future – Technology Liberation Front https://techliberation.com Keeping politicians' hands off the Net & everything else related to technology Mon, 16 Oct 2023 17:33:58 +0000 en-US hourly 1 6772528 3 Questions about Progress: The Profectus Progress Roundtable https://techliberation.com/2022/06/15/3-questions-about-the-progress-the-profectus-progress-roundtable/ https://techliberation.com/2022/06/15/3-questions-about-the-progress-the-profectus-progress-roundtable/#respond Wed, 15 Jun 2022 17:10:56 +0000 https://techliberation.com/?p=77002

Profectus is an excellent new online magazine featuring essays and interviews on the intersection of academic literature, public policy, civilizational progress, and human flourishing. The Spring 2022 edition of the magazine features a “Progress Roundtable” in which six different scholars were asked to contribute their thoughts on three general questions:
  1. What is progress?
  2. What are the most significant barriers holding back further progress?
  3. If those challenges can be overcome, what does the world look like in 50 years?

I was honored to be asked by Clay Routledge to contribute answers to those questions alongside others, including: Steven Pinker (Harvard University), Jason Crawford (Roots of Progress), Matt Clancy (Institute for Progress), Marian Tupy (Human​Progress​.org), James Pethokoukis (AEI). I encourage you to jump over the roundtable and read all their excellent responses. I’ve included my answers down below:

What is progress?

Progress is the advancement of human health, happiness, and general well-being. Measures of well-being can be challenging, however, so we should consider a broad range of metrics, including: life expectancy, infant mortality, poverty measures, energy production/consumption, GDP, productivity, agricultural yields/nourishment, and access to various important goods, services, and conveniences. While each of these metrics may have limitations, taken together, they stand for something meaningful that represents a rough proxy for progress.

But we should always remember what progress means at a deeper level for every individual. Innovation and economic growth are important because they allow us to live lives of our own choosing and enjoy the fruits of a prosperous, pluralistic society.  Progress “is not just bigger piles of money,” as Hans Rosling once noted. “The ultimate goal is to have the freedom to do what we want.”  Accordingly, we should aim to broaden the range of opportunities available to all people to help them flourish.

What are the most significant barriers holding back further progress?

The most significant threat to continued progress is the risk of stagnation accompanying efforts to protect the status quo. As Virginia Postrel taught us in her wonderful book The Future & Its Enemies, we should reject stasis-minded thinking and instead shoot for a world of dynamism, which cherishes and protects the freedom to think and act differently.

Progress hinges upon the growth of knowledge. Knowledge comes from experience, and the most important experiences involve trial-and-error learning. Public attitudes and policies that restrict people and ideas from intermingling freely are a recipe for intellectual, social, and economic stagnation. Accordingly, when we consider public policies toward progress, we should first seek to identify and remove legal and regulatory impediments that limit risk-taking, entrepreneurialism, and technological innovation. As science writer Matt Ridley provocatively puts it, to unlock more growth and prosperity, we must first remove obstacles to “ideas having sex.”

The free movement of people and capital is essential to this process. Openness to immigration is the easiest way for a nation to expand its potential for innovation and growth. But domestic labor skills and mobility are equally important. For entrepreneurs and workers, we need to reframe the battle for progress as “the freedom to innovate” and “the right to earn a living.”

Unfortunately, many barriers exist to advancing those goals, like occupational licensing rules and permitting processes, cronyist industrial protectionist schemes, inefficient tax schemes, and many other layers of regulatory red tape. Reforming or eliminating such rules is crucial for broadening opportunities.

Finally, we need to address cultural barriers to progress. Technology and entrepreneurs often get a bad rap in the media and popular culture. Fear and pessimism dominate their narratives. We must do a better job communicating the benefits of openness to change and give people more reasons to be optimistic about a dynamic future.

If those challenges can be overcome, what does the world look like in 50 years?

I agree with Yogi Berra that “It’s tough to make predictions, especially about the future.” Nonetheless, history shows we can achieve remarkable things when we get the prerequisites for progress right and let people tap into their inherent inquisitiveness and inventiveness. Moving the needle on innovation and growth even just a little will yield compounding returns to future generations. But we should dare to dream bigger and think what progress means for each person today and in the future.

A pro-progress agenda will help us lead longer lives and significantly expand our capabilities because that is what people have always desired most. Accordingly, I believe the most significant advance of the next 50 years will be a radical increase in life expectancy and dramatic improvements in our physical and mental capabilities while we are alive.

Today’s tech critics often claim that technological innovation somehow undermines our humanity. They couldn’t be more wrong. There are few things more human than acts of invention. When we take steps to address practical human needs and wants, we enrich our lives and the lives of countless others. The future will be wonderful, so long as we are free to make it so.

]]> https://techliberation.com/2022/06/15/3-questions-about-the-progress-the-profectus-progress-roundtable/feed/ 0 77002 The Proper Governance Default for AI https://techliberation.com/2022/05/26/the-proper-governance-default-for-ai/ https://techliberation.com/2022/05/26/the-proper-governance-default-for-ai/#comments Thu, 26 May 2022 20:15:21 +0000 https://techliberation.com/?p=76994

[This is a draft of a section of a forthcoming study on “A Flexible Governance Framework for Artificial Intelligence,” which I hope to complete shortly. I welcome feedback. I have also cross-posted this essay at Medium.]

Debates about how to embed ethics and best practices into AI product design is where the question of public policy defaults becomes important. To the extent AI design becomes the subject of legal or regulatory decision-making, a choice must be made between two general approaches: the precautionary principle or the proactionary principle.[1] While there are many hybrid governance approaches in between these two poles, the crucial issue is whether the initial legal default for AI technologies will be set closer to the red light of the precautionary principle (i.e., permissioned innovation) or to the green light of the proactionary principle (i.e., (permissionless innovation). Each governance default will be discussed.

The Problem with the Precautionary Principle as the Policy Default for AI

The precautionary principle holds that innovations are to be curtailed or potentially even disallowed until the creators of those new technologies can prove that they will not cause any theoretical harms. The classic formulation of the precautionary principle can be found in the “Wingspan Statement,” which was formulated at an academic conference that took place at the Wingspread Conference Center in Wisconsin in 1998. It read: “Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.”[2] There have been many reformulations of the precautionary principle over time but, as legal scholar Cass Sunstein has noted, “in all of them, the animating idea is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition.”[3] Put simply, under almost all varieties of the precautionary principle, innovation is treated as “guilty until proven innocent.”[4] We can also think of this as permissioned innovation.

The logic animating the precautionary principle reflects a well-intentioned desire to play it safe in the face of uncertainty. The problem lies in the way this instinct gets translated into law and regulation. Making the precautionary principle the public policy default for any given technology or sector has a strong bearing on how much innovation we can expect to flow from it. When trial-and-error experimentation is preemptively forbidden or discouraged by law, it can limit many of the positive outcomes that typically accompany efforts by people to be creative and entrepreneurial. This can, in turn, give rise to different risks for society in terms of forgone innovation, growth, and corresponding opportunities to improve human welfare in meaningful ways.

St. Thomas Aquinas once observed that if the sole goal of a captain were to preserve their ship, the captain would keep it in port forever. But that clearly is not the captain’s highest goal. Aquinas was making a simple but powerful point: There can be no reward without some effort and even some risk-taking. Ship captains brave the high seas because they are in search of a greater good, such as recognition, adventure, or income. Keeping ships in port forever would preserve their vessels, but at what cost?

Similarly, consider the wise words of Wilbur Wright, who pioneered human flight. Few people better understood the profound risks associated with entrepreneurial activities. After all, Wilbur and his brother were trying to figure out how to literally lift humans off the Earth. The dangers were real, but worth taking. “If you are looking for perfect safety,” Wright said, “you would do well to sit on a fence and watch the birds.” Humans would have never taken to the skies if the Wright brothers had not gotten off the fence and taken the risks they did. Risk-taking drives innovation and, over the long-haul, improves our well-being.[5] Nothing ventured, nothing gained.

These lessons can be applied to public policy by considering what would happen if, in the name of safety, public officials told captains to never leave port or told aspiring pilots to never leave the ground. The opportunity cost of inaction can be hard to quantify, but it should be clear that if we organized our entire society around a rigid application of the precautionary principle, progress and prosperity would suffer.

Heavy-handed preemptive restraints on creative acts can have deleterious effects because they raise barriers to entry, increase compliance costs, and create more risk and uncertainty for entrepreneurs and investors. Thus, it is the unseen costs—primarily in the form of forgone innovation opportunities—that makes the precautionary principle so problematic as a policy default. This is why scientist Martin Rees speaks of “the hidden cost of saying no” that is associated with the precautionary principle.[6]

The precise way the precautionary principle leads to this result is that it derails the so-called learning curve by limiting opportunities to learn from trial-and-error experimentation with new and better ways of doing things.[7] The learning curve refers to the way that individuals, organizations, or industries are able to learn from their mistakes, improve their designs, enhance productivity, lower costs, and then offer superior products based on the resulting knowledge.[8] In his recent book, Where Is My Flying Car?, J. Storrs Hall documents how, over the last half century, “regulation clobbered the learning curve” for many important technologies in the U.S., especially nuclear, nanotech, and advanced aviation.[9] Hall shows how society was denied many important innovations due to endless foot-dragging or outright opposition to change from special interests, anti-innovation activists, and over-zealous bureaucrats.

In many cases, innovators don’t even know what they are up against because, as many scholars have noted, “the precautionary principle, in all of its forms, is fraught with vagueness and ambiguity.”[10] It creates confusion and fear about the wisdom of taking action in the face of uncertainty. Worst case thinking paralyzes regulators who aim to “play it safe” at all costs. The result is an endless snafu of red tape as layer upon layer of mandates build up and block progress. The result is what many scholars now decry as a culture of “vetocracy,” which describes the many veto points within modern political systems that hold back innovation, development and economic opportunity.[11] This endless accumulation of potential veto points in the policy process in the form of mandates and restrictions can greatly curtail innovation opportunities. “Like sediment in a harbor, law has steadily accumulated, mainly since the 1960s, until most productive activity requires slogging through a legal swamp,” says Philip K. Howard, chair of Common Good.[12] “Too much law,” he argues, “can have similar effects as too little law,” because:

People slow down, they become defensive, they don’t initiate projects because they are surrounded by legal risks and bureaucratic hurdles. They tiptoe through the day looking over their shoulders rather than driving forward on the power of their instincts. Instead of trial and error, they focus on avoiding error.[13]

This is exactly why it is important that policymakers not get too caught up in attempts to preemptively resolve every potential hypothetical worst case scenarios associated with AI technologies. The problem with that approach was succinctly summarized by the political scientist Aaron Wildavsky when he noted, “If you can do nothing without knowing first how it will turn out, you cannot do anything at all.”[14] Or, as I have stated in a book on this topic, “living in constant fear of worst-case scenarios—and premising public policy on them—means that best-case scenarios will never come about.”[15]

This does not mean society should dismiss all concerns about the risks surrounding AI. Some technological risks do necessitate a degree of precautionary policy, but proportionality is crucial, notes Gabrielle Bauer, a Toronto-based medical writer. “Used too liberally,” she argues, “the precautionary principle can keep us stuck in a state of extreme risk-aversion, leading to cumbersome policies that weigh down our lives. To get to the good parts of life, we need to accept some risk.”[16] It is not enough to simply hypothesize that certain AI innovations might entail some risk. The critics need to prove it using risk analysis techniques that properly weigh both the potential costs and benefits.[17] Moreover, when conducting such analyses, the full range of trade-offs associated with preemptive regulation must be evaluated. Again, where precautionary constraints might deny society life-enriching devices or services, those costs must be acknowledged.

Generally speaking, the most extreme precautionary controls should only be imposed when the potential harms in question are highly probable, tangible, immediate, irreversible, catastrophic, or directly threatening to life and limb in some fashion.[18] In the context of AI and ML systems, it may be the case that such a test is satisfied already for law enforcement use of certain algorithmic profiling techniques. And that test is satisfied for so-called “killer robots,” or autonomous military technology.[19] These are often described as “existential risks.” The precautionary principle is the right default in these cases because it is abundantly clear how unrestricted use would have catastrophic consequences. For similar reasons, governments have long imposed comprehensive restrictions on certain types of weapons.[20] And although nuclear and chemical technologies have many important applications, their use must also be limited to some degree even outside of militaristic applications because they can pose grave danger if misused.

But the vast majority of AI-enabled technologies are not like this. Most innovations should not be treated the same a hand grenade or a ticking time bomb. In reality, most algorithmic failures will be more mundane and difficult to foresee in advance. By their very nature, algorithms are constantly evolving because programs and systems are being endlessly tweaked by designers to improve them. In his books on the evolution of engineering and systems design, Henry Petroski has noted that “the shortcomings of things are what drive their evolution.”[21] The normal state of things is “ubiquitous imperfection,” he notes, and it is precisely that reality that drives efforts to continuously innovate and iterate.[22]

Regulations rooted in the precautionary principle hope to preemptively find and address product imperfections before any harm comes from them. In reality, and as explained more below, it is only through ongoing experimentation that we find both the nature of failures and the knowledge to know how to correct them. As Petroski observes, “the history of engineering in general, may be told in its failures as well as in its triumphs. Success may be grand, but disappointment can often teach us more.”[23] This is particularly true for complex algorithmic systems, where rapid-fire innovation and incessant iteration are the norm.

Importantly, the problem with precautionary regulation for AI is not just that it might be over-inclusive in seeking to regulate hypothetical problems that never develop. Precautionary regulation can also be under-inclusive by missing problematic behavior or harms that no one anticipated before the fact. Only experience and experimentation reveal certain problems.

In sum, we should not presume that there is a clear preemptive regulatory solution to every problem some people raise about AI, nor should we presume we can even accurately identify all such problems that might come about in the future. Moreover, some risks will never be eliminated entirely, meaning that risk mitigation is the wiser approach. This is why a more flexible bottom-up governance strategy focused on responsiveness and resiliency makes more sense than heavy-handed, top-down strategies that would only avoid risks by making future innovations extremely difficult if not impossible.

The “Proactionary Principle” is the Better Default for AI Policy

The previous section made it clear why the precautionary principle should generally not be used as our policy default if we hope to encourage the development of AI applications and services. What we need is a policy approach that:

  • objectively evaluates the concerns raised about AI systems and applications;
  • considers whether more flexible governance approaches might be available to address them; and,
  • does so without resorting to the precautionary principle as a first-order response.

The proactionary principle is the better general policy default for AI because it satisfies these three objectives.[24] Philosopher Max More defines the proactionary principle as the idea that policymakers should, “[p]rotect the freedom to innovate and progress while thinking and planning intelligently for collateral effects.”[25] There are different names for this same concept, including the innovation principle, which Daniel Castro and Michael McLaughlin of the Information Technology and Innovation Foundation say represents the belief that “the vast majority of new innovations are beneficial and pose little risk, so government should encourage them.”[26] Permissionless innovation is another name for the same idea. Permissionless innovation refers to the idea that experimentation with new technologies and business models should generally be permitted by default.[27]

What binds these concepts together is the belief that innovation should generally be treated as innocent until proven guilty. There will be risks and failures, of course, but the permissionless innovation mindset views them as important learning experiences. These experiences are chances for individuals, organizations, and all of society to make constant improvements through incessant experimentation with new and better ways of doing things.[28] As Virginia Postrel argued in her 1998 book, The Future and Its Enemies, progress demands “a decentralized, evolutionary process” and mindset in which mistakes are not viewed as permanent disasters but instead as “the correctable by-products of experimentation.”[29] “No one wants to learn by mistakes,” Petroski once noted, “but we cannot learn enough from successes to go beyond the state of the art.”[30] Instead we must realize, as other scholars have observed, that “[s]uccess is the culmination of many failures”[31] and understand “failure as the natural consequence of risk and complexity.”[32]

This is why the default for public policy for AI innovation should, whenever possible, be more green lights than red ones to allow for the maximum amount of trial-and-error experimentation, which encourages ongoing learning.[33] “Experimentation matters,” observes Stefan H. Thomke of the Harvard Business School, “because it fuels the discovery and creation of knowledge and thereby leads to the development and improvement of products, processes, systems, and organizations.”[34]

Obviously, risks and mistakes are “the very things regulators inherently want to avoid,”[35] but “if innovators fear they will be punished for every mistake,” Daniel Castro and Alan McQuinn argue, “then they will be much less assertive in trying to develop the next new thing.”[36] And for all the reasons already stated, that would represent the end of progress because it would foreclose the learning process that allows society to discover new, better, and safer ways of doing things. Technology author Kevin Kelly puts it this way:

technologies must be evaluated in action, by action. We test them in labs, we try them out in prototypes, we use them in pilot programs, we adapt our expectations, we monitor their alterations, we redefine their aims as they are modified, we retest them given actual behavior, we re-direct them to new jobs when we are not happy with their outcomes.[37]

In other words, the proactionary principle appreciates the benefits that flow from learning by doing. The goal is to continuously assess and prioritize risks from natural and human-made systems alike, and then formulate and reformulate our toolkit of possible responses to those risks using the most practical and effective solutions available. This should make it clear that the proactionary approach is not synonymous with anarchy. Various laws, government bodies, and especially the courts play an important role in protecting rights, health, and order. But policies need to be formulated such that innovators and innovation are given the benefit of the doubt and risks are analyzed and addressed in a more flexible fashion.

Some of the most effective ways to address potential AI risks already exist in the form of “soft law” and decentralized governance solution. These will be discussed at greater length below. But existing legal remedies include various common law solutions (torts, class actions, contract law, etc), recall authority possessed by many regulatory agencies, and various consumer protection policies. Ex post remedies are generally superior to ex ante prior restraints if we hope to maximize innovation opportunities. Ex ante regulatory defaults are too often set closer to the red light of the precautionary principle and then enforced through volumes of convoluted red tape.

This is what the World Economic Forum has referred to as a “regulate-and-forget” system of governance,[38] or what others call a “build-and-freeze model” or regulation.[39] In such technological governance regimes, older rules are almost never revisited, even after new social, economic, and technical realities render them obsolete or ineffective.[40] A 2017 survey of U.S. Code of Regulations by Deloitte consultants revealed that 68 percent of federal regulations have never been updated and that 17 percent have only been updated once.[41] Public policies for complex and fast-moving technologies like AI cannot be set in stone and forgotten like that if America hopes to remain on the cutting edge of this sector.

Advocates of the proactionary principle look to counter this problem not by eliminating all laws or agencies, but by bringing them in line with flexible governance principles rooted in more decentralized approaches to policy concerns.[42] As many regulatory advocates suggest, it is important to embed or “bake in” various ethical best practices into AI systems to ensure that they benefit humanity. But this, too, is a process of ongoing learning and there are many ways to accomplish such goals without derailing important technological advances. What is often referred to as “value alignment” or “ethically-aligned design” is challenged by the fact that humans regularly disagree profoundly about many moral issues.[43] “Before we can put our values into machines, we have to figure out how to make our values clear and consistent,” says Harvard University psychologist Joshua D. Greene.[44]

The “Three Laws of Robotics” famously formulated decades ago by Isaac Asimov in his science fiction stories continue to be widely discussed today as a guide to embedding ethics into machines.[45] They read:

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

What is usually forgotten about these principles, as AI expert Melanie Mitchell reminds us, is the way Asimov, “often focused on the unintended consequences of programming ethical rules into robots,” and how he made it clear that, if applied too literally, “such a set of rules would inevitably fail.”[46]

This is why flexibility and humility are essential virtues when thinking about AI policy. The optimal governance regime for AI can be shaped by responsible innovation practices and embed important ethical principles by design without immediately defaulting to a rigid application of the precautionary principle.[47] In other words, an innovation policy regime rooted in the proactionary principle can also be infused with the same values that animate a precautionary principle-based system.[48] The difference is that the proactionary principle-based approach will look to achieve these goals in a more flexible fashion using a variety of experimental governance approaches and ex post legal enforcement options, while also encouraging still more innovation to solve problems past innovations may have caused.

