The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance

By Van Loo, Rory | Vanderbilt Law Review, October 2019 | Go to article overview

The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance


Van Loo, Rory, Vanderbilt Law Review


Introduction

Information is the "lifeblood" of effective governance.1 In the wake of major crises throughout history-bank failures that threatened the North's ability to fund the Civil War, oil spills that contaminated American coastlines, or muckrakers' exposes of vermin-infested meatpacking facilities-Congress has repeatedly responded by giving agencies monitoring authority, which is the power to subject businesses to routine on-site inspections or examination of private records.2

once deployed, monitoring authority can have a powerful impact. For instance, increasing the average number of Environmental Protection Agency ("EPA") inspections of factories was found to have reduced the pollutants that reach nearby neighborhoods-the type of pollution that is believed to significantly increase the incidence of dementia and premature death-by 2.7 percent.3 Regulatory examinations make banks less likely to engage in risky behavior that could collapse the financial system.4 Monitoring also facilitates more predictable and collaborative regulation by providing a mechanism for regular dialogue between industry and government.5 Few projects are more crucial for the regulatory state than establishing sufficient information flow to enforce laws.

Despite the importance of consistent regulatory access to nonpublic information, regulators often lack visibility into business activities.6 Most notably today, federal regulators do not regularly monitor the companies that run platforms, defined as sites "where interactions are materially and algorithmically intermediated."7 Recent events have provoked bipartisan anxiety about the manipulation of U.S. presidential elections through Twitter and Facebook;8 exposure of user data at companies such as Uber and Yahoo;9 and the anticompetitive implications of Amazon, Apple, Google, and Microsoft for small businesses and consumers.10 Yet these companies go to extremes to keep their inner workings secret.11

A growing chorus of scholars have proposed regulatory monitoring of private algorithms and online platforms.12 Because those proposals are typically made in passing as part of broader discussions about technology governance, they address neither the regulatory state's legal foundation nor its normative framework for compelling private parties to hand over nonpublic information. Administrative law scholarship, which would be a plausible source for such a framework, has produced relevant insights into regulators' tools and motivations for information collection.13 But the legal and normative questions surrounding state compulsion of private parties to hand over information, even for administrative searches of businesses, have been dominated instead by a vast scholarship on privacy and criminal surveillance.14 The animating problem in that scholarship, and in the privacy literature more broadly, is how to restrict excess information collection.15

This Article builds on that literature to examine the opposite problem: insufficient information collection. It offers a framework for why lawmakers have pervasively granted collection authority to agencies and develops that framework through a case study of online platforms. To comprehend the inattention and resistance to monitoring platforms,16 and more broadly, how the norms for monitoring businesses are evolving in the twenty-first century, it is necessary to broaden the doctrinal and administrative lens to include agencies that at first seem unrelated to regulatory monitoring: the Federal Bureau of Investigation ("FBI"), National Security Administration ("NSA"), U.S. Immigration and Customs Enforcement ("ICE"), and other federal and local agencies that are primarily concerned with crime and national security. For ease of exposition, these agencies are referred to below as "crime agencies" to contrast them with "regulators," which focus on enforcing civil laws against businesses, although important distinctions exist within each category and both types of agencies can play a role in enforcing diverse laws. …

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