trade Act (MRFTA).

In December 2023, the KFTC proposed the Platform Competition Promotion Act (PCPA), modelled in part on the DMA, to designate “dominant platform operators” and impose ex-ante obligations on self-preferencing, multi-homing restrictions, most-favoured-nation (MFN) clauses, etc. Facing political and trade pushback from the U.S., the PCPA was withdrawn; but more modest amendments to the MRFTA are still being pursued. 

There are distinctions in South Korea’s approach. While the DMA independently sets high turnover/market-cap thresholds and imposes broad ex-ante obligations, South Korea’s approach adopts similar logic through their existing law. The details (thresholds and designation) remain in flux. Additionally, South Korea’s market conditions are somewhat different (smaller domestic market, strong local tech players, high competition in many segments) which further shape the development of these rules.

DMA Concepts in Brazil

Brazil is also moving toward a DMA style framework, actively building a “Brazilian DMA” which is aimed at addressing competition and fairness issues in its digital markets.

Brazil’s current system is Law No. 12.529/2011, the country’s main competition law, which empowers the Administrative Council for Economic Defense (CADE) to investigate anti-competitive conduct, mergers, and abuses of dominance – but, unlike the DMA, only after harm occurs (ex post). Brazil’s Bill No. 2,768/2022 (see also), introduced in November 2022, closely resembles the structure and intentions of the DMA. It covers “essential access control power holders” and sets a relatively low designation threshold of at least BRL 70 million. Designated firms would face obligations on transparency, non-discrimination, and access. Likewise, the Ministry of Finance and CADE launched a consultation to define “systemically relevant digital platforms,” the results of which were later incorporated into Brazil’s 2025 “Fair Competition in Digital Markets” bill. This bill targets the same conduct DMA seeks to prevent: tying of services, discrimination, or abuse of dominance. 

Brazil shares the DMA’s preventive philosophy but differs in structure, with lower thresholds and shared enforcement between the Agência Nacional de Telecomunicações (National Telecommunications Agency) and CADE. Fines could reach 20 percent of turnover (double the DMA’s cap). Although not yet enacted, Brazil’s reforms show clear momentum toward preventive digital regulation; clear evidence of the Brussels Effect spreading to Latin America.

Attempted Implementations in the United States

The U.S. risks becoming a policy laggard in a domain it once dominated. While Brazil and South Korea are taking steps toward constructing DMA-inspired hybrid frameworks with ex ante elements or making targeted reforms, the U.S. has not made such advancements. The Trump administration has condemned the EU’s DMA as discriminatory toward U.S. tech companies, framing it as an attack on American innovation and free speech. In response, it has threatened retaliatory measures, including tariffs and sanctions, while the EU insists the law applies equally to all firms and reflects its sovereign right to regulate digital markets. Meanwhile, it’s not just the EU, South Korea, or Brazil – more countries are moving ahead with proactive, flexible regulatory frameworks that address digital dominance before it distorts the market. 

The U.S. currently relies on enforcement of existing antitrust laws through court rulings. The U.S. has piecemeal legislative proposals, but momentum for passage and implementation has slowed. High-profile cases like United States v. Google (2020) and FTC v. Meta demonstrate both the power and the limitations of this model. But litigation takes years; by the time enforcement concludes, markets have shifted, competitors have vanished, and consumers have little recourse. Legislative efforts to modernize antitrust policy, such as the Open App Markets Act (opening up the app markets), and the American Innovation and Choice Online Act (prohibiting platform self-preferencing and discrimination), can be the proactive approach to platform regulation that consumers need. Currently, neither of these acts have been considered past introductions.

Adopting new competition legislation which accounts for evolving tech would not only bring U.S. policy in line with global developments but also create a more balanced, forward-looking framework. For the government, proactive regulation offers predictability and efficiency. Clear rules prohibiting harmful behaviors (self-preferencing, tying, leveraging dominance across markets, etc.) could reduce the need for protracted litigation and make enforcement more consistent. For companies, ex ante obligations could foster compliance and level the playing field for responsible groups, preventing unfair practices by everyone. Entrepreneurs could benefit from fairer access to digital marketplaces, stimulating innovation and entry into spaces previously dominated by a few tech giants.

Ultimately, consumers stand to gain the most. Reduced gatekeeping and increased platform accountability could mean better choice, prices, and transparency. Instead of stifling innovation, proactive regulation can restore dynamic competition and rebuild public trust in digital markets. Thus, we can ensure that growth in tech innovation matches public interests and long-term economic stability.

Costs to the United States: Why We Need to Adopt Proactive Policies 

In the absence of the U.S.’s own competition regulation, U.S.-based consumers will be left adapting to rules made elsewhere. To that end, the U.S. must pass digital platform competition legislation now. For consumers, platform governance rules like data portability, interoperability, and low switching costs would create genuine market choice.

The U.S., for the sake of the public interest, cannot afford to remain a bystander while other regions define the next generation of digital governance. A U.S. path toward competition regulation need not be abrupt. Congress could revive and refine stalled legislative proposals such as the Open App Markets Act, embedding them within a broader national strategy for digital competition. Establishing a dedicated digital regulatory agency with the mandate to enforce such pro-competition legislative proposals would go a long way in improving coordination and oversight. Instead of being stagnant, the U.S. can seize the opportunity to shape, rather than follow, global digital governance norms. Oversight should balance innovation and accountability, ensuring that competition rules serve both economic growth and the public interest.

The post Stuck at the Start: A Call for the United States to Act on Digital Competition Law appeared first on Public Knowledge.

The statute governing FTC commissioners directly prohibits these firings. Under 15 U.S.C. § 41, commissioners may be removed by the president only “for inefficiency, neglect of duty, or malfeasance in office.” Policy disagreement is not among the permitted grounds. A federal court correctly declared the attempted removal unlawful. The D.C. Circuit Court agreed. 

Commissioner Slaughter won in the courts below because the law, as it stands, is on her side. So the Trump administration is now asking the Supreme Court to change the law by overturning decades of precedent and ruling that Congress has no power to create independent agencies – agencies that are democratically accountable, but insulated from partisan politics. 

