Google Monopoly: Searching for a Tech Competition Precedent

Kaylee Yang


You open your phone to check the results of last night’s basketball game. Open Safari. Tap the address bar. Type in “March Madness results”. A custom widget appears. As you get ready for your day, you ask Siri for the weather. She relays what Google told her: sunny with showers in the afternoon. Later that day, holed up due to the rain, you decide to do some online shopping for your friend’s birthday. You look up “handcrafted wooden jewelry” and the top results you get are ads from different jewelers with eye-catching images. You browse them, but none seem to fit your friend’s style so you give up for the day. As you wind down, you ask your Google Home Assistant for a honey substitute to put in your tea. She responds that a teaspoon of maple syrup should do the trick. You finish making your tea and head to bed.

What started out as one person’s research project in 1996 has become a $1.37 trillion tech behemoth.[1] Taking advantage of loose regulations and the public’s initial support, Google has managed to grow relatively unchecked over the past two decades. But recently, Google’s unmatched success has left critics and legal experts suspicious of its potentially monopolistic business practices.

In recent legal challenges, tech leaders have been facing public scrutiny over their large influence in the market and on the lives of consumers. After a flurry of activity in the last quarter of 2020, Google faced three antitrust lawsuits from state attorney general offices nationwide and from the Department of Justice (DOJ).[2] Additionally, lawsuits attacking other parts of Google’s extensive business model have since been filed, including another antitrust lawsuit filed by the DOJ in January 2023.[3] While it’s hard to tell which of these cases, if any, could actually rein the company in, these lawsuits—especially the one over Google’s monopolization of search and search advertising—could have a visible effect for end consumers and wide-ranging implications for other pending cases.

In the complaint filed on October 20, 2020, the DOJ and a coalition of states allege that Google violated Section 2 of the Sherman Antitrust Act through its practices in general search services, search advertising, and general search text advertising markets.[4] In the United States, there are only four general search providers, or “one-stop shops” where users can search the web and get results for a variety of things. These four providers are Google, Bing, DuckDuckGo, and Yahoo!, with the latter two buying most of their search results from Bing.[5] Google is by far the leader in this market, with over 88% of the market share.[6] With the most queries going through its search services, Google is able to sell search query data to advertisers who compete to have their ads displayed at the top of search results when certain keywords are entered. The DOJ also accuses Google of arranging exclusionary agreements with mobile phone companies, wireless carriers, and browser companies to set Google’s products as defaults—practices that increase the company’s search access points.[7] These agreements give Google a huge advantage in reaching consumers and have violated competition law by decreasing the room for innovation from smaller companies, according to the complaint.[8]

Sherman Antitrust Act + Pertinent Precedent Cases

Section 2 of the Sherman Antitrust Law is vague; it simply states that it is unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations . . . .“[9] Nowhere in the act does it define what a monopoly is or indicate what actions are banned under the law. The drafters’ hazy wording has enabled the law to remain applicable to patterns of anti-competitive behavior today.

Passed by Congress in 1890, the Sherman Antitrust Act bans trusts, monopolies, and cartels. It is designed to protect consumers against high prices and low-quality products by promoting competition.[10] The first targets of the act were robber barons from the industrial age and the tactics they used, which included horizontal integration, vertical integration, and interlocking directorates.[11] Yet when examining some of the most well-known antitrust cases, we see that courts are constantly battling with the definition of a monopoly and how to effectively enforce a ruling.

The idea that a monopoly increases industry efficiency appears in Standard Oil Company of New Jersey v. United States.[12] In his testimony, John D. Rockefeller claimed that prior to Standard Oil dominating the industry, prices were volatile and inefficiency was rampant.[13] Through his control of the majority of the nation’s refineries, Rockefeller set a fixed price and negotiated deals with railroad companies that increased shipping efficiency. Despite these arguments, the US government ultimately won the case and forced Standard Oil to break up into regional companies.[14] After the breakup, the regional companies still limited their competition with one another and cooperated to keep oil prices fixed.[15]

Similar to the Standard Oil case, United States v. AT&T in 1981 saw the breakup of the telecom giant AT&T along regional lines into smaller Baby Bell companies.[16] Arguments made during the AT&T case are being recycled in Big Tech cases today. AT&T drew support from Commerce Secretary Malcolm Baldrige and Defense Secretary Caspar Weinberger, who called for the DOJ to drop the case because AT&T’s communications network was “too important to the national security to be subjected to antitrust prosecution”.[17] Facebook’s CEO, Mark Zuckerberg, echoed this argument in the Facebook antitrust case recently by claiming that Facebook’s dominance is necessary to compete with China.[18]

The AT&T case also brought up the concern of what to do after breaking up a company. After the Baby Bells were created, they quickly became regional monopolies, once again controlling the telecom and phone industries.[19] It wasn’t until the Telecommunications Act of 1996 was passed that smaller companies had an opportunity to compete with the Baby Bells.[20] There’s no way to realistically “split” Google into smaller companies—splitting Google search along regional lines would further fracture online space in complicated ways. Additionally, the DOJ has hinted at forcing Google to sell some of its properties, like its browser Chrome or its mobile phone operating system Android.[21] Breaking off these “arms” of Google could backfire by turning them into independent monopolies, or by transferring Google’s current monopolistic power to one of their competitors. Another complication is the inefficiency of having many companies build up their search infrastructure to match Google’s. The more likely option would be to have Google license their infrastructure to competitors at fair rates, similar to what the Telecommunications Act of 1996 made the Baby Bells do. [22]

Perhaps the most relevant antitrust case that shares key details with the fact pattern of the Google case is United States v. Microsoft in 2001.[23] Microsoft was accused of establishing a monopoly in the personal computer software market by making it difficult for consumers to uninstall its web browser, Internet Explorer. By making Internet Explorer a part of its dominant Windows operating system and forcing browser exclusivity with Internet service providers, Microsoft forced out its competitor, Netscape Navigator.[24] The court ruled that this practice was unfair and that better products and innovation were being suppressed. In the Google case, the DOJ attacks the exclusionary agreements that Google has with companies like Apple to set its search engine as the default on Safari browsers. Additionally, Google requires developers who use its Android operating systems in their phones to pre-download a bundle of Google applications—precisely what Microsoft did when tying Internet Explorer to Windows.

And that’s why this particular lawsuit against Google is likely to have such a big impact. The government won in 2001 and is hoping to mirror that strategy to win again in 2023. But even though Microsoft lost the case, they were able to overturn the remedy to be broken up.[25] Past cases like US v. Microsoft show that in order to really stop the Google monopoly, the game does not stop after a verdict is reached.

Analysis of the Google Response

Google maintains that they have done nothing wrong. Earlier this year, the courts unsealed Google’s motion for summary judgment. In it, Google refutes the DOJ’s claims and argues there’s not enough evidence to be in violation of the Sherman Antitrust Act.[26]

In their response, Google sorts the exclusionary agreements the DOJ believes to be anticompetitive into two categories: 1) those with web browsers like Apple’s Safari or Mozilla’s Firefox, and 2) those with manufacturers of Android mobile devices, like Samsung, and sellers of those devices, like Verizon. Addressing the first category, Google claims that third party search boxes only allow one search engine to be set as the default, so they were simply being competitive in a market that demands it. They believe that web browsers chose to enter into these agreements with them because Google had the best product; they argue that denying this choice would promote inferior products, causing everyone to lose out.[27]

While this argument might appear sound on paper, it’s important to criticize why Google can argue that it has the best product. The key here is scale and the monetary benefits that come from it: by increasing the number of search access points throughout the years, Google has increased the extent of its search services, which in turn forces advertisers to market on Google platforms to reach more consumers. Google then takes the lucrative revenue generated from these advertisers and splits it with web browsers. It’s less that Apple or Mozilla are choosing to grant Google default status due to a better product, and more that they are financially dependent on Google. For example, 15-20% of Apple’s worldwide net income comes from the revenue that Google shares.[28] If given the chance to compete, it is unlikely that Bing could produce such a big check due to its lack of scale compared to Google.

Additionally, Google mentions that Apple is free to promote rival search engines.[29] The response mentions rivals advertising their search apps on Apple’s App Store and Apple giving users the option to switch search engines within Safari.[30] But if competitors are truly so accessible, why would Google pay $15 billion this year to maintain their default status with Apple’s Safari? A report conducted by Mozilla shows how consumers are unlikely to ever change a default setting.[31] It suggests that if users were given an opportunity to try alternatives, they tend to find suitable substitutes for the default. However, default settings prohibit users from making this first and most crucial choice.

As for the second category of exclusionary agreements, Google has tried to morph the facts of the case to be as dissimilar to the US v. Microsoft case as possible. Google requires manufacturers using an Android operating system to pre-install a suite of Google applications which includes several search points of access like Chrome,  Search, and the Play Store. Although Google claims that this is to ensure “compatibility, security, and quality requirements”, these apps are undeletable and are a textbook example of what the Microsoft case prohibited.[32]

Implications for Big Tech, Competitors, and Consumers

With this case being compared to important past cases, it will likely set a significant precedent for our current era of tech regulation.[33] After Facebook successfully defended a lawsuit by the FTC over its acquisition of WhatsApp and Instagram, antitrust advocates are still looking for a big win that would shift the momentum in favor of regulation.[34]

As for Google’s competitors, a DOJ win is not a silver bullet. As mentioned previously, Google has achieved massive scale and has established a loyal, default customer base. However, some innovation might just come out of this market, win or lose.

In February, Microsoft Bing announced that it will be powering its search engine using the OpenAI model and incorporating the ChatGPT chatbot.[35] As the first to announce such an innovation into a relatively stagnant market, Bing finally created a feature that could challenge Google. In a hasty response, Google announced the incorporation of its own chatbot, Bard, into its search. But when Bard produced an incorrect response during the announcement, Google stock dropped 7%, suggesting that Bing has an opening.[36] A DOJ win would help promote this type of innovation, but regardless, Bing currently has a feature that Google has not figured out how to monopolize yet.

As for consumers, it’s hard to say how much of an impact a DOJ win would have on daily search patterns. The longevity of its search monopoly makes it hard to predict changes to the status quo. However, with Google’s market share of searches most likely decreasing in a DOJ win, advertisers might divert less money into Google search ads, thus changing the makeup of ad results that appear.


The antitrust lawsuit brought against Google in 2020 stands to have a large impact on the Big Tech scene. A twenty year game of acquisitions and exclusionary agreements is on the line for Google. An era-defining antitrust win is up for grabs for the government. But surrounded by messy precedent cases and unclear legal definitions, the true winner of the case is hard to predict. In the meantime, Google will continue to accompany us in our daily lives, as we drink our tea and look up the scores of games we wished we watched.

[1] “Alphabet (Google) (GOOG) – Market Capitalization.” – companies ranked by market capitalization. Accessed April 30, 2023.

[2] Molla, Rani, and Adam Clark Estes. “Google’s Three Antitrust Cases, Briefly Explained.” Vox. Vox, December 16, 2020.

[3] “Justice Department Sues Google for Monopolizing Digital Advertising Technologies.” The United States Department of Justice, February 2, 2023.

