Is the tech industry poised for an uptick in congressional investigations? – Publications

With Democrats controlling the executive branch and the U.S. Senate and Republicans controlling the House of Representatives, there are deep divisions​​​​​​​​in the U.S. government over issues affecting the technology industry. As a result, Congress spends less time on legislation and more time on research. Many of the investigations are focused on specific companies operating in the technology space, with a recent trend of those companies being mentioned by name in the title of the congressional hearings. Morgan Lewis attorneys detail some of the trends in congressional investigations and investigations in the technology industry and the practical considerations for companies faced with responding to Congressional requests.

Congressional Authority

Congressional authority is often questioned when a company or executive is served with a congressional request or subpoena. The answer to the question “May they ask for this?” is unclear “Yes.” Congress’s power to investigate is implied in Article I of the Constitution, and the Supreme Court has upheld Congress’s authority to investigate, hold hearings, and subpoena documents and testimony. The authority of Congress is coterminous with its authority to legislate—to make laws and to oversee that the laws are effectively and efficiently administered. Congressional investigations and oversight have been exercised throughout the history of the US government.

It is important to seek advice when receiving such an inquiry to ensure that you are fully aware of all legal risks, including those safeguards for the congressional investigation process – including criminal, civil and administrative enforcement.

Trends to watch in technical surveys

• Artificial intelligence is still an evolving technology, so some of the congressional investigations may gather more information than enforcement actions.
• Congress has debated how to regulate data privacy, freedom of speech and general oversight of Big Tech for some time and is still divided on how consumer privacy will be enforced or protected by legislation.
• There is ongoing antitrust scrutiny on companies for favoring their own products or requiring outside vendors to use their apps.
• Labor takes a front seat in many government decisions these days. Congress is taking a tougher look at technology companies’ labor practices, especially over union organizing.

Practical considerations

How to best work together:

• Assess personalities, motivations and focus of the research.
• Get everyone out of the “can they do this” mindset.
• Play the game and be friendly.
• Never underestimate members or their staff.
• Confirm survey immediately and try to prepare the schedule.
• Seek negotiated accommodations/compromises.
• Meetings with staff can help.
• Open political campaigning to derail research will not help.

How to best coordinate:

• Ensure all stakeholders (legal, communications/PR, government relations) are appropriately involved in the response.
• Identify related legal and reputational risks (political/legislative, criminal, civil and administrative).
• Ensure all relevant stakeholders coordinate internal and external messaging.

How to make the best:

• Develop a proactive response plan now to determine who will respond and how they will coordinate with all relevant stakeholders. It is important to have a robust internal communications plan to ensure that appropriate individuals know the plan and their roles within it. As part of that plan, develop proactive monitoring of congressional and media outlets.

More information on congressional research trends in the tech industry can be found in the Technology Marathon section.