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Can Any AI Legislation Pass Congress This Session?

by on October 17, 2023 · 146 comments

My latest dispatch from the frontlines of the artificial intelligence policy wars in Washington looks at the major proposals to regulate AI. In my new essay, “Artificial Intelligence Legislative Outlook: Fall 2023 Update,” I argue that there are 3 major impediments to getting major AI legislation over the finish line in Congress: (1) Breadth and complexity of the issue; (2) Multiplicity of concerns & special interests; & (3) Extreme rhetoric / proposals are dominating the discussion.

If Congress wants to get something done in this session, they’ll need to do two things: (1) set aside the most radical regulatory proposals (like big new AI agencies or licensing schemes); and (2) break AI policy down into its smaller subcomponents and then prioritize among them where policy gaps might exist.

Prediction: Congress will not pass any AI-related legislation this session due to the factors identified in my essay. The temptation to “go big” with everything-and-the-kitchen-sink approaches to AI regulation will (especially with extreme ideas like new agencies & licenses) will doom AI legislation. It’s also worth noting that Washington’s swelling interest in AI policy is having a crowding-out effect on other important legislative proposals that might have advanced otherwise, such as the baseline privacy bill (ADPPA) and other things like driverless car legislation. Many want to advance those efforts first, but the AI focus makes that hard.

Read the entire essay here.

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Thoughts on the America COMPETES Act: The Most Corporatist & Wasteful Industrial Policy Ever

by on January 26, 2022 · 2 comments

On Tuesday, Nancy Pelosi, Speaker of the U.S. House of Representatives, posted the text of the “America Creating Opportunities for Manufacturing, Pre-Eminence in Technology and Economic Strength Act of 2022,” or “The America COMPETES Act.” As far as industrial policy measures go, the COMPETES Act is one of the most ambitious and expensive central planning efforts in American history. It represents the triumph of top-down, corporatist, techno-mercantilist thinking over a more sensible innovation policy rooted in bottom-up competition, entrepreneurialism, private investment, and free trade.

Unprecedented Planning & Spending

First, the ugly facts: The full text of the COMPETES Act weighs in at a staggering 2,912 pages. A section-by-section “summary” of the measure takes up 109 pages alone. Even the shorter “fact sheet” for the bill is 20 pages long. It is impossible to believe that anyone in Congress has read every provision of this bill. It will be another case of having “to pass the bill so you can find out what’s in it,” as Speaker Pelosi once famously said about another mega-measure.

Of course, a mega bill presents major opportunities for lawmakers to sneak in endless gobs of pork and unrelated policy measures they can’t find any other way to get through Congress. The Senate already passed a similar 2,600-page companion measure last summer, “The U.S. Innovation and Competition Act.” Lawmakers loaded up that measure with so much pork and favors for special interests that Sen. John N. Kennedy (R-La.) labelled the effort an “orgy of spending porn.” Like that effort, the new COMPETES Act includes $52 billion to boost domestic semiconductor production as well as $45 billion in grants and loans to address supply chain issues.

But there are billions allocated for other initiatives, as well as countless provisions addressing other technologies and sectors. The list is seemingly endless and includes: Continue reading →

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Skeptical Takes on Expansive Industrial Policy Efforts

by on March 15, 2021 · 4 comments

[Last updated 3/25/22]

Industrial Policy is a red-hot topic once again with many policymakers and pundits of different ideological leanings lining up to support ambitious new state planning for various sectors — especially 5G, artificial intelligence, and semiconductors. A remarkably bipartisan array of people and organizations are advocating for government to flex its muscle and begin directing more spending and decision-making in various technological areas. They all suggest some sort of big plan is needed, and it is not uncommon for these industrial policy advocates to suggest that hundreds of billions will need to be spent in pursuit of those plans.

Others disagree, however, and I’ll be using this post to catalog some of their concerns on an ongoing basis. Some of the criticisms listed here are portions of longer essays, many of which highlight other types of steps that governments can take to spur innovative activities. Industrial policy is an amorphous term with many definitions of a broad spectrum of possible proposals. Almost everyone believes in  some form of industrial policy if you define the term broadly enough. But, as I argued in a September 2020 essay “On Defining ‘Industrial Policy‘,” I believe it is important to narrow the focus of the term such that we can continue to use the term in a rational way. Toward that end, I believe a proper understanding of industrial policy refers to targeted and directed efforts to plan for specific future industrial outputs and outcomes.

The collection of essays below is merely an attempt to highlight some of the general concerns about the most ambitious calls for expansive industrial policy, many of which harken back to debates I was covering in the late 1980s and early 1990s, when I first started a career in policy analysis. During that time, Japan and South Korea were the primary countries of concern cited by industrial policy advocates. Today, it is China’s growing economic standing that is fueling calls for ambitious state-led targeted investments in “strategic” sectors and technologies. To a lesser extent, grandiose European industrial policy proposals are also prompting new US counter-proposals.

