Tag: President Trump

President Trump Directs Federal Agencies to Solicit Input from Manufacturing Sector on Streamlined Permitting and Reduction of Regulatory Burdens

Donald Trump manufacturingIn his first week in office, President Trump has signed several Presidential Memoranda and Executive Orders aimed at encouraging domestic infrastructure development. Many of these executive actions direct federal agencies to adhere to a pair of central tenets, i.e., expedited review for high priority infrastructure projects and the use of U.S. materials and equipment.  The “Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing” signed on January 24, 2017, expands on these themes and directs federal agencies to undertake a notice and comment period, during which U.S. manufacturers can engage and share their thoughts on how the federal government can best support the expansion of domestic manufacturing.

The directive from President Trump is broad and covers all federal agencies that could impact the manufacturing sector.  Companies in the manufacturing sector might consider developing a strategy for federal engagement and formulating comments on potentially burdensome federal regulatory programs, including, as just a few examples, the Clean Air Act’s New Source Review program, conservation programs administered by the Department of Energy, labeling requirements from the Food and Drug Administration, and Department of Labor programs.

60-Day Comment Period on Reducing the Federal Regulatory Burden

Section 2 of the Presidential Memo on Manufacturing directs the heads of all federal agencies to (1) expedite reviews and approvals for proposals to build new or expand existing manufacturing facilities; and (2) reduce regulatory burdens affecting domestic manufacturing.  To accomplish this, President Trump has directed federal agencies to open a 60-day comment period, during which the manufacturing sector can offer thoughts on what federal actions can be undertaken to streamline permitting and reduce regulatory burdens for domestic manufacturers.

The notice and comment process will be directed through the Secretary of Commerce, and coordinated with the heads of the Department of Energy, the Environmental Protection Agency, the Office of Management and Budget, the Small Business Administration, and other agencies “as may be appropriate.” This sector-specific, federal agency-wide approach will allow those engaged in manufacturing to address the multitude of federal regulatory challenges faced by the industry via one commenting process instead of the piecemeal, regulatory battle-by-battle approach.

Report Outlining a Plan for Streamlined Permitting and Regulatory Burden Reductions

Section 3 of the Presidential Memo on Manufacturing directs the Secretary of Commerce to consider the comments received under Section 2 and submit a report to the President within 60 days of completion of the public comment period.  That report should:

  1. set out a plan to streamline federal permitting processes for domestic manufacturing;

  2. set out a plan to reduce regulatory burdens that affect domestic manufacturers;

  3. identify priorities and recommended deadlines for completing actions;

  4. include recommendations for any necessary changes to existing regulations or statutes, as well as actions to change policies, practices, or procedures that can be taken immediately under existing authority.

Recent Past Efforts at Regulatory Reform/Permit Streamlining

Regulatory reform is certainly not a new concept, although the success of past efforts is up for debate.  Congress passed statutes in the 1980s (the Paperwork Reduction Act and the Regulatory Flexibility Act) and again in the 1990s (the Unfunded Mandates Reform Act and the Congressional Review Act) with the goal of putting in place structures to limit the pace of regulatory development.  These statutes require additional coordination for certain information requests, cost-benefit analyses, and allow for the review (and potential disapproval) of major rules by Congress.  However, these statutes are generally forward looking and currently baked into the federal rulemaking process.  While they may augment consideration of new regulatory initiatives, they do nothing to address longstanding, burdensome regulatory programs.

More recent efforts at regulatory reform have been undertaken by Congress and focus on review (and potential repeal) of existing regulatory programs.  For example, on January 7, 2017, the House passed the Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act, which would establish the Retrospective Regulatory Review Commission to conduct a review of all federal regulations to identify regulatory programs or individual rules that “implement a regulatory program that should be repealed to lower the cost of regulation.”  Former President Obama also previously issued an Executive Order focused on improving permitting and review of infrastructure projects.

During the Obama Administration, Congress also made attempts to pass legislation streamlining federal permitting, largely to no avail.  Legislation either stalled or if passed, was limited to major infrastructure projects subject to National Environmental Policy Act (“NEPA”) review. For example, the Responsibly and Professionally Invigorating Development (RAPID) Act passed the House, but never came to a vote in the Senate.  The Federal Permitting Improvement Act of 2015, bipartisan legislation aimed at improving federal permitting, was passed as Title XLI of the “Fixing America’s Surface Transportation Act’’ or the ‘‘FAST Act” but focused on projects that were subject to NEPA and required a total investment of more than $200 million.

