Time magazine recently declared 2020 “The Worst Year Ever.” By historical standards that may be a bit of hyperbole. For America’s digital technology sector, however, that headline rings true. After a remarkable 25-year run that saw an explosion of innovation and the rapid ascent of a group of U.S. companies that became household names across the globe, politicians and pundits in 2020 declared the party over.

“We now are on the cusp of a new era of tech policy, one in which the policy catches up with the technology,” says Darrell M. West of the Brookings Institution in a recent essay, “The End of Permissionless Innovation.” West cites the House Judiciary Antitrust Subcommittee’s October report on competition in digital markets—where it equates large tech firms with the “oil barons and railroad tycoons” of the Gilded Age—as the clearest sign that politicization of the internet and digital technology is accelerating.

It is hardly the only indication that America is set to abandon permissionless innovation and revisit the era of heavy-handed regulation for information and communication technology (ICT) markets. Equally significant is the growing bipartisan crusade against Section 230, the provision of the 1996 Telecommunications Act that shields “interactive computer services” from liability for information posted or published on their systems by users. No single policy has been more important to the flourishing of online speech or commerce than Sec. 230 because, without it, online platforms would be overwhelmed by regulation and lawsuits.

But now, long knives are coming out for the law, with plenty of politicians and academics calling for it to be gutted. Calls to reform or repeal Sec. 230 were once exclusively the province of left-leaning academics or policymakers, but this year it was conservatives in the White Houseon Capitol Hill and at the Federal Communications Commission (FCC) who became the leading cheerleaders for scaling back or eliminating the law. President Trump railed against Sec. 230 repeatedly on Twitter, and most recently vetoed the annual National Defense Authorization Act in part because Congress did not include a repeal of the law in the measure.

Meanwhile, conservative lawmakers in Congress such as Sens. Josh Hawley and Ted Cruz have used subpoenasangry letters and heated hearings to hammer digital tech executives about their content moderation practices. Allegations of anti-conservative bias have motivated many of these efforts. Even Supreme Court Justice Clarence Thomas questioned the law in a recent opinion.

Other proposed regulatory interventions include calls for new national privacy laws, an “Algorithmic Accountability Act” to regulate artificial intelligence technologies, and a growing variety of industrial policy measures that would open the door to widespread meddling with various tech sectors. Some officials in the Trump administration even pushed for a nationalized 5G communications network in the name of competing with China.

This growing “techlash” signals a bipartisan “Back to the Future” moment, with the possibility of the U.S. reviving a regulatory playbook that many believed had been discarded in history’s dustbin. Although plenty of politicians and pundits are taking victory laps and giving each other high-fives over the impending end of the permissionless innovation era, it is worth considering what America will be losing if we once again apply old top-down, permission slip-oriented policies to the technology sector. Continue reading →

In a five-part series at the American Action Forum, I presented prior to the 2020 presidential election the candidates’ positions on a range of tech policy topics including: the race to 5GSection 230antitrust, and the sharing economy. Now that the election is over, it is time to examine what topics in tech policy will gain more attention and how the debate around various tech policy issues may change. In no particular order, here are five key tech policy issues to be aware of heading into a new administration and a new Congress. 

The Use of Soft Law for Tech Policy 

In 2021, it is likely America will still have a divided government with Democrats controlling the White House and House of Representatives and Republicans expected to narrowly control the Senate. The result of a divided government, particularly between the two houses of Congress, will likely be that many tech policy proposals face logjams. The result will likely be that many of the questions of tech policy lack the legislation or hard law framework that might be desired. As a result, we are likely to continue to see “soft law”—regulation by various sub-regulatory means such as guidance documents, workshops, and industry consultations—rather than formal action. While it appears we will see more formal regulatory action from the administrative state as well in a Biden Administration, these actions require quite a process through comments and formal or informal rulemaking. As technology continues to accelerate, many agencies turn to soft law to avoid “pacing problems” where policy cannot react as quickly as technology and rules may be outdated by the time they go into effect. 

A soft law approach can be preferable to a hard law approach as it is often able to better adapt to rapidly changing technologies. Policymakers in this new administration, however, should work to ensure that they are using this tool in a way that enables innovation and that appropriate safeguards ensure that these actions do not become a crushing regulatory burden. 

Return of the Net Neutrality Debate 

One key difference between President Trump and President-elect Biden’s stances on tech policy concerns whether the Federal Communication Commission (FCC) should categorize internet service providers (ISPs) as Title II “common carrier services,” thereby enabling regulations such as “net neutrality” that places additional requirements on how these service providers can prioritize data. President-elect Biden has been clear in the past that he favors reinstating net neutrality. 