[4] “Justice Department Sues Monopolist Google for Violating Antitrust Laws.” The United States Department of Justice, October 21, 2020.

[5] “United States v. Google Complaint.” Accessed May 1, 2023.

[6] “United States v. Google Complaint.” 29.

[7] “United States v. Google Complaint,” 4.

[8] “United States v. Google Complaint,” 5.

[9] “15 U.S. Code § 2 .” Legal Information Institute. Legal Information Institute. Accessed April 30, 2023.

[10] “Sherman Anti-Trust Act (1890).” National Archives and Records Administration. National Archives and Records Administration. Accessed April 30, 2023.

[11] “Sherman Anti-Trust Act (1890).”

[12] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)

[13] “Bria 16 2 b Rockefeller and the Standard Oil Monopoly.” Constitutional Rights Foundation. Accessed April 30, 2023.

[14] “Standard Oil Co. of New Jersey v. United States (1911).” Legal Information Institute. Legal Information Institute. Accessed April 30, 2023.

[15] “Bria 16 2 b Rockefeller and the Standard Oil Monopoly.”

[16] “United States v. American Tel. & Tel.. Co., 524 F. Supp. 1336 (D.D.C. 1981).” Justia Law. Accessed April 30, 2023.

[17] Behr, Peter. “Justice Rests in AT&.” The Washington Post. WP Company, July 2, 1981.

[18] Bond, Shannon. “Mark Zuckerberg Offers a Choice: The Facebook Way or the China Way.” NPR. NPR, October 23, 2019.

[19] Falcon, Ernesto. “What the AT&T Breakup Teaches Us About a Big Tech Breakup.” Electronic Frontier Foundation, March 1, 2021.

[20] “Telecommunications Act of 1996.” Federal Communications Commission. Accessed April 30, 2023.

[21] Nylen, Leah. “Feds May Target Google’s Chrome Browser for Breakup.” POLITICO, 2020.

[22] “Telecommunications Act of 1996.”

[23] United States v. Microsoft 253 F.3d 34 (D.C. Cir. 2001)

[24] “U.S. v. Microsoft: Court’s Findings of Fact.” The United States Department of Justice, July 26, 2018.

[25] Labaton, Stephen. “U.S. Appeals Court Overturns Microsoft Breakup Ruling.” The New York Times. The New York Times, June 28, 2001.

[26] Docket Alarm, Inc. “United States v. Google Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgement.” Docket Alarm. Accessed April 30, 2023.–20-cv-03010/UNITED_STATES_OF_AMERICA_et_al_v._GOOGLE_LLC/451/.

[27] “United States v. Google Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgement.” 6.

[28] “United States v. Google Complaint,” 37.

[29] “United States v. Google Defendant’s Memorandum…” 16.

[30] “United States v. Google Defendant’s Memorandum…” 17.

[31] “FIVE WALLED GARDENS Why Browsers Are Essential to the Internet and How Operating Systems Are Holding Them Back.” Mozilla. Accessed May 1, 2023.

[32] “United States v. Google Defendant’s Memorandum…” 24.

[33] Miller, Sarah. “A US Antitrust Suit Might Break up Google. Good – It’s the Standard Oil of Our Day.” The Guardian. Guardian News and Media, October 21, 2020.

[34] Durkee, Alison. “Facebook Wins Antitrust Lawsuits – at Least for Now.” Forbes. Forbes Magazine, June 28, 2021.—-at-least-for-now/?sh=268f558015be.

[35] “Reinventing Search with a New AI-Powered Microsoft Bing and EDGE, Your Copilot for the Web.” The Official Microsoft Blog, February 22, 2023.

[36] Ponciano, Jonathan. “Alphabet Stock Plunge Erases $100 Billion after New AI Chatbot Gives Wrong Answer in Ad.” Forbes. Forbes Magazine, February 9, 2023.

The High Stakes of Deepfakes: The Growing Necessity of Federal Legislation to Regulate This Rapidly Evolving Technology

Caroline Quirk


From its nascent development in the 1990s to the introduction of a widely available app in 2018, deepfake technology has become both increasingly sophisticated and readily accessible to the general population.[1] Deepfake—a portmanteau of “deep learning” and “fake”—is a form of synthetic media in which artificial intelligence is utilized to create a digital copy of a person’s likeness or voice. Deepfake technology can be utilized in a myriad of ways: in the educational sphere to create interactive content, in the film industry to substitute the lead actor for their stunt double or to align the dubbing in a foreign language film, and in the retail sector to enhance a prospective buyer’s experience. However, despite its many beneficial uses, deepfake technology has also been applied with deleterious consequences including the disparagement of political foes, the creation of deepfake pornography, as well as fraudulent business schemes.

In fact, since this technology has become more widely available, 90-95% of deepfake videos are now nonconsensual pornographic videos and, of those videos, 90% target women—mostly underage.[2] In fact, one popular online streaming personality, known as QTCinderella, who streams video content on the website Twitch, was the subject of hundreds of unauthorized deepfake pornography videos; however, QTCinderella was advised that she would not be successful in taking legal action against the person or persons who had stolen her likeness due to lack of existing legislation.[3] Currently, the lack of regulation of deepfake technology is not only a threat to celebrities, but also to any person with an image of themselves posted on the internet, privately or publicly, and has the potential to wreak havoc on the personal and professional lives of many without repercussion.

In addition to creating synthetic videos, deepfakes are also capable of vocal mimicking. The CEO of a UK-based energy plant fell prey to a scam utilizing the auditory form of deepfake technology. Believing that the leader of his parent company requested via a phone call that he wire transfer €200,000 to Hungary, he did so; however, his boss’s German-accented voice actually belonged to a scammer using the vocal mimicking abilities of deepfake technologies.[4] Although the fraudulent nature was soon recognized, the company was unable to receive any compensation or bring the perpetrators to justice due to the difficulty in tracing the origins of deepfakes.

Deepfakes have also been increasingly used within the political sphere, including the dissemination of misinformation about political candidates and the release of false statements from world leaders. In 2018, a now-viral video showed a deepfake-generated President Obama uttering words that were not his own but were, in fact, intended to demonstrate the realistic nature of these manufactured images and voices.[5] Used in these ways, deepfakes may have the ability to potentially undermine elections, as well as create global conflict. Deepfake technology, with its rapid development, if left unregulated, has the potential to ruin lives, destroy businesses, and spread misinformation.

Current Legislation

No federal legislation currently exists to address the potential threats of deepfake technology within the United States. However, in December of 2019, Congress passed the National Defense Authorization Act (NDAA), which, in Section 5709, requires the Director of National Intelligence to report on the use of deepfakes by international governments, its ability to spread misinformation, and its potential impact on national security. Although this action by the government is promising in regulating the growing threat of deepfakes from sources outside the nation, it does not address the issues that deepfakes may cause within the United States.

Since its creation, only five states have passed legislation regarding emerging deepfake technology. In 2019, Texas passed S.B. 751[6] and California passed AB730,[7] both banning the use of deepfakes to influence upcoming elections. In the same year, California’s law AB602,[8] Georgia’s S.B. 337,[9] and Virginia’s SB 1736[10] were passed to prohibit the creation and dissemination of nonconsensual deepfake pornography. In 2020, New York passed law S6829A,[11] establishing the rights for legal action against the unlawful publication of deepfakes.[12] More recently, bills to regulate artificial intelligence (AI) have been proposed and enacted in several states in 2022; however, most states still lack legislation regarding AI in general and only the five aforementioned states have deepfake-specific legislation.

Conversely, the Chinese government has recently enacted strict regulations, called Deep Synthesis Provisions, which prohibit the creation of deepfakes without the consent of the user and require confirmation that the content was generated using AI.[13] Despite the widely held view that China does not respect people’s personal freedoms, it is currently the only country to impose a strict ban regarding the use of certain deepfakes.[14] However, a few other countries do offer some legal protection against the unlawful use of deepfake technology. For example, the general right of responsibility is enshrined under German Basic Law and grants individuals the right to their own image; despite not directly addressing the deepfake technology platform, this law essentially renders deepfakes of individuals without consent illegal in Germany.[15] The United Kingdom has also sought to protect individuals through amendments to the country’s Online Safety Bill, including specific bans on deepfakes used for nonconsensual pornography.[16] Just as many see the value of the legislation to limit and regulate deepfake technology, others voice concerns that proposed regulations would constitute a potential violation of a creator’s First Amendment rights.

Are deepfakes protected by the First Amendment?

The increasing sophistication and accessibility of creating deepfakes have allowed this technology to pose an increasing threat towards the integrity of elections and safety of millions of Americans; however, many argue that restrictions on its use would constitute an impingement on the creator’s freedom of speech and expression, and, therefore, a violation of the First Amendment. Given that deepfakes are technically forms of expression, it would be unconstitutional to ban all of them, but there are exceptions within the First Amendment in which certain speech is no longer protected by the Constitution. These exceptions include libel, written defamation, slander, spoken defamation, and profanity.[17] While not all deepfakes are used for these purposes, many would fall under these categories such as nonconsensual pornography videos. As these forms of deepfakes would not be protected, it would be completely legal to impose federal bans or restrictions on them.

The defense of the First Amendment for deepfakes can also be supported through copyright law. As deepfakes are often built on recycled, copyrighted content, the creation of deepfakes without permission may potentially be considered copyright infringement. While use of copyrighted content without permission is, in fact, copyright infringement, the fair use doctrine permits limited use of copyrighted materials without permission for certain works.[18] Under the Copyright Act of 1976 S107, fair use is determined through a four factor test:

  1. Purpose and character of use
  2. Nature of original work
  3. Amount and substantiality of content borrowed
  4. Effect of such use on the potential market[19]

As the purpose of deepfake creation is inherently different than that of original work, it clearly meets the first criterion. U.S. courts have also upheld through Campbell v. Acuff Rose[20] that content including a significant portion of copyrighted work would be considered fair use if the new work is transformative. In most cases, deepfakes may be considered transformative works, therefore their creators cannot be held liable for copyright infringement. In these cases, deepfakes being taken down based on copyright infringement would be a clear obstruction of free speech because they would be protected by fair use.

Finally, while the creator of a deepfake that is considered to be slander or libel is not protected by the First Amendment, the third party website that hosts this content cannot be held liable. Section 230 states that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[21] Although this rightfully prevents websites from being held responsible for the actions of its users, there is no way to prevent offensive deepfakes from being reposted on the same or other sites.

Is Defamation Law Enough?

Another argument against the creation of new legislation limiting deepfakes is that legal recourse for defamation caused by this technology already exists in the form of defamation law which imposes liability on those who create reputational damage through public and false statements.[22] However, defamation law in the United States is on a state-by-state basis and is considered a tort (civil offense), rather than a criminal offense. Defamation law also requires a distinct division between statements of fact or opinion in order to be used, as the falsehood must have been presented as truth in order to be considered libel or slander.[23] Defamation law often overlaps with false light law, which is a tort under the category of invasion of privacy and focuses on the spreading of malicious falsehoods about a certain person. False light law focuses on the emotional distress caused by the damage to reputation through public speech, rather than the actual damage to reputation.[24] Both could be used as defense against the dissemination of targeted deepfakes; however, they are also subject to interpretation given the necessity of the defamation being presented as fact rather than opinion and the subjectivity of what constitutes damage to reputation. Although defamation and false light laws may be able to provide legal recourse for the targets of these deepfakes, monetary compensation would not undo damage to reputation and may not adequately restore emotional well-being. Therefore, legislation is necessary in order to prevent new deepfakes from being created and disseminated with the power to ruin lives under the guise of the truth and to allow for criminal consequences for those who misuse the technology.