The current effort differs from previous attempts at reform in that it focuses on one specific sector of the economy the President seeks to bolster (manufacturing) and also sets up a formal process for that sector to share with the government its thoughts on how the federal regulatory knot can be unwound.  The manufacturing sector covers a wide range of industries, e.g., chemical, products, oil-field equipment, pharmaceutical, textiles, just to name a few; each with unique regulatory challenges.

Subsector Example: Current Approval Burden for New Chemical Manufacturing Facility

As an example of the regulatory/permitting burden faced by just one subsector of the manufacturing industry – chemical manufacturing – it currently takes between three to five years to obtain all of the necessary permits and other governmental approvals necessary to break ground on a major new chemical plant.  Between 50 and 60 separate permits and other authorizations issued by dozens of federal, state and local agencies must be secured, in a process that creates significant uncertainty and delay, challenging project proponents at every turn and severely testing investors’ will to continue project funding.  Many of the required authorizations have overlapping purposes, and agency deadlines, where they exist at all, are often extended multiple times to address issues that have little to no bearing on the concerns that a given approval was intended to address.  Environmental authorizations alone typically make up half or more of the required approvals and can involve as many as 15 to 20 separate agencies commenting on each other’s redundant requirements and engaging in jurisdictional battles with one another, all of which further contributes to delay and uncertainty.  And while labor costs and other considerations also play a role, the inevitable result is that more and more projects end up being built overseas.

Next Steps for Manufacturers

President Trump has established a tight timeline for the public comment period and for the Secretary of Commerce to produce a plan to move forward.  While it may be a significant effort to identify under that timeline the major federal regulatory burdens that impact your manufacturing business and articulate them to the government, the opportunity to share those concerns and potentially help craft a path forward is ripe.

ARTICLE BY Matt Paulson & Michael Weller of Bracewell LLP
© 2017 Bracewell LLP

Congress Attempts to Counsel Trump Concerning Removal of CFPB Director Cordray, While PHH Petition for Rehearing Remains Undecided

Congress Capitol CFPB Director CordrayToday, Senators Chuck Schumer (D-NY), Sherrod Brown (D-OH), Elizabeth Warren (D-MA) and others voiced their opposition to any attempt by President-elect Donald Trump to oust Richard Cordray, the current Director of the Consumer Financial Protection Bureau (“CFPB”), before Cordray’s term ends in July 2018. They also sent a letter to Cordray outlining and praising his accomplishments as CFPB Director.

The Senators’ opposition to the prospect of Cordray’s removal is just the latest volley between members of Congress and the incoming Administration concerning the CFPB’s directorship.

On January 12, Sean Spicer, a senior spokesperson for President-elect Trump, told reporters that the President-elect had interviewed former Representative Randy Neugebauer (R-TX) for the position of Director of the CFPB. With Richard Cordray’s term as CFPB Director not scheduled to conclude until July 2018, this strongly suggested that the President-elect is considering an attempt to oust Cordray sooner. While in Congress, Rep. Neugebauer introduced legislation aiming to replace the CFPB’s single director with a five-member commission.

Spicer’s statement came on the heels of a January 10 statement from Senator Brown, the ranking member of the Senate Banking, Housing, and Urban Affairs Committee, urging the President-elect not to attempt to remove Cordray or abolish the CFPB. Senator Brown cautioned President-elect Trump that, “Under Richard Cordray’s leadership, the CFPB has returned $12 billion to servicemembers, seniors, and working Americans . . . Firing Cordray and abolishing the consumer bureau so the special interests can get their $12 billion back would shatter President-elect Trump’s promise to hold Wall Street accountable and protect working people.”

Also on January 10, minority members of the House Committee on Financial Services released a letter to President-elect Trump in the same vein, commending Director Cordray and counseling the President-elect against attempting to remove him.

On January 9, Senators Ben Sasse (R-NE) and Mike Lee (R-UT) released a letter to Vice President-elect Mike Pence urging the opposite: “Given the CFPB’s unconstitutional structure, removing Director Cordray would be consistent with President Trump’s oath to ‘preserve, protect, and defend the Constitution of the United States’ and his duty to serve as an independent guardian of the U.S. Constitution. Removing Director Cordray would also uphold the American idea of limited government, because Director Cordray has vigorously supported the unconstitutional independence of the CFPB and pursued a regulatory agenda that is harmful to the American people.”