The imposition of this classification and regulations occurred during the Obama Administration and the FCC removed both the classification under Title II and the additional regulations for “net neutrality” during the Trump Administration. Critics of these changes made many hyperbolic claims at the time such as that Netflix would be interrupted or that ISPs would use the freedom in a world without net neutrality to block abortion resources or pro-feminist groups. These concerns have proven to be misguided. If anything, the COVID-19 pandemic has shown the benefits to building a robust internet infrastructure and expanded investment that a light-touch approach has yielded. 

It is likely that net neutrality will once again be debated. Beyond just the imposition of these restrictions, a repeated change in such a key classification could create additional regulatory uncertainty and deter or delay investment and innovation in this valuable infrastructure. To overcome such concerns, congressional action could help fashion certainty in a bipartisan and balanced way to avoid a back-and-forth of such a dramatic nature. 

Debates Regarding Sharing Economy Providers Classification as Independent Contractors 

California voters passed Proposition 22 undoing the misguided reclassification of app-based service drivers as employees rather than independent contractors under AB5; during the campaign, however, President-elect Biden stated that he supports AB5 and called for a similar approach nationwide. Such an approach would make it more difficult on new sharing economy platforms and a wide range of independent workers (such as freelance journalists) at a time when the country is trying to recover economically.  

Changing classifications to make it more difficult to consider service providers as independent contractors makes it less likely that platforms such as Fiverr or TaskRabbit could provide platforms for individuals to offer their skills. This reclassification as employees also misunderstands the ways in which many people choose to engage in gig economy work and the advantages that flexibility has. As my AAF colleague Isabel Soto notes, the national costs of a similar approach found in the Protecting the Right to Organize (PRO) Act “could see between $3.6 billion and $12.1 billion in additional costs to businesses” at a time when many are seeking to recover during the recession. Instead, both parties should look for solutions that continue to allow the benefits of the flexible arrangements that many seek in such work, while allowing for creative solutions and opportunities for businesses that wish to provide additional benefits to workers without risking reclassification. 

Shifting Conversations and Debates Around Section 230 

Section 230 has recently faced most of its criticism from Republicans regarding allegations of anti-conservative bias. President-elect Biden, however, has also called to revoke Section 230 and to set up a taskforce regarding “Online Harassment and Abuse.” While this may seem like a positive step to resolving concerns about online content, it could also open the door to government intervention in speech that is not widely agreed upon and chip away at the liability protection for content moderation. 

For example, even though the Stop Enabling Sex Trafficking Act was targeting the heinous crime of sex trafficking (which was already not subject to Section 230 protection) was aimed at companies such as Backpage where it was known such illegal activity was being conducted, it has resulted in legitimate speech such as Craigslist personal ads being removed  and companies such as Salesforce being subjected to lawsuits for what third parties used their product for. A carveout for hate speech or misinformation would only pose more difficulties for many businesses. These terms to do not have clearly agreed-upon meanings and often require far more nuanced understanding for content moderation decisions. To enforce changes that limit online speech even on distasteful and hateful language in the United States would dramatically change the interpretation of the First Amendment that has ruled such speech is still protected and would result in significant intrusion by the government for it to be truly enforced. For example, in the UK, an average of nine people a day were questioned or arrested over offensive or harassing “trolling” in online posts, messages, or forums under a law targeting online harassment and abuse such as what the taskforce would be expected to consider. 

Online speech has provided new ways to connect, and Section 230 keeps the barriers to entry low. It is fair to be concerned about the impact of negative behavior, but policymakers should also recognize the impact that online spaces have had on allowing marginalized communities to connect and be concerned about the unintended consequences changes to Section 230 could have. 

Continued Antitrust Scrutiny of “Big Tech” 

One part of the “techlash” that shows no sign of diminishing in the new administration or new Congress is using antitrust to go after “Big Tech.” While it remains to be seen if the Biden Department of Justice will continue the current case against Google, there are indications that they and congressional Democrats will continue to go after these successful companies with creative theories of harm that do not reflect the current standards in antitrust. 

Instead of assuming a large and popular company automatically merits competition scrutiny  or attempting to utilize antitrust to achieve policy changes for which it is an ill-fitted tool, the next administration should return to the principled approach of the consumer welfare standard. Under such an approach, antitrust is focused on consumers and not competitors. In this regard, companies would need to be shown to be dominant in their market, abusing that dominance in some ways, and harming consumers. This approach also provides an objective standard that lets companies and consumers know how actions will be considered under competition law. With what is publicly known, the proposed cases against the large tech companies fail at least one element of this test. 