To reiterate, not every AI risk is foreseeable, and many risks and harms are more amorphous or uncertain. In this sense, the wisest governance approach for AI was recently outlined by the National Institute of Standards and Technology (NIST) in its initial draft AI Risk Management Framework, which is a multistakeholder effort “to describe how the risks from AI-based systems differ from other domains and to encourage and equip many different stakeholders in AI to address those risks purposefully.”[49] NIST notes that the goal of the Framework is:

to be responsive to new risks as they emerge rather than enumerating all known risks in advance. This flexibility is particularly important where impacts are not easily foreseeable, and applications are evolving rapidly. While AI benefits and some AI risks are well-known, the AI community is only beginning to understand and classify incidents and scenarios that result in harm.[50]

This is a sensible framework for how to address AI risks because it makes it clear that it will be difficult to preemptively identify and address all potential AI risks. At the same time, there will be a continuing need to advance AI innovation while addressing AI-related harms. The key to striking that balance will be decentralized governance approaches and soft law techniques described below.

[Note: The subsequent sections of the study will detail how decentralized governance approaches and soft law techniques already are helping to address concerns about AI risks.]

Endnotes:

[1]     Adam Thierer, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, 2nd ed. (Arlington, VA: Mercatus Center at George Mason University, 2016): 1-6, 23-38; Adam Thierer, Evasive Entrepreneurs & the Future of Governance (Washington, DC: Cato Institute, 2020): 48-54.

[2]     “Wingspread Statement on the Precautionary Principle,” January 1998, https://www.gdrc.org/u-gov/precaution-3.html.

[3]     Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge, UK: Cambridge University Press, 2005). (“The Precautionary Principle takes many forms. But in all of them, the animating idea is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition.”)

[4]     Henk van den Belt, “Debating the Precautionary Principle: ‘Guilty until Proven Innocent’ or ‘Innocent until Proven Guilty’?” Plant Physiology 132 (2003): 1124.

[5]     H.W. Lewis, Technological Risk (New York: WW. Norton & Co., 1990): x. (“The history of the human race would be dreary indeed if none of our forebears had ever been willing to accept risk in return for potential achievement.”)

[6]     Martin Rees, On the Future: Prospects for Humanity (Princeton, NJ: Princeton University Press, 2018): 136.

[7]     Adam Thierer, “Failing Better: What We Learn by Confronting Risk and Uncertainty,” in Sherzod Abdukadirov (ed.), Nudge Theory in Action: Behavioral Design in Policy and Markets (Palgrave Macmillan, 2016): 65-94.

[8]     Adam Thierer, “How to Get the Future We Were Promised,” Discourse, January 18, 2022, https://www.discoursemagazine.com/culture-and-society/2022/01/18/how-to-get-the-future-we-were-promised.

[9]     J. Storrs Hall, Where Is My Flying Car? (San Francisco: Stripe Press, 2021)

[10]    Derek Turner and Lauren Hartzell Nichols, “The Lack of Clarity in the Precautionary Principle,” Environmental Values, Vol 13, No. 4 (2004): 449.

[11]    William Rinehart, “Vetocracy, the Costs of Vetos and Inaction,” Center for Growth & Opportunity at Utah State University, March 24, 2022, https://www.thecgo.org/benchmark/vetocracy-the-costs-of-vetos-and-inaction; Adam Thierer, “Red Tape Reform is the Key to Building Again,” The Hill, April 28, 2022, https://thehill.com/opinion/finance/3470334-red-tape-reform-is-the-key-to-building-again.

[12]    Philip K. Howard, “Radically Simplify Law,” Cato Institute, Cato Online Forum, http://www.cato.org/publications/cato-online-forum/radically-simplify-law.

[13]    Ibid.

[14]    Aaron Wildavsky, Searching for Safety (New Brunswick, NJ: Transaction Publishers, 1989): 38.

[15]    Thierer, Permissionless Innovation, at 2.

[16]    Gabrielle Bauer, “Danger: Caution Ahead,” The New Atlantis, February 4, 2022, https://www.thenewatlantis.com/publications/danger-caution-ahead.

[17]    Richard B. Belzer, “Risk Assessment, Safety Assessment, and the Estimation of Regulatory Benefits” (Mercatus Working Paper, Mercatus Center at George Mason University, Arlington, VA, 2012), 5, http://mercatus.org/publication/risk-assessment-safety-assessment-and-estimation-regulatory-benefits; John D. Graham and Jonathan Baert Wiener, eds. Risk vs. Risk: Tradeoffs in Protecting Health and the Environment, (Cambridge, MA: Harvard University Press, 1995).

[18]    Thierer, Permissionless Innovation, at 33-8.

[19]    Adam Satariano, Nick Cumming-Bruce and Rick Gladstone, “Killer Robots Aren’t Science Fiction. A Push to Ban Them Is Growing,” New York Times, December 17, 2021, https://www.nytimes.com/2021/12/17/world/robot-drone-ban.html.

[20]    Adam Thierer, “Soft Law: The Reconciliation of Permissionless & Responsible Innovation,” in Adam Thierer, Evasive Entrepreneurs & the Future of Governance (Washington, DC: Cato Institute, 2020): 183-240, https://www.mercatus.org/publications/technology-and-innovation/soft-law-reconciliation-permissionless-responsible-innovation.

[21]    Henry Petroski, The Evolution of Useful Things (New York: Vintage Books, 1994): 34.

[22]    Ibid., 27,

[23]    Henry Petroski, To Engineer is Human: The Role of Failure in Successful Design (New York: Vintage, 1992): 9.

[24]    James Lawson, These Are the Droids You’re Looking For: An Optimistic Vision for Artificial Intelligence, Automation and the Future of Work (London: Adam Smith Institute, 2020): 86, https://www.adamsmith.org/research/these-are-the-droids-youre-looking-for.

[25]    Max More, “The Proactionary Principle (March 2008),” Max More’s Strategic Philosophy, March 28, 2008, http://strategicphilosophy.blogspot.com/2008/03/proactionary-principle-march-2008.html.

[26]    Daniel Castro & Michael McLaughlin, “Ten Ways the Precautionary Principle Undermines Progress in Artificial Intelligence,” Information Technology and Innovation Foundation, February 4, 2019, https://itif.org/publications/2019/02/04/ten-ways-precautionary-principle-undermines-progress-artificial-intelligence.

[27]    Thierer, Permissionless Innovation.

[28]    Thierer, “Failing Better.”

[29]    Virginia Postrel, The Future and Its Enemies (New York: The Free Press, 1998): xiv.

[30]    Henry Petroski, To Engineer is Human: The Role of Failure in Successful Design (New York: Vintage, 1992): 62.

[31]    Kevin Ashton, How to Fly a Horse: The Secret History of Creation, Invention, and Discovery (New York: Doubleday, 2015): 67.

[32]    Megan McArdle, The Up Side of Down: Why Failing Well is the Key to Success (New York: Viking, 2014), 214.

[33]    F. A. Hayek, The Constitution of Liberty (London: Routledge, 1960, 1990): 81. (“Humiliating to human pride as it may be, we must recognize that the advance and even preservation of civilization are dependent upon a maximum of opportunity for accidents to happen.”)

[34]    Stefan H. Thomke, Experimentation Matters: Unlocking the Potential of New Technologies for Innovation (Harvard Business Review Press, 2003), 1.

[35]    Daniel Castro and Alan McQuinn, “How and When Regulators Should Intervene,” Information Technology and Innovation Foundation Reports, (February 2015): 2 http://www.itif.org/publications/how-and-when-regulators-should-intervene.

[36]    Ibid.

[37]    Kevin Kelly, “The Pro-Actionary Principle,” The Technium, November 11, 2008, https://kk.org/thetechnium/the-pro-actiona.

[38]    World Economic Forum, Agile Regulation for the Fourth Industrial Revolution (Geneva: Switzerland: 2020): 4, https://www.weforum.org/projects/agile-regulation-for-the-fourth-industrial-revolution.

[39]    Jordan Reimschisel and Adam Thierer, “’Build & Freeze’ Regulation Versus Iterative Innovation,” Plain Text, November 1, 2017, https://readplaintext.com/build-freeze-regulation-versus-iterative-innovation-8d5a8802e5da.

[40]    Adam Thierer, “Spring Cleaning for the Regulatory State,” AIER, May 23, 2019, https://www.aier.org/article/spring-cleaning-for-the-regulatory-state.

[41]    Daniel Byler, Beth Flores & Jason Lewris, “Using Advanced Analytics to Drive Regulatory Reform: Understanding Presidential Orders on Regulation Reform,” Deloitte, 2017, https://www2.deloitte.com/us/en/pages/public-sector/articles/advanced-analytics-federal-regulatory-reform.html.

[42]    Adam Thierer, Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium, American Enterprise Institute (April 2022), https://platforms.aei.org/can-the-knowledge-gap-between-regulators-and-innovators-be-narrowed.

[43]    Brian Christian, The Alignment Problem: Machine Learning and Human Values (New York: W.W. Norton & Company, 2020).

[44]    Joshua D. Greene, “Our Driverless Dilemma,” Science (June 2016): 1515.

[45]    Susan Leigh Anderson, “Asimov’s ‘Three Laws of Robotics’ and Machine Metaethics,” AI and Society, Vol. 22, No. 4, (2008): 477-493.

[46]    Melanie Mitchell, Artificial Intelligence: A Guide for Thinking Humans (New York: Farrar, Straus and Giroux, 2019): 126 [Kindle edition.]

[47]    Thomas A. Hemphill, “The Innovation Governance Dilemma: Alternatives to the Precautionary Principle,” Technology in Society, Vol. 63 (2020): 6, https://ideas.repec.org/a/eee/teinso/v63y2020ics0160791x2030751x.html.

[48]    Adam Thierer, “Are ‘Permissionless Innovation’ and ‘Responsible Innovation’ Compatible?” Technology Liberation Front, July 12, 2017, https://techliberation.com/2017/07/12/are-permissionless-innovation-and-responsible-innovation-compatible.

[49]    The National Institute of Standards and Technology, “AI Risk Management Framework: Initial Draft,” (March 17, 2022): 1, https://www.nist.gov/itl/ai-risk-management-framework.

[50]    Ibid., at 5.

]]> https://techliberation.com/2022/05/26/the-proper-governance-default-for-ai/feed/ 4 76994 Slide Presentation on “The Future of Innovation Policy” https://techliberation.com/2022/04/18/slide-presentation-on-the-future-of-innovation-policy/ https://techliberation.com/2022/04/18/slide-presentation-on-the-future-of-innovation-policy/#comments Mon, 18 Apr 2022 19:24:10 +0000 https://techliberation.com/?p=76968

Here’s a slide presentation on “The Future of Innovation Policy” that I presented to some student groups recently. It builds on themes discussed in my recent books, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, and Evasive Entrepreneurs and the Future of Governance: How Innovation Improves Economies and Governments. I specifically discuss the tension between permissionless innovation and the precautionary principle as competing policy defaults.

]]> https://techliberation.com/2022/04/18/slide-presentation-on-the-future-of-innovation-policy/feed/ 1 76968 The Case for Innovation, Progress & Abundance: Some Readings https://techliberation.com/2022/01/25/the-case-for-innovation-progress-abundance-some-readings/ https://techliberation.com/2022/01/25/the-case-for-innovation-progress-abundance-some-readings/#comments Tue, 25 Jan 2022 20:27:31 +0000 https://techliberation.com/?p=76937

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.   

[Last update: 10/11/22]

Recent Essays

Books

]]> https://techliberation.com/2022/01/25/the-case-for-innovation-progress-abundance-some-readings/feed/ 3 76937 The Most Important Technology Policy Book of the Past Quarter Century https://techliberation.com/2022/01/20/the-most-important-technology-policy-book-of-the-past-quarter-century/ https://techliberation.com/2022/01/20/the-most-important-technology-policy-book-of-the-past-quarter-century/#comments Thu, 20 Jan 2022 14:17:10 +0000 https://techliberation.com/?p=76935

Discourse magazine has just published my review of Where Is My Flying Car?, by J. Storrs Hall, which I argue is the most important book on technology policy written in the past quarter century. Hall perfectly defines what is at stake if we fail to embrace a pro-progress policy vision going forward. Hall documents how a “Jetsons” future was within our grasp, but it was stolen away from us. What held back progress in key sectors like transportation, nanotech & energy was anti-technological thinking and the overregulation that accompanies it. “[T]he Great Stagnation was really the Great Strangulation,” he argues. The culprits: negative cultural attitudes toward innovation, incumbent companies or academics looking to protect their turf, litigation-happy trial lawyers, and a raft of risk-averse laws and regulations.

Hall coins the term “the Machiavelli Effect” to identify why many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). He builds on this passage from Niccolò Machiavelli’s classic 1532 study of political power, “The Prince”:

[I]t ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, then to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them. Thus it happens that whenever those who are hostile have the opportunity to attack they do it like partisans, whilst the others defend lukewarmly, in such wise that the prince is endangered along with them.

Hall notes that the Machiavelli Effect “has nothing to do with any conspiracy.” Rather, it comes down to human nature: Many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). Isaac Asimov identified the same problem in a 1974 lecture when he noted how there had been “bitter, exaggerated, last-stitch resistance . . . to every significant technological change that had taken place on earth.” [On this same point, also see Innovation and Its Enemies: Why People Resist New Technologies, by Calestous Juma. It’s the best history on the topic.]

Hall identifies how the Machiavelli Effect held back nuclear, nanotech, and aviation technologies. “Over the long run, unchecked regulation destroys the learning curve, prevents innovation, protects and preserves inefficiency, and makes progress run backward.” The problem is the Precautionary Principle, which undermines the learning curve is by setting policy defaults to no trial and error as opposed to free to experiment. There can be no reward without some risk! Hall quotes Wilbur Wright on this, who once noted that, “If you are looking for perfect safety, you would do well to sit on a fence and watch the birds.”

Over-regulation of those sectors also resulted in massive misallocation of talent, “taking more than a million of the country’s most talented and motivated people and putting them to work making arguments and filing briefs instead of inventing, developing, and manufacturing.” Hall is equally critical of government R&D efforts. “One of the great tragedies of the latter 20th century, and clearly one of the causes of the Great Stagnation,” he argues, “was the increasing centralization and bureaucratization of science and research funding.”

Hall’s book builds on Jason Crawford’s insight that, “We need a new philosophy of progress,” that is rooted in optimism about the future and support for a culture of trial-and-error experimentation. Hall’s book is a major contribution to that effort. Hall makes a profoundly moral case for innovation. “The zero-sum society is a recipe for evil,” because it leaves us with a “static level of existence” that denies us the ability to improve the human condition. Indeed, Hall’s book is the most full-throated defense of innovation by a trained scientist or engineer since Samuel Florman’s 1976 “Existential Pleasures of Engineering.” Both are celebrations of the potential for humanity to build more and better tools to improve the world.

Hall’s book should also be read alongside books from Virginia Postrel (“The Future and Its Enemies”), Steven Pinker (“Enlightenment Now”), Matt Ridley (“How Innovation Works”) and Deirdre McCloskey’s three-volume trilogy about the history of modern economic growth. These scholars argue that there is a symbiotic relationship between innovation, economic growth, pluralism and human betterment, and that to deny people the ability to improve their lot in life is fundamentally anti-human.

Image

I just cannot recommend Hall’s Where Is My Flying Car? highly enough. It’s a masterpiece. And bravo to Stripe Press for publishing a beautiful hardbound edition. It is a stunning book both to behold and read. Order it now, and jump over to Discourse to read my entire review of it.

 

]]> https://techliberation.com/2022/01/20/the-most-important-technology-policy-book-of-the-past-quarter-century/feed/ 2 76935 Podcast about the Future of Emerging Tech Innovation & Entrepreneurialism https://techliberation.com/2019/04/08/podcast-about-the-future-of-emerging-tech-innovation-entrepreneurialism/ https://techliberation.com/2019/04/08/podcast-about-the-future-of-emerging-tech-innovation-entrepreneurialism/#respond Mon, 08 Apr 2019 19:24:33 +0000 https://techliberation.com/?p=76469

It was my great pleasure to recently join Paul Matzko and Will Duffield on the Building Tomorrow podcast to discuss some of the themes in my last book and my forthcoming one. During our 50-minute conversation, which you can listen to here, we discussed:

  • the “pacing problem” and how it complicates technological governance efforts;
  • the steady rise of “innovation arbitrage” and medical tourism across the globe;
  • the continued growth of “evasive entrepreneurialism” (i.e., efforts to evade traditional laws & regs while innovating);
  • new forms of “technological civil disobedience;”
  • the rapid expansion of “soft law” governance mechanism as a response to these challenges; and,
  • craft beer bootlegging tips!  (Seriously, I move a lot of beer in the underground barter markets).

Bounce over to the Building Tomorrow site and give the show a listen. Fun chat.

]]> https://techliberation.com/2019/04/08/podcast-about-the-future-of-emerging-tech-innovation-entrepreneurialism/feed/ 0 76469 Debating the Future of Artificial Intelligence: G7 Multistakeholder Conference https://techliberation.com/2018/12/04/debating-the-future-of-artificial-intelligence-g7-multistakeholder-conference/ https://techliberation.com/2018/12/04/debating-the-future-of-artificial-intelligence-g7-multistakeholder-conference/#comments Tue, 04 Dec 2018 15:27:40 +0000 https://techliberation.com/?p=76423

This week I will be traveling to Montreal to participate in the 2018 G7 Multistakeholder Conference on Artificial Intelligence. This conference follows the G7’s recent Ministerial Meeting on “Preparing for the Jobs of the Future” and will also build upon the  G7 Innovation Ministers’ Statement on Artificial Intelligence . The goal of Thursday’s conference is to, “focus on how to enable environments that foster societal trust and the responsible adoption of AI, and build upon a common vision of human-centric AI.” About 150 participants selected by G7 partners are expected to participate, and I was invited to attend as a U.S. expert, which is a great honor. 

I look forward to hearing and learning from other experts and policymakers who are attending this week’s conference. I’ve been spending a lot of time thinking about the future of AI policy in recent books, working papers, essays, and debates. My most recent essay concerning a vision for the future of AI policy was co-authored with Andrea O’Sullivan and it appeared as part of a point/counterpoint debate in the latest edition of the Communications of the ACM. The ACM is the Association for Computing Machinery, the world’s largest computing society, which “brings together computing educators, researchers, and professionals to inspire dialogue, share resources, and address the field’s challenges.” The latest edition of the magazine features about a dozen different essays on “Designing Emotionally Sentient Agents” and the future of AI and machine-learning more generally.

In our portion of the debate in the new issue, Andrea and I argue that “Regulators Should Allow the Greatest Space for AI Innovation.” “While AI-enabled technologies can pose some risks that should be taken seriously,” we note, “it is important that public policy not freeze the development of life-enriching innovations in this space based on speculative fears of an uncertain future.” We contrast two different policy worldviews — the precautionary principle versus permissionless innovation — and argue that:

artificial intelligence technologies should largely be governed by a policy regime of permissionless innovation so that humanity can best extract all of the opportunities and benefits they promise. A precautionary approach could, alternatively, rob us of these life-saving benefits and leave us all much worse off.

That’s not to say that AI won’t pose some serious policy challenges for us going forward that deserve serious attention. Rather, we are warning against the dangers of allowing worst-case thinking to be the default position in these discussions.

But what about some of the policy concerns regarding AI, including privacy, “algorithmic accountability,” or more traditional fears about automation leading to job displacement or industrial disruption. Some of the these issues deserve greater scrutiny, but as Andrea and I pointed out in a much longer paper with Raymond Russell, there often exists better ways of dealing with such issues before resorting to preemptive, top-down controls on fast-moving, hard-to-predict technologies.