Rapidly evolving deepfake technology—with the ability to convincingly mimic voices and digitally alter videos in order to present falsehoods as fact—has already been used to create nonconsensual deepfake pornography, spread political misinformation, and extort businesses; without new government regulations, this technology will soon become undetectable and has the potential to create irreversible damage. Although this technology has many positive applications, such as creating immersive language experiences or enhancing a retail customer experience, its accessibility has allowed individuals to harness this technology for nefarious purposes.

Could legislation aimed at preventing the malicious use of this technology prevent its misuse while preserving its positive function in society? With the power to obscure the lines between fact and fiction, if left unchecked, deepfake technology could alter the political, economic and social climate of the United States drastically with consequences that are unfortunately all too real.

[1] “The History of Deepfake Technology: How Did Deepfakes Start?,” Deepfake Now, last modified April 21, 2020,

accessed April 30, 2023,

[2] Karen Hao, “Deepfake Porn Is Ruining Women’s Lives. Now the Law May Finally Ban It.,” MIT Technology

Review, last modified February 12, 2021, accessed April 24, 2023,

[3] Bianca Britton, “They appeared in deepfake porn videos without their consent. Few laws protect them.,” NBC

News, last modified February 14, 2023, accessed April 30, 2023,

[4] Meredith Somers, “Deepakes, Explained,” MIT Management Sloan School, last modified July 21, 2020, accessed

April 24, 2023,

[5] Kaylee Fagan, “A viral video that appeared to show Obama calling Trump a ‘dips—‘ shows a disturbing new trend

called ‘deepfakes,'” Insider, last modified April 17, 2018, accessed April 30, 2023,

[6] S. 751, 2019 Leg. (Tex. Apr. 17, 2019). Accessed April 30, 2023.

[7] A. 730, 2019 Leg. § 20010 (Cal. Oct. 3, 2019). Accessed April 30, 2023.

[8] A. 602, 2021st Leg. (Cal. Sept. 28, 2021). Accessed April 30, 2023.

[9] S. 337, 2019 Gen. Assem. (Ga.). Accessed April 30, 2023.

[10] S. 1736, 2019 Gen. Assem. (Va. Mar. 7, 2019). Accessed April 30, 2023.

[11] S. 6829A, 2021st Leg. (N.Y.). Accessed April 30, 2023.

[12] “Legislation Related to Artificial Intelligence,” National Conference of State Legislatures, last modified August

26, 2022, accessed April 24, 2023,

[13] Asha Hemrajani, “China’s New Legislation on Deepfakes: Should the Rest of Asia Follow Suit?,” The Diplomat,

last modified March 8, 2023, accessed April 24, 2023,


[14] Laura Silver, Kat Delvin, and Christine Huang, “Large Majorities Say China Does Not Respect the Personal

Freedoms of Its People,” Pew Research Center, last modified June 30, 2021, accessed April 30, 2023,


[15] Maureen Cohen, “Deepfakes and German Law,” Dayside Stories, last modified January 3, 2020, accessed April

30, 2023,

[16] Hsu Tiffany, “As Deepfakes Flourish, Countries Struggle With Response,” The New York Times, last modified

January 22, 2023, accessed April 30, 2023,

[17] Marc Jonathan Blitz, “Deepfakes and Other Non-Testimonial Falsehoods: When Is Belief Manipulation (Not) First Amendment Speech,” Yale Journal of Law & Technology 23 (Fall 2020): 214.

[18] Shannon Reid, “The Deepfake Dilemma: Reconciling Privacy and First Amendment Protections,” abstract,

University of Pennsylvania Journal of Constitutional Law, June 26, 2020, 214-223, accessed April 30, 2023.

[19] Akhil Satheesh, “Deepfakes and the Copyright Connection: Analysing the Adequacy of the Present Machinery,”

University of Richmond Journal of Law and Technology, last modified January 25, 2022, accessed April 30, 2023,

[20] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

[21] Abigail Loomis, “Deepfakes and American Law,” Davis Political Review, last modified April 20, 2022, accessed

April 24, 2023,

[22] Lourdes Vasquez, “Recommendations for the Regulation of Deepfakes in the U.S.: Deepfake Laws Should

Protect Everyone Not Only Public Figures” (unpublished manuscript, 2021), 7.

[23] Lara Guest and Molly Reynolds, “A Short Take on Deepfakes,” TORYS, accessed April 24, 2023,

[24] “False Light,” Cornell Law School Legal Information Institute, last modified December 2022, accessed April 30,



Carpenter v. United States, the Stored Communications Act, & the Third Party Doctrine in the Digital Age

Beatrice Neilson

Congressional inaction on data privacy is leaving courts, corporations, and consumers in the dark, stranded and sacked with the responsibility of resolving some of the most complex problems of the digital age all on their own. Amid the chaos, social media companies collect vast amounts of user metadata for their algorithms,[1] foreign nation-state adversaries prey on user data to meddle in federal elections,[2] and law enforcement agencies blithely issue subpoena after subpoena, accessing mountains of sensitive civilian data with little more than a reasonable suspicion to back up their requests.[3] On either side of any one of these conflicts lie a panoply of different competing interests, all looking to Congress for a solution, but to no avail.

The last major data privacy law passed by Congress was the Electronic Communications Privacy Act of 1986 (ECPA). Quite obviously, technology has come a long way in the near four-decades since the ECPA was signed into law, and — to their credit — Congress has amended the ECPA and its titles a handful of times since 1986. But in an age when a person’s cell phone may house their financial information, location data, emails, text messages, call logs, personal calendars, and even their sensitive health data, the need could not be greater for national data privacy standards that are current, workable, and clear. One area in which the lack of sound data privacy standards is particularly detrimental is the realm of Fourth and Fifth Amendment protections in criminal investigations and prosecutions.

For instance, 18 U.S.C. § 2703(d), part of the Stored Communications Act of 1986 (SCA), (Title II of the Electronic Communications Privacy Act of 1986 (ECPA)), empowers law enforcement entities to access virtually any electronic communications or customer data stored by internet service providers (ISPs) through a court order. They can obtain one of these so-called “2703(d) orders” if they are able to demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the…information sought, [is] relevant and material to an ongoing criminal investigation.”[4] Given the fact that the SCA was last amended nearly three decades ago in 1994, section 2703(d) presents serious due process and privacy concerns in an age in which ISPs have access to user data that is extensive in quantity and extremely private in quality.

The Supreme Court has been notably reticent to weigh in on due process questions related to the SCA. The last major case to handle one of these questions was Carpenter v. United States (2018), in which the Court considered the constitutionality of the warrantless search and seizure of historic cell site location information (CSLI). CSLI can pinpoint an individual’s location within 50 square meters (about 530 square feet), and is triangulated and logged by ISPs whenever a user’s cell phone connects to a cell signal.[5] This includes both passive connections — such as receiving a text message or phone call — and active connections — such as accessing the internet using cellular data or placing a call.[6] ISPs store and analyze CSLI for business purposes, meaning they are records subject to disclosure under a 2703(d) order. In Carpenter v. United States (2018), the Federal Bureau of Investigation (FBI) identified the phone numbers of several suspects in a slew of armed robberies at RadioShack and T-Mobile stores around southeastern Michigan and northern Ohio in 2011. Federal prosecutors obtained court orders under section 2703(d) compelling a number of ISPs to disclose the suspects’ CSLI from inbound and outbound phone calls over a four-month period.[7] Petitioner Timothy Carpenter was one such suspect; his ISPs — MetroPCS and Sprint — gave federal prosecutors nearly 13,000 data points of CSLI collected over the span of 127 days. After being charged with six counts of robbery and six counts of carrying a firearm during a federal crime of violence, Carpenter moved to suppress the CSLI in evidence, arguing the government violated the Fourth Amendment by seizing the CSLI without a warrant backed by probable cause. The District Court denied the motion and Carpenter was convicted on eleven of twelve counts and subsequently sentenced to nearly one hundred years in federal prison. The United States Court of Appeals for the Sixth Circuit affirmed his conviction,[8] relying largely on the Fourth Amendment “third party doctrine” as outlined in Smith v. Maryland (1979).[9]

The third party doctrine stipulates that information disclosed to a third party is not subject to Fourth Amendment protections, because individuals relinquish their expectation of privacy over information they voluntarily disclose to third parties. This reasoning arises from an earlier doctrine outlined in Katz v. United States (1967), which states that the Fourth Amendment is violated when a search encroaches on an individual’s “reasonable expectation of privacy.”[10] In Smith v. Maryland (1979), the Court considered whether police violated the Fourth Amendment by warrantlessly installing a pen register at a telephone company to record the numbers dialing in and out of Petitioner Michael Lee Smith’s home. Applying the reasonable expectation of privacy test, the court determined “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland 442 U.S. 743, 744 (1979).[11]

Before Carpenter, federal courts had largely construed the third party doctrine as a bright-line test: if the information is voluntarily conveyed to a third-party, it is not subject to Fourth Amendment protections. Full stop. But as the age of smartphones dawned, the Court needed to address whether the third party doctrine — befit for cases concerning such analog tools as pen registers — still applied in the digital age. Recognizing that “cell phone location information is detailed, encyclopedic, and effortlessly compiled,”[12] the Court tweaked the third party doctrine, requiring that law enforcement obtain a warrant before seizing CSLI.

But as vital a case as Carpenter was in curbing undue encroachments on Fourth Amendment protections, it was not perfect. For one, Carpenter was not shy in defining its narrowness: “[o]ur decision today is a narrow one. We do not express a view on matters not before us…[and]…[w]e do not disturb the application of Smith and Miller.”[13] In all fairness, given the possible implications for the Court’s entrenched case law surrounding the third party doctrine, the majority’s caution was understandable. But it remains glaringly obvious throughout the opinion that the decades-old foundations of the third party doctrine have begun to crack amid the advent of the digital age. For one, if CSLI is subject to Fourth Amendment protections because, inter alia, it is “detailed, encyclopedic, and effortlessly compiled,” why is a user’s debit or credit card purchase history not? Certainly, the Court has been clear in its position that bank records are unequivocally subject to third party doctrine,[14] but in an age in which cash usage is at an all-time low,[15] and digital wallet usage is on the rise,[16] bank records are just one area among many where the digital age has made it virtually impossible not to disclose personal financial information to third parties. Surveys conducted at the Pew Research Center suggest an overwhelming majority of Americans believe that it is impossible to navigate daily life without having their data collected by private companies and/or the government.[17] The same survey suggests that nearly 80% of Americans are concerned about the use of their data by private companies, and roughly 64% are concerned about government usage of private data.[18] If Katz v. United States still means anything, and “the Fourth Amendment protects people, rather than places,”[19] surely the Supreme Court should recognize that consumers have an expectation of privacy over their digital data — an expectation they believe companies and government entities are violating.