The prospect of Director Cordray’s removal is top of mind following the D.C. Circuit Court’s decision in PHH Corp., et al. v. Consumer Financial Protection Bureau, which ruled unconstitutional the provision of the Dodd-Frank Act establishing that the CFPB Director could be fired only “for cause,” i.e., for inefficiency, neglect of duty, or malfeasance in office.

As discussed in a prior post, Senators Brown and Warren are among 21 current and former members of Congress who filed an amicus brief in support of the CFPB’s petition for rehearing en banc of the PHH decision. On December 22, PHH filed a response to the petition, arguing that there is no need for the D.C. Circuit to revisit its original decision. The United States also filed a response on December 22, arguing that the D.C. Circuit’s decision “departs from” Supreme Court jurisprudence regarding the separation-of-powers and the removal of executive agency heads. The court granted PHH until January 27 to respond to the United States’ brief. Any decision on the petition for rehearing will thus not be made until after President-elect Trump’s inauguration on January 20, raising the prospect that the United States’ brief could be withdrawn if the Department of Justice’s position changes under the incoming Administration.

ARTICLE BY Jamie A. Heine of Covington & Burling LLP

© 2017 Covington & Burling LLP

Congress Set to Embark on Ambitious Tax Reform Package in First 100 Days of Trump Administration Fundamental Tax Reform

Congress, Capitol, Congressional Tax ReformThe 2016 elections have laid the foundation for the most significant Congressional tax reform effort since the enactment of the Tax Reform Act of 1986. In the past several years, the leadership of the Congressional tax-writing committees (i.e., the House Ways and Means Committee and the Senate Finance Committee) have produced the blueprint for tax reform. More recently, President-elect Trump offered his own tax reform package and pledged to work with the Congress to enact tax reform this year. Against this backdrop, we anticipate that the House Ways and Means Committee will move a comprehensive tax reform bill during the first 100 days of the Trump administration. The Senate Finance Committee will likely move at a slower pace, but its leadership is equally committed to tax reform this year.

While the final version of the tax reform legislation is still under development, it may include the following elements:

  1. a compressed rate structure for individuals with a top rate of 33 percent on ordinary income, a 50 percent deduction for investment income, and a corresponding reduction in the availability of various personal credits, deductions, and exclusions

  2. a top corporate rate of 20 percent (although Trump has called for a rate as low as 15 percent) together with a similar reduction of various business tax preferences and credits

  3. a general elimination of depreciation in favor of immediate expensing for depreciable business assets

  4. a repeal of the estate tax and replacement with, for example, a capital gains tax on death, and

  5. a transition to a territorial international tax system under which foreign profits of American companies would generally not be subject to U.S. tax, together with a deemed repatriation provision for previously accumulated earnings

As a result, this legislation will likely impact virtually every taxpayer in the United States.

ARTICLE BY Jesse (Jay) Adams, William (Bill) Backstrom, Andre Burvant, John F. Fletcher, Matthew A. Mantle & Justin Stone of Jones Walker LLP

© 2017 Jones Walker LLP

Senate Commerce Committee to Hold Chao Nomination Hearing; President-Elect Trump Infrastructure Proposal Update; “Drones Over People” Rule Expected Soon

transportation truck Elaine ChaoThe Senate Commerce, Science, and Transportation Committee will hold a nomination hearing for Transportation Secretary-designate Elaine Chao. In addition to serving as the Secretary of Labor under President George W. Bush, she served as Deputy Secretary at US DOT under President George H. W. Bush, Chairman of the Federal Maritime Commission under Presidents Ronald Reagan and George H. W. Bush, Maritime Administration Deputy Administrator under President Reagan, and a White House Fellow at US DOT under President Reagan. Because of her experience in these positions, Elaine Chao will bring considerable substantive transportation knowledge and experience overseeing large organizations to bear as the Secretary of Transportation. We expect she will enjoy easy confirmation by the Senate.

Elaine Chao will likely be initially tasked with crafting and then moving Trump’s infrastructure proposal through Congress. In response to the Senate’s nominee questionnaire, Ms. Chao identified several issues that she would focus on as Secretary of Transportation. These included (1) effective enforcement of safety measures, strengthening US DOT’s planning and acquisition practices, and considering new technologies in infrastructure; (2) expediting the process of making repairs and building new construction and decreasing regulatory burdens; and (3) striving for equity between urban and rural areas and among modes of transportation.

