The American Enterprise Institute (AEI) has kicked off a new project called “Digital Platforms and American Life,” which will bring together a variety of scholars to answer the question: How should policymakers think about the digital platforms that have become embedded in our social and civic life? The series, which is being edited by AEI Senior Fellow Adam J. White, highlights how the democratization of knowledge and influence in the Internet age comes with incredible opportunities but also immense challenges. The contributors to this series will approach these issues from various perspectives and also address different aspects of policy as it pertains to the future of technological governance.
It is my honor to have the lead paper in this new series. My 19-page essay is entitled, Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium, and it represents my effort to concisely tie together all my writing over the past 30 years on governance trends for the Internet and related technologies. The key takeaways from my essay are:
Traditional governance mechanisms are being strained by modern technological and political realities. Newer technologies, especially digital ones, are developing at an ever-faster rate and building on top of each other, blurring lines between sectors.
Congress has failed to keep up with the quickening pace of technological change. It also continues to delegate most of its constitutional authority to agencies to deal with most policy concerns. But agencies are overwhelmed too. This situation is unlikely to change, creating a governance gap.
Decentralized governance techniques are filling the gap. Soft law—informal, iterative, experimental, and collaborative solutions—represents the new normal for technological governance. This is particularly true for information sectors, including social media platforms, for which the First Amendment acts as a major constraint on formal regulation anyway.
No one-size-fits-all tool can address the many governance issues related to fast-paced science and technology developments; therefore, decentralized governance mechanisms may be better suited to address newer policy concerns.
My arguments will frustrate many people of varying political dispositions because I adopt a highly pragmatic approach to technological governance. Continue reading →
This is a compendium of readings on “progress studies,” or essays and books which generally make the case for technological innovation, dynamism, economic growth, and abundance. I will update this list as additional material of relevance is brought to my attention.
This month’s Cato Unbound symposium features a conversation about the continuing relevance of Albert Hirschman’s Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States, fifty years after its publication. It was a slender by important book that has influenced scholars in many different fields over the past five decades. The Cato symposium features a discussion between me and three other scholars who have attempted to use Hirschman’s framework when thinking about modern social, political, and technological developments.
My lead essay considers how we might use Hirschman’s insights to consider how entrepreneurialism and innovative activities might be reconceptualized as types of voice and exit. Response essays by Mikayla Novak, Ilya Somin, and Max Borders broaden the discussion to highlight how to think about Hirschman’s framework in various contexts. And then I returned to the discussion this week with a response essay of my own attempting to tie those essays together and extend the discussion about how technological innovation might provide us with greater voice and exit options going forward. Each contributor offers important insights and illustrates the continuing importance of Hirschman’s book.
I encourage you to jump over to Cato Unbound to read the essays and join the conversations in the comments.
“The world should think better about catastrophic and existential risks.” So says a new feature essay in The Economist. Indeed it should, and that includes existential risks associated with emerging technologies.
The primary focus of my research these days revolves around broad-based governance trends for emerging technologies. In particular, I have spent the last few years attempting to better understand how and why “soft law” techniques have been tapped to fill governance gaps. As I noted in this recent post compiling my recent writing on the topic;
soft law refers to informal, collaborative, and constantly evolving governance mechanisms that differ from hard law in that they lack the same degree of enforceability. Soft law builds upon and operates in the shadow of hard law. But soft law lacks the same degree of formality that hard law possess. Despite many shortcomings and criticisms, compared with hard law, soft law can be more rapidly and flexibly adapted to suit new circumstances and address complex technological governance challenges. This is why many regulatory agencies are tapping soft law methods to address shortcomings in the traditional hard law governance systems.
I argued in recent law review articles as well as my latest book, despite its imperfections, I believe that soft law has an important role to play in filling governance gaps that hard law struggles to address. But there are some instances where soft law simply will not cut it. Continue reading →
I was speaking at a conference recently and discussing my life’s work, which for 30 years has been focused on the importance of innovation and intellectual battles over what we mean progress. I put together up a short list of some things I have written over the last few years on this topic and thought I would just re-post them here. I will try to keep this regularly updated, at least for a few years.