Furthermore, CSLI represents just one type of highly-sensitive information for which law enforcement entities can seek orders for disclosure under the SCA. Section 2703(d) empowers law enforcement to obtain virtually any electronic communications or ISP-held records, including customer names, addresses, call logs, internet protocol (IP) addresses, phone numbers, credit card numbers, and bank account information. Today, users store large quantities of highly-sensitive data on their cell phones, and ISPs possess more user data than ever.[20] For example, Apple’s “Health” app, allows users to log their physical activity, medications, sleep data, and even menstrual cycles.[21] Later this year, Apple plans to roll out a new “journaling” app, which will analyze user behavior, daily activity, user location, and even track which people users spend time with.[22] At a certain point, either Congress or the courts must draw a line as to how readily accessible to law enforcement information of this sensitivity can reasonably be. And although the courts may be tasked with resolving these challenges in the interim, given the fact that the balancing of law enforcement and privacy interests is delicate, particular, and case-specific,[23] it is a balance best rectified through legislative remedies, as opposed to flexible, multi-factor judicial tests.

But even assuming that neither Congress nor the Supreme Court intends to abrogate the applicability of the third party doctrine to any digital data or sensitive user information information, pressing questions related to the interpretation of the SCA remain wide open. For instance, the SCA sets only two substantive limits on the issuance of 2703(d) orders, allowing courts to “quash or modify” orders that “are unusually voluminous in nature” or pose “an undue burden on…provider[s].” Congress offers no indication to courts as to the intended application of these vague guidelines. To date, the Supreme Court has not construed the language of the unusually voluminous or undue burden clauses of section 2703(d), leaving open the possibility for numerous hypothetical legal dilemmas to arise.

One such dilemma relates to the question of encrypted data. Between 2008 and 2019, the Department of Justice has submitted over sixty applications before federal judges and magistrates seeking to compel ISPs to write software in the aid of decrypting sensitive user data.[24] Because many ISPs encrypt user data for privacy purposes, law enforcement is occasionally unable to decrypt data in their possession using the tools at their disposal. In other words, the question of decryption is as much a Fifth Amendment question as it is a Fourth Amendment question. Government entities may lawfully possess a cell phone seized during a warranted search, but lack the resources to unlock it. And as the Supreme Court ruled in Riley v. California, “The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”[25] The federal government has thus made it a practice to seek court orders compelling ISPs to write special software that bypasses security features or decrypts user data so that investigators can access it. This practice gave way to a public controversy in 2016, when Apple publicly fought a DOJ-sanctioned All Writs Act order compelling Apple to write software that would allow federal investigators to access the iPhone of San Bernardino terrorist attacker Syed Rizwan Farook.[26] The heated legal battle was short lived, however, as the FBI secured a private contract to unlock the phone before litigation began. And whereas in the past, federal prosecutors typically sought to compel ISPs to aid in criminal investigations via the All Writs Act due to its broad allowances, the DOJ has since reassessed its strategy for compelling ISP compliance after a number of high-profile defeats in All Writs Act litigation.[27] But regardless of whether federal prosecutors seek to compel user data decryption under the All Writs Act or the SCA, courts have yet to rule in any meaningful way on the limits of government power in compelling such action at all. Federal judges and magistrates still regularly greenlight applications by the Justice Department for decryption orders under the All Writs Act,[28] and the courts have yet to determine whether the undue burden clause of section 2703(d) of the SCA precludes the issuance of decryption orders thereunder.

Basic principles of justiciability dictate that an ISP cannot assert the Fourth and Fifth Amendment rights of their customers in court, and few tools are at ISPs’ disposal to fight decryption orders — assuming, that is, that an ISP so chooses. Large-scale ISPs like Google and Apple work with federal investigators on a daily basis to aid in criminal investigations.[29] They cannot then, for practical reasons, reasonably fight every warrant, 2703(d) order, subpoena, or decryption request. The Supreme Court continues to deny certiorari in data privacy cases,[30] leaving lower courts to decide these convoluted cases with few nationwide guidelines or directives from the High Court. So, for the time being, customers’ hands are tied in securing the privacy of their own digital data. Until Congress or the Supreme Court acts, courts will continue to navigate the minefield of balancing the age-old competing interests of personal privacy and law enforcement. What is indisputable, however, is that no one interest in this balance is limitless;it is for this reason, firstly and foremostly, that clear and current national data privacy standards must be developed.

[1]Dylan Curran, Are you ready? This is all the data Facebook and Google have on you, THE GUARDIAN (2018), (last visited Apr 2023).

[2] Young Mie Kim, New Evidence Shows How Russia’s Election Interference Has Gotten More Brazen, BRENNAN CENTER FOR JUSTICE (2020), (last visited Apr 2023).

[3] Jay Greene, Tech giants have to hand over your data when federal investigators ask. Here’s why., THE WASHINGTON POST (2021), (last visited Apr 2023).

[4] 18 U.S.C. § 2703(d) (2018).

[5] Washington Journal of Law, Technology & Arts, Cellular Privacy: Supreme Court Rules to Protect Historical Cellphone Location Data, WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS (2019), (last visited Mar 23, 2023).

[6] Id.

[7] Carpenter v. United States 138 S. Ct. 2206-2208 (2018).

[8] Id at 2209.

[9] See: Smith v. Maryland 442 U.S. 735, 741 (1979).

[10] Katz v. United States 389 U.S. 360, 361 (HARLAN, J., concurring).

[11] See also: United States v. Miller 425 U.S. 435 (1976).

[12]  Carpenter v. United States 138 S. Ct. 2216 (2018).

[13]  Id at 2223, 2224.

[14] See, e.g.: United States v. Miller, supra

[15] Michelle Faverio, More Americans are joining the “cashless” economy, PEW RESEARCH CENTER (2022), (last visited Apr 2023).

[16] David Chang, More Americans Are Using Digital Wallets Than Ever. Which One Should You Choose Right Now?, THE MOTLEY FOOL (2022), (last visited Apr 2023).

[17] Brooke Auxier et al., Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over Their Personal Information, PEW RESEARCH CENTER (2019), (last visited Apr 2023).

[18] Greene, supra.

[19] Katz v. United States 389 U.S. 347 (1967).

[20] Ben Brody, Internet service providers have so much data on you, PROTOCOL, Oct. 25, 2021, (last visited Apr 2023).

[21] In the post-Dobbs landscape, menstrual cycle data may be a valuable tool for state and local prosecutors enforcing anti-abortion laws.

[22] Aaron Tilley, WSJ News Exclusive | Apple Plans iPhone Journaling App in Expansion of Health Initiatives, THE WALL STREET JOURNAL, (2023), (last visited Apr 23, 2023).

[23] In other words, the balance of interests may vary depending on the case. For example, a multinational corporation’s investment banking records may carry different privacy interests from an everyday user’s online banking account. In terms of a law enforcement interest, investigators may have more compelling grounds to seek a records disclosure order if the investigation relates to more serious criminal activity such as terrorism.

[24] Jennifer Luo, Decoding Pandora’s Box: All Writs Act and Separation of Powers, HARVARD JOURNAL ON LEGISLATION 258-260 (2019), (last visited Apr 30, 2023).

[25] Riley v. California 573 U.S. 373 (2014).

[26]Arjun Kharpal, Apple vs FBI: All you need to know, CNBC (2016), (last visited Apr 2023).

[27] Kate Conger, Have we seen the last of the All Writs Act in the encryption fight?, TECHCRUNCH (2016),

[28] Lou, supra.

[29] Greene, supra.

[30] Sara Merken, U.S. Supreme Court nixes appeal over forced password disclosure, REUTERS, May 17, 2021, (last visited Apr 2023).

Fly Big or Stay Home?

Nicholas Vickery

Whether it be for business, vacation, medical treatment, family matters, or something else, Americans are frequently flying. It is thus no surprise that the recent events surrounding the proposed JetBlue acquisition of Spirit Airlines are of great public interest. The two airlines reached a merger agreement on July 28, 2022, and following an investigative period, antitrust regulators from the Department of Justice (DOJ) announced on March 7, 2023 that they would sue to block the merger. The DOJ claims that “by eliminating that competition and further consolidating the United States airlines industry, the proposed transaction will increase fares and reduce choice on routes across the country, raising costs for the flying public and harming cost-conscious fliers most acutely.”[1] JetBlue and Spirit airlines have responded to the DOJ with counter arguments asserting that the merger would reduce the power of the “Big Four” (American Airlines, Delta Air Lines, Southwest Airlines, and United Airlines) through the creation of a new, more potent challenger. JetBlue’s CEO Robin Hayes, in fact, said that their merger will create a “national low-fare, high-quality competitor to the Big Four carriers which— thanks to their own DOJ-approved mergers— control about 80% of the U.S. market.”[2]

Many others, moreover, have expressed avid support for the proposed acquisition, most notably the Association of Flight Attendants-CWA (AFA). Sara Nelson, the president of this union, wrote in a letter to Attorney General Garland and Secretary of Transportation Buttigieg, “On behalf of 50,000 Flight Attendants at 19 airlines, including more than 5,600 Flight Attendants at Spirit Airlines, the Association of Flight Attendants-CWA, AFL-CIO (“AFA”) writes in strong support of the proposed merger between JetBlue Airways and Spirit Airlines.”[3] She later specifies that this support results from agreements from both airlines with unions to expedite collective bargaining negotiations and provide better benefits for airline workers.[4] Though there seems to be widespread support for the acquisition, I argue that the United States DOJ has sufficient standing and valid reason to sue and enjoin the merger, since it is clear it will have anticompetitive effects.

Over the last several decades, many similar mergers and acquisitions have occurred, and those have often resulted in a less competitive airline industry. In fact, in violation of the Clayton Act and other antitrust legislation, several airline companies—perhaps one of the best representations of a zeitgeist of consolidated market power—have engaged in anti-competitive behavior, including mergers, acquisitions, and partnerships that harm the consumer. Given relevant court precedents regarding similar antitrust issues, it is clear that the government has standing and legitimate reason to take action through the judicial system in order to enjoin further harmful, anti-competitive actions in the airline industry, including in the case of the JetBlue-Spirit Merger.

The rest of this article proceeds as follows: I will first examine antitrust legislation and the relevant case law that establish a very low burden of proof in antitrust cases. I will then explain how prior airline mergers and acquisitions have violated the aforementioned antitrust laws before applying these arguments to the current proposed merger between Spirit and JetBlue.

First, it is important to establish the standards for preventing a merger according to the operative legislation. Section 7 of the Clayton Act, which provides perhaps the most forceful and relevant legal guidelines, stipulates the following:

“That no person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”[5]

In short, the Clayton Act clearly prohibits any merger or acquisition that may have substantial anticompetitive effects. Emphasis, here, should be placed on the word “may,” which presents the possibility of preventing a merger without certainty of its effects.

