Technopanics & the Precautionary Principle

Yesterday, the Article 29 Data Protection Working Party issued a press release providing more detailed guidance on how it would like to see Europe’s so-called “right to be forgotten” implemented and extended. The most important takeaway from the document was that, as Reuters reported, “European privacy regulators want Internet search engines such as Google and Microsoft’s Bing to scrub results globally.” Moreover, as The Register reported, the press release made it clear that “Europe’s data protection watchdogs say there’s no need for Google to notify webmasters when it de-lists a page under the so-called “right to be forgotten” ruling.” (Here’s excellent additional coverage from Bloomberg: Said to Face EU Right-to-Be-Forgotten Rules“). These actions make it clear that European privacy regulators hope to expand the horizons of the right to be forgotten in a very significant way.

The folks over at Marketplace radio asked me to spend a few minutes with them today discussing the downsides of this proposal. Here’s the quick summary of what I told them: Continue reading →

In my previous essay, I discussed a new white paper by my colleague Robert Graboyes, Fortress and Frontier in American Health Care, which examines the future of medical innovation. Graboyes uses the “fortress vs frontier” dichotomy to help explain different “visions” about how public policies debates about technological innovation in the health care arena often play out.  It’s a terrific study that I highly recommend for all the reasons I stated in my previous post.

As I was reading Bob’s new report, I realized that his approach shared much in common with a couple of other recent innovation policy paradigms I have discussed here before from Virginia Postrel (“Stasis” vs. “Dynamism”), Robert D. Atkinson (“Preservationists” vs. “Modernizers”), and myself (“Precautionary Principle” vs. “Permissionless Innovation”). In this essay, I will briefly relate Bob’s’ approach to those other three innovation policy paradigms and then note a deficiency with our common approaches. I’ll conclude by briefly discussing another interesting framework from science writer Joel Garreau. Continue reading →

Evan Selinger, a super-sharp philosopher of technology up at the Rochester Institute of Technology, is always alerting me to interesting new essays and articles and this week he brought another important piece to my attention. It’s a short new article by Arturo Casadevall, Don Howard, and Michael J. Imperiale, entitled, “The Apocalypse as a Rhetorical Device in the Influenza Virus Gain-of-Function Debate.” The essay touches on something near and dear to my own heart: the misuse of rhetoric in debates over the risk trade-offs associated with new technology and inventions. Casadevall, Howard, and Imperiale seek to “focus on the rhetorical devices used in the debate [over infectious disease experiments] with the hope that an analysis of how the arguments are being framed can help the discussion.”

They note that “humans are notoriously poor at assessing future benefits and risks” and that this makes many people susceptible to rhetorical ploys based on the artificial inflation of risks. Their particular focus in this essay is the debate over so-called “gain-of-function” (GOF) experiments involving influenza virus, but what they have to say here about how rhetoric is being misused in that field is equally applicable to many other fields of science and the policy debates surrounding various issues. The last two paragraphs of their essay are masterful and deserve everyone’s attention: Continue reading →

Last week, I participated in a program co-sponsored by the Progressive Policy Institute, the Lisbon Council, and the Georgetown Center for Business and Public Policy on “Growing the Transatlantic Digital Economy.”

The complete program, including keynote remarks from EU VP Neelie Kroes and U.S. Under Secretary of State Catherine A. Novelli, is available below.

My remarks reviewed worrying signs of old-style interventionist trade practices creeping into the digital economy in new guises, and urged traditional governments to stay the course (or correct it) on leaving the Internet ecosystem largely to its own organic forms of regulation and market correctives: Continue reading →

According to this article by Julian Hattem in The Hill (“Lawmakers warn in-flight calls could lead to fights“), 77 congressional lawmakers have sent a letter to the heads of four federal agencies warning them not to allow people to have in-flight cellphone conversations on the grounds that it “could lead to heated arguments among passengers that distract officials’ attention and make planes less safe.”  The lawmakers say “arguments in an aircraft cabin already start over mundane issues, like seat selection and overhead bin space, and the volume and pervasiveness of voice communications would only serve to exacerbate and escalate these disputes.” They’re also concerned that it may distract passengers from important in-flight announcements.

Well, I think I speak for a lot of other travelers when I say I find the idea of gabby passengers — whether on a phone or just among themselves — insanely annoying. For those of us who value peace and quiet and find airline travel to be among the most loathsome of experiences to begin with, it might be tempting to sympathize with this letter and just say, “Sure, go ahead and make this a federal problem and solve this for us with an outright ban.”