“Soft law” options will often serve us better than old hard law approaches. Soft law mechanisms, as I write in my latest law review article with Jennifer Skees and Ryan Hagemann, are a useful way to bring diverse parties together to address pressing policy concerns without destroying the innovative promise of important new technologies. Among other things, soft law includes multistakeholder processes and ongoing efforts to craft flexible “best practices.” It can also include important collaborative efforts such as this recent IEEE “Global Initiative on Ethics of Autonomous and Intelligent Systems,” which serves as “an incubation space for new standards and solutions, certifications and codes of conduct, and consensus building for ethical implementation of intelligent technologies.” This approach brings together diverse voices from across the globe to develop rough consensus on what “ethically-aligned design” looks like for AI and aims to establish a framework and set of best practices for the development of these technologies over time.

Others have developed similar frameworks, including the ACM itself. The ACM developed a Code of Ethics and Professional Conduct in the early 1970s and then refined it in the early 1990s and then again just recently in 2018. Each iteration of the ACM Code reflected ongoing technological developments from the mainframe era to the PC and Internet revolution and on through today’s machine-learning and AI era. The latest version of the Code “affirms an obligation of computing professionals, both individually and collectively, to use their skills for the benefit of society, its members, and the environment surrounding them,” and insists that computing professionals “should consider whether the results of their efforts will respect diversity, will be used in socially responsible ways, will meet social needs, and will be broadly accessible.” The document also stresses how, “[a]n essential aim of computing professionals is to minimize negative consequences of computing, including threats to health, safety, personal security, and privacy. When the interests of multiple groups conflict, the needs of those less advantaged should be given increased attention and priority.”

Of course, over time, more targeted or applied best practices and codes of conduct will be formulated as new technological developments make them necessary. It is impossible to perfectly anticipate and plan for all the challenges that we may face down the line. But we can establish some rough best practices and ethical guidelines to help us deal with some of them. As we do so, we need to think hard about how to craft those principles and policies in such a way so as to not undermine the potentially amazing, life-enriching — and potentially even life- saving — benefits that AI technologies could bring about.

You can hear more about these and other issues surrounding the future of AI in this 6-minute video that  Communications of the ACM put together to coincide with my debate with Oren Etzioni of the Allen Institute for Artificial Intelligence. As you will probably notice, there’s actually a lot more common ground between us in this discussion that you might initially suspect. For example, we agree that it would be a serious mistake to regulate AI at the general-purpose level and that it instead makes more sense to zero-in on specific AI applications to determine where policy interventions might be needed.

Of course, things get more contentious when we consider  what kind of policy interventions we might want for specific AI applications, and also the much more challenging question about how to define and measure “harm” in this context. And this all assumes we can even come to some general consensus about how to first define what we even mean by “artificial intelligence” or “robotics” in general. That’s harder than many realize and it is important because it has a bearing on the overall scope and practicality of regulation in various contexts.

Another thing that seems to be the source of serious ongoing debate between people in this field concerns the wisdom of creating an entirely new agency or centralized authority of some sort to oversee or guide the development AI or robotics. I’ve debated that question many times with Ryan Calo, who first pitched the idea a few years back in a working paper for Brookings. In response, I noted that we already have quite a few “robot regulators” in existence today in the form of technocratic agencies that oversee the specific development of various types of robotic and AI-oriented applications. For example, NHTSA already oversees driverless cars, FAA regulates drones, and the FDA handles AI-based medical devices and applications. Will adding another big, over-arching Robotics Commission really add much value to the process? Or will it simply add another bureaucratic layer of red tape to the process of getting life-enriching services out to the public? I doubt, for example, that the Digital Revolution would have been somehow improved much had America created a Federal Computer Commission or Federal Internet Commission 25 years ago.

Moreover, had we adopted such entities, I worry about how the tech companies of an earlier generation might have utilized that process to keep new players and technologies from emerging. As I noted this week in a tweet that got a lot of attention, I used to have the adjoining poster from PC Computing magazine on my office wall over 20 years ago. It was entitled, “Roadmap to Top Online Services,” and showed how the powerful Big 4 online service providers — America Online, Prodigy, Compuserve, and Microsoft — were spreading their tentacles. People used to see this poster on my wall and ask me whether there was any hope of disrupting the perceived choke-hold that these companies had on the market at the time.

Of course, we now look back and laugh at the idea that these firms could have bottled up innovation and kept competition at bay. But ask yourself: When disruptive innovations appeared on the scene, what would those incumbent firms have done if they had regulators to run to for help down at a Federal Computer Commission or Federal Internet Commission? I think we know exactly what they would have done because the lamentable history of so much Federal Communication Commission regulation shows us that  the powerful will grab for the levers of power wherever they exist. Some critics don’t accept the idea that “rent-seeking” and regulatory capture are real problems, or they believe that we can find creative ways to avoid those problems. But history shows this has been a reoccurring problem in countless sectors and one that we should try to avoid as much as possible by not establishing mechanisms that could exclude beneficial forms of competition and innovation from coming about to begin with.

That could certainly happen right now with the regulatory mechanisms already in place. For example, just this week, Jennifer Huddleston Skees and I wrote about the dangers of “Emerging Tech Export Controls Run Amok,” as the Trump Administration ponders a potentially massive expansion of export restrictions on a wide variety of technologies. More than a dozen different AI or autonomous system technologies appear on the list for consideration. That could pose real trouble not just for commercial innovators in this space, but also for non-commercial research and collaborative open source efforts involving these technologies.

Again, that doesn’t mean AI and robotics should develop in a complete policy vacuum. We need “governance” but we don’t need the sort of heavy-handed, top-down, competition-killing, innovation-restricting sort of regulatory regimes of the past. I continue to believe that more flexible, adaptive “soft law” mechanisms provide the reasonable path forward for most of the concerns we hear about AI and robotics today. These are challenging issues, however, and I look forward to learning more from other experts in the field when I visit Montreal for this week’s G7 discussion.

Additional Reading:

]]> https://techliberation.com/2018/12/04/debating-the-future-of-artificial-intelligence-g7-multistakeholder-conference/feed/ 2 76423 The Pacing Problem and the Future of Technology Regulation https://techliberation.com/2018/08/10/the-pacing-problem-and-the-future-of-technology-regulation/ https://techliberation.com/2018/08/10/the-pacing-problem-and-the-future-of-technology-regulation/#respond Fri, 10 Aug 2018 12:48:10 +0000 https://techliberation.com/?p=76342

[first published at The Bridge on August 9, 2018]

What happens when technological innovation outpaces the ability of laws and regulations to keep up?

This phenomenon is known as “the pacing problem,” and it has profound ramifications for the governance of emerging technologies. Indeed, the pacing problem is becoming the great equalizer in debates over technological governance because it forces governments to rethink their approach to the regulation of many sectors and technologies.

The Innovation Cornucopia

Had Rip Van Winkle woken up his famous nap today, he’d be shocked by all the changes around him. At-home genetics tests, personal drones, driverless cars, lab-grown meats, and 3D-printed prosthetic limbs are just some of the amazing innovations that would boggle his mind. New devices and services are flying at us so rapidly that we sometimes forget that most did not even exist a short time ago. At this point, it feels like our smartphones have been in our lives forever, but even just a decade ago, very few of us had one. Likewise, plenty of people now regularly enjoy the benefits of the sharing economy, but ten years ago, Uber, Lyft, and Airbnb did not even exist. Most of the social networking platforms or online video and audio streaming services that we use today had not even been created 15 years ago. Back then, Netflix’s DVD mail subscription service seemed downright revolutionary.

With every innovation comes more questions about how the law should keep pace, or whether it even can. “There has always been a pacing problem,” observes Yale University bioethicist Wendell Wallach, author of  A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. But what Wallach and many other scholars worry about today is that the pace of change has been kicked into overdrive, making it more difficult than ever for traditional legal schemes and regulatory mechanisms to stay relevant. Larry Downes refers to this as “The Law of Disruption.” In his 2009 book on this “law,” Downes showed how “technology changes exponentially, but social, economic, and legal systems change incrementally” and that this law was becoming “a simple but unavoidable principle of modern life.”

Moore’s Law Quickens the Pace

There are three primary reasons the pacing problem is such a force in our modern world. The root cause lies in the power of “combinatorial innovation,” which is driven by “Moore’s Law.”  The Information Revolution spawned a stunning array of new technological capabilities that build on top of one another in a symbiotic fashion. Think about the shared foundational elements of most modern inventions: microchips, sensors, digital code, big data, cloud computing, remote data storage, wireless networking and geolocation capabilities, machine-learning, cryptography, and more. Each of these underlying capabilities is becoming faster, cheaper, smaller, more powerful, and easier to find and use. Innovators are combining them as part of their ongoing search for new and better ways of doing things.

Moore’s Law powers these developments. Moore’s Law is the principle named after Intel co-founder Gordon E. Moore, who first observed in 1965 that “computing would dramatically increase in power, and decrease in relative cost, at an exponential pace” in coming years. Indeed, it has continued to do so for the past half century for many information technologies. A recent Technology Policy Institute white paper noted that “data transit prices fell from about $1200 per Mbps in 1998 to $0.02 per Mbps in 2017.”

These forces are now revolutionizing other sectors as “software eats the world” and innovators utilize these new technologies to address nearly every conceivable need and want. In the field of genetics, the biological equivalent of Moore’s Law is known as the “Carlson curve.” The past two decades have seen the cost of sequencing a human genome fall from over $100 million to under $1,000, a rate nearly three times faster than Moore’s Law.

What the Public Wants, the Public Gets

The second reason the pacing problem is accelerating is that the public wants it to! It is true that many people say they are uneasy with many emerging technologies. When new gadgets and services first gain attention, a “technopanic” attitude often ensues. That is unsurprising because, as others have noted, “fear has gone hand in hand with technological advancements throughout history.”

But societal attitudes toward technological change often shift rapidly. They do so even faster today as citizens quickly assimilate new tools into their daily lives and then expect that even more and better tools will be delivered tomorrow. As more people begin to realize how new technologies improve our lives in meaningful ways, it becomes extremely hard for policymakers to take those innovations away or even tell us not to expect better ones. This relationship between technological change and societal expectations acts as an extraordinarily powerful check on the ability of regulators to “roll back the clock” on innovative activities.

Broken Government Exacerbates the Problem

Finally, the pacing problem is becoming more acute because “demosclerosis” and “kludgeocracy” have taken hold within American government. Jonathan Rauch coined the term demosclerosis in his 1999 book Government’s End: Why Washington Stopped Working to describe “government’s progressive loss of the ability to adapt.” “[A]s layer is dropped upon layer,” he argued, “the accumulated mass becomes gradually less rational and less flexible.”

Instead of cleaning up old legalistic messes and adapting to the times, government solutions are more often clumsily cobbled together to patch past problems and create temporary solutions. Steven Teles refers to this as kludgeocracy. “The complexity and incoherence of our government often make it difficult for us to understand just what that government is doing,” Teles says. Kludgeocracy creates serious costs for individual citizens, governments themselves, and to our democratic systems more generally, he argues. Taken together, demosclerosis and kludgeocracy breed highly dysfunctional governments and make it even easier for the pacing problem to speed ahead.

Can Policymakers Adapt?

Regulators are not oblivious to the challenges posed by the pacing problem. “I have said more than once that innovation moves at the speed of imagination and that government has traditionally moved at, well, the speed of government,” remarked Michael Heurta, head of the Federal Aviation Administration, in a 2016 speech regarding drones. Shortly after Huerta made those comments, the Department of Transportation released a report on the regulation of driverless car technology which noted that “The speed with which [driverless cars] are advancing, combined with the complexity and novelty of these innovations, threatens to outpace the Agency’s conventional regulatory processes and capabilities.”

Food and Drug Administration (FDA) regulators have increasingly referenced the pacing problem when discussing the challenge of keeping up with new medical innovations.  The New York Times recently asked Dr. Peter Marks, director of the FDA’s Center for Biologics Evaluation and Research, how the agency planned to deal with hundreds of “rogue” stem cell treatment clinics. “There are hundreds and hundreds of these clinics,” he said. “We simply don’t have the bandwidth to go after all of them at once.”

The pacing problem has even crept into antitrust enforcement. The US Department of Justice (DOJ) sought to break up Microsoft in the late 1990s, but as the legal proceedings dragged on through the early 2000’s, the market moved and made the DOJ’s case moot. Google Chrome and Mozilla Firefox emerged as legitimate competitors to Microsoft’s Internet Explorer without regulatory remedy. In the end, Microsoft reached a settlement with the DOJ that fell far short of the government’s original ambitions to bust up the firm, all because the market moved at a pace much faster than the regulator’s pace. More recent antitrust action in the US and EU also suffer from the pacing problem. Multi-year antitrust investigations reach conclusions that don’t reflect market trends in the intervening years and offer remedies that may be “too little, too late,” especially in the information technology sector.

Is the Pacing Problem Really the Pacing Benefit?

What should policymakers do in light of these new challenges? The extremes will not work. Lawmakers or regulators cannot simply double-down on the lethargic and unwieldy technocratic regulatory schemes of the past. Command-and-control tactics are not going to be effective in an age when technology evolves in a quicksilver fashion. In a world where “innovation arbitrage” is easier than ever, repressive crackdowns on new tech will often backfire. Evasive entrepreneurs will often move to those jurisdictions where their innovative acts are treated more hospitably. That, too, exacerbates the pacing problem.

From the perspective of many innovation advocates, this will make it seem like the pacing problem is more like the pacing  benefit. Generally speaking, that intuition is sound. Innovation is the fundamental driver of human betterment. We need more “moonshots”—“radical but feasible solutions to important problems”—to ensure that current and future generations enjoy more choices, greater mobility, increased wealth, better health, and longer lifespans. We don’t want archaic regulatory schemes and regimes holding that back.

Constructive Solutions

But policymakers will not abandon oversight of emerging technologies altogether, nor should we want them to. The potential harms associated with some new technologies could be significant enough that a certain degree of regulatory oversight will be required. But the pacing problem means the old, inflexible, top-down approaches will need to be discarded and that the administrative state itself must become more entrepreneurial.

In a forthcoming law review article entitled, “Soft Law for Hard Problems: The Governance of Emerging Technologies in an Uncertain Future,” Jennifer Skees, Ryan Hagemann, and I discuss how “soft law” mechanisms—multi-stakeholder processes, industry best practices and standards, workshops, agency guidance, and more—can help fill the governance gap as the pacing problem accelerates. Many agencies are already tapping soft law tools to help guide the development of new technologies such as driverless cars, drones, the Internet of Things, mobile medical applications, artificial intelligence, and others. In fact, we argue that soft law has already become the dominant form of technological governance for emerging tech in the US.

Critics might decry soft law as either being too lax (and open to private abuse) or too informal (and open to government abuse), but the pacing problem makes both arguments increasingly irrelevant. We need a new governance vision for the technological age. Our new governance systems must be more flexible and adaptive than the heavy-handed regulatory regimes that preceded them.

___________________

Related Reading

]]> https://techliberation.com/2018/08/10/the-pacing-problem-and-the-future-of-technology-regulation/feed/ 0 76342 Book Review: Garry Kasparov’s “Deep Thinking” https://techliberation.com/2017/05/11/book-review-garry-kasparovs-deep-thinking/ https://techliberation.com/2017/05/11/book-review-garry-kasparovs-deep-thinking/#comments Thu, 11 May 2017 22:58:17 +0000 https://techliberation.com/?p=76140

[originally posted on Medium ]

Today is the anniversary of the day the machines took over.

Exactly twenty years ago today, on May 11, 1997, the great chess grandmaster Garry Kasparov became the first chess world champion to lose a match to a supercomputer. His battle with IBM’s “Deep Blue” was a highly-publicized media spectacle, and when he lost Game 6 of his match against the machine, it shocked the world.

At the time, Kasparov was bitter about the loss and even expressed suspicions about how Deep Blue’s team of human programmers and chess consultants might have tipped the match in favor of machine over man. Although he still wonders about how things went down behind the scenes during the match, Kasparov is no longer as sore as he once was about losing to Deep Blue. Instead, Kasparov has built on his experience that fateful week in 1997 and learned how he and others can benefit from it.

The result of this evolution in his thinking is Deep Thinking: Where Machine Intelligence Ends and Human Creativity Begins, a book which serves as a paean to human resiliency and our collective ability as a species to adapt in the face of technological disruption, no matter how turbulent.

Kasparov’s book serves as the perfect antidote to the prevailing gloom-and-doom narrative in modern writing about artificial intelligence (AI) and smart machines. His message is one of hope and rational optimism about future in which we won’t be racing against the machines but rather running alongside them and benefiting in the process.

Overcoming the Technopanic Mentality

There is certainly no shortage of books and articles being written today about AI, robotics, and intelligent machines. The tone of most of these tracts is extraordinarily pessimistic. Each page is usually dripping with dystopian dread and decrying a future in which humanity is essentially doomed.

As I noted in a recent essay about “The Growing AI Technopanic,” after reading through most of these books and articles, one is left to believe that in the future: “Either nefarious-minded robots enslave us or kill us, or AI systems treacherously trick us, or at a minimum turn our brains to mush.” These pessimistic perspectives are clearly on display within the realm of fiction, where every sci-fi book, movie, or TV show depicts humanity as certain losers in the proverbial “race” against machines. But such lugubrious lamentations are equally prevalent within the pages of many non-fiction books, academic papers, editorials, and journalistic articles.

Given the predominantly panicky narrative surrounding the age of smart machines, Kasparov’s Deep Thinking serves as a welcome breath of fresh air. The aim of his book is finding ways of “doing a smarter job of humans and machines working together” to improve well-being.

Chess fans will enjoy Kasparov’s overview of the history of the game as well as his discussion of how the development of computing and smart machines has been intermingled with chess for many decades now. They will also appreciate his detailed postmortem of his losing battle with Deep Blue, which makes up the meat of the middle of the book. But what is important about the book is the way Kasparov draws out lessons about how the game of chess and chess players themselves have adapted to the rise of smart machines over time — just as he had to following his historic loss to Deep Blue.

Kasparov begins by noting that the growing panic over machine-learning and AI is unwarranted, but in another sense entirely unsurprising. He correctly observes that, “doomsaying has always been a popular pastime when it comes to new technology” and that, “With every new encroachment of machines, the voices of panic and doubt are heard, and they are only getting louder today.”

Fears of sectoral disruptions and job displacements are nothing new, of course, and many of them have even proven legitimate, Kasparov notes. He discusses “a pattern that has repeated over and over for centuries,” in which humans initially scoffed at the idea of machines being able to compete with them. “Eventually we have had to concede that there is no physical labor that couldn’t be replicated, or mechanically surpassed.” That includes the game of chess, where smart machines are now superior to the world’s best players.

But that doesn’t mean we can or should stop the progression of machine intelligence, he says, because the history of humanity is fundamentally tied up with the never-ending process of technological improvements and the gradual assimilation of new tools into our lives, jobs, and economy. He argues:

“Every profession will eventually feel this pressure, and it must, or else it will mean humanity has ceased to make progress. We can either see these changes as a robotic hand closing around our necks or one that can lift us up higher than we can reach on our own, as has always been the case. Romanticizing the loss of jobs to technology is little better than complaining that antibiotics put too many grave diggers out of work.”

That is why it is essential, Kasparov argues, that we not waste time trying to avoid these changes altogether. He regards the very idea of it as an exercise in futility. “Fighting to thwart the impact of machine intelligence is like lobbying against electricity or rockets,” he says. Instead, he argues, we must look to adapt, and do so quickly.

Adaptation, Resiliency & Risk-Taking

In that sense, Kasparov suggests that there are lessons for us in the history of chess as well as from his own experience competing against Deep Blue. He notes that his match against IBM’s supercomputer, “was symbolic of how we are in a strange competition both with and against our creation in more ways every day.”