There will likely be a shift in some of the claimed harms, but unfortunately scrutiny of large tech companies and calls to change antitrust laws to go after these companies are likely to continue. 

Conclusion 

There are many other technology and innovation issues the next administration and Congress will see. These include not only the issues mentioned above, but emerging technologies like 5G, the Internet of Things, and autonomous vehicles. Other issues such as the digital divide provide an opportunity for policymakers on both sides of the aisle to come together and have a beneficial impact and think of creative and adaptable solutions. Hopefully, the Biden Administration and the new Congress will continue a light-touch approach that allows entrepreneurs to engage with innovative ideas and continues American leadership in the technology sector. 

Ronald Reagan's presidential portrait, circa 1981With many conservative policymakers and organizations taking a sudden pro-censorial turn and suggesting that government regulation of social media platforms is warranted, it’s a good time for them to re-read President Ronald Reagan’s 1987 veto of Fairness Doctrine legislation. Here’s the key line:

History has shown that the dan­gers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee.

That wisdom is just as applicable today when some conservatives suggest that government intervention is needed to address what they regardless as “bias” or “unfair” treatment on Twitter, Facebook, YouTube, or whatever else. Ignoring the fact that such meddling would likely violate property rights and freedom of contract — principles that most conservatives say they hold dear — efforts to empower the Federal Communications Commission, the Federal Trade Commission, or other regulators would be hugely misguided on First Amendment grounds.

President Reagan understood that there was a better way to approach these issues that was rooted in innovation and First Amendment protections. Here’s hoping that conservatives remember his sage advice. Read his entire veto message here.

Additional Reading:

In his debut essay for the new Agglomerations blog, my former colleague Caleb Watney, now Director of Innovation Policy for the Progressive Policy Institute, seeks to better define a few important terms, including: technology policy, innovation policy, and industrial policy. In the end, however, he decides to basically dispense with the term “industry policy” because, when it comes to defining these terms, “it is useful to have a limiting principle and it’s unclear what the limiting principle is for industrial policy.”

I sympathize. Debates about industrial policy are frustrating and unproductive when people cannot even agree to the parameters of sensible discussion. But I don’t think we need to dispense with the term altogether. We just need to define it somewhat more narrowly to make sure it remains useful.

First, let’s consider how this exact same issue played out three decades ago. In the 1980s, many articles and books featured raging debates about the proper scope of industrial policy. I spent my early years as a policy analyst devouring all these books and essays because I originally wanted to be a trade policy analyst. And in the late 1980s and early 1990s, you could not be a trade policy analyst without confronting industrial policy arguments.

Continue reading →

Interoperability is a topic that has long been of interest to me. How networks, platforms, and devices work with each other–or sometimes fail to–is an important engineering, business, and policy issue. Back in 2012, I spilled out over 5,000 words on the topic when reviewing John Palfrey and Urs Gasser’s excellent book, Interop: The Promise and Perils of Highly Interconnected Systems.

I’ve always struggled with the interoperability issues, however, and often avoided them became of the sheer complexity of it all. Some interesting recent essays by sci-fi author and digital activist Cory Doctorow remind me that I need to get back on top of the issue. His latest essay is a call-to-arms in favor of what he calls “adversarial interoperability.” “[T]hat’s when you create a new product or service that plugs into the existing ones without the permission of the companies that make them,” he says. “Think of third-party printer ink, alternative app stores, or independent repair shops that use compatible parts from rival manufacturers to fix your car or your phone or your tractor.”

Doctorow is a vociferous defender of expanded digital access rights of many flavors and his latest essays on interoperability expand upon his previous advocacy for open access and a general freedom to tinker. He does much of this work with the Electronic Frontier Foundation (EFF), which shares his commitment to expanded digital access and interoperability rights in various contexts.

I’m in league with Doctorow and EFF on some of these things, but also find myself thinking they go much too far in other ways. At root, their work and advocacy raise a profound question: should there be any general right to exclude on digital platforms? Although he doesn’t always come right out and say it, Doctorow’s work often seems like an outright rejection of any sort of property rights in networks or platforms. Generally speaking, he does not want the law to recognize any right for tech platforms to exclude using digital fences of any sort. Continue reading →

Albert Hirschman and the Social Sciences: A Memorial Roundtable – Humanity JournalThis 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 NovakIlya 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.