Ms. Chao’s list of focus areas is so broad as to cover nearly all key functions of the Department of Transportation, so it does not provide significant insight into what her priorities as Secretary would be. However, there are a few issues we believe Ms. Chao will prioritize. These include regulatory reform, Buy America, and private sector innovation, such as support for autonomous vehicles to improve vehicle safety and for public-private partnerships to advance capital project more efficiently.

President-Elect Trump Infrastructure Proposal Update

Throughout the presidential campaign, President-elect Trump advocated for a large infrastructure investment package, however there are few details known about the proposal at this time. Trump initially said he would “at least double” Secretary Clinton’s $275 billion infrastructure proposal, and has at times called for un-named measures to support $1 trillion in infrastructure investment.

During the campaign, Trump associated himself with an infrastructure proposal drafted by Wilbur Ross, his nominee for Commerce Secretary, and Peter Navarro, recently named as the head of a new National Trade Council to advise the President on trade issues. The Ross-Navarro proposal would provide a tax credit to equity investors in infrastructure projects with the aim of attracting greater private investment in such projects and lowering project finance costs. The proposal relies on dynamic scoring to offset the tax expenditure. Revenues gained through tax reform (including one-time funding through deemed repatriation tax on overseas earnings) has been often cited as a viable pay-for for infrastructure funding, and many believe it would be difficult to fund an infrastructure package independent of tax reform legislation.

Because equity investors support a very small fraction of transit and highway projects – those with a dedicated revenue stream to pay back such investment – tax credits for equity investments are viewed by many transportation stakeholders as only a small part of the solution to our infrastructure investment gap. Stakeholders and even some Members of Congress have made clear that any infrastructure package must include grant funding in addition to finance tools.

Trump’s selection of anti-spending crusader Rep. Rick Mulvaney (R-SC) as the Director of the Office of Management and Budget appears to signal strong fiscal discipline by the next President – in any future infrastructure spending and across the Federal budget – so few expect Trump to propose a large stimulus-style spending bill like the one Congress and President Obama adopted in 2009. House and Senate Republican leaders have publicly stated there must be responsible methods of paying for any infrastructure spending.

With reauthorization of the FAST Act still a few years away, Trump’s still-developing proposal is likely to be seen by many transportation stakeholders as the best opportunity to advance their particular interests. While both Congress and the Trump Administration may have little appetite to take on difficult issues in what Trump has billed as a much-needed investment in America’s infrastructure and economy, some straightforward provisions are likely to travel on this bill. On a broader scale, any infrastructure package could also be an opportunity to secure a long-term revenue solution for the Highway Trust Fund (HTF). By the end of the FAST Act in 2020, HTF revenues will support only 55 percent of authorized spending from the HTF. So many transportation stakeholders view Trump’s large infrastructure investment bill as a well-suited vehicle to address this funding shortfall before the end of 2020. However, the Trust Fund’s systemic revenue shortfall has not become any easier to solve, due to: the growing size of the shortfall; bipartisan objections to raising the federal fuels tax; and little support for scaling back popular infrastructure programs.

While the President-elect prioritized infrastructure investment in his campaign, there are a number of potential impediments to successfully advancing a large infrastructure package. Congressional Republicans have recently identified reform of the Affordable Care Act, tax reform, and regulatory reform as the first proposals they will advance in the 115th Congress – not Trump’s transportation plan.

Another potential impediment is that an infrastructure package is simply not a must-pass bill: the FAST Act is in place until 2020. In 2017, the transportation committees in Congress will be focused on an upcoming Federal Aviation Administration (FAA) reauthorization deadline. The current FAA extension expires September 30, 2017, and reauthorizing aviation programs will likely be a priority for House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA).

One Congressional effort that would build support for infrastructure spending is the return of earmarks. The House is likely to vote on a bill early in 2017 that would reestablish earmarks. In the past, infrastructure bills often enjoyed enormous bipartisan support because many Members were able to secure direct funding for projects in their district or State through earmarking. At this time, it is unclear if earmark supporters have the votes to overturn the earmark ban.