Instead of just throwing our hands up in the air in frustration, we must be willing to embrace the new and unknown — especially AI and machine-learning. “Each of us has a choice to make: to embrace these new challenges, or to resist them.” His consistent plea throughout the book is to not give into to our worst fears, but instead to embrace these new technological challenges with a willingness to try new ways of doing things. “No matter how many people are worried about jobs, or the social structure, or killer machines, we can never go back,” he concludes.

On that point, my favorite passage in his book comes early in a short chapter about the history of chess. Kasparov’s sagacious advice is worth quoting at length:

“The willingness to keep trying new things — different methods, uncomfortable tasks — when you are already an expert at something is what separates good from great. Focusing on your strengths is required for peak performance, but improving your weaknesses has the potential for the greatest gains. This is true for athletes, executives, and entire companies. Leaving your comfort zone involves risk, however, and when you are already doing well the temptation to stick with the status quo can be overwhelming, leading to stagnation.”

Societal attitudes toward risk-taking and disruption matter profoundly in this regard because “our perspective on disruption affects how well prepared for it we will be” for the future. Again, the lessons from the world of chess are clear: “How professional chess changed when computers and databases arrived is a useful metaphor for how new technology is adopted across industries and societies in general.” For modern chess players, “it was a matter of adapting to survive,” he argues. “Those who quickly mastered the new methods thrived; the few who didn’t mostly dropped down the rating lists.”

 

Disrupting Education

Kasparov is particularly concerned about how a deep underlying conservatism and resistance to experimentation has become a chronic problem within the traditional educational system. “The prevailing attitude is that education is too important to take risks. My response is that education is too important not to take risks,” he says.

He again returns to the world of chess and he speaks with excitement about the ways in which young chess prodigies are tapping computers and sophisticated programs to supplement their skill-building. They do this, Kasparov says, even though they often receive little encouragement from the older guard, who often still resist the new methods of learning. “We need to find out what works and the only way to do that is to experiment,” he argues. “The kids can handle it. They are already doing it on their own. It’s the adults who are afraid.”

He’s also bullish on the globalization of these trends and the way in which “technology will enable people from all over the world to become entrepreneurs, or scientists, or anything they want despite where they live.” Kasparov believes this is already happening within the global chess community as new computing technologies help players everywhere raise the level of their skills. “Kids are capable of learning far more, far faster, than tradition educational methods allow for,” he argues. “They are already doing it mostly on their own, living and playing in a far more complex environment than the one their parents grew up in.”

Problems Ahead

Kasparov isn’t blind to the potential problems associated with new technologies, including AI and algorithmic systems. The potential for privacy violations represents one of the major concerns related to our powerful new technological capabilities. “There are countless privacy issues to be negotiated anytime [personal] data is accessed, of course, and that trade-off will continue to be one of the main battlefields of the AI revolution.”

Kasparov says he is “glad privacy advocates are on the job, especially regarding the powers of the government,” yet he also senses that we are our own worst enemies because new digital technologies and AI-enabled systems “will continue to make the benefits of sharing our data practically irresistible.” “Utility always wins,” he argues, and even if one country seeks to clamp down on innovation, others will welcome it. “When the results come back and show that the economic and health benefits are tremendous, the floodgates will open everywhere.”

He is probably right. After all, as I have noted in recent essays, we increasingly live in a world where “global innovation arbitrage” — i.e., the increasingly frictionless movement of innovations to jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity — is increasingly easy. We already know how challenging it is to control data flows in the age of the Internet, smartphones, and social media. But the combination of more sophisticated forms of machine-learning and the rise of innovation arbitrage opportunities means that formidable challenges lie ahead in terms of digital privacy and cybersecurity.

Other ethical issues will need to be worked out over time, but it is important not to imbue new AI technologies or automated systems with too much moral weight right out of the gates. “Our technology is not concerned about good or evil. It is agnostic,” Kasparov correctly notes. The real question, he says, is how we ourselves put our tools to use. “The ethics are in how we humans use it, not whether we should build it.”

Humility about the Future

Despite some concerns such as these, Kasparov is generally quite bullish about the future of humanity in an age of smart machines. Again, his core message is that, “going backwards isn’t an option” and that “it is almost always better to start looking for alternatives and how to advance the change into something better instead of trying to fight it and hold on to the dying status quo.”

He agrees with many other pundits that new skills and jobs will be needed going forward, but admits they aren’t always easy to plan for in advance. As Yogi Berra once famously said, “It’s tough to make predictions, especially about the future.” Indeed, as I pointed out in the most recent edition of my book Permissionless Innovation, when one looks back at official government labor market studies and forecasts from the 1970s and 1980s, you are struck by the way in which policymakers didn’t even have a vocabulary to describe the jobs and skills of the present. For example, you find no mention in past reports of some of today’s hottest jobs, such as software engineers and architects, UX designers, database scientists and administrators, and so on.

On one hand, therefore, pessimistic pundits and policymakers regularly underestimate the adaptability of workers and the evolution of new skills and professions. On the other hand, they make an equally egregious mistake when they overestimate the impact of technological change on many sectors and professions, or suggest that mass unemployment is just around the corner unless we slow automation down.

Just this week, the Information Technology and Innovation Foundation released a new report on the impact of technological disruption in the U.S. labor market from 1850 to present and decried the “false alarmism” often on display in debates about current and future skills and professions. “Labor market disruption is not abnormally high,” conclude authors Robert D. Atkinson and John Wu, but instead, “it’s occurring at its lowest rate since the Civil War.”

We’ve been through more turbulent labor market disruptions in the past and weathered the storm. Chances are we will do so again, so long as we embrace the potential for that change to improve our lives and economy in the long-term. “In fact,” conclude Atkinson and Wu, “the single biggest economic challenge facing advanced economies today is not too much labor market churn, but too little, and thus too little productivity growth.” This is consistent with Kasparov’s repeated call in Deep Thinking for us not to give in to our fears about a highly uncertain future but to instead embrace its potential. “Our machines will continue to make us healthier and richer as we use them wisely,” he says, while adding, “They will also make us smarter.”

Learning by Doing

What Kasparov is really doing throughout the book is making the case for building human and institutional resiliency through a constant willingness to experiment and learn through trial and error. It is certainly true that many of today’s skillsets, professions, and business models will be challenged by the rise of smarter machines and algorithmic learning. Defeatism in the face of that prospect, however, isn’t the answer; adaptation is.

Boston University economist James Bessen wrote about this process in his new book, Learning by Doing. Bessen argued that periods of profound technological change require a willingness by workers, businesses, and other institutions to adjust to new marketplace realities. For progress to occur, large numbers of ordinary workers must acquire new knowledge and skills. However, “that is a slow and difficult process, and history suggests that it often requires social changes supported by accommodating institutions and culture,” Bessen notes.

Luckily, history also suggests that we have been through this process many times before and can get through it again — and raise the standard of living for workers and average citizens alike over the long-run. The crucial part of that process is a general willingness to continue to experiment with new ways of doing things — i.e., learning by doing — and understanding that new skills and professions will emerge from all that process.

That is essentially the same point Kasparov makes in Deep Thinking. As he summarized in a new podcast conversation with Tyler Cowen:

“There will be redistribution of jobs. Many jobs today — like drone operators or 3D printer managers or social media managers — they didn’t exist 10 years ago, 15 years ago. No doubt in 10, 15 years, there will be many jobs, maybe the best-paid jobs, that don’t exist today, and we don’t even know how these jobs will look. I think that’s natural. All we have to do is realize that this process is inevitable, and we have to prepare us mentally, but also to have some sort of safety cushions to help people that will have great difficulty in adjusting.”

What about more specific public policy solutions? Considering the unclear future that lies ahead, flexibility and plenty of policy experimentation will be crucial to finding and unlocking new methods that could help us cope and adapt in the new world. “The problem comes when the government is inhibiting innovation with overregulation and short-sighted policy,” Kasparov says. Trade wars and restrictive immigration policies won’t help matters either, he argues, because they “will limit America’s ability to attract the best and brightest minds.” Hopefully the Trump Administration is listening to his advice in this regard.

AI skeptics and other technology critics will lament Kasparov’s lack of greater detail and the absence of a more precise blueprint for helping workers and institutions navigate an uncertain future. But, again, the entire point of Kasparov’s book is that there is enormous value in the very act of confronting those new challenges, learning through trial-and-error(including the many accompanying failures), and “muddling through” over time.

Much like looking out over the chessboard and pondering the wisdom of our next move, we cannot be frozen into inaction because of fear. We must be willing to make that next move. And then another, and another. And then we must learn from our experiences, and especially our mistakes, if we hope to prosper. “To keep ahead of the machines, we must not try to slow them down because that slows us down as well,” Kasparov concludes in his closing chapter. “We must speed them up. We must give them, and ourselves, plenty of room to grow. We must go forward, outward, and upward.”

Wise advice from the greatest of all grandmasters.

]]> https://techliberation.com/2017/05/11/book-review-garry-kasparovs-deep-thinking/feed/ 1 76140 DOT’s Driverless Cars Guidance: Will “Agency Threats” Rule the Future? https://techliberation.com/2016/09/20/dots-driverless-cars-guidance-will-agency-threats-rule-the-future/ https://techliberation.com/2016/09/20/dots-driverless-cars-guidance-will-agency-threats-rule-the-future/#comments Tue, 20 Sep 2016 21:12:15 +0000 https://techliberation.com/?p=76082

Today, the U.S. Department of Transportation released its eagerly-awaited “Federal Automated Vehicles Policy.” There’s a lot to like about the guidance document, beginning with the agency’s genuine embrace of the potential for highly automated vehicles (HAVs) to revolutionize this sector and save thousands of lives annually in the process.

It is important we get HAV policy right, the DOT notes, because, “35,092 people died on U.S. roadways in 2015 alone” and “94 percent of crashes can be tied to a human choice or error.” (p. 5) HAVs could help us reverse that trend and save thousands of lives and billions in economic costs annually. The agency also documents many other benefits associated with HAVs, such as increasing personal mobility, reducing traffic and pollution, and cutting infrastructure costs.

I will not attempt here to comment on every specific recommendation or guideline suggested in the new DOT guidance document. I could nit-pick about some of the specific recommended guidelines, but I think many of the guidelines are quite reasonable, whether they are related to safety, security, privacy, or state regulatory issues. Other issues need to be addressed and CEI’s Marc Scribner does a nice job documenting some of them is his response to the new guidelines.

Instead of discussing those specific issues today, I want to ask a more fundamental and far-reaching question which I have been writing about in recent papers and essays: Is this guidance or regulation? And what does the use of informal guidance mechanisms like these signal for the future of technological governance more generally?

When Is “Voluntary” Really Mandatory?

The surreal thing about DOT’s new driverless car guidance is how the agency repeatedly stresses it “is not mandatory” and that the guidelines are voluntary in nature but then — often in the same paragraph or sentence — the agency hints how it might convert those recommendations into regulations in the near future. Consider this paragraph on pg. 11 of the DOT’s new guidance document:

The Agency expects to pursue follow-on actions to this Guidance, such as performing additional research in areas such as benefits assessment, human factors, cybersecurity, performance metrics, objective testing, and others as they are identified in the future. As discussed, DOT further intends to hold public workshops and obtain public comment on this Guidance and the other elements of the Policy. This Guidance highlights important areas that manufacturers and other entities designing HAV systems should be considering and addressing as they design, test, and deploy HAVs. This Guidance is not mandatory. NHTSA may consider, in the future, proposing to make some elements of this Guidance mandatory and binding through future regulatory actions. This Guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles. Additional next steps are outlined at the end of this Guidance. [emphasis added.]

The agency continues on to request that “manufacturers and other entities voluntarily provide reports regarding how the Guidance has been followed,” but then notes how “[t]his reporting process may be refined and made mandatory through a future rulemaking.” (p. 15)

And so it goes throughout the DOT’s new “guidance” document. With one breath the DOT suggests that everything is informal and voluntary; with the next it suggests that some form of regulation could be right around the proverbial corner.

Agency Threats Are the Future of Technological Governance

What’s going on here? In essence, DOT’s driverless car guidance is another example of how “soft law” and “agency threats” are becoming the dominant governance models for fast-paced emerging technology.

As noted by Tim Wu, a proponent of such regimes, these agency threats can include “warning letters, official speeches, interpretations, and private meetings with regulated parties.” “Soft law” simply refers to any sort of informal governance mechanism that agencies might seek to use to influence private decision-making or in this case the future course of technological innovation.

The problem with agency threats, as my former Mercatus Center colleague Jerry Brito pointed out in a 2014 law review article, is that they are fundamentally undemocratic and represent a betrayal of the rule of law. The use of “threat regimes,” Brito argued, “places undue power in the hands of regulators unconstrained by predictable procedures.” Such regimes breed uncertainty by leaving decisions up to the whim of regulators who will be unconstrained by administrative procedures, legal precedents, and strict timetables. “[B]ecause it has no limiting principle,” Brito concluded, the agency threats model “leaves the regulatory process without much meaning” and “would obviously be ripe for abuse.”

The danger exists that we are witnessing gradual mission creep as the DOT’s “guidance” process slowly moves from being a truly voluntary self-certification process to something more akin to a pre-market approval process. Every “informal” request that DOT makes — even when those requests are just presented in the form of vague questions — opens the door to greater technocratic meddling in the innovation process by federal bureaucrats.

Coping with the Pacing Problem

Why are agencies like the DOT adopting this new playbook? In a nutshell, it comes down to the realization on their part that the “pacing problem” is now an undeniable fact of life.

I discussed the pacing problem at length in my recent review of Wendell Wallach’s important new book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Wallach nicely defined the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” “There has always been a pacing problem,” Wallach noted, but like other philosophers, he believes that modern technological innovation is occurring at an unprecedented pace, making it harder than ever to “govern” it using traditional legal and regulatory mechanisms.

Which is exactly why the DOT and whole lot of other agencies are now defaulting to soft law and agencies threat models as their old regimes struggle to keep up with the pace of modern technological innovation. As the DOT put it in its new guidance document: “The speed with which HAVs are advancing, combined with the complexity and novelty of these innovations, threatens to outpace the Agency’s conventional regulatory processes and capabilities.” (p. 8)  More specifically, the agency notes that:

The remarkable speed with which increasingly complex HAVs are evolving challenges DOT to take new approaches that ensure these technologies are safely introduced (i.e., do not introduce significant new safety risks), provide safety benefits today, and achieve their full safety potential in the future. To meet this challenge, we must rapidly build our expertise and knowledge to keep pace with developments, expand our regulatory capability, and increase our speed of execution. (p. 6)

Rarely has any agency been quite so blunt about how it is racing to get ahead of the pacing problem before it completely loses control of the future course of technological innovation.

But the DOT is hardly alone in its increased reliance on soft law governance mechanisms. In fact, I’m in the early research stages of a new paper about what soft law and agency threat models mean for the future of emerging technology and its governance. In that paper, I hope to document how many different agencies (FAA, FDA, FTC, FCC, NTIA, & DOT among others) are using some variant of soft law model to informally regulate the growing universe of emerging technologies out there today (commercial drones, connected medical devices, the Internet of Things, 3D printing, immersive technology, the sharing economy, driverless cars, and more.)

If nothing else, I would like to devise a taxonomy of soft law/agency threat models and then discuss the upsides and downsides of those models. If anyone has recommendations for additional reading on this topic, please let me know. The best thing I have seen on the issue is a 2013 book of collected essays on Innovative Governance Models for Emerging Technologies, edited by Gary E. Marchant, Kenneth W. Abbott and Braden Allenby. I’m surprised more hasn’t been written about this in law reviews or political science journals.

What Does It Mean for Innovation? And Accountable Government?

So, what does all this mean for the future of driverless cars, autonomous systems, and other emerging technologies? I think it’s both good and bad news.

The good news — at least from the perspective of those of us who want to see innovators freed up to experiment more without prior restraint — is that the technological genie is increasingly out of the bottle. Technology regulators are at an impasse and they know it. Their old regulatory regimes are doomed to always be one step behind the action. Thus, a lot of technological innovation is going to be happening before any blessing has been given to engage in those experiments.

The bad news is that the regulatory regimes of the future will become almost hopelessly arbitrary in terms of their contours and enforcement ceiling. Basically, in our new world of soft law and agency threats, you can tear up the Administrative Procedures Act and throw it out the window.  When regulatory agencies act in the future, they will do so in a sort of extra-legal Twilight Zone, where things are not always as they seem. Agencies will increasingly act like nagging nannies, constantly pressuring innovators to behave themselves. And sometimes that nagging will work, and sometimes it will even improve consumer welfare at the margin! It will work sometimes precisely because government still wields a mighty big hammer and no innovator wants to be nailed to the ground in the courts, or the court of public opinion for that matter. Thus, many — not all, but many — of those innovators will go along with whatever agencies like DOT suggests as “best practices” even if those guidelines are horribly misguided or have no force of law whatsoever. And because agencies know that many (perhaps most) innovators will fall in line with whatever “best practices” or “codes of conduct” that they concoct, it will reinforce the legitimacy of this model and become the new method of imposing their will on current or emerging technology sectors.

Again, agency threats won’t always work because some innovators will continue to engage in rough forms of “technological civil disobedience” and just ignore a lot of these informal guidelines and agency threats. Agencies will push back and seek to make an example of specific innovators (especially the ones with deep pockets) in order to send a message to every other innovator out there that they better fall in line or else!

But what that “or else!” moment or action looks like remains completely unclear. The problem with soft law is that, by its very nature, it is completely open-ended and fundamentally arbitrary. It is really just “ non-law law.” That’s the “legal regime” that will “govern” the emerging technologies of the present and the future.

Isn’t Soft Law Better Than the Alternative?

Now, here’s the funny thing about this messy, arbitrary, unaccountable world of soft law and agency threats: It is probably a hell of lot better than the old world we used to live in!

The old analog era regulatory systems were very top-down and command-and-control in orientation. These traditional regimes were driven by the desire of regulators to enforce policy priorities by imposing prior restraints on innovation and then selectively passing out permission slips to get around those rules.

As I noted in my latest book, the problem with those traditional regulatory systems is that they “tend to be overly rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things.” (Permissionless Innovation, p. 120)

For all the reasons I outlined in my book and other papers on these topics, “permissionless innovation” remains the superior policy default compared to precautionary principle-based prior restraints. But I am not so naïve as to expect that permissionless innovation will prevail in the policy world all of the time. Moreover, I am not one of those technological determinists who goes around saying that technology is an unstoppable force that relentlessly drives history, regardless of what policymakers say. I am more of a soft determinist who believes that technology often can be a major driver of history, but not without a significant shaping from other social, cultural, economic, and political forces.

Thus, as much as I worry about the new “soft law/agency threats” regime being arbitrary, unaccountable, and innovation-threatening, I know that the ideal of permissionless innovation will only rarely be our default policy regime. But I also don’t think we are going back the old regulatory regimes of the past and we absolutely wouldn’t want to anyway in light of the deleterious impacts those regimes had on innovation in practice.

The best bet for those of us who care about the freedom to innovate is to make sure that these soft law governance mechanisms have some oversight from Congress (unlikely) and the Courts (more likely) when agencies push too far with informal agency threats. Better yet, we can hope that the pace of technological change continues to accelerate and pressures agencies to only intervene to address the most pressing problems and then largely leaves the rest of the field wide open for continued experimentation with new and better ways of doing things.

But make no doubt about it, as today’s DOT guidance document for driverless cars makes clear, “agency threats” will increasingly shape the future of emerging technologies whether we like it or not.