Case precedent has also established a number of guidelines for determining whether the federal government can prevent a merger or acquisition. In Brown Shoe Co. v United States (1962), for example, Chief Justice Warren writes that “it is the probable effect of the merger upon the future as well as the present which the Clayton Act commands the courts and the Commission to examine.”[6] Not only does Warren assert that judges should consider future effects in conjunction with present effects, but he also establishes that it is merely the “probable effect” that is relevant. In the majority opinion for U.S. v. E. I. du Pont de Nemours & Co. (1957), furthermore, Justice Brennan writes, “We hold that any acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, is within the reach of the section [Section 7 of the Clayton Act] whenever the reasonable likelihood appears that the acquisition will result in a restraint of commerce or in the creation of a monopoly of any line of commerce.”[7] Like in Brown Shoe Co. v. U.S., this decision likewise establishes a low standard for proving anticompetitiveness, highlighting that there need only be a “reasonable likelihood” as opposed to certainty. In U.S. v. General Dynamics Corp (1974), the Supreme Court upheld its earlier decision in Brown Shoe Co. v. U.S., with Justice Stewart writing in the majority opinion that “the mere nonoccurrence of a substantial lessening of competition in the interval between acquisition and trial does not mean that no substantial lessening will develop thereafter; the essential question remains whether the probability of such future impact exists at the time of trial.”[8] In perhaps the clearest description of the low standard required for proving the anticompetitive nature of an acquisition, Judge Posner of the U.S. Court of Appeals for the Seventh Circuit writes in the opinion for F.T.C. v. Elders Grain Inc. (1989) that “Section 7 forbids mergers and other acquisitions the effect of which ‘may’ be to lessen competition substantially. A certainty, even a high probability, need not be shown.”[9] These are only a small sampling of the currently effectual case precedents that establish that only a “reasonable likelihood”[10] is necessary—not certainty or even high probability. In essence, the standard of evidence for proving potential anticompetitive effects in violation of  the Clayton Act is fairly low.

Many airline mergers have violated the Clayton Act and, due to a lack of forceful government intervention in many cases, created an airline industry with highly concentrated market power. In 2020, the “Big Four” airlines (American Airlines, Delta Air Lines, Southwest Airlines, and United Airlines) made up roughly 76% of the operating revenue in the industry according to data from the U.S. Bureau of Transportation Statistics.[11] Their dominance is clearly pronounced. How did we get here? The answer: a series of largely uncontested yet anticompetitive mergers. In 2001, for example, American Airlines acquired Trans World Airlines, which made them one of the largest airlines in the United States. The DOJ did not contest this merger because Trans World had previously filed for bankruptcy, leading the officials to believe it would not pose a significant threat to competition. In 2005, US Airways, which American Airlines would later acquire, merged with America West Airlines. Similar to Trans World, US Airways was bankrupt at the time of the merger, leading to minimal government involvement. Then, in 2008, Delta merged with Northwest Airlines, making Delta the world’s largest airline for a short time. In 2010, United merged with Continental after avoiding antitrust litigation by transferring their Newark, N.J. assets to Southwest, which then acquired AirTran Airways. More recently, JetBlue and American Airlines began a partnership in 2020, which allows them to coordinate routes, connect perk programs, and share revenues on Northeastern routes. Now, JetBlue and Spirit are planning to further consolidate market power, and if this merger goes through, it would benefit American Airlines as well by extension.

Historically, mergers and acquisitions, such as the one pending for JetBlue and Spirit, have negatively impacted consumers as a result of decreased competition. After all, when there is lessened competition, airlines have less motive to provide high quality, low cost travel in order to attract consumers. In a study titled “Competition and Service Quality in the U.S. Airline Industry,” Michael Mazzeo uses information from the U.S. Bureau of Transportation Statistics and concludes that flight delays are more frequent and longer on airline routes where there is no competition, which “suggests that airlines may lack sufficient incentive to provide service quality in markets where they do not face competition.”[12] He continues to write that in markets with competition, airlines have greater incentive to invest in increasing quality because, since consumers have other options, low quality has revenue implications. In short, “Margins may be higher on monopoly routes because airlines that do not face competitive pressure can save the costs that would be needed to provide higher quality, on-time service.”[13] In another article titled “Mergers and Product Quality: Evidence from the Airline Industry,” economists Yongmin Chen and Philip Gayle arrive at a similar conclusion from studying the mergers between Delta and Northwest in 2008 and Continental and United in 2010. They determine that mergers are associated “with a quality decrease in markets where they [merging airline companies] did” compete,[14] and that these quality decreases can have a “substantial” impact on consumers.

Not only do mergers and acquisitions between previously competing airlines affect product quality, but prices usually rise as well when competition is eliminated. As evidence of this, Han Kim and Vijay Singal in “Mergers and Market Power: Evidence from the Airline Industry” find that, after studying several mergers that occurred between 1985 and 1988, “merging firms increased airfares by an average of 9.44 percent relative to other routes unaffected by the merger. Rival firms responded by raising their prices by an average of 12.17 percent.”[15] They also found that these price increases, moreover, “do not appear to be the result of an improvement in quality or of an industry-wide contraction of air services to rectify a supply-demand imbalance.”[16] In essence, not only do mergers and acquisitions between previously competitive firms result in quality decreases, but they also lead to higher air fares. Both of these effects are anticompetitive.

Because it is clear that mergers and acquisitions between previously competitive firms have anticompetitive effects that harm consumers, the government certainly has reason to be concerned about the proposed JetBlue-Spirit merger. Thus, to determine the legality of this specific merger and those that may occur in the future, the court must simply determine whether the two airlines were significantly competitive prior to merging, which would establish a “reasonable likelihood” that the merger would have an anticompetitive effect on the airline industry.

Spirit Airlines has a reputation for being a low cost flight option for consumers, and throughout 2022, they began plans to expand their routes and further compete with larger airline companies. In March of that year, for example, they announced plans to open crew bases in Miami and Atlanta, and, in July, to open a crew base in Houston. Spirit is undoubtedly among one of America’s fastest growing, lowest cost airlines. As they expanded and added routes, major airlines were forced to reduce their prices as a result of the introduction of low cost competition. The most prominent example of this would be when Spirit entered the Detroit-Boston route in 1996 with a notably low fare starting at $69. Shortly thereafter, Northwest Airlines, according to the court brief for Spirit Airlines, Inc. v. Northwest Airlines, Inc. (2005), lowered their fare dramatically from above $300 to a matching $69. Spirit also entered the Detroit-Philadelphia market and began competing with Northwest there as well, offering flights for $49.[17] For this route, too, Northwest lowered their fare as a result of Spirit’s entrance. Spirit Airlines, by virtue of being an ultra low cost competitor, lowered prices not only for Northwest flights but for many of the routes on which they competed. Before the merger announcement, Spirit was on pace to continue their rapid expansion and compete even more potently against other airline carriers, but this merger deal would end that expansion and the subsequent competition.

Like Spirit, JetBlue is also considered a low cost airline that drives airfares in competitive markets down, a fact demonstrated through the creation of the term “JetBlue Effect.” While JetBlue is considered a “low cost carrier” (LCC), it is not considered as affordable as Spirit, which is an “ultra-low cost carrier” (ULCC). Thus, Spirit’s price on routes they both fly causes JetBlue to lower their own prices. According to information compiled by Brad Shrago from the U.S. Department of Transportation in “The Spirit Effect: Ultra-Low Cost Carriers and Fare Dispersion in the U.S. Airline Industry,” in quarter 3 of 2019, 36.9% of JetBlue passengers flying directly could have also flown directly with Spirit airlines.[18] This data elucidates that JetBlue and Spirit routes have a significant amount of route overlap and are, therefore, significant competitors. This competition results in several benefits for consumers, especially lower airfares that appeal to more cost-conscious air travelers who are willing to sacrifice the slightly higher quality of a JetBlue flight for the affordability of one from Spirit. Shrago corroborates this argument, concluding that his “results support this hypothesis – the presence of Frontier and Spirit are associated with significant increases in fare dispersion. Increased dispersion results because carriers reduce fares aggressively at the bottom of the fare distribution when Frontier or Spirit is present, but only modestly at higher points in the fare distribution.”[19] In a word, Spirit’s presence as a ULCC reduces prices among LCCs, like JetBlue, and among Legacy carriers like the “Big Four.”

Supporters of this particular merger might contend, here, that the JetBlue-Spirit merger would allow the newly consolidated airline to compete more potently with the Big Four and drive down their costs. As has been demonstrated, however, the merger will eliminate a notorious ULCC and result in higher prices among routes on which they used to compete. Though their prices may remain lower than the legacy carriers, costs will likely rise, quality may decline, and options will certainly be reduced for travelers of those routes who will no longer have Spirit as an ULCC option. Legacy carriers, moreover, operate in a slightly different market, targeting wealthier clientele and offering more international flights. Thus, the merger would have major anticompetitive effects for those who typically fly with non-legacy carriers.

Spirit Airlines and other ULCCs, in essence, provide consumers with a more affordable option, which often forces LCCs like JetBlue and legacy carriers like American to lower their fares and make quality improvements. Airline mergers, which further consolidation in an industry already plagued by concentrated market power, are usually anticompetitive in nature, leading to decreased quality and increased fares when they occur between previously competitive companies. Section 7 of the Clayton Act clearly prohibits such mergers and acquisitions, and thus, the federal government has standing to and should sue to enjoin any merger or acquisition that will have anticompetitive effects. In the case of the JetBlue-Spirit merger, this is most certainly the case. Not only does Spirit lower the airfares of other airlines, but the two airlines have significant route overlap, especially in the Northeast and Southeast. Thus, any merger between the two would eliminate a major ultra low cost carrier and create a much larger airline likely to increase fares and reduce quality as a result of decreased competition. Because of this, the federal government has standing to sue and the court has reason to grant their request to enjoin this and future mergers, acquisitions, and partnerships between the top ten airlines.

[1] DOJ Office of Public Affairs, “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit,” Justice News (2023):

[2] David Koenig, “Biden administration sues JetBlue over $3.8 billion purchase of Spirit Airlines, claiming it could wipe out half of all low-ticket fares,” Fortune (2023):

[3] Sara Nelson, “Letter to Garland and Buttigieg: ‘Re: DOT OST-2023-0023; DOT OST 2023-0024,’” Association of Flight Attendants-CWA, (2023): 1,

[4] Ibid, 2.

[5] 63rd Congress, Clayton Act, (2004):

[6] Brown Shoe Co. v. United States, 370 U.S. 294, (Supreme Court of the United States 1962).

[7] U.S. v. E. I. du Pont de Nemours & Co., 353 U.S. 586, (Supreme Court of the United States 1957).

[8] U.S. v. General Dynamics Corp., 415 U.S. 486, (Supreme Court of the United States 1974).

[9] F.T.C. v. Elders Grain Inc., 868 F.2d 901, (United States Court of Appeals, Seventh Circuit 1989).

[10] U.S. v. E. I. du Pont de Nemours & Co.

[11] Bureau of Transportation Statistics, “Airline Rankings 2020,” (2020):

[12] Michael Mazzeo, “Competition and Service Quality in the U.S. Airline Industry,” Review of Industrial Organization 22, (2003): 276.

[13] Ibid, 294.