Regulatory Activity

“Drones Over People” Rule Expected Soon

The Federal Aviation Administration (FAA) continues to work on a proposed rule allowing the operation of unmanned aircraft systems (UAS) over people, and has been expected to release the proposed rule before the end of the Obama Administration on January 20, 2017. The proposed “drones over people” rule will significantly expand allowable UAS operations, likely allowing the operation of UAS over individuals that are not directly involved in the operation of the UAS. After the “drones over people” rule is issued, FAA will focus on drafting a propose rule allowing beyond visual-line-of-sight operations. These newly proposed rules follow the final rule on the Operation and Certification of Small Unmanned Aircraft Systems, which went into effect on August 29, 2016.

This Week’s Hearings:

  • On Wednesday, January 11, the Senate Commerce, Science, and Transportation Committee has scheduled a confirmation hearing on the expected nomination of Ms. Elaine Chao to be Secretary of the United States Department of Transportation.

  • On Wednesday, January 11, the Senate Homeland Security and Governmental Affairs Committee has scheduled a confirmation hearing on the expected nomination of General John Kelly to be Secretary of the United States Department of Homeland Security.

  • On Thursday, January 12, the Senate Commerce, Science, and Transportation Committee has scheduled a confirmation hearing on the expected nomination of Mr. Wilbur Ross to be Secretary of the United States Department of Commerce.

ARTICLE BY Timothy W. Drake of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) LLP

Election 2016 Likely to Result in End of ACA as We Know It, But Employers and Plan Sponsors Should Stay Course for Now

affordable care act acaOver the past five years or so, Republican Congressmen have repeatedly taken steps to repeal President Obama’s landmark legislative effort – the Patient Protection and Affordable Care Act (the “ACA”). However, those efforts either failed to advance in Congress or were vetoed by President Obama. Tuesday’s Presidential and Congressional election, in which Donald Trump was elected President and Republicans maintained a Congressional majority in both houses, puts the future of the ACA in jeopardy. Indeed, President-elect Trump and Congressional leaders have already confirmed that repeal of the ACA is a top priority.

Although the ACA is certainly in the crosshairs, the path to outright repeal is not so clear. Republicans have majority control in both chambers of Congress, but they do not have a filibuster-proof supermajority in the Senate. This means that unless Congress changes procedural rules, Democratic Senators can effectively block though filibuster any blanket repeal of the ACA.

So what other options do Congress and President-elect Trump have? First, Congress could invalidate many of the ACA’s revenue-related provisions through budget recollection legislation. This is not a novel approach to effect healthcare legislation – the ACA itself was a product of budget reconciliation legislation passed after Democrats lost their Senate supermajority in 2010. Budget reconciliation legislation cannot be held-up by filibuster, but the subject of the legislation must be related to revenue. Non-revenue related provisions can be struck from this type of legislation.

In 2015, the Republican-controlled Congress passed budget reconciliation legislation to invalidate many of the ACA’s revenue-related provisions. Although that legislation was vetoed by President Obama, it might be used as a template for new legislation once President-elect Trump takes office. Here are some key parts of the 2015 legislation:

  • The individual and employer mandates (and associated reporting requirements) would be repealed.

  • Expansion of Medicaid to electing States would be repealed.

  • The availability of premium and cost-sharing subsidies on the public insurance Marketplace would be repealed.

  • Taxes, such as the “Cadillac Tax”, medical device tax and increased Medicare taxes on high-earners would all be repealed.

Other ACA market reforms, such as first-dollar coverage of preventive healthcare, prohibition on preexisting condition exclusions, prohibition of annual and lifetime limits on certain benefits, and required coverage of dependents through age 26, are generally not related to revenue and probably cannot be included in budget reconciliation legislation.

Second, President-elect Trump could take immediate action to impact agency enforcement of various aspects of the ACA. For example, President-elect Trump could issue a directive to agencies to stop all enforcement of regulations currently in effect under the ACA. In addition, incoming Presidents often take immediate action to stop regulatory efforts in process. This means that proposed and pending regulations would never become effective. At the moment, regulations related to expatriate healthcare coverage and opt-out payments are currently proposed and regulations related to the Cadillac Tax are being drafted. In addition, recently proposed regulations would expand Form 5500 filing requirements to include attestations regarding compliance with the ACA. Presumably, those regulatory efforts would end.

Moreover, a significant part of the ACA’s enforcement infrastructure is found in sub-regulatory guidance – there are 34 interpretive FAQs alone – meaning that there are opportunities for the new administration to take action without significant procedural hurdles. One could surmise that the days of expansive interpretations of the ACA in sub-regulatory guidance are over and, in some cases, prior sub-regulatory guidance would be reversed.