]]> https://techliberation.com/2016/09/20/dots-driverless-cars-guidance-will-agency-threats-rule-the-future/feed/ 2 76082 Which Emerging Technologies are “Weapons of Mass Destruction”? https://techliberation.com/2016/08/26/which-emerging-technologies-are-weapons-of-mass-destruction/ https://techliberation.com/2016/08/26/which-emerging-technologies-are-weapons-of-mass-destruction/#comments Fri, 26 Aug 2016 19:29:56 +0000 https://techliberation.com/?p=76078

SecGen Ban
On Tuesday, UN Secretary-General Ban Ki-Moon delivered an address to the UN Security Council “on the Non-Proliferation of Weapons of Mass Destruction.” He made many of the same arguments he and his predecessors have articulated before regarding the need for the Security Council “to develop further initiatives to bring about a world free of weapons of mass destruction.” In particular, he was focused on the great harm that could come about from the use of chemical, biological and nuclear weapons. “Vicious non-state actors that target civilians for carnage are actively seeking chemical, biological and nuclear weapons,” the Secretary-General noted. A stepped-up disarmament agenda is needed, he argued, “to prevent the human, environmental and existential destruction these weapons can cause . . . by eradicating them once and for all.”

The UN has created several multilateral mechanisms to pursue those objectives, including the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention, and the Biological Weapons Convention. Progress on these fronts has always been slow and limited, however. The Secretary-General observed that nuclear non-proliferation efforts have recently “descended into fractious deadlock,” but the effectiveness of those and similar UN-led efforts have long been challenged by the dual realities of (1) rapid ongoing technological change that has made WMDs more ubiquitous than ever, plus (2) a general lack of teeth in UN treaties and accords to do much to slow those advances, especially among non-signatories.

Despite those challenges, the Secretary-General is right to remain vigilant about the horrors of chemical, biological and nuclear attacks. But what was interesting about this address is that the Secretary-General continued on to discuss his concerns about a rising class of emerging technologies, which we usually don’t hear mentioned in the same breath as those traditional “weapons of mass destruction”:

I will now say a few words about new global threats emerging from the misuse of science and technology, and the power of globalization. Information and communication technologies, artificial intelligence, 3D printing and synthetic biology will bring profound changes to our everyday lives and benefits to millions of people. However, their potential for misuse could also bring destruction. The nexus between these emerging technologies and WMD needs close examination and action. As a starting point, the international community must step up to expand common ground for the peaceful use of cyberspace and, particularly, the intersection between cyberspace and critical infrastructure.  People now live a significant portion of their lives online. They must be protected from online attacks, just as effectively as they are protected from physical attacks. Disarmament and non-proliferation instruments are only as successful as Member States’ capacity to implement them.

And the Secretary-General concluded by calling on “all Member States to re-commit themselves and to take action. The stakes are simply too high to ignore.”

The Secretary-General’s inclusion of all these emerging technologies in a speech about WMDs and the dangers of chemical, biological and nuclear weapons raises an interesting question: Are all these things actually equivalent? Does a danger exist from the continued evolution of ICTs, AI, 3D printing, and synthetic biology that is equal to the very serious threat posed by chemical, biological and nuclear weapons?

On one hand, it is tempting to say, Yes! If nothing else, most of us have seen more than enough techno-dystopian Hollywood plots through the years to understand the hypothetical dangers that some of these technologies pose. But even if (like me) you dismiss most of the movie plots as far-fetched Chicken Little-ism meant to drum up big box office, plenty of serious scholars out there have sketched out more credible pictures of the threat some of these new technologies might pose to humanity. Information platforms can be hacked and our personal data or security compromised. 3D printers can be used to create cheap, undetectable firearms. Robotics and autonomous systems can be programmed to kill. Synthetic biology might help create genetically-modified super-soldiers. And so on.

These are serious questions with profound ramifications and I discussed them at much greater length in my lengthy review of Wendell Wallach’s important book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Like many other books and essays on these technologies, Wallach champions “the need for more upstream governance” as in “more control over the way that potentially harmful technologies are developed or introduced into the larger society. Upstream management is certainly better than introducing regulations downstream, after a technology is deeply entrenched or something major has already gone wrong,” he suggests. “Yet, even when we can access risks, there remain difficulties in recognizing when or determining how much control should be introduced. When does being precautionary make sense, and when is precaution an over-reaction to the risks?”

Indeed, that is the right question, and quite a profound one. The problem associated with all such “upstream governance” and preemptive controls on emerging technologies is determining how to avoid hypothetical future risks without destroying the potential for these same technologies to be used in life-enriching and even life-saving ways.

Solutions are illusive and involve myriad trade-offs. More generally, it’s not even clear that they would be workable. That is especially true when you expand the scale of governance to include the entire planet. It seems unlikely, for example, that a hypothetical UN-led Synthetic Biology Non-Proliferation Treaty, 3D-Printed Weapons Convention, or Agreement on the Peaceful Use of Cyberspace are going to be workable solutions in a world where these technologies are so radically decentralized and proliferating so rapidly. At least with some of the older technologies, the underlying materials were somewhat harder to obtain, manufacture, weaponize, and then distribute/use. But the same is not true of many of these newer technologies. It’s a heck of lot easier to get access to a computer and 3D printer than uranium and enrichment facilities, for example.

Moreover, when we discuss the risks associated with emerging technologies compared to past technologies, there needs to be some sort of weighing of the actual probability of serious harm coming about. In the expanded Second Edition of my Permissionless Innovation book, I tried to offer a rough framework for when formal precautionary regulation (i.e., operational restrictions, licensing requirements, research limitations, or even formal bans) might be necessary. In a section of Chapter 3 of my book entitled, “When Does Precaution Make Sense?” I argued that:

Generally speaking, permissionless innovation should remain the norm in the vast majority of cases, but there will be some scenarios where the threat of tangible, immediate, irreversible, catastrophic harm associated with new innovations could require at least a light version of the precautionary principle to be applied.  In these cases, we might be better suited to think about when an “anti-catastrophe principle” is needed, which narrows the scope of the precautionary principle and focuses it more appropriately on the most unambiguously worst-case scenarios that meet those criteria.

“But most [emerging technology] cases don’t fall into this category,” I concluded. It is simply not the case that most emerging technologies pose the same sort of tangible, immediate, irreversible, catastrophic, and highly probably risk that traditional “weapons of mass destruction” do.

And that gets at my problem with that recent address by UN Secretary-General Ban Ki-Moon. By so casually moving from a heated discussion of traditional WMDs into a brief discussion about the potential risks associated with ICTs, AI, 3D printing and synthetic biology, I really worry about the sort of moral equivalence that some might read into this speech. Again, these things, and the threats they pose, are simply not the same. Yet, when the UN Secretary-General sandwiches these technologies in between impassioned opening and closing statements about the need “to take action” because “the stakes are simply too high to ignore,” it seems to suggest he is prepared to speak of them all in the same breath as traditional “weapons of mass destruction” and suggest similar global control efforts are needed. I do not believe that is sensible.

Does this mean we just throw our hands up in the air and give up any inquiry into the matter? Of course not. As I noted in my review of Wallach’s book, some very sensible “soft law” approaches exist that are worth pursuing. Soft law approaches can include a wide variety of efforts to “bake a dose of precautionary directly into the innovation process through a wide variety of informal governance/oversight mechanisms,” as I noted in my review of Wallach’s book. “By embedding shared values in the very design of new tools and techniques, engineers improve the prospect of a positive outcome,” Wallach says in his book.

Many soft law or informal governance systems already exist in the forms of  so-called “multistakeholder governance” systems, informal industry codes of conduct, best practices, and other coordinating mechanisms. But these solutions would likely fall short of addressing some extreme scenarios that many people are worried about. Toward that end, when the case can be made that a particular application of a new general purpose technology will result in tangible, immediate, irreversible, catastrophic, and highly probably dangers, then perhaps some international action should be considered. For example, a case can be made that governments (and perhaps even the UN) should do more to preemptively curb the most nefarious uses of robotics. There’s already a major effort underway called the “Campaign to Stop Killer Robots” that seeks a multinational treaty to stop deadly uses of robotics. Again, I’m not sure how enforcement will work, but I think it’s worth investigating how some of the uses of “killer robots” might be limited through international accords and actions. Moreover, I could imagine an extension of existing the UN’s Biological Weapons Convention framework to cover some synthetic biology applications that involve extreme forms of human modification.

That being said, policymakers and international figures of importance like UN Secretary-General Ban Ki-Moon should be extremely cautious about the language they use to describe new classes of technologies lest they cast too wide a net with calls for controlling “weapons of mass destruction” that may be nothing of the sort.

 

Additional Reading 

]]> https://techliberation.com/2016/08/26/which-emerging-technologies-are-weapons-of-mass-destruction/feed/ 3 76078 Book Review: Calestous Juma’s “Innovation and Its Enemies” https://techliberation.com/2016/07/29/book-review-calestous-jumas-innovation-and-its-enemies/ https://techliberation.com/2016/07/29/book-review-calestous-jumas-innovation-and-its-enemies/#comments Fri, 29 Jul 2016 15:32:42 +0000 https://techliberation.com/?p=76052

Juma book cover

“The quickest way to find out who your enemies are is to try doing something new.” Thus begins Innovation and Its Enemies, an ambitious new book by Calestous Juma that will go down as one of the decade’s most important works on innovation policy.

Juma, who is affiliated with the Harvard Kennedy School’s Belfer Center for Science and International Affairs, has written a book that is rich in history and insights about the social and economic forces and factors that have, again and again, lead various groups and individuals to oppose technological change. Juma’s extensive research documents how “technological controversies often arise from tensions between the need to innovate and the pressure to maintain continuity, social order, and stability” (p. 5) and how this tension is “one of today’s biggest policy challenges.” (p. 8)

What Juma does better than any other technology policy scholar to date is that he identifies how these tensions develop out of deep-seated psychological biases that eventually come to affect attitudes about innovations among individuals, groups, corporations, and governments. “Public perceptions about the benefits and risks of new technologies cannot be fully understood without paying attention to intuitive aspects of human psychology,” he correctly observes. (p. 24)

Opposition to Change: It’s All in Your Head

Juma documents, for example, how “status quo bias,” loss aversion, and other psychological tendencies tend to encourage resistance to technological change. [Note: I discussed these and other “root-cause” explanations of opposition to technological change in Chapter 2 of my book, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, as well as in my 2012 law review article on “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.”]  Juma notes, for example, that “society is most likely to oppose a new technology if it perceives that the risks are likely to occur in the short run and the benefits will only accrue in the long run.” (p. 5) Moreover, “much of the concern is driven by perception of loss, not necessarily by concrete evidence of loss.” (p. 11)

Juma’s approach to innovation policy studies is strongly influenced by the path-breaking work of Austrian economist Joseph Schumpeter, who long ago documented how entrepreneurial activity and the “perennial gales of creative destruction” were the prime forces that spurred innovation and propelled society forward. But Schumpeter was also one of the first scholars to realize that psychological fears about such turbulent change was what ultimately lead to much of the short-term opposition to new technologies that, in due time, we eventually come to see as life-enriching or even life-essential innovations.  Juma uses Schumpeter’s insight as the launching point for his exploration and he successfully verifies it using meticulously-detailed case studies.

Case Study-Driven Analysis

Juma
Short-term opposition to change is particularly acute among incumbent industries and interest groups, who often feel they have the most to lose. In this regard, Innovation and Its Enemies contains some spectacular histories of how special interests have resisted new technologies and developments throughout the centuries. Those case studies include: coffee and coffeehouses, the printing press, margarine, farm machinery, electricity, mechanical refrigeration, recorded music, transgenic crops, and genetically engineered salmon. These case studies are remarkably detailed histories that offer engaging and enlightening accounts of “the tensions between innovation and incumbency.”

My favorite case study in the book discusses how the dairy industry fought the creation and spread of margarine (excuse the pun!). I had no idea how ugly that situation got, but Juma provides all the gory details in what I consider one of the very best crony capitalist case studies ever penned.

In particular, in a subsection of that chapter entitled “The Laws against Margarine,” he provides a litany of examples of how effective the dairy industry was in convincing lawmakers to enact ridiculous anti-consumer regulations to stop margarine, even though the product offered the public a much-needed, and much more affordable, substitute for traditional butter. At one point, the daily industry successfully lobbied five states to adopt rules mandating that any imitation butter product had to be dyed pink! Other states enacted labelling laws that required butter substitutes to come in ominous-looking black packaging. Again, all this was done at the request of the incumbent dairy industry and the National Dairy Council, which would resort to almost any sort of deceptive tactic to keep a cheaper competing product out of the hands of consumers.

And so it goes in chapter after chapter of Juma’s book. The amount of detail in each of these unique case studies is absolutely stunning, but they nonetheless remain highly readable accounts of sectoral protectionism, special interest rent-seeking, and regulatory capture. In this way, Juma is plowing some familiar ground already covered by other economic historians and political scientists, such as Joel Mokyr and Mancur Olson, both of whom are mentioned in the book, as well as a long line of public choice scholars who are, somewhat surprisingly, not discussed in the text. Nonetheless, Juma’s approach is still fresh, unique, and highly informative. In fact, I don’t think I’ve ever seen so many distinct and highly detailed case studies assembled in one place by a single scholar.  What Juma has done here is truly impressive.

Related Innovation Policy Paradigms

Beyond Schumpeter’s clear influence, Juma’s approach to studying innovation policy also shares a great deal in common with two other unmentioned innovation policy scholars, Virginia Postrel and Robert D. Atkinson.

Postrel’s 1998 book, The Future and Its Enemies, contrasted the conflicting worldviews of “dynamism” and “stasis” and showed how the tensions between these two visions would affect the course of human affairs. She made the case for embracing dynamism — “a world of constant creation, discovery, and competition” — over the “regulated, engineered world” of the stasis mentality. Similarly, in his 2004 book, The Past and Future of America’s Economy, Atkinson documented how “American history is rife with resistance to change,” and in recounting some of the heated battles over previous technological revolutions he showed how two camps were always evident: “preservationists” and “modernizers.”

When Juma repeatedly recounts the fight between “innovation and incumbency” in his case studies, he is essentially describing the same paradigmatic divide that Postrel and Atkinson highlight in their works when they discuss “dynamist” vs. “stasis” tensions and the “modernizers” vs. “preservationists” battles that we have seen throughout history. [Note: In my 2014 essay on, “Thinking about Innovation Policy Debates: 4 Related Paradigms,” I discussed Postrel and Atkinson’s books and other approaches to understanding tech policy divisions and then related them to the paradigms I contrast in my work: the so-called “precautionary principle” vs. “permissionless Innovation” mindsets.]

Finally, Juma’s book could also be compared to another freshly released book, The Politics of Innovation, by Mark Zachary Taylor. Taylor’s book is also essential reading on this lamentable history of industrial protectionism and the resulting political opposition to change we have seen over time. [Note: Brent Skorup and provided many other high-tech cronyist case studies like these in our 2013 law review article, “A History of Cronyism and Capture in the Information Technology Sector.”]

To counter the prevalence of special interest influence and poor policymaking more generally, Juma stresses the need for evidence-based analysis and a corresponding rejection of fear-mongering and deceptive tactics by public officials and activist groups. He’s particularly concerned with “the use of demonization and false analogies to amplify the perception of risks associated with a new product.”

Accordingly, he would like to see improved educational and risk communication efforts aimed at better informing the public about risk trade-offs and the many potential future benefits of emerging technologies. “Learning how to communicate to the general public is an important aspect of reducing distrust [in new technologies],” Juma argues. (p. 312)

On the Pacing Problem

But Juma never really adequately squares that recommendation with another point he makes throughout the text about how “the pace of technological innovation is discernibly fast,” (p. 5) and how it is accelerating in an exponential fashion. “The implications of exponential growth will continue to elude political leaders if they persist in operating with linear worldviews.” (p. 14) But if it is indeed the case that things are moving that fast, then are we not potentially doomed to live in never-ending cycles of technopanics and misinformation campaigns about new technologies no matter how much education we try to do?

Regardless, Juma’s argument about the speed of modern technological change is quite valid and shared by many other scholars. He is essentially making the same case that Larry Downes did in his excellent 2009 book, The Laws of Disruption: Harnessing the New Forces That Govern Life and Business in the Digital Age. Downes argued that lawmaking in the information age is inexorably governed by the “law of disruption” or the fact that “technology changes exponentially, but social, economic, and legal systems change incrementally.”  This law, Downes said, is “a simple but unavoidable principle of modern life,” and it will have profound implications for the way businesses, government, and culture evolve going forward.  “As the gap between the old world and the new gets wider,” he argued, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.”

Again, Juma makes that same point repeatedly throughout the chapters of his book. This is also a restatement of the so-called “pacing problem,” as it is called in the field of the philosophy of technology. I discussed the pacing problem at length in my recent review of Wendell Wallach’s important new book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Wallach nicely defined the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” “There has always been a pacing problem,” he noted but, like Juma, Wallach believes that modern technological innovation is occurring at an unprecedented pace, making it harder than ever to “govern” using traditional legal and regulatory mechanisms.

New Approaches to Technological Governance Needed

Both Wallach in A Dangerous Master and Juma in Innovation and Its Enemies struggle with how to solve this problem. Wallach advocates “soft law” mechanisms or even informal “Governance Coordinating Committees,” which would oversee the development of new technology policies and advise existing governmental institutions. Juma is somewhat ambiguous regarding potential solutions, but he does stress the general need for a flexible approach to policy, as he notes on pg. 252:

It is important to make clear distinctions between hazards and risks. It is necessary to find a legal framework for addressing hazards. But such a framework should not take the form of rigid laws whose adoption needs to be guided by evidence of harm. More flexible standards that allow continuous assessment of emerging safety issues related to a new product are another way to address hazards. This approach would allow for evidence-based regulation.

Beyond that Juma wants to see “entrepreneurialism exercised in the public arena” (p. 282) and calls for “decisive leaders to champion the application of new technologies.” (p. 283) He argues such leadership is needed to ensure that life-enriching technologies are not derailed by opponents of change.

On the other hand, Juma sees a broader role for policymakers in helping to counter some of the potential side effects associated with many emerging technologies. He highlights three primary areas of concern. First, he suggests political leaders might need to find ways “to help balance the benefits and risks of automation” due to the rapid rise of robotics and artificial intelligence. Second, he notes that synthetic biology and gene-editing will give rise to many thorny issues that require policymakers to balance “potentially extraordinary benefits and the risk of catastrophic consequences.” (p. 284)  Finally, he points out that medicine and healthcare are set to be radically transformed by emerging technologies, but they are also threatened by archaic policies and practices in many countries.

In each case, Juma hopes that “decisive,” “adaptive” and “flexible” leaders will steer a sensible policy course with an eye toward limiting “the spread of political unrest and resentment toward technological innovation.” (p. 284)  That’s a noble goal, but Juma remains a bit vague on the steps needed to accomplish that balancing act without tipping public policy in favor a full-blown precautionary principle-based regime for new technologies. Juma clearly wants to avoid that result, but it remains unclear how or where he would draw clear lines in the sand to prevent it from occurring while at the same time achieving “decisive leadership” aimed at balancing potential risks and benefits.

Similarly, his repeated calls in the closing chapter for “inclusive innovation” efforts and strategies sounds sensible in theory, but Juma speaks in abstract generalities about what the term means and doesn’t provide a clear vision for how that would translate into concrete actions that would not end up giving vested interests a veto over new forms of technological innovation that they disfavor.

[CARTOON] Consider Every Risk Except

Nothing Ventured, Nothing Gained

Generally speaking, however, Juma wants this balance struck in favor of greater openness to change and an ongoing freedom to experiment with new technological capabilities. As he notes in his concluding chapter:

The biggest risk that society faces by adopting approaches that suppress innovation is that they amplify the activities of those who want to preserve the status quo by silencing those arguing for a more open future. […] Keeping the future open and experimenting in an inclusive and transparent way is more rewarding that imposing the dictum of old patterns. (pgs. 289, 316)

In that regard, the thing I liked most about Innovation and Its Enemies is the way throughout the text that Juma stressed the symbiotic relationship between risk-taking and progress. One of the ways he does so is by kicking off every chapter with a fun quote on that theme from some notable figure. He includes gems like these:

  • “Nothing will ever be attempted if all possible objections must be first overcome.” – Samuel Johnson
  • “Only those will risk going too far can possibly find out how far one can go.” – T.S. Eliot
  • “If you risk nothing, then you risk everything.” – Geena Davis
  • “Test fast, fail fast, adjust fast.” – Tom Peters

Of course, I was bound to enjoy his repeated discussion of this theme because that was the central thesis of my latest book, in which I made the argument that, “if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon such fears—then many best-case scenarios will never come about.” Or more simply, as the old saying goes: “nothing ventured, nothing gained.”