This question hinges on the so-called “unitary executive” theory, which claims that all executive power is concentrated in the president and that any congressional limits on personal, presidential control of the federal government violate the Constitution. This theory has been a favorite conservative legal theory for some time, was embraced by Project 2025, and indeed, the year 2025 has seen its full flowering: from President Trump firing the members of the U.S. Commission of Fine Arts (a purely advisory body that might have disagreed with some of his aesthetic choices for federal buildings), to arranging to have himself named the chair of the board of the Kennedy Center, to trying to wrest control of monetary policy away from the Federal Reserve. (When it comes to ordinary civil service jobs, don’t worry, the White House has you covered: Draft regulations claim that the 1978 Civil Service Reform Act, designed to protect the civil service from politicization, are “unconstitutional overcorrections” to past abuses.)

As we have argued in our brief in this case, the unitary executive theory is wrong. And if the Supreme Court allows President Trump to ignore the law and fire independent commissioners anyway, the consequences will reshape American government in ways its proponents may soon come to regret.

How the Unitary Executive Theory Misreads the Constitution

The unitary executive theory rests on two constitutional provisions. Article II’s Vesting Clause states that “the executive Power shall be vested in a President of the United States of America.” The Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” From these provisions, proponents derive sweeping presidential authority over every federal official, including unlimited removal power.

It’s wrong.

The Vesting Clause doesn’t define executive power. It simply identifies who possesses it. As Professor Caleb Nelson, a legal scholar the the University of Virginia observes, “one must still figure out what ‘the executive power’ is.” He continues, 

Executive power entails executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgments rendered by courts. The President is not in charge of the content of those laws and judgments. Nor does the Constitution guarantee the President any particular means of enforcing them. To the contrary, the power to execute the law is itself subject to the law; executive officials are allowed to use only the resources that the law makes available for this purpose, in the way that the law allows them to be used.

The Constitution itself does help us figure out what “executive power” means in practice by giving the president specific duties and authorities. For example: the president signs and vetoes legislation. The president serves as Commander in Chief of the armed forces. The president grants reprieves and pardons for offenses against the United States. The president makes treaties with the advice and consent of the Senate. The president nominates ambassadors, judges, and other officers.

These are express constitutional powers. Without a constitutional amendment, Congress cannot transfer these powers elsewhere or insulate them from presidential control. Congress cannot delegate the power to veto legislation to some other official. Congress cannot create a “pardoning commission” to take away that power from the president (even though, right now, that seems like a good idea). Congress cannot divide command of the armed forces among multiple officials protected from presidential removal. These functions belong to the president because the Constitution assigns them to the office. 

And, far from giving the president the power to disregard laws he views as infringements of his power, the Take Care Clause imposes a duty: the president “shall take Care that the Laws be faithfully executed.” When Congress enacts a statute providing that FTC commissioners may be removed only “for inefficiency, neglect of duty, or malfeasance in office,” that statute is the law the president must execute.

The unitary executive theory locates broad and unchecked presidential authority in these vague clauses. But the Constitution gives Congress explicit power to determine how the government is structured. You don’t have to be a constitutional scholar to understand how definitive Article I, Section 8 is. Congress is assigned the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

So, when Congress exercised its constitutional authority under the “commerce clause” to create the FTC, it also exercised its authority under the Necessary and Proper Clause to determine how the FTC should operate. How laws are to be enforced is as much the prerogative of Congress as the substance of the laws themselves.

The Supreme Court unanimously upheld for-cause removal protection in Humphrey’s Executor v. United States (1935). Congress relied on this framework to create dozens of independent agencies – the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and many others.

Congress structured the FTC as an independent, bipartisan body because the agency regulates competition and consumer protection across nearly every sector of the economy. The FTC’s investigative powers rank among the broadest in the federal government – the agency can compel documents, require testimony, and investigate business practices throughout the economy. This power should be apolitical – while Commissioners from different parties may have different economic and enforcement priorities, the FTC’s powers should not be used for partisan purposes or to advance unrelated ideological interests. Enforcement decisions –  especially those that could favor established firms over new entrants or shield powerful industries from scrutiny – should rest on evidence rather than political pressure. The FTC’s structure has served the nation and Presidential administrations of both parties well.

The Current FTC Shows the Danger of Politicization 

Recent events demonstrate what happens when independence gives way to politics. Following the removal of the Democrats from the Commission, the FTC has effectively ceased to function as an independent agency. The current FTC Chairman has even publicly stated he does not believe in FTC independence.

The Commission imposed conditions on the Omnicom-IPG advertising merger requiring commitments about the companies’ participation in advertising “boycotts” – but advertisers’ and their agencies’ media buys are a matter of editorial discretion with no relationship to market concentration, competitive effects, or consumer harm under the Clayton Act. Merger review properly focuses on whether a transaction substantially lessens competition. Conditions addressing unrelated political controversies exceed statutory authority and suggest that merger approval depends on political alignment.

The Commission convened a workshop titled “The Dangers of ‘Gender-Affirming Care’ for Minors” – a politically contentious topic with no connection to the FTC’s mandate to prevent unfair or deceptive commercial practices. The workshop featured no consumer complaints and advanced no enforcement action, serving only to inject the agency into a divisive social debate outside its jurisdiction.

Most troubling, the FTC opened an investigation into Media Matters for America after the nonprofit published reporting about advertisements appearing adjacent to antisemitic content on X (formerly Twitter), after Elon Musk, an on-again, off-again Trump ally, gained control of the platform. The Commission issued civil investigative demands seeking all documents related to Media Matters’ evaluation of media platforms, communications with advertisers and technology companies, comprehensive financial records, and complaints about its reporting. A federal district court found that “retaliatory animus was the but-for cause of the FTC’s” investigation and blocked it, and the D.C. Circuit affirmed, but that does not undo the harm. This investigation deployed the agency’s investigative authority as a weapon against protected speech critical of powerful political figures.

As former FTC officials have warned, “A system of competition law quickly loses its legitimacy when … an elected official can force the agency to file cases to harass political adversaries, to fulfill campaign promises to contributors (even worse, to make good on bribes), or to shield incumbent economic interests from challenge by new firms or business models[.]” 

What Happens If President Trump Wins at SCOTUS

If the Supreme Court invalidates for-cause removal protection, dozens of independent agencies would lose their constitutional foundation. The President could fire commissioners at will for any reason or no reason at all. (Which to be clear, he has been doing all year. The question is whether it has been legal.)