A pandemic is no time for bad governance. As the COVID-19 crisis intensified, bureaucrats and elected officials slumbered. Government regulations prevented many in the private sector from helping with response efforts. The result was a sudden surge of evasive entrepreneurialism and technological civil disobedience. With institutions and policies collapsing around them, many people took advantage of cutting‐edge technological capabilities to evade public policies that were preventing practical solutions from emerging.
Examples were everywhere. Distilleries started producing hand sanitizers to address shortages while average folks began sharing do‐it‐yourself sanitizer recipes online. The Food and Drug Administration (FDA) looked to modify hand sanitizer guidelines quickly to allow for it, but few really cared because those rules weren’t going to stop them. Gray markets in face masks, medical face shields, and respirators developed. Some people and organizations worked together to make medical devices using off‐the‐shelf hardware and open source software. More simply, others just fired up sewing machines to make masks—and then, faced with an emerging public health consensus, the guidance from the federal government shifted dramatically: where formerly ordinary people were instructed not to buy or use masks, within a matter of days, the policy reversed, and all were encouraged to make and use cloth protective masks. Continue reading →
Compliance paradox: The situation in which heightened legal or regulatory efforts fail to reverse unwanted behavior and instead lead to increased legal evasion and additional enforcement problems.
Demosclerosis: Growing government dysfunction brought on by the inability of public institutions to adapt to change, especially technological change.
Evasive entrepreneurs: Innovators who do not always conform to social or legal norms.
Free innovation: Bottom-up, noncommercial forms of innovation that often take on an evasive character. Free innovation is sometimes called “grassroots” or “household” innovation or “social entrepreneurialism.” Even though it is typically noncommercial in character, free innovation often involves regulatory entrepreneurialism and technological civil disobedience.
Innovation arbitrage: The movement of ideas, innovations, or operations to jurisdictions that provide legal and regulatory environments most hospitable to entrepreneurial activity. It can also be thought of as a form of jurisdictional shopping and can be facilitated by competitive federalism.
Innovation culture: The various social and political attitudes and pronouncements toward innovation, technology, and entrepreneurial activities that, taken together, influence the innovative capacity of a culture or nation.
Pacing problem: A term that generally refers to the inability of legal or regulatory regimes to keep up with the intensifying pace of technological change.
Permissionless innovation: The general notion that “it’s easier to ask forgiveness than it is to get permission.” As a policy vision, it refers to the idea that experimentation with new technologies and innovations should generally be permitted by default.
Precautionary principle: The practice of crafting public policies to control or limit innovations until their creators can prove that they will not cause any harm or disruptions.
Regulatory entrepreneurs: Evasive entrepreneurs who set out to intentionally challenge and change the law through their innovative activities. In essence, policy change is part of their business model.
Soft law: Informal, collaborative, and constantly evolving governance mechanisms that differ from hard law in that they lack the same degree of enforceability.
Technological civil disobedience: The technologically enabled refusal of individuals, groups, or businesses to obey certain laws or regulations because they find them offensive, confusing, time-consuming, expensive, or perhaps just annoying and irrelevant.
Technologies of freedom: Devices and platforms that let citizens openly defy (or perhaps just ignore) public policies that limit their liberty or freedom to innovate. Another term with the same meaning is “technologies of resistance.”
In coming days and weeks I will be occasionally blogging about different arguments made in the 368-page book, but here’s a quick summary of some of the key points I make in the book. These ten passages are pulled directly from the text:
“the freedom to innovate is essential to human betterment for each of us individually and for civilization as a whole. That freedom deserves to be taken more seriously today.”
“Entrepreneurialism and technological innovation are the fundamental drivers of economic growth and of the incredible advances in the everyday quality of life we have enjoyed over time. They are the key to expanding economic opportunities, choice, and mobility.”