CARTOON - Protesting Against New Technology - the Early Days

On Pastoral Myths

I also liked the way that Juma used his case studies to remind us how “the topics may have changed, but the tactics have not.” (p. 143) For example, much of the fear-mongering and deceptive tactics we have seen through the years are based on “pastoral ideals,” i.e., appeals to nature, farm life, old traditions, of just the proverbial “good old days,” whenever those supposedly were! “Demonizing innovation is often associated with campaigns to romanticize past products and practices,” Juma notes. “Opponents of innovation hark back to traditions as if traditions themselves were not inventions at some point in the past.” (p. 309)  So very true!

That was especially the case in battles over new farming methods and technologies, when opponents of change were frequently “championing a moral cause to preserve a way of life,” as Juma discusses in several chapters. (p. 129) New products or methods of production were repeatedly but wrongly characterized as dangerous simply because they were not supposedly “natural” or “traditional” enough in character.

Of course, if all farming and other work was to remain frozen in some past “natural” state, we’d all still be hunters and gathers struggling to find the next meal to put in our bellies. Or, if we were all still on the farms of the “good old days,” then we’d still be stuck using an ox and plow in the name of preserving the “traditional” ways of doing things.

Humanity has made amazing strides—including being able to feed more people more easily and cheaply than ever before—precisely because we broke with those old, “natural” traditions. Alas, many vested interests and even quite a few academics today still employ these same pastoral appeals and myths to oppose new forms of technological change. Juma’s case studies powerfully illustrate why that dynamic continues to be a driving force in innovation policy debates and how it has delayed the diffusion of many important new goods and services throughout history. When the opponents of change rest their case on pastoral myths and nostalgic arguments about the good old days we should remind them that the good old days weren’t really that great after all.

Conclusion

In closing, Innovation and Its Enemies earns my highest recommendation. Even though 2016 is only half done as I write this, Professor Juma’s book is probably already a shoo-in as my choice for best innovation policy book of the year. And I am certain that it will also go down as one of the decade’s most important innovation policy books. Buy the book now and read every word of it. It is well worth your time.

 

Additional material related to Juma’s book:

Other Related Books

In addition to the books that I already mentioned throughout this review, readers who find Juma’s book and the issues he discusses in it of interest should also consider reading these other books on innovation policy, technological governance, and regulatory capture.  Although many of them are more squarely focused on the information technology sector or other emerging technology fields, they all relate to the general subject matter and approach found throughout Juma’s book. [NOTE: Links, where provided, are to my reviews of these books.]

 

]]> https://techliberation.com/2016/07/29/book-review-calestous-jumas-innovation-and-its-enemies/feed/ 1 76052 The Folly of Forecasting Future Tech Innovations and Professions https://techliberation.com/2016/07/07/the-folly-of-forecasting-future-tech-innovations-and-professions/ https://techliberation.com/2016/07/07/the-folly-of-forecasting-future-tech-innovations-and-professions/#comments Thu, 07 Jul 2016 14:28:09 +0000 https://techliberation.com/?p=76049

In a terrific little essay on “Local Economic Revival and The Unpredictability of Technological Innovation,” Michael Mandel, the chief economic strategist at the Progressive Policy Institute, makes several important points regarding the fundamental folly for future forecasting efforts as it pertains to new innovations. He notes, for example:

There are plenty of candidates for the “next big thing,” ranging from the Internet of Things to additive manufacturing to artificial organ factories to autonomous cars to space commerce to Elon Musk’s hyperloop. Each of these has the potential to revolutionize an industry, and to create many thousands or even millions of jobs in the process–not just for the highly-educated, but a whole range of workers. Yet the problem–and the beauty–is that technological innovation is fundamentally unpredictable, even at close range. Consider this: The two most important innovations of the past decade, economically, have been the smartphone and fracking. The smartphone transformed the way that we communicate and hydraulic fracturing has driven down the price of energy, not to mention shifting the geopolitical balance of power.

But few saw the smartphone and fracking revolutions coming, he notes. The pundits and the press were too focused on technologies of the past.

In fact, as I noted in a case study in the 2nd edition of my book,  Permissionless Innovation (p. 50-51), various pundits denigrated Apple and Google’s entry into the smartphone business because many industry analysts believed the market was mature. After all, in the early and mid-2000s, the big names of the mobile world were Palm, Blackberry, Motorola, and Nokia. And their market power seemed unassailable. Thus, as perplexing as it sounds now, the common wisdom in the mid-2000s regarding Apple and Google’s potential entry into the smartphone business was that, if they dare tried, they were destined to fail miserably!

For example, in December 2006, Palm CEO Ed Colligan summarily dismissed the idea that a traditional personal computing company could compete in the smartphone business. “We’ve learned and struggled for a few years here figuring out how to make a decent phone,” he said. “PC guys are not going to just figure this out. They’re not going to just walk in.” Similarly, in January 2007, Microsoft CEO Steve Ballmer laughed off the prospect of an expensive smartphone without a keyboard having a chance in the marketplace: “Five hundred dollars? Fully subsidized? With a plan? I said that’s the most expensive phone in the world and it doesn’t appeal to business customers because it doesn’t have a keyboard, which makes it not a very good e-mail machine.” (Quotes from John Paczkowski, “Apple: How Do You Say ‘Eat My Dust’ in Finnish?” All Things D, November 11, 2009.)

Even better, in March 2007, computing industry pundit John C. Dvorak insisted that “Apple Should Pull the Plug on the iPhone,” because he believed the mobile handset business was already locked up by the era’s major players. “This is not an emerging business,” Dvorak said. “In fact it’s gone so far that it’s in the process of consolidation with probably two players dominating everything, Nokia Corp. and Motorola Inc.”

Just a few years later, of course, Nokia’s profits and market share plummeted, and Google had purchased the struggling Motorola. Meanwhile, Palm was dead, Blackberry was languishing, and Microsoft continued to struggle to win back market share lost to Apple and Google. So much for tech prophecy!

Tech pundits also usually fail when forecasting the professions of the future. As I noted in Chapter 5 of my  Permissionless Innovation book (p. 101-2):

It’s also worth noting how difficult it is to predict future labor market trends. In early 2015, Glassdoor, an online jobs and recruiting site, published a report on the 25 highest paying jobs in demand today. Many of the job titles identified in the report probably weren’t considered a top priority 40 years ago, and some of these job descriptions wouldn’t even have made sense to an observer from the past. For example, some those hotly demanded jobs on Glassdoor’s list include software architect (#3), software development manager (#4), solutions architect (#6), analytics manager (#8), IT manager (#9), data scientist (#15), security engineer (#16), quality assurance manager (#17), computer hardware engineer (#18), database administrator (#20), UX designer (#21), and software engineer (#23). Looking back at reports from the 1970s and ’80s published by the US Bureau of Labor Statistics, the federal agency that monitors labor market trends, one finds no mention of these computing and information technology-related professions because they had not yet been created or even envisioned. So, what will the most important and well-paying jobs be 30 to 40 years from now? If history is any guide, we probably can’t even imagine many of them right now.

Indeed, as Mandel concludes in his new essay, history tells us that, “the next big job-creating innovation isn’t likely to announce itself in bold letters before it arrives. Just because the next big thing isn’t obvious today doesn’t mean it won’t be obvious a year from now.”

Today’s tech pundits would be wise to remember that insight when making forecasts about a future that is, as Mandel suggests, so “fundamentally unpredictable, even at close range.”

 

]]> https://techliberation.com/2016/07/07/the-folly-of-forecasting-future-tech-innovations-and-professions/feed/ 1 76049 Muddling Through: How We Learn to Cope with Technological Change https://techliberation.com/2014/06/17/muddling-through-how-we-learn-to-cope-with-technological-change/ https://techliberation.com/2014/06/17/muddling-through-how-we-learn-to-cope-with-technological-change/#comments Tue, 17 Jun 2014 17:38:18 +0000 http://techliberation.com/?p=74622

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.

Optimistic (“Heaven”) vs. Pessimistic (“Hell”) Scenarios

Modern thinking and scholarship on the impact of technological change on societies has been largely dominated by skeptics and critics.

In the past century, for example, French philosopher Jacques Ellul ( The Technological Society), German historian Oswald Spengler (Man and Technics), and American historian Lewis Mumford (Technics and Civilization) penned critiques of modern technological processes that took a dour view of technological innovation and our collective ability to adapt positively to it. (Concise summaries of their thinking can be found in Christopher May’s edited collection of essays, Key Thinkers for the Information Society.)

These critics worried about the subjugation of humans to “technique” or “technics” and feared that technology and technological processes would come to control us before we learned how to control them. Media theorist Neil Postman was the most notable of the modern information technology critics and served as the bridge between the industrial era critics (like Ellul, Spengler, and Mumford) and some of today’s digital age skeptics (like Evgeny Morozov and Nick Carr). Postman decried the rise of a “technopoly” — “the submission of all forms of cultural life to the sovereignty of technique and technology” — that would destroy “the vital sources of our humanity” and lead to “a culture without a moral foundation” by undermining “certain mental processes and social relations that make human life worth living.” We see that attitude on display in countless works of technological criticism since then.

Of course, there’s been some pushback from some futurists and technological enthusiasts. But there’s often a fair amount of irrational exuberance at work in their tracts and punditry. Many self-proclaimed “futurists” have predicted that various new technologies would produce a nirvana that would overcome human want, suffering, ignorance, and more.

In a 2010 essay, I labeled these two camps technological “pessimists” and “optimists.” It was a crude and overly-simplistic dichotomy, but it was an attempt to begin sketching out a rough taxonomy of the personalities and perspectives that we often seen pitted against each other in debates about the impact of technology on culture and humanity.

Sadly, when I wrote that earlier piece, I was not aware of a similar (and much better) framing of this divide that was developed by science writer Joel Garreau in his terrific 2005 book, Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies — and What It Means to Be Human. In that book, Garreau is thinking in much grander terms about technology and the future than I was in my earlier essay. He was focused on how various emerging technologies might be changing our very humanity and he notes that narratives about these issues are typically framed in “Heaven” versus “Hell” scenarios.

Under the “Heaven” scenario, technology drives history relentlessly, and in almost every way for the better. As Garreau describes the beliefs of the Heaven crowd, they believe that going forward, “almost unimaginably good things are happening, including the conquering of disease and poverty, but also an increase in beauty, wisdom, love, truth, and peace.” (p. 130) By contrast, under the “Hell” scenario, “technology is used for extreme evil, threatening humanity with extinction.” (p. 95) Garreau notes that what unifies the Hell scenario theorists is the sense that in “wresting power from the gods and seeking to transcend the human condition,” we end up instead creating a monster — or maybe many different monsters — that threatens our very existence. Garreau says this “Frankenstein Principle” can be seen in countless works of literature and technological criticism throughout history, and it is still very much with us today. (p. 108)

Theories of Collapse: Why Does Doomsaying Dominate Discussions about New Technologies?

Indeed, in examining the way new technologies and inventions have long divided philosophers, scientists, pundits, and the general public, one can find countless examples of that sort of fear and loathing at work. “Armageddon has a long and distinguished history,” Garreau notes. “Theories of progress are mirrored by theories of collapse.” (p. 149)

In that regard, Garreau rightly cites Arthur Herman’s magisterial history of apocalyptic theories, The Idea of Decline in Western History, which documents “declinism” over time. The irony of much of this pessimistic declinist thinking, Herman notes, is that:

In effect, the very things modern society does best — providing increasing economic affluence, equality of opportunity, and social and geographic mobility — are systematically deprecated and vilified by its direct beneficiaries. None of this is new or even remarkable.” (p. 442)

Why is that? Why has the “Hell” scenario been such a dominant reoccurring theme in past writing and commentary throughout history, even though the general trend has been steady improvements in human health, welfare, and convenience?

There must be something deeply rooted in the human psyche that accounts for this tendency. As I have discussed in my new book as well as my big “Technopanics” law review article, our innate tendency to be pessimistic but also want to be certain about the future means that “the gloom-mongers have it easy,” as author Dan Gardner argues in his book, Future Babble: Why Expert Predictions Are Next to Worthless, and You Can Do Better. He continues on to note of the techno-doomsday pundits:

Their predictions are supported by our intuitive pessimism, so they feel right to us. And that conclusion is bolstered by our attraction to certainty. As strange as it sounds, we want to believe the expert predicting a dark future is exactly right, because knowing that the future will be dark is less tormenting than suspecting it. Certainty is always preferable to uncertainty, even when what’s certain is disaster. (p. 140-1)

Similarly, in his new book, Smarter Than You Think: How Technology Is Changing Our Minds for the Better, Clive Thompson notes that “dystopian predictions are easy to generate” and “doomsaying is emotionally self-protective: if you complain that today’s technology is wrecking the culture, you can tell yourself you’re a gimlet-eyed critic who isn’t hoodwinked by high-tech trends and silly, popular activities like social networking. You seem like someone who has a richer, deeper appreciation for the past and who stands above the triviality of today’s life.” (p. 283)

Another explanation is that humans are sometimes very poor judges of the relative risks to themselves or those close to them. Harvard University psychology professor Steven Pinker, author of The Blank Slate: The Modern Denial of Human Nature, notes:

The mind is more comfortable in reckoning probabilities in terms of the relative frequency of remembered or imagined events. That can make recent and memorable events—a plane crash, a shark attack, an anthrax infection—loom larger in one’s worry list than more frequent and boring events, such as the car crashes and ladder falls that get printed beneath the fold on page B14. And it can lead risk experts to speak one language and ordinary people to hear another. (p. 232)

Put simply, there exists a wide variety of explanations for why our collective first reaction to new technologies often is one of dystopian dread. In my work, I have identified several other factors, including: generational differences; hyper-nostalgia; media sensationalism; special interest pandering to stoke fears and sell products or services; elitist attitudes among intellectuals; and the so-called “third-person effect hypothesis,” which posits that when some people encounter perspectives or preferences at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and to call on government to “do something” to correct or counter those perspectives or preferences.

Some combination of these factors ends up driving the initial resistance we have see to new technologies that disrupted long-standing social norms, traditions, and institutions. In the extreme, it results in that gloom-and-doom, sky-is-falling disposition in which we are repeatedly told how humanity is about to be steam-rolled by some new invention or technological development.

The “Prevail” (or “Muddling Through”) Scenario

“The good news is that end-of-the-world predictions have been around for a very long time, and none of them has yet borne fruit,” Garreau reminds us. (p. 148) Why not? Let’s get back to his framework for the answer. After discussing the “Heaven” (optimistic) and “Hell” (skeptical or pessimistic) scenarios cast about by countless tech writers throughout history, Garreau outlines a third, and more pragmatic “Prevail” option, which views history “as a remarkably effective paean to the power of humans to muddle through extraordinary circumstances.”

That pretty much sums up my own perspective on things, and in the remainder of this essay I want sketch out the reasons why I think the “prevail” or “muddling through” scenario offers the best explanation for how we learn to cope with technological disruption and prosper in the process.

As Garreau explains it, under the “Prevail” scenario, “humans shape and adapt [technology] in entirely new directions.” (p. 95) “Just because the problems are increasing doesn’t mean solutions might not also be increasing to match them,” he rightly notes. (p. 154) As John Seely Brown and Paul Duguid noted in their excellent 2001, “ Response to Bill Joy and the Doom-and-Gloom Technofuturists”:

technological and social systems shape each other. The same is true on a larger scale. […] Technology and society are constantly forming and reforming new dynamic equilibriums with far-reaching implications. The challenge for futurology (and for all of us) is to see beyond the hype and past the over-simplifications to the full import of these new sociotechnical formations.  Social and technological systems do not develop independently; the two evolve together in complex feedback loops, wherein each drives, restrains and accelerates change in the other.

It is this process of “constantly forming and reforming new dynamic equilibriums” that interests me most. In a recent exchange with Michael Sacasas – one of the most thoughtful modern technology critics I’ve come across — I noted that the nature of individual and societal acclimation to technological change is worthy of serious investigation if for no other reason that it has continuously happened! What I hope to better understand is the process by which we humans have again and again figured out how to assimilate new technologies into their lives despite how much those technologies disrupted our personal, social, economic, cultural, and legal norms.

In a response to me, Sacasas put forth the following admonition: “That people eventually acclimate to changes precipitated by the advent of a new technology does not prove that the changes were inconsequential or benign.” This is undoubtedly true, but it does not undermine the reality of societal adaptation. What can we learn from this? What were the mechanics of that adaptive process? As social norms, personal habits, and human relationships were disrupted, what helped us muddle through and find a way of coping with new technologies? Likewise, as existing markets and business models were disrupted, how were new ones formulated in response to the given technological disruption? Finally, how did legal norms and institutions adjust to those same changes?

Of course, this raises an entirely different issue: What metrics are we using to judge whether “the changes were inconsequential or benign”? As I noted in my exchange with Sacasas, at the end of the day, it may be that we won’t be able to even agree on a standard by which to make that judgment and will instead have to settle for a rough truce about what history has to teach us that might be summed up by the phrase: “something gained, something lost.”

Resiliency: Why Do the Skeptics Never Address It (and Its Benefits)?

Nonetheless, I believe that while technological change often brings sweeping and quite consequential change, there is great value in the very act of living through it.

In my work, including my latest little book, I argue that humans have exhibited the uncanny ability to adapt to changes in their environment, bounce back from adversity, and learn to be resilient over time. A great deal of wisdom is born of experience, including experiences that involve risk and the possibility of occasional mistakes and failures while both developing new technologies and learning how to live with them. I believe it wise to continue to be open to new forms of innovation and technological change, not only because it provides breathing space for future entrepreneurialism and invention, but also because it provides an opportunity to see how societal attitudes toward new technologies evolve — and to learn from it. More often than not, I argue, citizens have found ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes.

What we’re talking about here is resiliency. Andrew Zolli and Ann Marie Healy, authors of Resilience: Why Things Bounce Back, define resilience as “the capacity of a system, enterprise, or a person to maintain its core purpose and integrity in the face of dramatically changed circumstances.” (p. 7) “To improve your resilience,” they note, “is to enhance your ability to resist being pushed from your preferred valley, while expanding the range of alternatives that you can embrace if you need to. This is what researchers call preserving adaptive capacity—the ability to adapt to changed circumstances while fulfilling once core purpose—and it’s an essential skill in an age of unforeseeable disruption and volatility.” (p. 7-8, emphasis in original) Moreover, they note, “by encouraging adaptation, agility, cooperation, connectivity, and diversity, resilience-thinking can bring us to a different way of being in the world, and to a deeper engagement with it.” (p. 16)

Even if you one doesn’t agree with all of that, again, I would think one would find great value in studying the process by which such adaptation happens precisely because it does happen so regularly. And then we could argue about whether it was all really worth it! Specially, was it worth whatever we lost in the process (i.e., a change in our old moral norms, our old privacy norms, our old institutions, our old business models, our old laws, or whatever else)?

As Sacasas correctly argues, “That people before us experienced similar problems does not mean that they magically cease being problems today.” Again, quite right. On the other hand, the fact that people and institutions learned to cope with those concerns and become more resilient over time is worthy of serious investigation because somehow we “muddled through” before and we’ll have to muddle through again. And, again, what we learned from living through that process may be extremely valuable in its own right.