But isn’t there a case to be made here for differentiation and choice over yet another one-size-fits all mandate? Why must we have federal lawmakers or bureaucrats dictating that every flight be the same? I don’t get that. After all, enough of us would be opposed to in-flight calls that we would likely pressure airlines to not offer many of them. But perhaps a few flights or routes might be “business traveler”-oriented and offer this option to those who do. Or perhaps some airlines would restrict calling to certain areas of the cabin, or limit when the calls could occur. Continue reading →

drone picToday, Ryan Hagemann and I filed comments with the Federal Aviation Administration (FAA) in its proceeding on the “Interpretation of the Special Rule for Model Aircraft.” This may sound like a somewhat arcane topic but it is related to the ongoing policy debate over the integration of unmanned aircraft systems (UASs)—more commonly referred to as drones—into the National Airspace System. As part of the FAA Modernization and Reform Act of 2012, Congress required the FAA to come up with a plan by September 2015 to accomplish that goal. As part of that effort, the FAA is currently accepting comments on its enforcement authority over model aircraft. Because the distinction between “drones” and “model aircraft” is blurring rapidly, the outcome of this proceeding could influence the outcome of the broader debate about drone policy in the United States.

In our comment to the agency, Hagemann and I discuss the need for the agency to conduct a thorough review of the benefits and costs associated with this rule. We argue this is essential because airspace is poised to become a major platform for innovation if the agency strikes the right balance between safety and innovation. To achieve that goal, we stress the need for flexibility and humility in interpreting older standards, such as “line of sight” restrictions, as well as increasingly archaic “noncommercial” vs. “commercial” distinctions or “hobbyists” vs. “professional” designations.

We also highlight the growing tension between the agency’s current regulatory approach and the First Amendment rights of the public to engage in peaceful, information-gathering activities using these technologies. (Importantly, on that point, we attached to our comments a new Mercatus Center working paper by Cynthia Love, Sean T. Lawson, and Avery Holton entitled, “News from Above: First Amendment Implications of the Federal Aviation Administration Ban on Commercial Drones.” See my coverage of the paper here.)

Finally, Hagemann and I close by noting the important role that voluntary self-regulation and codes of conduct already play in governing proper use of these technologies. We also argue that other “bottom-up” remedies are available and should be used before the agency imposes additional restrictions on this dynamic, rapidly evolving space.

You can download the complete comment on the Mercatus Center website here. (Note: The Mercatus Center filed comments with the FAA earlier about the prompt integration of drones into the nation’s airspace. You can read those comments here.)

Continue reading →

If there are two general principles that unify my recent work on technology policy and innovation issues, they would be as follows. To the maximum extent possible:

  1. We should avoid preemptive and precautionary-based regulatory regimes for new innovation. Instead, our policy default should be innovation allowed (or “permissionless innovation”) and innovators should be considered “innocent until proven guilty” (unless, that is, a thorough benefit-cost analysis has been conducted that documents the clear need for immediate preemptive restraints).
  2. We should avoid rigid, “top-down” technology-specific or sector-specific regulatory regimes and/or regulatory agencies and instead opt for a broader array of more flexible, “bottom-up” solutions (education, empowerment, social norms, self-regulation, public pressure, etc.) as well as reliance on existing legal systems and standards (torts, product liability, contracts, property rights, etc.).

I was very interested, therefore, to come across two new essays that make opposing arguments and proposals. The first is this recent Slate oped by John Frank Weaver, “We Need to Pass Legislation on Artificial Intelligence Early and Often.” The second is Ryan Calo’s new Brookings Institution white paper, “The Case for a Federal Robotics Commission.”

Weaver argues that new robot technology “is going to develop fast, almost certainly faster than we can legislate it. That’s why we need to get ahead of it now.” In order to preemptively address concerns about new technologies such as driverless cars or commercial drones, “we need to legislate early and often,” Weaver says. Stated differently, Weaver is proposing “precautionary principle”-based regulation of these technologies. The precautionary principle generally refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

Calo argues that we need “the establishment of a new federal agency to deal with the novel experiences and harms robotics enables” since there exists “distinct but related challenges that would benefit from being examined and treated together.” These issues, he says, “require special expertise to understand and may require investment and coordination to thrive.

I’ll address both Weaver and Calo’s proposals in turn. Continue reading →

Driverless CarI’m pleased to announce that the Mercatus Center at George Mason University has just released my latest working paper, “Removing Roadblocks to Intelligent Vehicles and Driverless Cars.” This paper, which was co-authored with Ryan Hagemann, has been accepted for publication in a forthcoming edition of the Wake Forest Journal of Law & Policy.