[14] Yongmin Chen and Philip Gayle, “Mergers and Product Quality: Evidence From the Airline Industry,” International Journal of Industrial Organization 62, (2019): 131,

[15] Han Kim and Vijay Singal, “Mergers and Market Power: Evidence from the Airline Industry,” The American Economic Review 83, no. 3, (1993): 550,

[16] Ibid, 567.

[17] Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, (United States Court of Appeals, Sixth Circuit 2005).

[18] Brad Shrago, “The Spirit Effect: Ultra-Low Cost Carriers and Fare Dispersion in the U.S. Airline Industry,” Research Gate, (2023): 7,

[19] Ibid, 20.

FISA and the USA PATRIOT Act: Reforms and Legal Implications

Lizzie Evanko

Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978, in an effort to establish a legal framework for the physical and electronic surveillance of foreign entities. FISA allowed the federal government to collect intelligence on any foreign power (or agent of a foreign power) suspected of terrorism or espionage. The act in turn created the Foreign Intelligence Surveillance Court (FISC, or FISA courts, colloquially) to supervise the requests and uses of federal surveillance warrants. The FISA court established judicial review of the covert surveillance activities being carried out, but due to the sensitive nature of intelligence collection methods and information, these courts maintain a high level of secrecy to protect national security.

Congress passed FISA in response to the uncovering of government surveillance abuses (many of which occurred under the Nixon administration). The act made many surveillance practices legal and created a system to oversee the process of surveillance. However, FISA has been repeatedly amended, most notably following the attacks on September 11, 2001. One of the major amendments to FISA was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or simply, the Patriot Act. While FISA limited the federal government’s surveillance capabilities to foreign actors, the Patriot Act vastly expanded surveillance permissions, establishing the ability to surveil US persons. Specifically, Section 215 of the Patriot Act, colloquially known as the “business records” provision, allows for investigative agencies to obtain secret court orders which require third parties (like telephone companies and other businesses) to hand over records and any other “tangible things” deemed relevant to a national security investigation. In most criminal cases, the burden of proof for a search warrant typically requires probable cause, which is based on an “officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur.” However, Section 215 remains particularly controversial, because some “thing” being relevant to a national security investigation is an extremely low burden of proof for the government to be able to secretly obtain records of virtually any kind. There does not need to be probable cause regarding a specific crime that has occurred or is about to occur for a warrant to be granted.

While many people would oppose government surveillance for the most part, there are arguments to be made in its favor. First, surveillance allows the federal government to develop intelligence and protect the American people from a large number of national security threats, like intellectual property theft, espionage, or terrorism. By using surveillance, the government is able to effectively target and incarcerate foreign agents that wish to do the United States harm, and the known possibility of surveillance may deter these agents from following through with their potential hostilities. Second, FISA and other surveillance acts create legal, transparent pathways for the government to eliminate investigatory barriers to gaining intelligence and building cases. Whereas other governments may keep their surveillance capabilities secret, FISA and the Patriot Act clearly outline what the federal government is allowed to do. Additionally, these acts allow the government to gain intelligence and build cases in legal ways. Lastly, one of the major arguments in favor of acts like FISA and the Patriot Act is that government surveillance will not directly affect most law-abiding citizens. In other words, “if you haven’t done anything wrong, you have nothing to fear,” so, unless one is a threat to national security (in which case we should hope such a threat is being surveilled), surveillance cannot pose a direct threat.

While these arguments stress the importance of FISA, there are similarly many arguments to be made against it. For one, even though FISA and the Patriot Act may make certain forms of surveillance legal, it is questionable whether or not the Patriot Act, in particular, violates some constitutional rights. For example, in Brandenburg v. Ohio, the Supreme Court of the United States determined that the First Amendment protects speech advocating for illegal activities, unless said language is intended and likely to incite “imminent lawless action.” This precedent established that even if one were to only speak about illegal activities, they may not necessarily be charged with illegal incitement. However, with the Patriot Act, free speech is significantly less protected, as the standard of probable cause for surveilling a subject is much more vague, and thus more easily met. For example, a surveillance order may be issued based on a person’s internet activity, book purchases, or published writings. These actions should fall under their First Amendment right to freedom of speech, but the Patriot Act allows for surveillance based on these actions, which is arguably violating their freedom of speech. Furthermore, recipients of search orders are prohibited from notifying others of the search, which further hinders their First Amendment rights.

The Patriot Act also violates aspects of the Fourth Amendment, which establishes that the government cannot “conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.” However, under the Patriot Act, the government can conduct secret searches without showing probable cause that the subject has committed or will commit a crime. The Fourth Amendment also guarantees notice to a person whose privacy has been violated by a search or seizure, whereas the Patriot Act does not guarantee notice, even after a subject has been investigated. Such notice is also a part of the Fifth Amendment’s guarantee to due process, so the lack of required notice by the Patriot Act could also be interpreted as a violation of the Fifth Amendment. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…” However, because almost all FISA information is classified, including its collection methods, many defendants are denied these important Sixth Amendment rights. Confidential informants’ identities are not revealed, refusing the defendants’ rights to confront their witnesses, and they are furthermore barred from accessing much of the information that led to their arrest in the first place. Moreover, the only people allowed to review FISA information are those with security clearances, so any details about collection methods are kept secret, making it impossible for a defendant to face a jury of their peers. Subjects of national security investigations or trials are thus left in the dark, which could be a violation of the Sixth Amendment.

There are other objections to FISA and the Patriot Act as well. For instance, some argue that the secret nature of surveillance proceedings leaves the federal government with too much unchecked power. With the secret nature of FISA information, witnesses, and collection methods, there is little supervisory oversight, and there is even less judicial oversight. The only judges and attorneys that are able to review FISA information are those with security clearances, and none of that information can surface in front of a jury or open courtroom. This leaves the information to be reviewed by a select few who are responsible for the entire proceeding. Judges of the FISA Court are hand-appointed by the Chief Justice of the Supreme Court with no say from Congress, and hearings are entirely closed to the public. How judges make decisions in these backroom discussions is entirely unknown to defendants and juries. A telling statistic about the decision-making of the FISA Court is that from the Act’s passing in 1979 to 2012, the court signed off on 33,942 warrants and denied only 12. This rate is significantly higher than similar warrant passage rates seen in the federal court system. Furthermore, FISA allows (in some cases) for warrantless search and seizure, making the nature of prosecutions that use information gained without a warrant more suspect. It has also been proven that FISA and the Patriot Act have, in fact, been overused. In 2013, whistleblower Edward Snowden leaked information “about the NSA’s ‘PRISM’ and ‘Upstream’ programs, which involve the NSA working closely with companies like Google, Facebook, AT&T, and Verizon to conduct warrantless surveillance of Americans’ international communications on a massive scale.” This evidence proved that the surveillance capabilities granted by FISA and the Patriot Act were being abused.

The courts have addressed some of these issues. Antoine Jones was convicted of drug-trafficking conspiracy, based on information collected by a GPS device that was put on his car, 24 hours after the warrant to place the device had expired. The Supreme Court, in United States v. Jones, rejected the lower court’s claim “that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares,” and it held that the surveillance on Jones’s vehicle was a violation of his Constitutional rights. The case demonstrated that, again, the federal government had infringed upon the Constitutional rights of investigation subjects, and the Court set the precedent that, even when a crime has been committed, the rights of the accused take priority over law enforcement concerns. Another major case regarding the Constitutional violations of FISA and the Patriot Act is ACLU v. United States, in which the ACLU filed a motion following the Snowden documents’ release in June 2013. The motion requested the FISA Court “publish its opinions on the meaning, scope, and constitutionality of Section 215,” but was subsequently denied. The ACLU filed several other motions for review, all of which were denied. The ACLU then “filed a petition for writ of certiorari in the Supreme Court, challenging these rulings and asking the court to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.” The Supreme Court denied the petition for writ of certiorari, arguing that not only should the lower court’s rulings be upheld because they were correct, but that the Supreme Court is also powerless to review the lower court’s decisions, even if they were found to be incorrect. In Justices Sotomayor and Gorsuch’s dissent, they state, “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

These cases all demonstrate a connecting theme: there is extremely little oversight or public understanding of FISA and the Patriot Act, and yet, there continue to be dangerous implications and failures of these acts. Especially going forward, since we live in an increasingly online society, these acts must be reconsidered. It is clear that the practices of government surveillance have implications that threaten the Constitutional rights of the American people. Regardless of FISA and the Patriot Act’s successes, the presence of so many examples of misconduct prove that a tool as powerful (and useful) as these acts needs to have more safeguards in place, and more information needs to be made publicly available for people to know to what risks these acts expose them.

The Weight of Putin’s Arrest Warrant and What’s To Come

Natalia Lalin

On March 17, the international community was stunned by the significant move made by the International Criminal Court to issue an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Lvova-Belova. The two are charged with orchestrating the systematic abduction and transportation of at least 6,000 children from occupied cities in Ukraine to Russia by means of re-education camps located throughout the country from the Black Sea all the way to Siberia, or through adoption by Russian families. Lvova-Belova herself even recently adopted a 15-year-old child from Ukraine. This act by the Court was the first form of international legal action taken in the context of the Russia-Ukraine War since its start in February 2022, and it is a symbolic acknowledgment of the gravity of the Russian government’s crimes and actions in this aggressive dispute. It is also particularly notable for condemning Putin, an acting leader of a world superpower. While he is not the first sitting head of state to be indicted by the International Criminal Court (referred to hereafter as the ICC), as three other leaders have been charged previously, it is the first time the ICC has taken this action against the leader of a Permanent Five member of the United Nations Security Council. Former heads of state Slobodan Milošević of Yugoslavia, Charles Taylor of Liberia, and Ratko Mladić of Bosnia and Herzegovina have all been previously indicted and tried at the Hague while in their positions of power. 

Despite all of this, it seems Russian officials are shrugging off the indictment. Kremlin spokesperson Dmitry Peskov proclaimed that “the very question itself is outrageous and unacceptable. Russia, like a number of other states, does not recognize the jurisdiction of this court, and therefore any of its decisions are insignificant for the Russian Federation from a legal viewpoint.” Further, a Russian Investigative Committee even opened up a retaliatory criminal case against ICC prosecutor Karim Khan and the three judges that made this judgment, claiming that their hostile actions were not just illegal, but also a purely political “attack on a representative of a foreign state enjoying international protection, in order to complicate international relations.”

Exploring the Legality of the Arrest Warrants

To better understand the origins of this debate on the legality of the arrest warrants, it is important to review the fundamentals of the ICC itself. The court was created through the Rome Statute, which the United Nations General Assembly adopted in 1998 to end legal impunity for the world’s most severe crimes. The court has official jurisdiction over cases involving genocide, grave war crimes, crimes against humanity, and crimes of aggression. Its jurisdiction is limited to the 123 countries which signed on to the Statute, totaling about two-thirds of the international community. This group famously excludes Russia, the United States, and China, amongst others. Even Ukraine is not a member country of the ICC at this time.

Nevertheless, this alone does not completely protect Putin or Lvova-Belova from the ICC’s reach: it only means Russia does not have to comply with the investigation. Nevertheless, if they were to travel to any of the countries party to the Rome Statute, the countries would be obligated to arrest them and hand them over to the ICC, where they would then be tried for their crimes at The Hague. 