Of Course, Muddling Through Isn’t Always Easy

Now, let’s be honest about this process of “muddling through”: it isn’t always neat or pretty. To put it crudely, sometimes muddling through really sucks! Think about the modern technologies that violate our visceral sense of privacy and personal space today. I am an intensely private person and if I had a life motto it would probably be: “ Leave Me Alone!” Yet, sometimes there’s just no escaping the pervasive reach of modern technologies and processes. On the other hand, I know that, like so many others, I derive amazing benefits from all these new technologies, too. So, like most everyone else I put up with the downsides because, on net, there are generally more upsides.

Almost every digital service that we use today presents us with these trade-offs. For example, email has allowed us to connect with a constantly growing universe of our fellow humans and organizations. Yet, spam clutters our mailboxes and the sheer volume of email we get sometimes overwhelms us. Likewise, in just the past five years, smartphones have transformed our lives in so many ways for the better in terms of not just personal convenience but also personal safety. On the other hand, smartphones have become more than a bit of nuisance in certain environments (theaters, restaurants, and other closed spaces.) And they also put our safety at risk when we use them while driving automobiles.

But, again, we adjust to most of these new realities and then we find constructive solutions to the really hard problems – yes, and that sometimes includes legal remedies to rectify serious harms. But a certain amount of social adaptation will, nonetheless, be required. Law can only slightly slow that inevitability; it can’t stop it entirely. And as messy and uncomfortable as muddling through can be, we have to (a) be aware of what we gain in the process and (b) ask ourselves what the cost of taking the alternative path would be. Attempts to through a wrench in the works and derail new innovations or delay various types of technological change are always going to be tempting, but such interventions will come at a very steep cost: less entreprenurialism, diminished competition, stagnant markets, higher prices, and fewer choices for citizens. As I note in my new book, if we spend all our time living in constant fear of worst-case scenarios — and premising public policy upon such fears — it means that many best-case scenarios will never come about.

Social Resistance / Pressure Dynamics

There’s another part to this story that often gets overlooked. “Muddling through” isn’t just some sort of passive process where individuals and institutions have to figure out how to cope with technological change. Rather, there is an active dynamic at work, too. Individuals and institutions push back and actively shape their tools and systems.

In a recent Wired essay on public attitudes about emerging technologies such as the controversial Google Glass, Issie Lapowsky noted that:

If the stigma surrounding Google Glass (or, perhaps more specifically, “Glassholes”) has taught us anything, it’s that no matter how revolutionary technology may be, ultimately its success or failure ride on public perception. Many promising technological developments have died because they were ahead of their times. During a cultural moment when the alleged arrogance of some tech companies is creating a serious image problem, the risk of pushing new tech on a public that isn’t ready could have real bottom-line consequences.

In my new book, I spend some time think about this process of “norm-shaping” through social pressure, activist efforts, educational steps, and even public shaming. A recent Ars Technica essay by Joe Silver offered some powerful examples of how when “shamed on Twitter, corporations do an about-face.” Silver notes that “A few recent case-study examples of individuals who felt they were wronged by corporations and then took to the Twitterverse to air their grievances show how a properly placed tweet can be a powerful weapon for consumers to combat corporate malfeasance.” In my book and in recent law review articles, I have provided other examples how this works at both a corporate and individual level to constrain improper behavior and protect various social norms.

Edmund Burke once noted that, “Manners are of more importance than laws. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in.” Cristina Bicchieri, a leading behavioral ethicist, calls social norms “the grammar of society” because,

like a collection of linguistic rules that are implicit in a language and define it, social norms are implicit in the operations of a society and make it what it is. Like a grammar, a system of norms specifies what is acceptable and what is not in a social group. And analogously to a grammar, a system of norms is not the product of human design and planning.

Put simply, more than law can regulate behavior — whether it is organizational behavior or individual behavior. It’s yet another way we learn to cope and “muddle through” over time. Again, check out my book for several other examples.

A Case Study: The Long-Standing “Problem” of Photography

Let’s bring all this together and be more concrete about it by using a case study: photography. With all the talk of how unsettling various modern technological developments are, they really pale in comparison to just how jarring the advent of widespread public photography must have been in the late 1800s and beyond. “For the first time photographs of people could be taken without their permission—perhaps even without their knowledge,” notes Lawrence M. Friedman in his 2007 book, Guiding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy.

Thus, the camera was viewed as a highly disruptive force as photography became more widespread. In fact, the most important essay ever written on privacy law, Samuel D. Warren and Louis D. Brandeis’s famous 1890 Harvard Law Review essay on “The Right to Privacy,” decried the spread of public photography. The authors lamented that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life” and claimed that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Warren and Brandeis weren’t alone. Plenty of other critics existed and many average citizens were probably outraged by the rise of cameras and public photography. Yet, personal norms and cultural attitudes toward cameras and public photography evolved quite rapidly and they became ingrained in human experience. At the same time, social norms and etiquette evolved to address those who would use cameras in inappropriate, privacy-invasive ways.

Again, we muddled through. And we’ve had to continuously muddle through in this regard because photography presents us with a seemingly endless set of new challenges. As cameras grow still smaller and get integrated into other technologies (most recently, smartphones, wearable technologies, and private drones), we’ve had to learn to adjust and accommodate. With wearables technologies (check out Narrative, Butterflye, and Autographer, for example), personal drones (see “Drones are the future of selfies,”) and other forms of microphotography all coming online now, we’ll have to adjust still more and develop new norms and coping mechanisms. There’s never going to be an end to this adjustment process.

Toward Pragmatic Optimism

Should we really remain bullish about humanity’s prospects in the midst of all this turbulent change? I think so.

Again, long before the information revolution took hold, the industrial revolution produced its share of cultural and economic backlashes, and it is still doing so today. Most notably, many Malthusian skeptics and environmental critics lamented the supposed strain of population growth and industrialization on social and economic life. Catastrophic predictions followed.

In his 2007 book, Prophecies of Doom and Scenarios of Progress, Paul Dragos Aligicia, a colleague of mine at the Mercatus Center, documented many of these industrial era “prophecies of doom” and described how this “doomsday ideology” was powerfully critiqued by a handful of scholars — most notably Herman Kahn and Julian Simon. Aligicia explains that Kahn and Simon argued for, “the alternative paradigm, the pro-growth intellectual tradition that rejected the prophecies of doom and called for realism and pragmatism in dealing with the challenge of the future.”

Kahn and Simon were pragmatic optimists or what author Matt Ridley calls “rational optimists.” They were bullish about the future and the prospects for humanity, but they were not naive regarding the many economic and scosial challenges associated with technological change. Like Kahn and Simon, we should embrace the amazing technological changes at work in today’s information age but with a healthy dose of humility and appreciation for the disruptive impact and pace of that change.

But the rational optimists never get as much attention as the critics and catastrophists. “For 200 years pessimists have had all the headlines even though optimists have far more often been right,” observes Ridley. “Arch-pessimists are feted, showered with honors and rarely challenged, let alone confronted with their past mistakes.” At least part of the reason for that, as already noted, goes back to the amazing rhetorical power of good intentions. Techno-pessimists often exhibit a deep passion about their particular cause and are typically given more than just the benefit of doubt in debates about progress and the future; they are treated as superior to opponents who challenge their perspectives or proposals. When a privacy advocate says they are just looking out consumers, or an online safety claims they have the best interests of children in mind, or a consumer advocate argues that regulation is needed to protect certain people from some amorphous harm, they are assuming the moral high ground through the assertion of noble-minded intentions. Even if their proposals will often fail to bring about the better state of affairs they claim or derail life-enriching innovations, they are more easily forgiven for those mistakes precisely because of their fervent claim of noble-minded intentions.

If intentions are allowed to trump empiricism and a general openness to change, however, the results for a free society and for human progress will be profoundly deleterious. That is why, when confronted with pessimistic, fear-based arguments, the pragmatic optimist must begin by granting that the critics clearly have the best of intentions, but then point out how intentions can only get us so far in the real-world, which is full of complex trade-offs.

The pragmatic optimist must next meticulously and dispassionately outline the many reasons why restricting progress or allowing planning to enter the picture will have many unintended consequences and hidden costs. The trade-offs must be explained in clear terms. Examples of previous interventions that went wrong must be proffered.

The Evidence Speaks for Itself

Luckily, we pragmatic optimists have plenty of evidence working in our favor when making this case. As Pulitzer Prize-winning historian Richard Rhodes noted in his 1999 book, Visions of Technology: A Century of Vital Debate About Machines Systems And The Human World:

it’s surprising that [many intellectual] don’t value technology; by any fair assessment, it has reduced suffering and improved welfare across the past hundred years. Why doesn’t this net balance of benevolence inspire at least grudging enthusiasm for technology among intellectuals? (p. 23)

Great question, and one that we should never stop asking the techno-critics to answer. After all, as Joel Mokyr notes in his wonderful 1990 book, Lever of Riches: Technological Creativity and Economic Progress, “Without [technological creativity], we would all still live nasty and short lives of toil, drudgery, and discomfort.” (p. viii) “Technological progress, in that sense, is worthy of its name,” he says. “It has led to something that we may call an ‘achievement,’ namely the liberation of a substantial portion of humanity from the shackles of subsistence living.” (p. 288) Specifically,

The riches of the post-industrial society have meant longer and healthier lives, liberation from the pains of hunger, from the fears of infant mortality, from the unrelenting deprivation that were the part of all but a very few in preindustrial society. The luxuries and extravagances of the very rich in medieval society pale compared to the diet, comforts, and entertainment available to the average person in Western economies today. (p. 303)

In his new book, Smaller Faster Lighter Denser Cheaper: How Innovation Keeps Proving the Catastrophists Wrong, Robert Bryce hammers this point home when he observes that:

The pessimistic worldview ignores an undeniable truth: more people are living longer, healthier, freer, more peaceful, lives than at any time in human history… the plain reality is that things are getting better, a lot better, for tens of millions of people around the world. Dozens of factors can be cited for the improving conditions of humankind. But the simplest explanation is that innovation is allowing us to do more with less.

This is framework Herman Kahn, Julian Simon, and the other champions of progress used to deconstruct and refute the pessimists of previous eras. In line with that approach, we modern pragmatic optimists must continuously point to the unappreciated but unambiguous benefits of technological innovation and dynamic change. But we should also continue to remind the skeptics of the amazing adaptability of the human species in the face of adversity. As Kahn taught us long ago, is that when it comes to technological progress and humanity’s ingenious responses to it, “we should expect to go on being surprised” — and in mostly positive ways. Humans have consistently responded to technological change in creative, and sometimes completely unexpected ways. There’s no reason to think we can’t get through modern technological disruptions using similar coping and adaptation strategies. As Mokyr noted in his recent City Journal essay on “The Next Age of Invention”:

Much like medication, technological progress almost always has side effects, but bad side effects are rarely a good reason not to take medication and a very good reason to invest in the search for second-generation drugs. To a large extent, technical innovation is a form of adaptation—not only to externally changing circumstances but also to previous adaptations.

In sum, we need to have a little faith in the ability of humanity to adjust to an uncertain future, no matter what it throws at us. We’ll muddle through and come out better because of what we have learned in the process, just as we have so many times before.

I’ll give venture capitalist Marc Andreessen the last word on this since he’s been on an absolute tear on Twitter lately when discussing many of the issues I’ve raised in this essay. While addressing the particular fear that automation is running amuck and that robots will eat all our jobs, Andreessen eloquently noted:

We have no idea what the fields, industries, businesses, and jobs of the future will be. We just know we will create an enormous number of them. Because if robots and AI replace people for many of the things we do today, the new fields we create will be built on the huge number of people those robots and AI systems made available. To argue that huge numbers of people will be available but we will find nothing for them (us) to do is to dramatically short human creativity. And I am way long human creativity.

Me too, buddy. Me too.

Additional Reading:

Journal articles & book chapters:

Blog posts:

]]> https://techliberation.com/2014/06/17/muddling-through-how-we-learn-to-cope-with-technological-change/feed/ 8 74622 New Book Release: “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom” https://techliberation.com/2014/03/25/new-book-release-permissionless-innovation-the-continuing-case-for-comprehensive-technological-freedom/ https://techliberation.com/2014/03/25/new-book-release-permissionless-innovation-the-continuing-case-for-comprehensive-technological-freedom/#respond Tue, 25 Mar 2014 15:06:28 +0000 http://techliberation.com/?p=74314

book cover (small)I am pleased to announce the release of my latest book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” It’s a short manifesto (just under 100 pages) that condenses — and attempts to make more accessible — arguments that I have developed in various law review articles, working papers, and blog posts over the past few years. I have two goals with this book.

First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.

One disposition is known as the “precautionary principle.” Generally speaking, it 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.

The other vision can be labeled “permissionless innovation.” It refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if they develop at all, can be addressed later.

I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today.

The second major objective of the book, as is made clear by the title, is to make a forceful case in favor of the latter disposition of “permissionless innovation.” I argue that policymakers should unapologetically embrace and defend the permissionless innovation ethos — not just for the Internet but also for all new classes of networked technologies and platforms. Some of the specific case studies discussed in the book include: the “Internet of Things” and wearable technologies, smart cars and autonomous vehicles, commercial drones, 3D printing, and various other new technologies that are just now emerging.

I explain how precautionary principle thinking is increasingly creeping into policy discussions about these technologies. The urge to regulate preemptively in these sectors is driven by a variety of safety, security, and privacy concerns, which are discussed throughout the book. Many of these concerns are valid and deserve serious consideration. However, I argue that if precautionary-minded regulatory solutions are adopted in a preemptive attempt to head-off these concerns, the consequences will be profoundly deleterious.

The central lesson of the booklet is this: Living in constant fear of hypothetical worst-case scenarios — and premising public policy upon them — means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.

Again, that doesn’t mean we should ignore the various problems created by these highly disruptive technologies. But how we address these concerns matters greatly. If and when problems develop, there are many less burdensome ways to address them than through preemptive technological controls. The best solutions to complex social problems are almost always organic and “bottom-up” in nature. Luckily, there exists a wide variety of constructive approaches that can be tapped to address or alleviate concerns associated with new innovations. These include:

  • education and empowerment efforts (including media literacy, digital citizenship efforts);
  • social pressure from activists, academics, and the press and the public more generally.
  • voluntary self-regulation and adoption of best practices (including privacy and security “by design” efforts); and,
  • increased transparency and awareness-building efforts to enhance consumer knowledge about how new technologies work.

Such solutions are almost always superior to top-down, command-and-control regulatory edits and bureaucratic schemes of a “Mother, May I?” (i.e., permissioned) nature. The problem with “top-down” traditional regulatory systems is that they often tend to be overly-rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things. It raises the cost of starting or running a business or non-business venture, and generally discourages activities that benefit society.

To the extent that other public policies are needed to guide technological developments, simple legal principles are greatly preferable to technology-specific, micro-managed regulatory regimes. Again, ex ante (preemptive and precautionary) regulation is often highly inefficient, even dangerous. To the extent that any corrective legal action is needed to address harms, ex post measures, especially via the common law (torts, class actions, etc.), are typically superior. And the Federal Trade Commission will, of course, continue to play a backstop here by utilizing the broad consumer protection powers it possesses under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” In recent years, the FTC has already brought and settled many cases involving its Section 5 authority to address identity theft and data security matters. If still more is needed, enhanced disclosure and transparency requirements would certainly be superior to outright bans on new forms of experimentation or other forms of heavy-handed technological controls.

In the end, however, I argue that, to the maximum extent possible, our default position toward new forms of technological innovation must remain: “innovation allowed.” That is especially the case because, more often than not, citizens find ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes. We should have a little more faith in the ability of humanity to adapt to the challenges new innovations create for our culture and economy. We have done it countless times before. We are creative, resilient creatures. That’s why I remain so optimistic about our collective ability to confront the challenges posed by these new technologies and prosper in the process.

If you’re interested in taking a look, you can find a free PDF of the book at the Mercatus Center website or you can find out how to order it from there as an eBook. Hardcopies are also available. I’ll be doing more blogging about the book in coming weeks and months. The debate between the “permissionless innovation” and “precautionary principle” worldviews is just getting started and it promises to touch every tech policy debate going forward.

Related Essays :

]]> https://techliberation.com/2014/03/25/new-book-release-permissionless-innovation-the-continuing-case-for-comprehensive-technological-freedom/feed/ 0 74314 James Barrat on the future of Artificial Intelligence https://techliberation.com/2014/01/07/barrat/ https://techliberation.com/2014/01/07/barrat/#comments Tue, 07 Jan 2014 19:30:58 +0000 http://techliberation.com/?p=74055

James Barrat, author of Our Final Invention: Artificial Intelligence and the End of the Human Era, discusses the future of Artificial Intelligence (AI). Barrat takes a look at how to create friendly AI with human characteristics, which other countries are developing AI, and what we could expect with the arrival of the Singularity. He also touches on the evolution of AI and how companies like Google and IBM and government entities like DARPA and the NSA are developing artificial general intelligence devices right now.

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]]> https://techliberation.com/2014/01/07/barrat/feed/ 1 74055 Timothy B. Lee on the future of tech journalism https://techliberation.com/2013/08/20/timothy-b-lee/ https://techliberation.com/2013/08/20/timothy-b-lee/#comments Tue, 20 Aug 2013 13:42:06 +0000 http://techliberation.com/?p=73462

Timothy B. Lee, founder of The Washington Post’s blog The Switch discusses his approach to reporting at the intersection of technology and policy. He covers how to make tech concepts more accessible; the difference between blogs and the news; the importance of investigative journalism in the tech space; whether paywalls are here to stay; Jeff Bezos’ recent purchase of The Washington Post; and the future of print news.

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]]> https://techliberation.com/2013/08/20/timothy-b-lee/feed/ 3 73462 Why Progress Cannot Be Planned, or Even Forecast https://techliberation.com/2013/07/23/why-progress-cannot-be-planned-or-even-forecast/ https://techliberation.com/2013/07/23/why-progress-cannot-be-planned-or-even-forecast/#respond Tue, 23 Jul 2013 13:48:36 +0000 http://techliberation.com/?p=45259

crystal ballFew modern intellectuals gave more serious thought to forecasting the future than Herman Kahn. He wrote several books and essays imagining what the future might look like. But he was also a profoundly humble man who understood the limits of forecasting the future. On that point, I am reminded of my favorite Herman Kahn quote:

History is likely to write scenarios that most observers would find implausible not only prospectively but sometimes, even in retrospect. Many sequences of events seem plausible now only because they have actually occurred; a man who knew no history might not believe any. Future events may not be drawn from the restricted list of those we have learned are possible; we should expect to go on being surprised.[1]

I have always loved that phrase, “a man who knew no history might not believe any.” Indeed, sometimes the truth (how history actually unfolds) really is stranger than fiction (or the hypothetical forecasts that came before it.)