 

There is a war going on in the conservative movement over free speech issues and FCC Commissioner Mike O’Reilly just became a causality of that skirmish. Neil Chilson and I just posted a new essay about this over on the Federalist Society blog. As we note there:

Plenty of people claim to favor freedom of expression, but increasingly the First Amendment has more fair-weather friends than die-hard defenders. Michael O’Rielly, a Commissioner at the Federal Communications Commission (FCC), found that out the hard way this week.

Last week, O’Rielly delivered an important speech before the Media Institute highlighting a variety of problematic myths about the First Amendment, as well as “a particularly ominous development in this space.” In a previous political era, O’Rielly’s remarks would have been mainstream conservative fare. But his well-worded warnings are timely with many Democrats and Republicans – including some in the White House – looking to resurrect analog-era speech mandates and let Big Government reassert control over speech decisions in the United States.

Shortly after delivering his remarks, the White House yanked O’Rielly’s nomination to be reappointed to the agency. It was a shocking development that was likely motivated by growing animosities between Republicans on the question of how much control the federal government–and the FCC in particular–should exercise over speech platforms, including platforms that the FCC has no authority to regulate.

For the 30 years that I have been covering media and technology policy, I’ve heard conservatives rail against the Fairness Doctrine, Net Neutrality and arbitrary Big Government only to see many of them now reverse suit and become the biggest defenders of these things as it pertains to speech controls and FCC regulation. It will certainly be interesting to see what a potential future Biden Administration does with the various new regulations that some in the GOP are seeking to impose. Continue reading →

“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 →

My thanks to Dr. Wayne Brough, President at Innovation Defense Foundation, for reviewing my new book, Evasive Entrepreneurs and the Future of Governance, over at the AIER website. Brough says of the book:

Adam Thierer has created a thoughtful and surprisingly timely book examining the interplay between entrepreneurs, innovation, and regulators. Thoughtful because he tackles tough questions of innovation and governance in a dynamic market. Timely because the coronavirus pandemic has forced policymakers to seriously reconsider the cumulative regulatory burden and how it may impede the economic recovery. Whether it’s V-shaped or a slower, longer recovery, decades worth of regulatory underbrush has taken its toll on economic activity while providing few, if any, benefits.

He also does a nice job summarizing the key theme of both this latest book and my previous one on Permissionless Innovation:

Thierer takes to task the anti-growth mentality and the political movements against innovation and growth, highlighting the long tradition of hostility toward innovation, from the early 19th-century Luddites up through today’s technophobes advocating restrictions on new technologies such as artificial intelligence. Much of this is driven by the precautionary principle, which Thierer views as an inappropriate guide for regulators. The precautionary principle is a highly risk-averse standard that provides regulators an excuse to stifle innovation for the slightest perceived hazard.

But Dr. Brough rightly takes me to task for not addressing intellectual property issues in either book. He’s right. Continue reading →

Cover of the Pathways DocumentOn July 23rd, the U.S. Department of Transportation (DoT) released Pathways to the Future of Transportation, which was billed as “a policy document that is intended to serve as a roadmap for innovators of new cross modal technologies to engage with the Department.” This guidance document was created by a new body called the Non-Traditional and Emerging Transportation Technology (NETT) Council, which was formed by U.S. Transportation Secretary Elaine L. Chao last year. The NETT Council is described as “an internal deliberative body to identify and resolve jurisdictional and regulatory gaps that may impede the deployment of new technologies.”

The creation of NETT Council and the issuance of its first major report highlight the continued growth of “soft law” as a major governance trend for emerging technology in the US. 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. A partial inventory of soft law methods includes: multistakeholder processes, industry best practices or codes of conduct, technical standards, private certifications, agency workshops and guidance documents, informal negotiations, and education and awareness efforts. But this list of soft law mechanisms is amorphous and ever-changing.

Soft law systems and processes are multiplying at every level of government today: federal, state, local, and even globally. Such mechanisms are being tapped by government bodies today to deal with fast-moving technologies that are evolving faster than the law’s ability to keep up.

The US Department of Transportation has become a leading candidate for Soft Law Central at the federal level. The agency has been tapping a variety of soft law mechanisms and approaches to deal with driverless cars and drone policy issues in particular. (See the essays listed down below for more details).

The NETT Council represents the next wave of this governance trend. We might consider it an effort to bring a greater degree of formality and coordination to the agency’s soft law efforts. Continue reading →