But there’s another dimension. If the Court rules that the President has unlimited removal authority, that authority will not remain solely in Republican hands. A progressive president facing a federal government populated by Trump appointees could (and in light of President Trump’s reasoning, should) exercise the same power to clean house. Any commissioner at any agency could be removed and replaced on day one.

The next progressive President will have no choice but to use the tools that President Trump has consolidated in the White House. The extensive deregulation, climate policy rollbacks, weakened consumer protections, could all be reversed by a new administration exercising the very authority President Trump claimed. The FTC could aggressively enforce antitrust law against technology giants and healthcare monopolies. The FCC could restore net neutrality. The SEC could crack down on corporate fraud and require climate risk disclosures. The NLRB could strengthen worker protections.

Personally, I am looking forward to that day. But this is not an argument that the unitary executive theory is correct: just that it may be needed to fix its own abuses. It is also a warning to its proponents about what they are creating. Political power does not stay in the same hands forever.

Why A Limited Presidency Serves Progressive Causes Better

But while progressives might be tempted to embrace the powers President Trump seeks permanently – “Just think of all the good we could do!” – the better course (after the inevitable housecleaning) is re-imposing structural limits on executive authority. 

Regulatory agencies insulated from political pressure can pursue long-term goals beyond election cycles. They can develop expertise in complex technical areas. They can maintain enforcement priorities even when politically inconvenient.

The FTC’s independence allowed the Biden administration to investigate politically powerful technology companies despite objections from prominent Democrats. Historically, the NLRB’s independence has permitted it to protect workers’ rights even when complicating relationships with business interests, and the SEC’s independence enables it to pursue securities fraud regardless of political connections.

A strong Congress is better for democracy than an imperial presidency. The Framers designed a system where Congress, representing diverse constituencies of voters, would be the primary source of policy. An all-powerful executive who can reshape government institutions at will concentrates too much authority in too few hands. It essentially recreates the absolute monarchy against which the founders rebelled. We should not have to wait for a “good” emperor to achieve progressive policy goals. Democratic governance works best when power is distributed, debated, and constrained by law. The current president, and the current Supreme Court, may not agree with this. But eventually it will be time to rebuild.

The post No One Wins Under the Unitary Executive Theory appeared first on Public Knowledge.

The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:

“We are disappointed by today’s ruling rejecting the Federal Trade Commission’s challenge to Meta’s acquisitions of Instagram and WhatsApp. For years, Public Knowledge has warned that Meta’s ‘buy-or-bury’ strategy undermines competition and deprives users of real alternatives to Facebook.

“Social networks depend on powerful ‘network effects’ – people gravitate to the services their friends and communities already use. That makes it extraordinarily difficult for new entrants to gain traction, even when they offer better features like more privacy. When a dominant platform like Meta buys up rising social networks that may be able to challenge its market position, it closes off one of the few realistic pathways for meaningful competition.

“The court’s opinion reflects a view of the market that is at odds with how digital-platform power operates today. Meta systematically acquired emerging competitors precisely because direct, head-to-head competition threatened its dominance. Meta’s consolidation strategy deprived consumers of innovative services and prevented the development of a truly competitive social-networking ecosystem.

“Without meaningful competition, dominant digital platforms will continue to exercise outsized power over speech, commerce, and user choice. We urge policymakers to strengthen antitrust enforcement and adopt pro-competitive policies, including interoperability, to ensure users have real choice.”

The post Public Knowledge Responds to FTC v. Meta Ruling Further Undermining Competition in Big Tech appeared first on Public Knowledge.

In the absence of congressional oversight hearings, Public Knowledge – joined by the Electronic Privacy Information Center (EPIC), Public Citizen, TechFreedom and other organizations – stepped up to demand accountability from the Federal Communications Commission, Federal Trade Commission, and Consumer Financial Protection Bureau. What followed was a constructive series of in-depth discussions on FCC Failures, FTC Drift, and CFPB Enforcement Gaps, as well as remarks from members of Congress invested in carving a path forward.

_{From left to right: Tom Wheeler, Bob Corn-Revere, and Gigi Sohn serving as witnesses, and Lauren Harper, Berin Szóka, Harold Feld, Ceilidh Gao, Raza Panjwani, Matt Wood, and Joey Wender serving as questioners for the People’s Federal Communications Commission Hearing}.

Witnesses joined Public Knowledge from the Brookings Institution, the Benton Institute, the American Association of Public Broadband, and Foundation for Individual Rights and Expression to testify before questioners from Schools Health & Libraries Broadband Coalition, TechFreedom, Free Press, Public Knowledge, New America’s Open Technology Institute, Communications Workers of America, and the Free Press Foundation about the FCC’s repeated failures to rein in monopolistic Big Tech, defend consumer rights and protections, and expand connectivity to the communities that need it. The witnesses unequivocally affirmed that Brendan Carr’s actions as FCC Chairman have endangered not only the future of the agency, but the future of our democracy – and we must disentangle the FCC from the White House’s influence if we hope to preserve both.

_{From left to right: FTC Commissioner Rebecca Kelly Slaughter and Bilaal Sayyed serving as witnesses questioned by Frank Torres, David Brody, John Davisson, Eric Null, Shae Gardner, Lisa Hone, Anna Lenhart.}

Witnesses from the FTC and TechFreedom were then examined by questioners from the Center for Democracy and Technology, EPIC, LGBT Tech, and the Leadership Conference on Civil and Human Rights. This hearing demanded that the FTC refocus on the unchecked corporate consolidation that is actually harming consumers and go after the lack of transparency and accountability in current markets.

The lunch break was bookended with video appearances by Rep. Summer L. Lee (D-PA) and Sen. Richard Blumenthal (D-CT). Both members of their respective oversight committees, they urged fellow members of Congress to intervene in President Trump’s authoritarian takeover and wielding of federal agencies for his personal interests or grudges. 

_{From left to right: Christine Zinner, Jennifer Zhang, and Erie Meyer serve as witnesses for the Consumer Financial Protection Bureau and take questions from Bart Naylor, Erin Witte, and Chi Chi Wu.}

Finally, participants from the Institute for Technology Law & Policy, Alliance for Justice, and Protect Borrowers, posed as witnesses for the CFPB while questioners from the National Consumer Law Center, Consumer Federation of America, and Public Citizen called out lenders’ financial abuse of working families, enabled – and at times facilitated – by the Trump administration. The witnesses testified to the CFPB’s crumbling under the affordability crisis and forecasted an even steeper cost to consumers if this financial predation is allowed to continue without oversight.