In the paper, Hagemann and I explore the growing market for both “connected car” technologies as well as autonomous (or “driverless”) vehicle technology. We argue that intelligent-vehicle technology will produce significant benefits. Most notably, these technologies could save many lives. In 2012, 33,561 people were killed and 2,362,000 injured in traffic crashes, largely as a result of human error. Reducing the number of accidents by allowing intelligent vehicle technology to flourish would constitute a major public policy success. As Philip E. Ross noted recently at IEEE Spectrum, thanks to these technologies, “eventually it will be positively hard to use a car to hurt yourself or others.” The sooner that day arrives, the better.

These technologies could also have positive environmental impacts in the form of improved fuel economy, reduced traffic congestion, and reduced parking needs. They might also open up new mobility options for those who are unable to drive, for whatever reason. Any way you cut it, these are exciting technologies that promise to substantially improve human welfare.

Of course, as with any new disruptive technology, connected cars and driverless vehicles raise a variety of economic, social, and ethical concerns. Hagemann and I address some of the early policy concerns about these technologies (safety, security, privacy, liability, etc.) and we outline a variety of “bottom-up” solutions to ensure that innovation continues to flourish in this space. Importantly, we also argue that policymakers should keep in mind that individuals have gradually adapted to similar disruptions in the past and, therefore, patience and humility are needed when considering policy for intelligent-vehicle systems. Continue reading →

There’s a small but influential number of tech reporters and scholars who seem to delight in making the US sound like a broadband and technology backwater. A new Mercatus working paper by Roslyn Layton, a PhD fellow at a research center at Aalborg University, and Michael Horney a researcher at the Free State Foundation, counter that narrative and highlight data from several studies that show the US is at or near the top in important broadband categories.

For example, per Pew and ITU data, the vast majority of Americans use the Internet and the US is second in the world in data consumption per capita, trailing only South Korea. Pew reveals that for those who are not online the leading reasons are lack of usability and the Internet’s perceived lack of benefits. High cost, notably, is not the primary reason for infrequent use.

I’ve noted before some of the methodological problems in studies claiming the US has unusually high broadband prices. In what I consider their biggest contribution to the literature, Layton and Horney highlight another broadband cost frequently omitted in international comparisons: the mandatory media license fees many nations impose on broadband and television subscribers.

These fees can add as much as $44 to the monthly cost of broadband. When these fees are included in comparisons, American prices are frequently an even better value. In two-thirds of European countries and half of Asian countries, households pay a media license fee on top of the subscription fees to use devices such as connected computers and TVs.

…When calculating the real cost of international broadband prices, one needs to take into account media license fees, taxation, and subsidies. …[T]hese inputs can materially affect the cost of broadband, especially in countries where broadband is subject to value-added taxes as high as 27 percent, not to mention media license fees of hundreds of dollars per year.

US broadband providers, the authors point out, have priced broadband relatively efficiently for heterogenous uses–there are low-cost, low-bandwidth connections available as well as more expensive, higher-quality connections for intensive users.

Further, the US is well-positioned for future broadband use. Unlike many wealthy countries, Americans typically have access, at least, to broadband from telephone companies (like AT&T DSL or UVerse) as well as from a local cable provider. Competition between ISPs has meant steady investment in network upgrades, despite the 2008 global recession. The story is very different in much of Europe, where broadband investment, as a percentage of the global total, has fallen noticeably in recent years. US wireless broadband is also a bright spot: 97% of Americans can subscribe to 4G LTE while only 26% in the EU have access (which partially explains, by the way, why Europeans often pay less for mobile subscriptions–they’re using an inferior product).

There’s a lot to praise in the study and it’s necessary reading for anyone looking to understand how US broadband policy compares to other nations’. The fashionable arguments that the US is at risk of falling behind technologically were never convincing–the US is THE place to be if you’re a tech company or startup, for one–but Layton and Horney show the vulnerability of that narrative with data and rigor.

How is it that we humans have again and again figured out how to assimilate new technologies into our lives despite how much those technologies “unsettled” so many well-established personal, social, cultural, and legal norms?

In recent years, I’ve spent a fair amount of time thinking through that question in a variety of blog posts (“Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society”), law review articles (“Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle”), opeds (“Why Do We Always Sell the Next Generation Short?”), and books (See chapter 4 of my new book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom”).

It’s fair to say that this issue — how individuals, institutions, and cultures adjust to technological change — has become a personal obsession of mine and it is increasingly the unifying theme of much of my ongoing research agenda. The economic ramifications of technological change are part of this inquiry, of course, but those economic concerns have already been the subject of countless books and essays both today and throughout history. I find that the social issues associated with technological change — including safety, security, and privacy considerations — typically get somewhat less attention, but are equally interesting. That’s why my recent work and my new book narrow the focus to those issues. Continue reading →