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Cybersecurity: Private Sector Faces Increasing Regulatory Risk From Agency Enforcement and Informal “Guidance” Becoming Standard of Care

Litigation Practice Group Teleforum Thursday, October 15, 03:00 PMFederalist Society Teleforum Conference Call

After Target, Anthem, Sony and Ashley Madison, cybersecurity is at the top of every company and regulator’s list of worries. As Congress considers legislation, the Executive Branch has been implementing a Presidential Executive Order to develop a “voluntary” framework for cybersecurity. The private sector faces a rapidly shifting terrain without clear standards. Agencies are flexing their regulatory muscles to expand oversight through informal guidance and threat of enforcement, as embodied in a recent victory by the FTC in the Wyndham case.

This Teleforum will provide an overview of the cybersecurity trends facing the private sector, and will discuss the implications for predictability, transparency, and innovation. Will the President’s Executive Order, and the NIST Cybersecurity Framework, become the de facto standard for the private sector? Is the federal government regulating through the threat of enforcement by FTC, FCC and other federal agencies, instead of through more regular administrative processes? What should companies make of emerging agency “guidance” from agencies like the FDA, SEC, NHTSA, and DoD, on operations and innovation in areas like the Internet of Things, mobile applications and devices, cloud services, connected cars?

Join us for a lively discussion about these trends and what the private sector faces in 2015 and 2016.


  • Megan Brown, Partner, Wiley Rein LLP
  • Brent McIntosh, Partner, Sullivan & Cromwell LLP
  • Rebecca Seidel, General Counsel, Senate Commerce, Science and Transportation Committee

Net Neutrality Litigation

Litigation Practice Group Teleforum Friday, October 16, 01:00 PMFederalist Society Teleforum Conference Call

After suffering two judicial setbacks, most recently in the D.C. Circuit’s Verizon v. FCC decision in January 2014, the Federal Communications Commission adopted new net neutrality regulations and subjected broadband providers to public utility regulation under Title II of the Communications Act. In a new case, petitioners and intervenors challenging the FCC’s order recently filed their opening briefs outlining their arguments opposing the FCC’s latest attempt to regulate the internet.

In this Teleforum, counsel for two of the net neutrality petitioners and the intervenors will discuss the issues being raised in the D.C. Circuit appeal. The panelists will describe the challenges to the FCC’s authority to regulate the Internet under Title II of the Communications Act and Section 706 of the Telecommunications Act. Is broadband a telecommunications service subject to public utility regulation or is it an information service? Can the FCC adopt rules to regulate the Internet under Section 706? Are broadband providers protected by the First Amendment? How will the Supreme Court’s recent decisions in King v. Burwell and Utility Air Regulatory Group v. EPA, and other constitutionally-rooted canons of statutory construction, affect the net neutrality case? Can the FCC ban paid prioritization of Internet traffic? The panelists will explore these and other issues in this important Teleforum.

  • Brett Shumate, Partner, Wiley Rein LLP
  • Adam J. White, Counsel, Boyden Gray & Associates

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