Finally, Rep. Mary Gay Scanlon (D-PA) joined Public Knowledge to deliver closing remarks calling for relentless oversight and a policy agenda that prioritizes reform and addressing corruption. The event was livestreamed on YouTube, where you can also watch the full recording.

The post A Recap of The People’s Oversight Hearing appeared first on Public Knowledge.

Common Sense Media, a children’s online safety organization, found that 70% of teens have used generative AI (a figure that has no doubt increased since the study was released last year). Anecdotal evidence corroborates this: you’d be hard-pressed to find a 16-year-old who hasn’t used ChatGPT for homework help, as a search engine, or for advice.

Among the biggest stories driving the push for AI chatbot liability are those of two different teenage boys who took their lives after developing strong emotional connections with respective chatbots, leaning on them for advice on how to navigate the thorny parts of adolescence. In Raine v. OpenAI Inc., for 16-year-old Adam Raine, that meant working through feelings of depression with ChatGPT. In Garcia v. Character Technologies Inc., for 14-year-old Sewell Seltzer III, that meant creating a confidant through Character.AI. 

These devastating losses have prompted families to pursue multiple legal theories. While the fact patterns for each case are notably different, both cases assert nearly identical causes of action, including:

• Strict Product Liability – Design Defect: The design of the AI chatbot (the product) makes its use unreasonably dangerous. The product is defective in design, was defective when it left the AI developers’ control, and caused injury when used as intended. 
• Strict Product Liability – Failure to Warn: AI developers knew that their chatbots could cause mental anguish or harm, especially to minors, but failed to disclose those risks to users or parents. The developers also did not implement any protections, including usage limits or mental health disclaimers.
• Negligence: The harm that occurred was foreseeable, but the AI company failed to adhere to the duty of care by pushing out AI chatbot products without adequate safety evaluations and guardrails. 
• Deceptive and Unfair Trade Practices: AI companies marketed their chatbots as safe or suitable for children, while concealing material risks in order to exploit minors’ data for profit.

The product liability approach is similar to that of thousands of lawsuits against social media platforms, highlighting “defective” online platform design features as the cause of addiction and harmful behavior among child users. Many of these lawsuits have been dismissed, even when they purport to target addictive design, because these complaints actually concern the content served to children rather than platform design. This is because platforms are not liable for third-party content thanks to Section 230 of the Communications Decency Act (for example, in the California-based Multi-District Litigation, in re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, the court ruled that claims about features related to publishing third-party content fell within Section 230’s immunity). AI chatbot cases may see a different outcome, though, because the jury is still out on whether Section 230 covers AI chatbot outputs. (We think Section 230 does not shield generative AI, but others make the case for it.) 

The Regulatory Response

These cases are ongoing, and there is little use in predicting their outcome. Lawmakers are hoping to get out ahead and clarify what AI chatbot safeguards and liability should look like. The resulting proposals aim to either prevent harm from happening in the first place, or to clarify pathways to accountability for harmed users and their families.

State Proposals

California’s SB 243, passed into law by Gov. Gavin Newsom on October 13, 2025. Those requirements include suicide prevention protocols, such as implementing systems to detect and prevent suicidal ideation or self-harm and referring suicidal users to crisis services. For child users, the AI deployer must disclose that the interaction is with AI, and suggest breaks every 3 hours of use. Chatbots also cannot engage in sexual conduct. Governor Newsom vetoed a different AI chatbot bill, which would have banned companies from making AI chatbots available to users under 18 unless the deployer could ensure the chatbot couldn’t engage in harmful conversations, including sexual content and encouraging self-harm. The governor found such a bill to be overly restrictive, believing it could reasonably prevent kids from using AI technologies at all – which we at Public Knowledge would agree could unjustly restrict kids’ free expression. 

New York’s S 5668 adopts a broader approach than California’s law by establishing a comprehensive liability framework for all chatbots. It also includes enhanced protections for minors, such as requiring age verification, parental consent for using companion chatbots, and strict liability if a minor harms themselves after safety measures are not followed. Although age restrictions on chatbots designed for erotic or intimate interactions likely meet the “obscene for children” standard from Free Speech Coalition v. Paxton, we oppose wide-ranging age restrictions, as they could hinder both children and adults from exploring the positive expressive potential of AI chatbots. 

Federal Proposals 

At the federal level, Senators Josh Hawley (R-MO) and Dick Durbin (D-IL) introduced the Aligning Incentives for Leadership, Excellence, and Advancement in Development (AI LEAD) Act, hoping to establish a federal cause of action for product liability claims when AI systems cause harm. It’s unclear whether we actually need new laws to clarify liability avenues for harmed users, as existing product liability frameworks may already cover AI-related harms. Yet AI LEAD could impose unnecessary constraints on the positive developments in the AI world. 

AI LEAD’s approach places the greatest onus on AI developers, who must prove they either adopted a reasonable alternative design or that no such alternative existed when their AI system causes harm. They’re also required to provide adequate warnings about foreseeable risks, with a notable protection for minors: risks are presumed not to be “open and obvious” to users under 18. Deployers, by contrast, face a lighter burden. They become liable only if they substantially modify the AI system in ways not authorized or anticipated by the developer, or if they intentionally misuse it contrary to its intended purpose. This allocation of liability might seem reasonable on its surface, but could create significant problems in practice, especially for open-source AI developers who have little control over which deployers may take their models and adapt them for their own use cases.  

OpenAI alone is worth $500 billion, making the occasional wrongful death or product liability lawsuit a mere nuisance rather than existential. But this is not the case for teams of scrappy engineers experimenting with developing open-source AI models. In fact, AI LEAD’s liability framework creates acute problems for open-source AI, where developers release models publicly with limited control over downstream applications and often lack the resources or insurance to defend against liability claims. An open-source developer could be held strictly liable for harms arising from any of the countless deployments by users, even when those uses were unforeseeable or the developer provided reasonable warnings. This asymmetry particularly disadvantages individual developers and small teams contributing to open-source projects, who face the same legal exposure as well-resourced corporations but without the financial cushion to absorb judgments or litigation costs. By focusing too much on the AI developer for liability, a bill like AI LEAD could result in a less diverse AI market and disincentivize the creation of AI applications for the public good over private profit incentives. 