To the extent that the ACA is limited or eliminated by these actions, there is then the question of what stands in its place. Throughout his campaign, President-elect Trump has made clear that he intends not just to repeal the ACA, but also replace it with something new. Concrete details are lacking at the moment, but the following are possible components of his replacement plan:

  • A cap on the employer deduction for health coverage provided to employees.

  • Individuals without employer-provided health coverage would receive a tax credit against the cost of coverage purchased on the individual market. The tax credit would not be an advanced premium credit, but would instead be taken in full when filing income tax returns.

  • Expansion of health savings accounts, including increased contribution limits, and improved price transparency from healthcare providers.

  • Insurance companies would be able to sell policies across state lines.

  • Provide block grants to states for Medicaid.

  • Allow consumer access to imported drugs meeting safety standards.

Ultimately, it is far too early to know exactly what President-elect Trump and the Republican-controlled Congress will do with respect to the repeal of the ACA and the enactment of new health care reform or what the impact of any of those changes will be. Even if the ACA is ultimately repealed in full or in part, it is unlikely to happen on “day one.” Therefore, at least for the time being, employers and plan sponsors should continue operating their health plans in compliance with the ACA.

ARTICLE BY Robert M Projansky, Steven D Weinstein & Damian A Myers of Proskauer Rose LLP
© 2016 Proskauer Rose LLP.

President Donald J. Trump – What Lies Ahead for Privacy, Cybersecurity, e-Communication?

President TrumpFollowing a brutal campaign – one laced with Wikileaks’ email dumps, confidential Clinton emails left unprotected, flurries of Twitter and other social media activity – it will be interesting to see how a Trump Administration will address the serious issues of privacy, cybersecurity and electronic communications, including in social media.

Mr. Trump had not been too specific with many of his positions while campaigning, so it is difficult to have a sense of where his administration might focus. But, one place to look is his campaign website where the now President-elect outlined a vision, summarized as follows:

  • Order an immediate review of all U.S. cyber defenses and vulnerabilities by individuals from the military, law enforcement, and the private sector, the “Cyber Review Team.”

  • The Cyber Review Team will provide specific recommendations for safeguarding with the best defense technologies tailored to the likely threats.

  • The Cyber Review Team will establish detailed protocols and mandatory cyber awareness training for all government employees.

  • Instruct the U.S. Department of Justice to coordinate responses to cyber threats.

  • Develop the offensive cyber capabilities we need to deter attacks by both state and non-state actors and, if necessary, to respond appropriately.

There is nothing new here as these positions appear generally to continue the work of prior administrations in the area of cybersecurity. Perhaps insight into President-elect Trump’s direction in these areas will be influenced by his campaign experiences.

Should we expect a tightening of cybersecurity requirements through new statutes and regulations?

Mr. Trump has expressed a desire to reduce regulation, not increase it. However, political party hackings and unfavorable email dumps from Wikileaks, coupled with continued data breaches affecting private and public sector entities, may prompt his administration and Congress to do more. Politics aside, cybersecurity clearly is a top national security threat, and it is having a significant impact on private sector risk management strategies and individual security. Some additional regulation may be coming.

An important question for many, especially for organizations that have suffered a multi-state data breach, is whether we will see a federal data breach notification standard, one that would “trump” the current patchwork of state laws. With Republicans in control of the executive and legislative branches, at least for the next two years, and considering the past legislative activity in this area, a federal law on data breach notification that supersedes state law does not seem likely.

Should we expect an expansion of privacy rights or other protections for electronic communication such as email or social media communication?

Again, much has been made of the disclosure of private email during the campaign, and President-elect Trump is famous (or infamous) for his use of social media, particularly his Twitter account. For some time, however, many have expressed concern that federal laws such as the Electronic Communications Privacy Act and the Stored Communications Act are in need of significant updates to address new technologies and usage, while others continue to have questions about the application of the Communications Decency Act. We also have seen an increase in scrutiny over the content of electronic communications by the National Labor Relations Board, and more than twenty states have passed laws concerning the privacy of social media and online personal accounts. Meanwhile, the emergence of Big Data, artificial intelligence, IoT, cognitive computing and other technologies continue to spur significant privacy questions about the collection and use of data.

While there may be a tightening of the rules concerning how certain federal employees handle work emails, based on what we have seen, it does not appear at this point that a Trump Administration will make these issues a priority for the private sector.

We’ll just have to wait and see.

ARTICLE BY Joseph J. Lazzarotti of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016