All this activity is what has given rise to many of the critiques listed below. If you have suggestions for other essays I might add to this list, please feel free to pass them along. FYI: There’s no particular order here.

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Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet

by on August 1, 2019 · 3 comments

Sen. Josh Hawley (R-MO) recently delivered remarks at the National Conservatism Conference and a Young America’s Foundation conference in which he railed against political and academic elites, arguing that, “the old era is ending and the old ways will not do.” “It’s time that we stood up to big government, to the people in government who think they know better,” Hawley noted at the YAF event. “[W]e are for free competition… we are for the free market.”

That’s all nice-sounding rhetoric but it sure doesn’t seem to match up with Hawley’s recent essays and policy proposals, which are straight out of the old era’s elitist and highly paternalistic Washington-Knows-Best playbook. Specifically, Hawley has called for a top-down, technocratic regulatory regime for the Internet and the digital economy more generally. Hawley has repeatedly made claims that digital technology companies have gotten a sweetheart deal from government and they they have censored conservative voices. That’s utter nonsense, but those arguments have driven his increasingly fanatic rhetoric and command-and-control policy proposals. If he succeeds in his plan to empower unelected bureaucrats inside the Beltway to reshape the Internet, it will destroy one of the greatest American success stories in recent memory. It’s hard to understand how that could be labelled “conservative” in any sense of the word. Continue reading →

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Liberty and Security in the Proposed Internet of Things Cybersecurity Improvement Act of 2017

by on August 23, 2017 · 3 comments

On August 1, Sens. Mark Warner and Cory Gardner introduced the “Internet of Things  Cybersecurity Improvement Act of 2017.” The goal of the legislation according to its sponsors is to establish “minimum security requirements for federal procurements of connected devices.” Pointing to the growing number of connected devices and their use in prior cyber-attacks, the sponsors aims to provide flexible requirements that limit the vulnerabilities of such networks. Most specifically the bill requires all new Internet of Things (IoT) devices to be patchable, free of known vulnerabilities, and rely on standard protocols. Overall the legislation attempts to increase and standardize baseline security of connected devices, while still allowing innovation in the field to remain relatively permissionless. As Ryan Hagemann[1] at the Niskanen Center states, the bill is generally perceived as a step in the right direction in promoting security while limiting the potential harms of regulation to the overall innovation in the Internet of Things.

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Autonomous Vehicles Under Attack: Cyber Dashboard Standards and Class Action Lawsuits

by on March 14, 2015 · 0 comments

In a recent Senate Commerce Committee hearing on the Internet of Things, Senators Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) “announced legislation that would direct the National highway Traffic Safety Administration (NHTSA) and the Federal Trade Commission (FTC) to establish federal standards to secure our cars and protect drivers’ privacy.” Spurred by a recent report from his office (Tracking and Hacking: Security and Privacy Gaps Put American Drivers at Risk) Markey argued that Americans “need the equivalent of seat belts and airbags to keep drivers and their information safe in the 21st century.”

Among the many conclusions reached in the report, it says, “nearly 100% of cars on the market include wireless technologies that could pose vulnerabilities to hacking or privacy intrusions.” This comes across as a tad tautological given that everything from smartphones and computers to large-scale power grids are prone to being hacked, yet the Markey-Blumenthal proposal would enforce a separate set of government-approved, and regulated, standards for privacy and security, displayed on every vehicle in the form of a “Cyber Dashboard” decal.

Leaving aside the irony of legislators attempting to dictate privacy standards, especially in the post-Snowden world, it would behoove legislators like Markey and Blumenthal to take a closer look at just what it is they are proposing and ask whether such a law is indeed necessary to protect consumers. Continue reading →

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What Privacy Invasion Looks Like

by on October 2, 2010 · 6 comments

The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.

Whether Ravi and Wei acted out of anti-gay animus, titillation about Clementi’s sexual orientation, or simply titillation about sex, their actions were utterly outrageous, offensive, and outside of the bounds of decency. Moreover, according to Middlesex County, New Jersey prosecutors, they were illegal. Ravi and Wei have been charged with invasion of privacy.

This is what invasion of privacy looks like. It’s the outrageous, offensive, truly galling revelation of private facts like what happened in this case. Over the last 120 years, common law tort doctrine has evolved to find that people have a right not to suffer such invasions. New Jersey has apparently enshrined that right in a criminal statute.

The story illustrates how quaint are some of the privacy “invasions” we often discuss, such as the tracking of people’s web surfing by advertising networks. That information is not generally revealed in any meaningful way. It is simply being used to serve tailored ads.

This event also illustrates how privacy law is functioning in our society. It’s functioning fairly well. Law, of course, is supposed to reflect deeply held norms. Privacy norms—like the norm against exposing someone’s sexual activity without consent—are widely shared, so that the laws backing up those norms are rarely violated.