Shortly after AI LEAD was announced, Sen. Hawley announced another AI chatbot bill, this time cosponsored by Sen. Richard Blumenthal (D-CT). They introduced the Guidelines for User Age-Verification and Responsible Dialogue Act of 2025 (GUARD Act). This bill is intended to impose “strict safeguards against exploitative or manipulative AI, backed by tough enforcement with criminal penalties.” The proposed legislation would prohibit AI companies from providing AI companions to minors and require them to implement an age verification mechanism. Additionally, the bill mandates that chatbots regularly disclose that they are not human. Importantly, the bill’s language encompasses any AI chatbot that “produces expressive content or responses not fully predetermined by the developer,” effectively preventing anyone under 18 from accessing them. Similar to the recently vetoed California bill, this restriction would prevent minors from benefiting from the expressive and educational advantages of artificial intelligence, except in very limited situations. Consequently, rather than compelling AI companies to prioritize safety in their product design for all users, the GUARD AI legislation essentially allows them to operate freely as long as their products are not available to children.

Company Responses

Chatbot developers and deployers are aware of the upcoming wave of regulation and are working to stay ahead by adding parental controls and adjusting design features to be safer for child users. After the death of Adam Raine, OpenAI re-tuned ChatGPT to be more restrictive to mitigate unintended harm from users experiencing mental health crises. On October 14, 2025, OpenAI CEO Sam Altman declared they were able to “mitigate the serious mental health issues and have new tools,” giving themselves permission to “safely relax the restrictions in most cases.” Altman also announced ChatGPT will allow adults to interact with “erotica” chatbots, but prudently will put them behind an age-gate. (While Public Knowledge generally opposes age-gating content, as Free Speech Coalition v. Paxton affirmed, “obscene for children content” a.k.a. pornography has different First Amendment implications than general content. And an erotica chatbot would be classified as a “high-risk feature” in our risk-based age-gating framework outlined in The Kids Aren’t Alright Online report.)

Character.AI rolled out safety measures following the Garcia lawsuit, including deploying a separate, more restrictive LLM for users under 18. It also implemented parental monitoring tools and safety mechanisms to intervene when conversations involve self-harm. Just a couple of months later, though, Character.AI announced that, as of November 25, users under 18 will no longer be able to have open-ended conversations with chatbots and will be limited to two hours of chat time per day. Young users will still be able to use the Character.AI platform for creative activity, like developing stories or videos. Creating a chatbot for users under 18 that removes or adjusts features to prevent harm, while still giving adults full access to the LLM, is a prudent way to balance providing expressive tools to everyone with keeping young users safe – and preferable to blocking kids from accessing AI tools altogether, as some introduced legislation would do. 

Conclusion

The tragic deaths of teenagers like Adam Raine and Sewell Seltzer III demand serious attention and meaningful action. But the rush to regulate AI chatbots raises difficult questions about whether we’re addressing root causes or simply creating new barriers that entrench existing dominant players.

If the goal is accountability, we should ensure AI deployers are accountable for the harm they have caused to any user, not just kids. But placing the responsibility on developers instead of the deployers who altered LLMs in ways that cause harm would mean only those developers who can afford liability could develop AI, and others would likely refuse to release open-source models due to the liability risk.

The post Kids & Teens Safety Regulations for AI Chatbots Could Backfire appeared first on Public Knowledge.

To recap, for those who might be just tuning in: Back in March 2024, a years-long simmering feud between Drake and fellow artist Kendrick Lamar spilled over into public view with the release of Lamar’s verse on Future and Metro Boomin’s “Like That.” After a stretch of diss tracks, celebrity weigh-ins, and headline-grabbing public performances in the months that followed, things took a turn when Billboard reported in late November that Drake was filing a lawsuit against his record label UMG, to which Lamar is also signed. And by April 2025, the final text of that suit had arrived – with Drake accusing the media giant of flexing its industry power to defame Drake as a pedophile in its work to promote, and failure to prevent, the release of Lamar’s chart-topping track “Not Like Us.”

Now that the judge has dismissed the lawsuit, it’s unlikely that this case will make it to trial. But while much attention has been focused on the filing of the lawsuit itself being rather unusual for a rap beef, some of the claims being made as to how UMG allegedly defamed Drake echo what we already know about the shady – and sometimes illegal – practices of the music industry when it comes to promoting and licensing music on streaming services. Let’s take a look.

The Claim: UMG Uses Bots to Promote Its Music

One of the major claims that Drake’s filing accuses UMG of is of the usage of bots. Bots are software programs that can be used to mimic human behavior, especially in order to increase engagement for content posted on digital platforms. Drake accuses UMG of paying third-party sources for bots “to artificially inflate the spread” of “Not Like Us” on Spotify – boosting the streaming numbers in order to secure spots on Spotify’s top playlists, and in turn receive more visibility to garner even more streams, saves, playlisting, and purchases from real users.

What We Know: Bots are a Widespread Issue

The usage of bots on streaming services is nothing new, having plagued the industry for over a decade. One of the most common uses is through streaming farms, which are organized networks of bots that play songs and playlists on loop. Various third party services offering access to streaming farms have emerged over the years, marketing themselves to upcoming independent artists hoping to boost their streaming numbers for playlist placement and label attention. Though platforms like Spotify have rolled out increasingly advanced measures for detecting and discouraging botted content, usage continues to proliferate – with some experts estimating that at least 10% of all streams are fake.

But while industry attention seems to be primarily focused on discouraging botting from small actors, some signs indicate that even major acts have been getting their hands dirty. In 2021, Rolling Stone published an exposé on a leaked phone call between members of management and distribution company the Blueprint Group and a digital marketer named Joshua Mack. During the call, the two parties discuss options for inflating the streams of American rapper G-Eazy for his upcoming album release. As he markets his services, Mack boasts that his “network” can create “200 million streams a month” for his clients – a group which allegedly includes multiple well-known artists and record labels. He even goes so far as to admit that Spotify is aware of and has punished him for his activities in the past – but that doesn’t stop him. “We cracked the code, and understand how to manipulate the system and hit astronomical numbers,” he claims.