“Unfortunately, many barriers exist to expanding innovation opportunities and our entrepreneurial efforts to help ourselves, our loved ones, and others. Those barriers include occupational licensing rules, cronyism-based industrial protectionist schemes, inefficient tax schemes, and many other layers of regulatory red tape at the federal, state, and local levels. We should not be surprised, therefore, when citizens take advantage of new technological capabilities to evade some of those barriers in pursuit of their right to earn a living, to tinker with or try doing new things, or just to learn about the world and serve it better.”
“Evasive entrepreneurs rely on a strategy of permissionless innovation in both the business world and the political arena. They push back against ‘the Permission Society,’ or the convoluted labyrinth of permits and red tape that often encumber entrepreneurial activities.”
“We should be willing to tolerate a certain amount of such outside-the-box thinking because entrepreneurialism expands opportunities for human betterment by constantly replenishing the well of important, life-enhancing ideas and applications.”
“we should better appreciate how creative acts and the innovations they give rise to can help us improve government by keeping public policies fresh, sensible, and in line with common sense and the consent of the governed.”
“Evasive entrepreneurialism is not so much about evading law altogether as it is about trying to get interesting things done, demonstrating a social or an economic need for new innovations in the process, and then creating positive leverage for better results when politics inevitably becomes part of the story. By acting as entrepreneurs in the political arena, innovators expand opportunities for themselves and for the public more generally, which would not have been likely if they had done things by the book.”
“Dissenting through innovation can help make public officials more responsive to the people by reining in the excesses of the administrative state, making government more transparent and accountable, and ensuring that our civil rights and economic liberties are respected.”
“In an age when many of the constitutional limitations on government power are being ignored or unenforced, innovation itself can act as a powerful check on the power of the state and can help serve as a protector of important human liberties.”
“Lawmakers and regulators need to consider a balanced response to evasive entrepreneurialism that is rooted in the realization that technology creators and users are less likely to seek to evade laws and regulations when public policies are more in line with common sense.”
Congress has become a less important player in the field of technology policy. Why did that happen, and what are the ramifications for technological governance efforts going forward?
I’ve spent almost 30 years covering technology policy. There was a time in my life when I spent almost all my time as a policy analyst preoccupied with developments in the federal legislative arena. I lived in the trenches of Capitol Hill and interacted with lawmakers and their staff morning, noon, and night.
In recent years, however, I have spent very little time focused on the Legislative Branch because it has effectively become a non-actor on technology policy. It is not that congressional lawmakers stopped caring about tech policy. Interest actually remains quite high—perhaps higher than ever before. Congress also continues to introduce lots of bills, host plenty of hearings, and issue mountains of press releases related to tech policy issues.
Nonetheless, all that interest and activity has not really translated into much important legislation. Continue reading →
I became a little bit more of a cyborg this month with the addition of two new eyes—eye lenses, actually. Before I had even turned 50, the old lenses that Mother Nature gave me were already failing due to cataracts. But after having two operations this past month and getting artificial lenses installed, I am seeing clearly again thanks to the continuing miracles of modern medical technology.
Cataracts can be extraordinarily debilitating. One day you can see the world clearly, the next you wake up struggling to see through a cloudy ocular soup. It is like looking through a piece of cellophane wrap or a continuously unfocused camera.
If you depend on your eyes to make a living as most of us do, then cataracts make it a daily struggle to get even basic things done. I spend most of my time reading and writing each workday. Once the cataracts hit, I had to purchase a half-dozen pair of strong reading glasses and spread them out all over the place: in my office, house, car, gym bag, and so on. Without them, I was helpless.
Reading is especially difficult in dimly lit environments, and even with strong glasses you can forget about reading the fine print on anything. Every pillbox becomes a frightening adventure. I invested in a powerful magnifying glass to make sure I didn’t end up ingesting the wrong things.
For those afflicted with particularly bad cataracts, it becomes extraordinarily risky to drive or operate machinery. More mundane things—watching TV, tossing a ball with your kid, reading a menu at many restaurants, looking at art in a gallery—also become frustrating. Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
Congress has become a less important player in the field of technology policy. Why did that happen, and what are the ramifications for technological governance efforts going forward?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.