It is probably a common error to believe that law is “working” when it is exercised fairly often, fines and penalties being doled it with some routine. Holders of this view see law—more accurately, legislation—as a tool for shaping society, of course. Many of them would like to end the societal debate about online privacy, establishing a “uniform national privacy standard.” But nobody knows what that standard should be. The more often legal actions are brought against online service providers, the stronger is the signal that online privacy norms are unsettled. That privacy debate continues, and it should.

It is not debatable that what Ravi and Wei did to Tyler Clementi was profoundly wrong. That was a privacy invasion.

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Magid on How to Address Cyberbullying

by on July 15, 2009 · 7 comments

Larry MagidMy friend Larry Magid, the co-director of ConnectSafely.org (with Anne Collier) and founder of SafeKids.com, has a sharp new piece up at CBS News.com entitled, “Stop Cyberbullying with Education,” in which he rightly points out how “we need to be careful with legislation that would outlaw cyberbullying.”  He points out that although cyberbullying is “not an epidemic and it’s not killing our children”:

Bullying has always been a problem among adolescents and, sadly, so has suicide. In the few known cases of suicide after cyberbullying, there are other contributing factors. That’s not to diminish the tragedy or suggest that the cyberbullying didn’t play a role but–as with all online youth risk, we need to look at what else was going on in the child’s life. Even when a suicide or other tragic event doesn’t occur, cyberbullying is often accompanied by a pattern of offline bullying and sometimes there are other issues including long-term depression, problems at home, and self-esteem issues.

He goes on to provide some solid advice:

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Lori Drew Acquitted in Megan Meier Case: What to Do About Cyberbullying?

by on July 2, 2009 · 31 comments

Lori Drew was convicted late last year on charges related to her role in a cruel hoax that led to the tragic suicide of thirteen-year old Megan Meier in Missouri in 2006. But today, at her sentencing, the judge threw out her convictions. Millions around the world were horrified by Megan’s fate, and many will probably be upset that Drew might go unpunished. But we need to separate three questions in this case:

  1. Should the federal anti-hacking law under which she was convicted really be applied in such cases?
  2. What, precisely, was Drew’s involvement?
  3. The key question: What should be done about the general problems of cyberbullying and cyberharassment?

Misuse of the Anti-Hacking Statute

Judge Wu has yet to issue his written opinion but seems to have agreed with the various experts on Internet law who argued that, however tragic the Meier case was, the Computer Fraud & Abuse Act (CFAA) should not have been applied to Drew. Most notably, the Electronic Frontier Foundation filed an Amicus Brief in support of Drew’s motion to dismiss the charges against her—summarized by Groklaw and the Harvard Journal of Law & Technology. Orin Kerr, a leading Internet law professor, felt so strongly about the consequences of using the CFAA to criminalize violations of privately written terms of service that he joined Drew’s defense team. Kerr demonstrated the problems of essentially allowing private parties to create the grounds for criminal offenses (if violated by users) by suggesting obviously ridiculous new terms of service for the Volokh Conspiracy, the group blog he writes on.

Hard as it may be for those who want to “see justice done” in this case, the CFAA just isn’t the right law to apply—which raises the question of whether new laws are needed, discussed below.

Uncertainty About Drew’s Role

The judge may also have been influenced by uncertainty as to Drew’s actual role in the case. Initial coverage of the story suggested that Drew created the fake MySpace persona of a teen boy (“Josh Evans”), then used that profile to woo Meier, a classmate of Drew’s daughter, only to deliberately—and cruelly—break her heart. After Missouri prosecutors and the FBI declined to press charges against Drew, federal prosecutors in California decided to do so, but Drew consistently maintained that it was not her idea to create the account. Continue reading →

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Mike Palage: ICANN 3.0 Should “Refocus” on Original Purpose

by on June 20, 2009 · 21 comments

PFF Adjunct Fellow Mike Palage, who served on the ICANN board from 2003 to 2006, filed these comments (PDF) on the NTIA’s recent Notice of Inquiry regarding ICANN’s future.  Mike’s four key points were as follows:

  1. ICANN’s Periodic Review of its internal operations and supporting organizations has failed, and has become nothing more than a “perpetual motion machine of public comments and documentation producing no meaningful results.” Only a second Evolution and Reform Process can solve ICANN’s current deficiencies;
  2. ICANN must hardcode into its policies and its contracts the principle that its policies cannot supersede national laws;
  3. ICANN must cease any operational role in technical infrastructure as required by its bylaws and focus instead on its mission as a technical coordinator; and
  4. Congress must avoid “kicking the JPA can down the road” and instead provide much-needed leadership by creating a solid foundation for ICANN 3.0 in legislation after proper consultation with the Government Accountability Office.

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