There is a long and storied history of artists and record labels paying to boost numbers and manipulate the music charts, in what is generally understood as payola – an industry practice that has changed over time to accommodate new mediums of distributing and consuming music, even as the basic dynamic, “pay to play,” remains the same. In the early days of the music business, record labels would approach radio DJs offering cash, gifts, and even mortgage payments to play their artists’ songs on the radio. This practice eventually came to political prominence in 1960 in what became known as the “Payola scandal,” which was accompanied by a series of highly publicized Congressional hearings. In the wake of this (and thanks to Federal Trade Commission scrutiny), record labels shifted from paying radio stations directly for radio play, to instead paying third-party promoters who would then “encourage” radio program directors to add certain songs.

With the present day’s rise of bot farms, however, leaks such as the call with the Blueprint Group suggest that payola has transformed once again, and other sources from within the industry seem to confirm the existence of widespread adoption. In an interview with Rolling Stone, an artists and repertoire executive (A&R) from a major music label admitted, “There are a few third-party companies out there running this for a lot of the major companies. We use them too for some of our artists. We agree to a certain amount of money for a certain amount of streams, and we can spread that out among [our] artists. It’s like, we’re good; we just need performance-enhancing steroids to be a little bit better.”

The Claim: UMG Charges Spotify Lower Rates in Exchange for Recommendations

A second major claim in Drake’s filing focuses on licensing rates. This refers to the agreed upon compensation that streaming services pay in exchange for holding the rights to reproduce, distribute, and allow users to listen to songs on their platforms. The filing claims that UMG charged Spotify “lower than usual” monetary licensing rates for “Not Like Us” in exchange for increased promotion of the record, including through recommending the song to users during search.

What We Know: Non-Cash Compensation is King

When it comes to licensing deals, non-cash compensation hits a sweet spot. Streaming services typically pay out advances to major labels based on expectations of royalty earnings from the label’s catalog, which can reach sums in the tens of millions of dollars – providing a guaranteed income amount for the label in question. In theory, streaming services could recoup that amount if the label’s catalog generates enough revenue within the advance’s covered time period – usually a year – but if this doesn’t happen, the labels still keep the advance amount in full (commonly referred to as “breakage”). While this sets up a win for the record labels either way, these advances take money off of the table for less powerfully-positioned licensors such as independent labels and artists. In addition, these advances can cause streaming services to pay out significantly more than its intended revenue share due to large advance commitments, as shown in previous Spotify financial filings that saw the streaming service paying out up to 82% of its revenue in rights payments compared to a target 70%.

Non-cash compensation helps to lighten the load. Labels have leveraged their catalogs within licensing deals to secure payment in the form of equity stakes, discounts on advertising space, increased algorithmic recommendations, and even spots on popular playlists. Taken together, these forms of compensation may very well be seen as yet another form of payola, in which rightsholders charge lower licensing rates in exchange for increased play and promotional visibility – just as the suit alleges happened with “Not Like Us.” Researchers have found that songs from major label catalogs not only “feature on popular Spotify playlists at a disproportionately higher rate” than their indie counterparts (a disparity that, apparently due to focused efforts from Spotify, has recently begun to shrink), but are also “over-represented” in the song recommendation process.

While this exchange undoubtedly benefits the streaming services in question by reducing their licensing payment liability (Spotify, for all its nearly two decades of existence, only reported its first profitable year in 2024), these moves also carry on the legacy of some of the shadier practices of the music industry by shrinking the amount of compensation that labels have to pass along to their artists. And with the cloud of secrecy within the music industry thanks to pervasive non-disclosure agreements (NDA), many artists and their teams remain completely in the dark on the payment details of the licensing deals negotiated on their behalf. 

Okay, So… Now What?

Whether or not you find Drake to be a fearless whistleblower of the music industry or a bitter loser in a rap beef, the problems with payola in streaming services are very real. And a lawsuit alone isn’t likely to fix these issues. Many of the known details of licensing deals have been brought to light due to leaks, given the aforementioned brick wall of NDAs – and previous attempts to hold the music industry accountable for payola by Congress and the Federal Communications Commission have failed to fully rein in the practice. But there is one agency that might be uniquely equipped for the challenge: the Federal Trade Commission.

Under Section 6(b) of the FTC Act, the FTC has authority to conduct a wide-ranging study to figure out exactly what’s going behind major label closed doors. This includes allowing for the FTC to pierce NDAs, and even compelling labels to make publicly available annual accounting of all non-cash compensation in licensing deals, so that artists, consumers, and lawmakers alike can ensure the streaming industry remains accountable. Public Knowledge has previously advocated for the Commission to open a 6(b) study, but we are still waiting for the agency to take action.

But in the meantime, however, we’ll be dancing to “wop, wop, wop” with the best of them.

The post Drake v. UMG: Fearless Whistleblower or Bitter Loser? appeared first on Public Knowledge.

The following is an excerpt from the letter:

“President Trump’s unconstitutional and un-American attacks on the free press are hardly new. His second term, however, has seen these unseemly rhetorical attacks accompanied by an unprecedented weaponization of the FCC’s regulatory authority against television broadcasters to gain leverage in personal legal matters, extract financial settlement payments, and intimidate their news divisions to silence dissenting views and critical coverage.  

“The president has repeatedly called for ABC, NBC, and CBS to lose their broadcast licenses in response to what he deems unfair coverage. While the president is entitled to his opinions as a media critic, the First Amendment clearly prohibits government officials from abusing federal power to silence, censor, or intimidate news media organizations. We recognize… that a free and open press is democracy’s last and best defense against tyranny. Your Democratic and Republican predecessors had the courage to defend this fundamental American value, publicly rejecting calls to regulate or punish broadcasters for their perceived political views. You, too, affirmed this principle in 2021, stating: ‘A newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.’

“Yet the Commission appears to have fully abandoned this principle in its review and approval of Skydance Media’s recent acquisition of Paramount Global, including CBS News and Stations. As you know, President Trump – acting in his personal capacity – filed a $10 billion lawsuit against CBS in late October, alleging that routine editing of a 60 Minutes interview with Vice President Kamala Harris amounted to ‘Election Interference and Fraud.’ Mr. Trump’s lawsuit was widely panned as ‘legally groundless’ … by legal experts from across the political spectrum. Yet the Commission withheld its approval of the transaction until CBS capitulated and agreed to pay $16 million. Moreover, the Commission’s eventual approval was conditioned on CBS accepting unprecedented and unconstitutional infringements on its editorial independence, including the hiring of a ‘bias monitor’ to police alleged unfairness toward President Trump and his allies.