 The charges have legal footing because Putin and Lvova-Belova are being accused of breaching the Genocide and Geneva Conventions, which Russia actually has signed onto. According to Article 49(1) of the Fourth Geneva Convention, the “forcible transfer or deportation of civilians, including children, is prohibited.” If given a chance, the ICC will prosecute Putin for his direct or joint involvement in these acts under Article 25(3)(a) of the Rome Statute or his failure to exercise control over subordinates who committed these acts under Article 28(b) of the Rome Statute. On the other hand, Lvova-Belova will only be prosecuted for the first accusation of involvement under Article 25(3)(a). While the ICC does not employ the death penalty, the penalty for these charges may include a life sentence.

While these crimes are currently categorized as war crimes, some speculate that they could eventually amount to crimes against humanity or even genocide, depending on Russian intention. The case would be very different if the children were transported to keep them safe rather than if Russia transported them in an attempt to wipe out the next generation of Ukrainians, as some claim. 

Feasibility of Actually Seeing Putin Behind Bars

The legality of these charges and the feasibility of a trial in the near future are two different things, mainly because Putin and Lvova-Belova cannot be tried in absentia. The ICC also has no real enforcement mechanism or police force to arrest them. So, if they are to be tried, the ICC is entirely dependent on other countries to hand them over. Otherwise, the trial will not happen. This reliance on catching Putin and Lvova-Belova while they are traveling internationally decreases the possibility of prosecution ever happening because the geographic borders of where they can and cannot go are so explicitly defined. Presumably, Putin would not be so foolish as to travel to a country where he knows he will be immediately handcuffed. This situation is also unprecedented because every other comparable case has involved a sitting head of state of a country that was a member of the ICC. Ultimately, given the implausibility of either Putin or Lvova-Belova facing real legal punishment, I believe that these indictments are key more so in their symbolism than in their potential to convict Russian leadership. 

However, it is important to note that even if they are primarily symbolic in nature, these arrest warrants have major potential to effect tangible change. First of all, the nature of the ICC’s decision to make the announcement public is effective on many levels, especially since the institution does not normally publicize arrest warrants to protect its investigations. Nevertheless, this decision to go public seemed to differentiate this case from the traditional procedure in an effort to deter the progression of the Russia-Ukraine War. Internationally, the ICC is declaring its intent to hold Russia accountable through this and potentially future charges, despite this country’s power. These future charges may be related to aerial bombardment campaigns or attacks on hospitals and other forms of civilian infrastructure, for which Russia must answer. Minimizing Putin’s geographic borders by limiting which countries he can travel to may also make it more challenging to conduct diplomatic affairs and matters of the state. Domestically, the public announcement was a strategic move to instill fear in subordinate Russian officials who were implicit in this and other harmful acts. They may now express more resistance knowing that they too can be charged for grave war crimes, just as Lvova-Belova has been. This also could affect the Russian public by making them aware of the exact tactics being used by their government, which could drum up domestic opposition to the war. 

More broadly, these arrest warrants have also reinvigorated conversations around the US’s lack of involvement with the ICC. It may even make other powerful countries reconsider their choice not to partner with the international institution if they really do want to see international justice realized. It also warns other human rights violators, like China, that their actions will not go unnoticed. Globally, these arrest warrants seem to have potentially increased the ICC’s credibility at a time when it was nearing a legitimacy crisis which could be definitively marked, amidst many years of debate, by the decision of the African Union in 2017 to explore the concept of collectively withdrawing from the institution. Nevertheless, in light of the ICC’s willingness to take such a strong stance against a powerful country and a war that has affected the entire international community, perhaps these countries will reconsider.  

Concluding Remarks 

In conclusion, despite the debate around the legality behind Putin’s arrest warrants and claims by Russia that the ICC is illegitimate in its actions, it is seemingly more legitimate than ever. Unfortunately, due to the limitations of the Court, it seems unlikely that we will see Putin behind bars anytime soon; however, these arrest warrants were necessary for sending a message to Russia and initiating the often lengthy process required for international justice. As stated by Payam Akhavan, a former UN Prosecutor, “We have to bear in mind that although the famous expression is that oftentimes justice delayed is justice denied, in international criminal justice, justice delayed very often is justice delivered because those in power today may not be in power tomorrow.” Hopefully, in due time, the world can look back at Putin’s arrest warrant as the catalyzing legal action that delivered widespread justice to the Ukrainian people and the world at large.

Steering Towards Safety: Analyzing the Constitutionality and Effectiveness of Alternative Regulatory Frameworks in the Production of Self-Driving Vehicles

Clay Reiferson

I. Introduction: A “Patchwork” System

How do we weigh the value of the lives of future generations against the people of today? In the United States, federal and state governments are left to ponder this question as they seek to regulate the burgeoning self-driving car industry. It is widely accepted that, by removing human error, self-driving cars will offer a safer alternative to human-driven ones. Proponents of rapid innovation in the field point to the fact that 94 percent of all crashes, which account for over 30,000 US deaths per year, can be attributed to human error. As such, the faster we can achieve a reality dominated by high-level Automated Driving Systems (ADSs), the better off future generations will be. But rapid innovation comes at a cost—one the country saw for the first time in 2018. In an effort to accelerate the pace of innovation and create a safer transportation system for future generations, Arizona elected to adopt a loose regulatory framework surrounding ADSs. This decision flushed automakers who wished to test their self-driving vehicles out of neighboring California, whose legislators took a more stringent regulatory position. One such testing vehicle belonged to Uber, and would go on to tragically kill Elaine Herzberg on a public Arizona roadway in what marked the first fatal self-driving car accident. Herzberg’s death raised two pressing legislative debates: should the regulation of ADSs remain a state-led issue? And what changes, if any, should our lenient federal regulatory system undergo to prevent similar tragedies?

The first of these questions hinges on a debate over federalism that has plagued American politics since the country’s founding. The current division of power allows states to dictate policy regarding issues of licensing and driver education, while the National Highway Traffic Safety Administration (NHTSA) is tasked with regulating vehicle safety more broadly. With the hope of guiding states towards a consistent regulatory framework, the NHTSA published a Model State Policy in 2016, noting that a “patchwork of inconsistent State laws” could “impede innovation.” But these suggestions have gone unheeded in recent years, threatening both public safety and innovation. As such, I will argue that Congress must use its power under the Commerce Clause to regulate the “instrumentalities of interstate commerce” and preempt state authority in a manner similar to the failed SELF DRIVE Act of 2017. To make this legal argument, I will analyze the opinions of Justices Scalia and O’Connor in Gonzales v. Raich, a case in which the Supreme Court voted to uphold the federal prohibition of local marijuana use otherwise permissible under California law. Operating at the intersection of Congress’s commerce power and states’ police powers, the regulation of ADSs grapples with similar issues as those proposed in Raich. As a result, a thorough examination of its contents is necessary to assess the constitutionality of sweeping federal regulations in the rapidly developing ADS market.

Even if we are to accept a preemption of state authority, however, the debate over how to design our federal regulatory system still remains. Tasked with constructing this framework, the NHTSA established a self-certification model to control the production of ADSs, in line with its handling of human-driven vehicles. Under this system, manufacturers must ensure that their products meet legal requirements as outlined by the Federal Motor Vehicle Safety Standards. The NHTSA may then purchase the certified vehicles and test them for compliance after they reach the market. Researchers Adam Thierer and Caleb Watney support this self-certification model, arguing that the opportunity costs of a more intrusive regulatory framework outweigh the present benefits. Legal scholar Spencer Mathews, meanwhile, suggests a complete overhaul of our current self-certification system in favor of type approval, which denotes a rigorous procedure where regulators approve products directly before sale while being involved in each stage of the design process. The Federal Aviation Administration (FAA) uses type approval to regulate the production of aircrafts, a decision Mathews claims “permit[s] innovation while ensuring public safety.”

To strike the proper balance of regulation so as to promote innovation and short-term safety goals, I will suggest both a reallocation of power amongst federal and state governments and a restructuring of our current self-certification system to include pre-market safety assurance tools. The safety of American citizens will always be decided by the policies of the least regulated state, and as such, the regulation of ADSs cannot remain a state-led issue—preemptive policies similar to those proposed in the failed SELF DRIVE Act, which I will discuss later on, are necessary to prevent a chaotic medley of conflicting laws. The precedent set by Gonzales v. Raich allows for such a bill, establishing that intrastate issues of public safety, although not normally defined as within the scope of congressional power, can be the subject of federal regulation when they threaten the effectiveness of legislation regarding interstate commerce. Alongside this preemption of state authority, a more rigid version of the NHTSA’s current self-certification framework must be adopted to promote public safety, ensure consumer confidence, and allow automakers and regulators to realize their dream of zero road deaths. In constructing such a system, however, it is important not to overextend our regulatory framework in order to protect future generations. As a result, we must disregard Mathews’ suggestion of a type approval system in favor of a restructuring of our current self-certification model, since it fails to properly balance private innovation with public safety.

II. A Brief Legal History

Before analyzing Gonzales v. Raich, it is necessary to introduce two foundational cases in our modern understanding of the Commerce Clause. The first of these cases, Wickard v. Filburn, redefined the scope of congressional authority over local activities. In it, the Court ruled against a local Ohioan farmer who was found to have violated federal restrictions on wheat production after harvesting additional wheat to feed his cattle. Although the Court recognized that this action may have had a negligible impact on his participation in the national wheat market, the unanimous decision contended that the aggregate effects of such an action played out on a national scale may prove more substantial. Thus, Wickard established Congress’s ability to regulate commerce at a local level so long as the cumulative effects of the commercial activity significantly influenced interstate commerce. The case of United States v. Lopez, meanwhile, worked to limit the broad authority granted to Congress in Wickard. The majority found a federal law forbidding the possession of firearms in school zones to be unconstitutional, noting that gun possession in such an area was not an economic activity that could substantially affect interstate commerce. Unlike in Wickard, the Court argued that the repetition of such an action elsewhere did not produce a larger net effect. Both of these cases will serve as important background as we shift our attention to Raich.

In a 6-3 ruling, the Court found that the prohibition of marijuana possession under the Controlled Substances Act fell within Congress’s commercial jurisdiction and thus took precedence over California legislation explicitly authorizing the use of the drug for medicinal purposes. Justice Scalia explains this decision in his concurring opinion, claiming that Congress’s power over commerce supersedes any state authority when the regulation of local activities is deemed necessary to maintain a comprehensive regulatory scheme. Justice O’Connor disagrees, however, offering a more narrow definition of commerce in her dissenting opinion, while admonishing the majority for allowing Congress to encroach on states’ traditional power over the health and safety of their citizens. With this context in mind, we can begin to dissect the justices’ positions and apply the lessons from our analysis to the production of ADSs.

