The renomination of Gigi Sohn to the Federal Communications Commission has reignited fervor among both her supporters and her critics.
Even with the Senate's makeup changing slightly following the 2022 midterm elections, the FCC nominee's path to confirmation faces many of the same hurdles that prevented Sohn from joining the commission after President Joe Biden first nominated her in October 2021. Sohn's nomination ultimately failed to make it to the Senate floor for a vote in the previous congressional session.
The commission is currently comprised of two Republican and two Democratic members, meaning it cannot move forward on any regulatory rulemaking without bipartisan support. Sohn would offer a tie-breaking vote as a Democratic commissioner.
 Gigi Sohn, pictured above, was renominated to serve as an FCC commissioner, though her nomination continues to face opposition. Source: Benton Institute for Broadband & Society |
"No other nominee in the FCC's history has had to wait so long for a confirmation vote, and none have been better qualified to serve the needs of the public," said Craig Aaron, co-CEO of the media advocacy group Free Press, in a statement. "The Senate must reject the smear campaign against her and confirm Sohn without delay."
Sohn's nomination has faced opposition from Republican Senators and some Democrats who have cited concerns over some of her past social media posts criticizing FOX News Channel (US) and her association with the now-defunct TV streaming service Locast.
Sen. Ted Cruz, R-Texas, this month voiced his opposition to Sohn, calling her "one of the most radical and ethically compromised nominees I have ever seen during my Senate tenure."
Though Sohn previously underwent two confirmation hearings before the U.S. Senate Committee on Commerce, Science, and Transportation, Cruz said Sohn should be required to return for a third. Notably, Cruz is the incoming ranking member of the committee.
This month, the Fraternal Order of Police National President Patrick Yoes signed a letter to Cruz and Commerce Committee Chairwoman Sen. Maria Cantwell, D-Wash., criticizing Sohn for serving as a board member of the Electronic Frontier Foundation, a California-based digital rights nonprofit. In the letter, Yoes claims EFF has taken extreme stances on law enforcement technologies, particularly of end-to-end encryption and "user-only-access."
End-to-end encryption prevents third parties from accessing data while it moves from one end system or device to another. The message cannot be opened or tampered with by any other entity or service as it travels. The Fraternal Order of Police claims that because service providers have embraced encryption technology that makes the encrypted data completely inaccessible, even to ISPs themselves, police are prevented from obtaining historically accessible information.
The ability of law enforcement agencies to conduct electronic surveillance while preserving the privacy of information outside the scope of the investigation is protected under the Communications Assistance for Law Enforcement Act, a statute enacted by Congress in 1994.
"Law enforcement has long pushed the FCC to expand CALEA's applicability and lobbied Congress to extend the law even further to 'strong' encryption," said Berin Szóka, president at TechFreedom, a D.C. think tank promoting less restrictive guardrails on technology companies. "Like the entire cybersecurity community, Sohn supports strong encryption as the only sure way to protect digital communications from malicious actors and repressive governments."
In an email to S&P Global Market Intelligence, Electronic Frontier Foundation spokesperson Josh Richman wrote "EFF's board members do not set our policy agenda."
If the Senate does not move on Sohn's renomination quickly, Szóka believes lawmakers will face increasing pressure from digital rights groups as a November deadline approaches for initiatives associated with minimizing digital discrimination, which is required by the Infrastructure Investment and Jobs Act. A task force to Prevent Digital Discrimination was formed in February 2022, and at the FCC's March 2022 open meeting, the commission approved a Notice of Inquiry to start a proceeding on these initiatives, which must be completed by November 2023.
"Civil rights groups will insist that a third Democrat be put on the Commission before the November deadline to support a rule regulating disparate impact in broadband deployment, despite significant uncertainty over whether courts would uphold such a rule," Szóka said.
Evan Greer, director of the digital rights group Fight for the Future, said in a statement that the failure to confirm Sohn has repercussions that extend far beyond broadband deployment or even net neutrality.
"The delays are also disastrous for privacy and reproductive rights," she said. "The FCC has significant authority to protect the privacy of people seeking and providing abortions by cracking down on the collection, sale, and sharing of cell phone location data. But right now the agency is sitting on its hands, because it can't do any of these things without a fifth commissioner."