Strengthening public-private collaboration in the post-Chevron era

There is a truism in Washington that technology will always move faster than policy.  The recent U.S. Supreme Court decision to overturn the Chevron doctrine has sent ripples through the regulatory landscape, affecting how U.S. federal agencies interpret laws. This landmark ruling shifts the power of statutory interpretation from agencies to the judiciary, fundamentally changing regulatory oversight. 

For technology companies, this decision underscores the importance of closely partnering with the government and continuing in the role of trusted partner. Innovative tech companies, with their deep technical expertise, must now play an even bigger role in advising Congress and working with federal agencies to shape future technology regulations.

The Chevron doctrine was established in 1984 and mandated that courts defer to federal agencies' reasonable interpretations statutes if they were viewed ambiguously. The Supreme Court's decision to overturn Chevron means that courts will no longer defer to agencies' interpretations, requiring much clearer and proscriptive legislation from Congress.

Regulating artificial intelligence and other emerging technology is inherently difficult, given their pace of development and the unpredictability of their implications. The court’s decision to invalidate the Chevron doctrine introduces several challenges to an already complex regulatory landscape around technology.

Without Chevron deference, courts — without sufficient expertise in AI and other rapidly emerging technology — will independently interpret statutes, leading to potential inconsistencies and increased litigation. Current AI regulations, which often rely on broad agency discretion, may now be subject to more intensified legal challenges. This heightened judicial scrutiny means that tech companies must remain nimble and be prepared to potentially navigate a more complex and fragmented regulatory environment.

The ruling also places greater responsibility on Congress to draft more precise and clear laws to reduce the risk of legal challenges to the law based on ambiguity. Vague statutes will be insufficient, as courts will no longer defer solely to agency interpretations. This shift means that Congress will need to foster a deeper understanding of complex, bleeding-edge technology issues (e.g., cybersecurity, AI, and quantum) to craft effective regulations that will endure scrutiny.

Many U.S. federal agencies, like the Federal Trade Commission and the Federal Communications Commission, relied on Chevron deference to swiftly interpret and enforce regulations in response to emerging technologies. The ruling may slow the regulatory response to new AI and other technology-related challenges, as agencies might now need explicit legislative mandates from Congress before they are willing to move forward with implementing these new technologies.

The importance of public-private partnerships

The necessary role of Congress and its staff is to maintain a broad understanding across many, often disparate, issues. For example, a staffer could be responsible for tracking many topics — from education and healthcare to taxes and national security. The deepest expertise in technology often exists among the committee staff, but those experts are limited. By forming partnerships with government bodies, including Congress, the private sector can provide valuable insights and guidance on complex issues such as cybersecurity, AI, and data privacy. This collaboration ensures that regulations are both practical and effective.

Strengthening relationships between federal agencies and tech providers, considering the recent changes to Chevron deference, is essential for fostering innovation and ensuring effective regulatory compliance. To achieve this, several key strategies can be implemented:

• Joint research initiatives: Establish collaborative research programs between tech companies and government agencies to address emerging technological challenges and opportunities.
• Innovation hubs: Create innovation hubs or labs where government and private sector experts can work together on developing and testing new technologies.
• Advisory committees and task forces:  Form advisory committees comprising tech industry experts, academics, and government officials to provide guidance on complex issues like AI, cybersecurity and data privacy. Establish task forces to address specific regulatory challenges and develop recommendations for policy adjustments.
• Legislative collaboration: Tech vendors and federal agency experts should regularly brief Congress and its staff on technological advancements and their implications, helping to shape informed legislation.
• Policy workshops: Conduct workshops and seminars for lawmakers to deepen their understanding of technological issues and the potential impact of regulations.
• Open data initiatives: Promote data sharing between government and tech companies to enhance transparency and drive innovation.

By adopting these strategies, the tech industry and federal agencies can work together to more effectively keep pace with technological advancements and ensure that regulatory frameworks are robust and adaptable.

The Supreme Court's decision to overturn the Chevron doctrine marks a significant shift in the regulatory landscape, particularly for the tech industry. This shift in regulatory dynamics will likely lead to more legal challenges, requiring tech companies to bolster their legal teams and prepare for increased litigation. Staying updated on court rulings and understanding their implications for regulatory compliance will be crucial for private companies, especially technology companies. 

As the power of statutory interpretation moves from agencies to the judiciary, the importance of public-private partnerships and government affairs advocacy cannot be overstated. By leveraging their technical expertise and engaging actively with lawmakers, tech companies can help shape effective and innovation-friendly regulations for the future.