“With CBS now effectively coerced into self-censorship, we’re troubled by recent Commission actions appearing to aim for similar outcomes at ABC and NBC. In letters sent to the Walt Disney Company (December 21, 2024) and Comcast Corporation (July 29, 2025), you warned of potential FCC intervention in ABC’s and NBC’s relationships with affiliated broadcast stations. Absent any valid statutory authority, and in light of President Trump’s repeated attacks on these networks and calls to put them out of business – and your own media appearances cheering on his attacks on ‘these legacy broadcast media outfits and the New York and Hollywood elites’ – these letters read as thinly veiled shakedown threats: Nice business you’ve got there. It’d be a shame if anything happened to it.

“Let us be clear: The FCC has no lawful authority to influence network newsrooms’ editorial decisions. As Chairman of the Federal Communications Commission, your sworn duty is to the Constitution – not to any president. We urge you to speak up, as your predecessors have done and you yourself were once willing to do, in defense of the First Amendment and the rule of law.”

The following can be attributed to Chris Lewis, President & CEO of Public Knowledge: 

“First amendment protections of a free press apply to broadcasters and news organizations regardless of who is in power in the White House and the FCC. Chairman Carr must end his intimidation of media companies and threats of retribution for legal speech and editorial decisions he disagrees with.”

You may view the letter for more information.

The post Public Knowledge Joins 21 Public Interest Groups Urging FCC To Defend First Amendment, Rule of Law appeared first on Public Knowledge.

The last time news lobbyists headed to the Hill to push for the JCPA, it was partly in response to the failure of two California state bills designed to extract monopoly rents gained by Google and Meta for allocation to publishers. The bills were both based on the reasoning that the dominant platforms have used their monopoly positions to steal traffic and advertising revenue from publishers. In the end, California Gov. Gavin Newsom shelved both bills, and instead announced a “News Transformation Fund” to be voluntarily co-funded by Google and the state. The fund’s design favored print and digital outlets, small outlets, under-served markets, and the retention (if not hiring) of journalists. Lobbyists for the JCPA claimed the failure of the California bills proved the need for federal legislation, and that if publishers were empowered to negotiate collectively (without breaking antitrust laws), they would have more leverage with the platforms. 

Another factor in play at that time was the liability decision in the Google search case. The judge decided that Google violated antitrust law in its conduct in the search market and leveraged its power in the search market to dominate the search text advertising market. This was positioned by news industry lobbyists as proof that Google is a monopolist with an illegal business model and therefore, owes publishers recompense. While we agree that Google is a monopolist, it does not follow that publishers are free to extract rents for links. 

What’s New?

There have been some new developments since then that may trigger new advocacy for the JCPA. First, publishers were just handed what we agree is a crushing disappointment of a judicial decision regarding the remedies in the Google search case. The judge missed many opportunities to implement meaningful structural and behavioral remedies to Google’s monopolistic practices. Most relevant to the JCPA, he declined to adopt either of the Department of Justice’s recommended remedies that would have benefited publishers: prohibiting agreements that give Google exclusive access to publisher content, or allowing publishers to opt out of being crawled by AI. Despite our agreement that the judge’s decision in the search case was a whiff, we do not feel the JCPA is a good solution to the challenges to publishers brought about by AI.

The second development: the first two judicial decisions in lawsuits by publishers against AI firms both affirmed that under current law, AI training is highly transformative and a fair use of copyrighted content (at least in the situations analyzed in the cases). In other words, AI firms do not infringe on publishers’ rights when they use copyrighted news content to train their models. This is not the outcome publishers wanted, and it may lend tailwind to the idea, first framed in early 2024, that the JCPA will create a stream of compensation from AI companies back into news because the bill’s language about “accessing, crawling, and indexing” news content covers its use to train large language models. We disagree with this argument, but there may be an appetite for it in Congress. There have already been sympathetic hearings and more to the point, three Senate bills introduced calling for transparency, at a minimum, and restrictions, at a maximum, regarding the use of copyrighted content to train large language models. Early in September, Sen. Josh Hawley (R-MO) also argued there should be property rights assigned to certain types of data, and legal liability for companies that use it to train their models. News publishers may also point to the settlement in Anthropic’s class action copyright lawsuit with authors whose books were allegedly pirated for use in Anthropic’s training data. It implies that “access” to content for AI training warrants compensation. 

Here, updated for the AI age, is a list of the reasons we oppose the JCPA. 

The JCPA upends copyright law, and not for the better.

As we’ve noted before, the JCPA as drafted could be interpreted by courts to implicitly expand the exclusive rights that news publications enjoy in their material, beyond what any copyright owner has ever enjoyed. (For publishers, this is the point.) This would represent a major shift in copyright law (not to mention the nature of the internet, which is fundamentally built on the user freely linking to content). If interpreted by courts in that way, the JCPA could prevent internet users from linking to or sharing news articles on digital platforms and websites without some sort of payment. The bill itself also allows publishers to deny the platforms access to their content, which may restrict users from posting links to news stories. This would further limit the public’s access to information online. If applied to the use of copyrighted content for training of AI models, the JCPA upends fair use, the legal doctrine that allows limited use of copyrighted works without permission. Ironically, journalists themselves depend on fair use for criticism and commentary, news gathering and reporting, republishing source material, illustration, historical reference, and documenting claims. 

In fact, the JCPA is based on a premise the U.S. Copyright Office rejected. 