III. Lessons From Gonzales v. Raich

Obsessing over the sanctity of states’ police powers, Justice O’Connor fails to critically examine the Court’s Commerce Clause jurisprudence, instead dismissing the case of Wickard v. Filburn after pointing to seemingly irrelevant incongruencies between it and Raich. Justice O’Connor defends her dismissal of Wickard, because unlike Raich, it “did not extend Commerce Clause authority to something as modest as the home cook’s herb garden.” If the scope of federal regulation is what matters—whether or not it offers exemptions to small-scale producers—then Justice O’Connor’s contention with Raich relies on the same “superficial and formalistic distinctions” she claims riddle the opinion of her opponents. If the respondents had cultivated larger quantities of marijuana (say as much as Roscoe Filburn’s excess wheat), albeit still for personal use, would Justice O’Connor then find the decision in Wickard to be suitable? Attempting to clarify this stance, she notes that in contrast to Wickard, the decision in Raich “impl[ies] that small-scale production of commodities is always economic.” But even the Court’s opinion in United States v. Lopez, which Justice O’Connor holds as the primary relevant precedent, recognizes that the economic nature of a local activity is not an essential factor in determining Congress’s ability to regulate it. A noneconomic intrastate activity can be regulated, the Court found in Lopez, if it is deemed to be “‘an essential part of a larger regulation of economic activity.’” These ideas hearken back to the majority’s opinion in Wickard and present a steep challenge for Justice O’Connor’s repeated assertion that the local use of marijuana central to Raich is not economic in nature. As such, Justice O’Connor’s limited acknowledgment and ultimate dismissal of the precedent set by Wickard detracts from the legal accuracy of her argument.

Justice O’Connor places emphasis on the Court’s definition of economic activity out of fear that, absent any clear “objective markers,” the balance of power between states and Congress will be thrown off by the Court’s decision in Raich; analysis of Justice Scalia’s concurring opinion quells such concerns, however, with the recently deceased justice identifying markers that place clear limits on congressional authority., Describing her objection to the majority opinion, Justice O’Connor claims that the Court must “identify a mode of analysis that allows Congress to regulate more than nothing and less than everything.” The decision in Raich, she contends, leans too heavily towards regulating everything. She argues that the majority’s invocation of the Necessary and Proper Clause, which together with Congress’s commercial authority grants the federal government the power to regulate intrastate activities “necessary to and proper for” interstate commercial regulation, “will always be a back door for unconstitutional federal regulation.”, Justice Scalia appeals to the words of Chief Justice Marshall in McCulloch v. Maryland, however, to highlight the flaws inherent in this reasoning. If Congress wishes to exercise its power under the Necessary and Proper Clause for a “constitutional and legitimate” end, he argues, “the means must be ‘appropriate’ and ‘plainly adapted’ to that end.” Justice Scalia applies these restraints to the case of Raich, concluding that the prohibition of intrastate marijuana use is an appropriate means of regulating what he considers a constitutional end. Further application of this test to the case of Lopez, meanwhile, exemplifies the limits of congressional authority. While the goal of the federal government in Lopez may be considered legitimate, the legislation passed by Congress to achieve this end proved to be inappropriate. With an opinion founded on the precedent of Lopez and a dismissal of Wickard that fails to adequately address the clearly defined restraints on congressional authority outlined by Justice Scalia, Justice O’Connor’s dissent must be disregarded.

Applying the broad definition of interstate commerce central to Raich, it is evident that the preemption of intrastate authority over the manufacturing and production of ADSs is within Congress’s commercial jurisdiction, and does not destroy the notion of enumerated powers. The federal government’s command over the “instrumentalities of interstate commerce” extends to even noneconomic, local activity, so long as such activity “substantially affect[s]” interstate commerce. The manufacturing and production of ADSs, two components of commerce accepted by the majority in Raich, is therefore within Congress’s regulatory power. Even accounting for the interplay of public safety and states’ traditional preeminence over this domain, Raich clearly establishes that congressional power supersedes state authority in all commercial contexts. As the majority opinion notes, Wickard establishes that “‘[n]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” Instead of allowing a state such as Arizona to “‘serve as a laboratory’” for “‘novel social and economic experiments,’” a reality Justice O’Connor calls “one of federalism’s chief virtues,” Congress must exercise its plenary commerce power if it wishes to maximize both the safety of its citizens today and the efficiency with which we reach an ADS-dominated future. Our current patchwork system threatens to harm both of the goals central to the NHTSA’s federal regulatory framework.

If Congress wishes to uphold the federal regulatory system, as is within its legal authority under Raich, it must reconsider preempting certain state regulations in a manner similar to when it nearly passed the bipartisan SELF DRIVE Act five years ago. This bill, which failed to pass the Senate in 2017 and is being pushed once again by members of the Energy and Commerce Committee, includes a provision preventing states from establishing any law “regarding the design, construction, or performance of highly automated vehicles, […] unless such law or regulation is identical to a standard prescribed under this chapter.” This provision is then followed by a higher performance requirement, which grants states the authority to prescribe greater performance standards than is federally mandated. In doing so, the bill grants states freedom while also ensuring a rigid and uniform federal regulatory framework. This eliminates the issue presented earlier when discussing the death of Elaine Herzberg and asymmetric regulation in the case of Arizona and California; no longer would the policy of the least regulated state dictate the safety of American citizens. In addition to creating a safer environment, establishing a more uniform system may help manufacturers navigate the legal challenges before them and encourage innovation as a result. Preemption is an appropriate means of achieving these legitimate ends.

IV. Analyzing Alternative Regulatory Systems: Self-Certification vs. Type Approval

With the legal debate over the federal encroachment of state authority settled, we must now turn to the content of our national regulatory system and identify the optimal strategy for maximizing safety and innovation; although Mathews acknowledges the threat type approval poses to innovation, he incorrectly assumes that it can be mitigated after exaggerating the limited nature of its scope. In a 2016 report, the NHTSA reviewed the applicability of the FAA’s type approval process and outlined significant barriers to entry. First, it found that certification lasts three to five years on average. In an industry that is oversaturated with manufacturers and dominated by yearly release cycles, such a timetable would severely hamper innovation and require an overhaul of the car market altogether. But certification can last even longer than five years in some cases. The NHTSA found that it took the Boeing 787 Dreamliner eight years to receive approval due to “the very advanced nature of the aircraft and the production of key components in locations geographically distant from one another.” Mathews would be remiss to assume that ADSs may not face a similarly difficult approval process, since the technology they rely upon is both advanced and constantly evolving. In response to the lengthy timetable of type approval, Mathews strips down his proposal and ultimately argues for a hybrid-type system. “Self-certification,” he writes, “could be preserved for vehicle hardware not critical to the operation of the ADS, and type approval instituted for the ADS and ADS-critical hardware.” Due to their advanced nature, however, anything critical to the ADS would presumably require more time to approve than the hardware associated with typical vehicles. As such, this hybrid approval process faces the same issues as type approval. If America wishes to remain at the forefront of production and innovation in the self-driving car market, it cannot adopt a model similar to what Mathews suggests.

The safety benefits Mathews attributes to type approval, meanwhile, become blurred when viewed through the lens of Thierer and Watney’s predictive model, which applies a broader time-frame when quantifying safety. While Mathews assumes a negative relationship between innovation and safety, Thierer and Watney argue that the two are fundamentally related ends, since future generations are left better off. Although I do not refute the existence of a negative relationship when looking at the short-term effects of regulatory policy, a long-term positive relationship can be established with minimal regulations in place to protect society today. Modeling the potential costs of type approval, Thierer and Watney project that a mere slowdown of 5 percent in the deployment of automated vehicles would lead to “an additional 15,500 fatalities over the course of the next 31 years.” A more drastic change resulting in a regulatory delay of 25 percent, meanwhile, would bring about 112,400 deaths over 40 years. If we are to accept this bleak reality and consider a broader lens when deciding on regulatory policy, type approval no longer offers the extreme benefits to public safety outlined by Mathews.

While type approval may not be a viable alternative to self-certification, Mathews raises an important discussion about consumer confidence in ADSs that presents significant challenges for Thierer and Watney and their hope of maintaining the status quo. If consumers are unwilling to purchase automated vehicles or step foot in self-driving taxis, innovation will naturally slow as a result of low demand. Mathews argues that knowledge of the regulatory approval required before automated vehicles can appear on public roads may increase consumer confidence and ensure high demand. Furthermore, the benefits of type approval in regard to present safety may “prevent the kinds of accidents, such as the Uber crash in Arizona, that undermine public confidence and put the entire future of automated vehicles at risk of a public backlash.” Thierer and Watney fail to mention consumer confidence in their analysis of type approval, nor does it appear to be a factor in their projections regarding the deployment of automated vehicles. A survey conducted by the Pew Research Center in 2017—before the death of Elaine Herzberg spawned increased negative sentiment towards ADSs—validates Mathews’ fears. It found that 56 percent of US adults would not ride in a driverless car, with the majority of this uneasiness stemming from safety concerns and a lack of trust. If this poor confidence slows the pace of innovation, then it too is a grave threat to future safety. Thus, any regulatory framework that aims to promote the safety of both present and future citizens must also be sufficiently strict so as to raise consumer confidence in ADSs.

Although finding this Goldilocks zone may be a near impossible task, I will suggest basic pre-market safety assurance to supplement our current self-certification system. The US Department of Transportation (of which the NHTSA is a member) mentioned safety assurance in a 2016 report on Federal Automated Vehicles Policy as a possible improvement, but seems to have forgotten about it in the years following its publication. Safety assurance tools such as pre-market reporting by vehicle manufacturers of internal testing and data analysis, USDOT argued, could help ensure that “design, manufacturing, and testing processes apply NHTSA performance guidance, industry best practices, and other performance criteria.” By engaging with manufacturers before vehicles are allowed on public roads, safety assurance might help alleviate consumers’ concerns regarding their safety and trustworthiness. With this change, our regulatory framework would remain one of self-certification and thus maintain the innovation-related benefits associated with such a model, while also boosting public safety by both marginally improving present safety and raising consumer confidence so as to promote future safety. Best of all, while a shift to type approval would require congressional approval, no additional statutory authority is required for the NHTSA to implement safety assurance.,

V. Conclusion: Maximizing Safety Without Slowing the Pace of Innovation

Confronted with a sea of regulatory options, Congress and the NHTSA must guide the development of ADSs in a manner that best promotes both present and future safety. Mathews’ analysis fails to address the shortcomings of type approval, which can be disregarded as a harmful alternative to self-certification due to its tendency to slow innovation and threaten long-term public safety as a result. But self-certification may not be the boon to innovation and public safety Thierer and Watney suggest either, since their defense of our current system fails to address issues of consumer confidence. When considering demand in a predictive model of future innovation, increasing regulatory standards becomes more appealing. To achieve the proper balance of regulation so as to accelerate the pace of innovation and maximize short-term safety, I suggest a restructuring of our current self-certification system that relies on the addition of pre-market safety assurance tools.

But even this construction of a more robust national framework falls short if our current regulatory patchwork of state laws remains intact. With the SELF DRIVE Act once again sitting on the floor of Congress, it is imperative that the Senate reconsiders its earlier position. The NHTSA cannot achieve its vision of a safe and innovative self-driving car market if states are left to their own devices. Although far-reaching, this preemption of state authority does not represent an egregious or unconstitutional extension of federal power, but instead fits within the broad definition of interstate commerce championed by the majority of the Supreme Court in Raich. The safety of American citizens, both today and in the future, depends on these changes.