Back in 2021, when publishers’ frustrations with technology firms were still focused mostly on search and social media platforms, a few members of Congress sent a letter to the U.S. Copyright Office asking for “a study to evaluate the effectiveness of current copyright protections for publishers in the United States”. It was a sign of consistent Congressional support for the needs of news publishers, in particular, to confront technological disruption. The letter pointed as precedent to a European Union directive establishing “ancillary copyright” protections for press publishers. In June of 2022, still six months before the explosive introduction of ChatGPT,  the Copyright Office issued its report, “Copyright Protections for Press Publishers.” It concluded that the publishing industry already benefits from significant protections under existing law and does not require any new copyright protections. Public Knowledge provided public comments for the preparation of that report and supported its conclusions. We noted then, as we do now, that restricting linking and sharing of information through changes to copyright law, like the European Union has done, undermines the open nature of information on digital platforms and invariably favors and entrenches the largest players. A subsequent Copyright Office report specifically addressing AI and copyright affirmed that existing copyright law – including the fair use doctrine – can be applied to address the new questions brought about by generative artificial intelligence.

The JCPA discourages content moderation, even if it’s consistent with platforms’ terms of service. 

Platforms’ content moderation policies and processes have evolved a great deal since the last Congressional consideration of the JCPA. And so has, apparently, the Republican party’s view on the desirability of platforms moderating political or “hate” speech. But one thing remains true: an amendment to the JCPA made in late 2022 discourages or outright prevents platforms from using content moderation to support their community standards or terms of service. The amendment nullifies the antitrust immunity offered to journalism providers if the case could be made that any of their discussions with platforms were about content moderation, or that platforms discriminated among publishers based on “viewpoint.” Platforms will play it even safer to avoid being accused of “viewpoint discrimination” by erring on the side of moderating less content. That means users will see more harmful false information, extreme content, and hate speech online. 

Without changes, the JCPA doesn’t do enough for journalists. 

Last thing we knew, there were discussions about changing the language of the JCPA to include a requirement that 70% of proceeds from negotiations or arbitration go to newsrooms, and that there is transparency on how all proceeds are spent. If those changes are made, the bill may earn the support of the NewsGuild, the dominant union of journalists and media workers in the United States. (Both of these provisions would be derived from the [failed] Californian version of the bill, which earned the support of NewsGuild units in California.) The NewsGuild’s support may be less influential in the bill’s passage than it was before Republicans had the majority in the Senate and the House. That said, we still feel that any kind of negotiation between platforms and publishers will primarily benefit the biggest media conglomerates, many of which are owned by financially-motivated hedge funds. Which brings us to…

The JCPA primarily benefits the largest publishers. 

Lobbyists for the JCPA have pointed to a requirement in the bill that publishers with more than 1500 employees are not eligible to join a negotiating entity as proof that it benefits small publishers. But as we pointed out in a previous post, the publisher employee cap excludes only three elite east coast newspaper publishers in the United States from joining negotiating entities, and it doesn’t apply to broadcasters at all. So Sinclair Broadcasting Group, with approximately 13,000 employees and $2.59 billion in profit in the first quarter of 2022 alone, can participate in a negotiating entity. The JCPA as we saw it last also doesn’t allow news organizations that have been in business for less than a year to enter a negotiating entity, and it excludes news organizations that earn less than $100,000 per year. In other words, it is designed to disadvantage the smallest publishers. That’s why organizations representing local independent online news organizations, like LION Publishers, have traditionally opposed the bill. So have organizations representing the Black Press. 

The JCPA increases publishers’ reliance on dominant platforms.

At Public Knowledge we have consistently written about the need to center news policy on the information needs of communities – not on protecting legacy news models. When corporate interests, whether those of tech or media companies, begin to erect walls, levy tolls, or make backroom bargains, it will be the public that loses. In that sense, the JCPA overlooks important lessons we’ve learned from similar legislative actions in Australia and Canada. 

In late 2024, a Joint Select Committee on Social Media and Australian Society issued a report noting that their News Media Bargaining Code, the model for the JCPA, was based on fundamentally incorrect assumptions about the value of news to dominant platforms. Meta had signaled their intention not to renew commercial agreements with publishers in Australia, and threatened to break news links in Australia if they are “designated” and therefore forced to forge agreements with publishers under the Code. Australian regulators backed away from the Code. Similarly, upon passage of Canada’s Online News Act, Meta blocked news links in Canada. About a year in, online traffic, engagement, and revenue plummeted for publishers – and no one seems to have noticed the absence of news online in Canada. 

The JCPA is inconsistent with the new administration’s plan for AI.

While we have considerable concerns with the Trump administration’s AI action plan, we do agree with its implicit support for fair use and for allowing courts to decide on the use of copyrighted content in model training based on the distinctive facts in each case. We also appreciated the President’s own remarks about the need to protect the rights to read and learn. The JCPA is incompatible with these aspects of the administration’s plan for AI development.

It would also be hypocritical if Republicans supported the JCPA given the Trump administration’s strong comments, especially via the FTC, about how dominant platforms “censor through market power” and “elites collude,” including through their trade associations, to decide who will be heard. We find this line of thought off-base. Regardless, the JCPA would increase platforms’ influence over online publishers and grant news organizations the cover to collude to set the pricing, terms, and conditions under which platforms have access to speech. 

There are better options available to legislators to protect publishers from the impacts of AI. 

We are genuinely sympathetic to publishers’ concerns about the impact of AI on their business models, and have other solutions to offer. First, as we have said before, we cannot rely solely on judges to forge antitrust solutions to mitigate the monopolistic practices of Big Tech and their impact on publishers. Congress must pass legislation that breaks up the consolidated, abusive power of online platforms to pick winners and losers in the race for online visibility. Congress must also pass legislation that mandates transparency and prohibits self-preferencing. Examples of existing proposals to address this include the Advertising Middlemen Endangering Rigorous Internet Competition Accountability Act (AMERICA Act) and the American Innovation and Choice Online Act (AICOA). Another option is to put into law one of the remedies the DOJ framed in the Google search case: requiring that dominant firms like Google, Apple and Microsoft sever their AI crawlers from their search crawlers. This would support statutorily enforcing a set of self-identification standards via a unique identifier for a bot crawling content. 

In addition, we have recently framed a set of middle-ground solutions for discussion that are designed to preserve the benefits of the fair use doctrine for creativity and free expression while still preserving incentives for publishers to produce timely content. These include extended collective licensing, self-identification standards for bots and crawlers, and text and data mining exceptions for public interest uses. For more about these solutions, see “Is There a Middle Ground in the Tug of War Between News Publishers and AI Firms? Part 1: Framing the Problem” and  “Is There a Middle Ground in the Tug of War Between News Publishers and AI Firms? Part 2: Framing Solutions.”

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