This insight has profound ramifications for public policy and efforts to “plan progress,” something that typically ends badly.  No two scholars nailed that point better in their work than Karl Popper and F.A. Hayek, two of the preeminent philosophers of science and politics of the 20th century. Popper cogently argued that the problem with “the Utopian programme” is that “we do not possess the experimental knowledge needed for such an undertaking.”[2] “Progress by its very nature cannot be planned,” Hayek taught us, and the wiser man “is very much aware that we do not know all the answers and that he is not sure that the answers he has are certainly the right ones or even that we can find all the answers.”[3] One hundred years prior to Hayek making that insight, social philosopher Herbert Spencer explained how humans would only be truly wise once they fathomed the limits of their own knowledge:

In all directions his investigations eventually bring him face to face with the unknowable; and he ever more clearly perceives it to be the unknowable. He learns at once the greatness and the littleness of human intellect—its power in dealing with all that comes within the range of experience; its impotence in dealing with all that transcends experience. He feels more vividly than any others can feel, the utter incomprehensibleness of the simplest fact, considered in itself. He alone truly sees that absolute knowledge is impossible. He alone knows that under all things there lies an impenetrable mystery.[4]

Unfortunately, most humans suffer from what Nassim Nicholas Taleb calls “epistemic ignorance” or hubris concerning the limits of our knowledge. “We are demonstrably arrogant about what we think we know,” he says.[5] “We overestimate what we know, and underestimate uncertainty.”[6] “There are no crystal balls, and no style of thinking, no technique, no model will ever eliminate uncertainty,” argues Dan Gardner, author of Future Babble: Why Expert Predictions Are Next to Worthless. “The future will forever be shrouded in darkness. Only if we accept and embrace this fundamental fact can we hope to be prepared for the inevitable surprises that lie ahead,” Gardner notes.[7]

This is why attempts to forecast the future so often end in folly. The great Austrian school economist Israel Kirzner spoke of “the shortsightedness of those who, not recognizing the open-ended character of entrepreneurial discovery, repeatedly fall into the trap of forecasting the future against the background of today’s expectations rather than against the unknowable background of tomorrow’s discoveries.”[8] This is especially true as it pertains to technological change and change in information markets. “Anyone who predicts the technological future is sure soon to seem foolish,” noted technology scholar George Gilder. “It springs from human creativity and thus inevitably consists of surprise.”[9]

Knowledge of history and historical trends can help inform our decisions and predictions, yet they are insufficient to accurately forecast all that may come our way. “The past seldom obliges by revealing to us when wildness will break out in the future,” observes Peter L. Bernstein, author of Against the Gods: The Remarkable Story of Risk.[10]

We can relate these lessons to Internet policy and digital economics. A largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. In true Schumpeterian fashion, “information empires” have come and gone in increasingly rapid progression.[11] There are countless “tech titans” that, for a time, seemed to rule their respective sectors only to experience a precipitous fall.[12] Indeed, if you blink your eyes in the information age, you can miss revolutions.[13]

“The challenge of disruptive innovation,” observes technology lawyer Glenn Manishin, is that “it forces market participants to rethink their premises and reimagine the business they are in. Those who get it wrong will be lost in the dustbin (or buggy whip rack) of history. Those who get it right typically enjoy a window of success until the next inflection point arrives.”[14] And the cycle Manishin describes just keeps repeating faster and faster throughout modern information sectors.

This explain why, just as planning and forecasting often fail in a macro sense, they also fail in the micro sense as industries and analysts repeatedly fail to accurately identify future trends and marketplace developments. “Markets that don’t exist can’t be analyzed,” observes Clayton M. Christensen, author of The Innovator’s Dilemma. “In dealing with disruptive technologies leading to new markets,” he finds, “researchers and business planners have consistently dismal records.”[15]  Simply put, as Yogi Berra once famously quipped: “It’s tough to make predictions, especially about the future.”

The ramifications for public policy are clear. Patience and humility are key virtues since, as economist Daniel F. Spulber correctly writes, “Governments are notoriously inept at picking technology winners or steering fast-moving markets in superior directions. Understanding technology requires extensive scientific and technical knowledge. Government agencies cannot expect to replicate or improve upon private sector knowledge. Technological innovation is uncertain by its very nature because it is based on scientific discoveries. The benefits of new technologies and the returns to commercial development also are uncertain.”[16]

Policymakers would be wise to heed all this advice before trying to “plan progress,” especially in highly-dynamic, rapidly-evolving technology sectors. As the old saying goes, the best-laid plans of mice and men often go awry.


[1]     Herman Kahn and Anthony Wiener, The Year 2000: A Framework for Speculation on the Next Thirty-three Years (New York: Macmillan, 1967), 264-5.
[2]     Karl Popper, The Poverty of Historicism, (London: Routledge, 1957, 2002), 77.
[3]     Hayek, The Constitution of Liberty, 41, 406. Similarly, political scientist Vincent Ostrom  has observed that, “Human beings face difficulties in dealing with a world that is open to potentials for choice but always accompanied by basic limits. There is much about the mystery of being that cannot be known by mortal human beings.” Vincent Ostrom, The Meaning of Democracy and the Vulnerability of Democracies (Ann Arbor: The University of Michigan Press, 1997), 29-30.
[4]     Herbert Spencer, “Progress: Its Law and Cause,” (April 1857), republished in Essays: Scientific, Political, and Speculative (London: Williams and Norgate, 1891), available at: http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=335&chapter=12314&layout=html
[5]     Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable (New York: Random House, 2007), 138.
[6]     Id., 140. Similarly, Cognitive psychologist Daniel Kahneman speaks of, “Our comforting conviction that the world makes sense rests on a secure foundation: our almost unlimited ability to ignore our ignorance.” Daniel Kahneman, Thinking Fast and Slow (New York: Farrar, Straus and Giroux, 2011) 201.
[7]     Dan Gardner, Future Babble: Why Expert Predictions Are Next to Worthless, and You Can Do Better (New York: Dutton, 2011), 16-17.
[8]     Israel Kirzner, Discovery and the Capitalist Process (University of Chicago Press, 1985), at xi.
[9]     George Gilder, Wealth & Poverty, 101.
[10]   Peter L. Bernstein, Against the Gods: The Remarkable Story of Risk (New York: John Wiley & Sons, Inc., 1996) 334.
[11]   “Each era of computing seems to run for about a decade of total dominance by a given platform. Mainframes (1960-1970), minicomputers (1970-1980), character-based PCs (1980-1990), graphical PCs (1990-2000), notebooks (2000-2010), smart phones and tablets (2010-2020?). We could look at this in different ways like how these devices are connected but I don’t think it would make a huge difference. Now look at the dominant players in each succession – IBM (1960-1985), DEC (1965-1980), Microsoft (1987-2003), Google (2000-2010), Facebook (2007-?). That’s 25 years, 15 years, 15 years, 10 years, and how long will Facebook reign supreme? Not 15 years and I don’t think even 10. I give Facebook seven years or until 2014 to peak.” Robert Cringely, “The Decline and Fall of Facebook,” I, Cringely, July 20, 2011, http://www.cringely.com/2011/07/the-decline-and-fall-of-facebook.
[12]   Adam Thierer, “Of ‘Tech Titans’ and Schumpeter’s Vision,” Forbes, August 22, 2011, http://www.forbes.com/sites/adamthierer/2011/08/22/of-tech-titans-and-schumpeters-vision.
[13]   Megan Garber, “The Internet at the Dawn of Facebook,” The Atlantic, May 17, 2012,  http://www.theatlantic.com/technology/archive/2012/05/the-internet-at-the-dawn-of-facebook/257342.
[14]   Glenn Manishin, “Of Buggy Whips, Telephones and Disruption,” DisCo, June 25, 2012, http://www.project-disco.org/competition/of-buggy-whips-telephones-and-disruption.
[15]   Clayton M. Christensen, The Innovator’s Dilemma (New York: Harper Business Essentials, 1997), xxv.
[16]   Daniel F. Spulber, “Unlocking Technology: Antitrust and Innovation,” 4(4), Journal of Competition Law & Economics, 915–96, 965. (May 2008).
]]> https://techliberation.com/2013/07/23/why-progress-cannot-be-planned-or-even-forecast/feed/ 0 45259 My Two Favorite Technology Policy Books of the Past Half-Century https://techliberation.com/2013/07/12/my-two-favorite-technology-policy-books-of-the-past-half-century/ https://techliberation.com/2013/07/12/my-two-favorite-technology-policy-books-of-the-past-half-century/#respond Fri, 12 Jul 2013 15:21:31 +0000 http://techliberation.com/?p=45143

Future and Its Enemies cover Technologies of FreedomI was honored to be asked by the editors at Reason magazine to be a part of their “Revolutionary Reading” roundup of “The 9 Most Transformative Books of the Last 45 Years.”  Reason is celebrating its 45th anniversary and running a wide variety of essays looking back at how liberty has fared over the past half-century. The magazine notes that “Statism has hardly gone away, but the movement to roll it back is stronger than ever.” For this particular feature, Reason’s editors “asked seven libertarians to recommend some of the books in different fields that made [the anti-statist] cultural and intellectual revolution possible.”

When Jesse Walker of Reason first contacted me about contributing my thoughts about which technology policy books made the biggest difference, I told him I knew exactly what my choices would be: Ithiel de Sola Pool’s Technologies of Freedom (1983) and Virginia Postrel’s The Future and Its Enemies (1998). Faithful readers of this blog know all too well how much I love these two books and how I am constantly reminding people of their intellectual importance all these years later. (See, for example, this and this.) All my thinking and writing about tech policy over the past two decades has been shaped by the bold vision and recommendations set forth by Pool and Postrel in these beautiful books.

As I note in my Reason write-up of the books:

The past 45 years have seen remarkable advances in information technology: the Internet, mobile communications, ubiquitous news and entertainment options, and much more. What made these and other innovations possible was a general openness to the unplanned, the unpredictable, and even the uncontrollable. In our willingness to embrace a world of uncertainty and incessant change, we found unparalleled technological abundance. No two books more eloquently captured and celebrated the information age than Ithiel de Sola Pool’s Technologies of Freedom and Virginia Postrel’s The Future and Its Enemies.

And I conclude by noting that “While plenty of tech pundits and academics cling to… stasist thinking today, Pool and Postrel’s books continue to provide beacons for a better world, free from the top-down, technocratic mentality and prescriptions of the past. At least thus far, permissionless innovation has largely trumped the precautionary principle in tech policy. Let’s hope the dynamist vision can hold the line for another 45 years.”

Head over to Reason to read the rest of my essay as well as all the other excellent books that contributors have recommended as part of the symposium.  There are some really great selections in there.

And if you care about the future of technological freedom and human liberty and progress more generally, please do read (or re-read) both Pool and Postrel’s books when you have a chance.  They changed my life and they will change yours, too.

]]> https://techliberation.com/2013/07/12/my-two-favorite-technology-policy-books-of-the-past-half-century/feed/ 0 45143 The Future of Journalism & Washington’s War on Advertising https://techliberation.com/2010/06/15/the-future-of-journalism-washingtons-war-on-advertising/ https://techliberation.com/2010/06/15/the-future-of-journalism-washingtons-war-on-advertising/#comments Tue, 15 Jun 2010 20:06:02 +0000 http://techliberation.com/?p=29766

So, I’m sitting here at today’s Federal Trade Commission (FTC) workshop, “Will Journalism Survive the Internet Age?” and several panelists have argued that private “professional” media is toast, not just because of the rise of the Net and digital media, but also because the inherent cross-subsidy that advertising has traditionally provided is drying up.  It very well could be the case that both statements are true and that private media operators are in some trouble because of it. But what nobody seems to be acknowledging is that our government is currently on the regulatory warpath against advertising and that this could have profound impact on the outcome of this debate.

As Berin Szoka and I noted in a recent paper, “The Hidden Benefactor: How Advertising Informs, Educates & Benefits Consumers,” the FTC, the FCC, the FDA, and Congress are all considering, or already imposing, a host of new rules that will seriously affect advertising markets.  This article in AdAge today confirms this:

The advertising industry is heading for a “tsunami” of regulation and is at a “tipping point” of greatly increased scrutiny, warned a panel on social media and privacy at the American Advertising Federation conference here [in Orlando].

The reason this is so important for the ongoing debate about the future of media and journalism is because, as Berin and I argued in our paper:

an attack on advertising is tantamount to an attack on media itself, and media is at a critical point of technological change. As we have pointed out repeatedly, the vast majority of media and content in this country is supported by commercial advertising in one way or another–particularly in the era of “free” content and service.

So, before policymakers give up on the commercial media that have been supported by advertising in America for generations (or centuries!), they might want to pause for just a moment as they skip down the Yellow Brick Road to a “post-corporate,” taxpayer-supported media Oz to ask just how much damage increased regulation is doing to advertising revenues for private media companies and the journalists and editors they employ.  Anyone who believes the Wizard behind the curtain (politicians and unelected bureaucrats) won’t call the shots in that Oz fantasyland is just kidding themselves. So perhaps if policymakers stopped strangling advertising, it could continue to fund reporting, creativity and innovation.

]]> https://techliberation.com/2010/06/15/the-future-of-journalism-washingtons-war-on-advertising/feed/ 6 29766 PFF’s Mega-Filing in the FCC’s “Future of Media” Proceeding https://techliberation.com/2010/05/05/pffs-mega-filing-in-the-fccs-future-of-media-proceeding/ https://techliberation.com/2010/05/05/pffs-mega-filing-in-the-fccs-future-of-media-proceeding/#comments Wed, 05 May 2010 18:41:02 +0000 http://techliberation.com/?p=28552

The Progress & Freedom Foundation today filed comments in the Federal Communication Commission’s (FCC) “Future of Media” proceeding. Berin Szoka, Ken Ferree, and I urged the FCC to “reject Chicken Little-esque calls for extreme media ‘reform’ solutions,” and counseled policymakers to move cautiously so that media reform can be “organic and bottom-up, not driven by heavy-handed, top-down industrial policies for the press.”

Our 79-page filing covers a wide range of ideas being examined by Washington policymakers to help struggling media outlets and unemployed journalists, or to expand public media / “public interest” content and regulation. Among the major issues explored in our filing:

  • First Amendment concerns implicated by government subsidies;
  • The pitfalls of imposing new “public interest” obligations on media operators;
  • How advertising restrictions could harm the provision of media and news;
  • Taxes, fees and other regulations to be avoided;
  • The limited role in reform that public media subsidies can play; and
  • Positive steps government could take.

We note that as “With many operators struggling to cope with intensifying competition, digitization, declining advertising budgets, and fragmenting audiences, some pundits and policymakers are wondering what the ‘future of media’ entails. The answer: Nobody knows.”  While this uncertainty has put concerned policymakers at the ready to “help” the press, we warn that: “There is great danger in rash government intervention.” Instead, policymakers should be “careful to not inhibit potentially advantageous marketplace developments, even if some are highly disruptive.” Marketplace meddling, or government attempts to tinker with private media business models in the hopes that something new and better can be created, are misguided. Moreover, “Our constitutional traditions warn against it, history suggests it would be unwise, and practical impediments render such meddling largely unworkable, anyway.”

We address several specific proposals to use public coffers to prop up the media—such as media vouchers, taxing broadcast spectrum, and expanding postal subsidies, among others. They believe that most of these stand on shaky ground, especially as they relate to press independence; First Amendment values; political strings, pressure and meddling; taxpayer promotion of failed models; and taxpayer-compelled funding of unwanted or offensive content.

The PFF comments also focus on the integral role advertising plays in supporting free media: “Advertising has been the hidden, unappreciated benefactor that has sustained a free press historically and policymakers should understand that an attack on advertising is tantamount to an attack on media itself.” Accordingly, if Washington wages a war on advertising, media providers will suffer greatly.

We examine non-commercial media options, too. Though limited support can work at the margins, “policymakers should not view public media as a substitute for private media operations.” If the government truly wants to help ailing media outlets and journalism, policymakers could relax media ownership regulations; allow non-profit status for media enterprises; and provide far greater transparency into its own affairs.

We conclude that the Commission should ignore sky-is-falling rhetoric and avoid “destroy[ing] the important wall between State and Press.”  Instead of imposing an industrial policy on the press, we urge policymakers to exercise patience and let creative destruction in the media marketplace play out.

While working on our FCC filing, we released a series of essays over the last month entitled “The Wrong Way to Reinvent Media” (see Parts 1, 2, 3, 4 and 5).You can find all those papers, our big filing, and other related materials on this new PFF page dedicated to “Future of Media” issues.

Also, on May 20th, PFF will host an event covering these and competing ideas, called “Can Government Help Save the Press?” That event will be keynoted by the FCC’s Ellen Goodman.  RSVP here today. Comments of Progress and Freedom Foundation in FCC Future of Media Proceeding (GN Docket No 10-25) http://d1.scribdassets.com/ScribdViewer.swf

]]> https://techliberation.com/2010/05/05/pffs-mega-filing-in-the-fccs-future-of-media-proceeding/feed/ 12 28552 Oh Farts! The Droid, the iPhone & the Lessig-Zittrain Thesis https://techliberation.com/2009/11/12/oh-farts-the-droid-the-iphone-the-lessig-zittrain-thesis/ https://techliberation.com/2009/11/12/oh-farts-the-droid-the-iphone-the-lessig-zittrain-thesis/#comments Thu, 12 Nov 2009 18:33:31 +0000 http://techliberation.com/?p=23307

DroidSeems like everywhere I turn someone is gushing about their new Droid phone, including my TLF colleagues Berin Szoka, Braden Cox, and Ryan Radia, who all had great fun rubbing their new toys in my nose over the past couple of days. And why not, it’s a very cool little device.  It makes my HTC Touch seems positively archaic in some ways, and it’s only a year old.  Apparently, 100,000 people already picked up a Droid in just its first weekend on the market.

But here’s the first thing that pops in my mind every time I see someone showing off their new Droid: How can a device like this even exist when America’s leading cyberlaw experts have been telling us that the whole digital world is increasingly going to hell because of “closed” devices, proprietary code, and managed networks?  I’m speaking, of course, about the lamentations of Harvard professors Lawrence Lessig, Jonathan Zittrain, and their many disciples.  As faithful readers will recall, I have relentlessly hammered this crew for their unwarranted cyber-Chicken Little-ism and hyper techno-pessimism. (See my many battles with Zittrain [1, 2, 3, 4, 5, 6 + video] and my 2-part debate with Lessig earlier this year).

“Left to itself,” Lessig warned in Code, “cyberspace will become a perfect tool of control.”  He went on to forecast a dystopian future in which nefarious corporate schemers would quash our digital liberties unless benevolent public philosopher kings stepped in to save our poor souls. Code was the Old Testament of cyber-collectivism. The New Testament arrived last year with Zittrain’s The Future of the Internet and How to Stop It. In it, we hear the grim prediction that “sterile and tethered” digital technologies and networks will triumph over the more “open and generative” devices and systems of the past.  The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia.

Apple’s “Angel of Death”

How completely out-of-control has this thinking gotten?  Well, here’s David Weinberger — another Harvard Berkman Center worrywart — talking about that supposed satanic font of all evil, the Apple AppStore:

The AppStore is the seductive angel of death for computing. It enables Apple to keep quality up and, more important, to keep support costs down. But a computer that can’t be programmed except by its manufacturer (or with the permission of its manufacturer) isn’t a real computer. The success of the AppStore is a gloomy, scary harbinger. From controlling the apps that can go on its mobile phone, it’s a short step for Apple to decide to control the apps that can go on its rumored slate/netbook device. And since so much of the future of computing will occur on mobiles and netbooks, this portends a serious de-generation of computing, as predicted by Jonathan Zittrain in The Future of the Internet and How to Stop It.

The “angel of death”? A “gloomy, scary harbinger”? Wow, who knew!  In Weinberger’s world, Apple is guilty of the heinous crime of “keep[ing] quality up and, more important, [keeping] support costs down.”  OH MY GOD, how dare they.  Somebody make them stop!  No, seriously, how silly is all this? It’s like those Republicans who, in their zeal to do anything to defeat health care nationalization, decide it’s OK to make up spooky stories about “death panels” hidden deep inside congressional bills.

I find Weinberger’s claim that “a serious de-generation of computing” is looming because of the iPhone to be especially ridiculous. It’s the same sort of rubbish Lessig was spewing in Code when he predicted that AOL’s walled garden model was going to take over the entire cyber-world and ensure “perfect control,” just one of the many things Lessig got wrong in the book.  And it’s the same silliness we see at work in Zittrain’s work when he claims that we’re doomed to live in a world of closed “sterile and tethered” digital technologies and networks. Similarly, last year, Public Knowledge analyst Alex Curtis managed to reach the zenith of this rhetorical insanity when he likened the Apple App Store to an Orwellian Big Brother that was bringing us a “1984 kind of total control.”  You know, because Apple is forcing us all to own iPhones and locking us into re-education camps.  Right.

I Fart, Therefore I Am (Generative)

Which brings me back to the Droid.  If all these dour predictions about the death of digital generativity and the rise of closed networks and walled gardens were true, how in the world does a phone with an open source operating system and a completely open applications process for developers even exist? (Android devices like the Droid don’t require users to rely exclusively on the Android Marketplace for apps; you can run other apps if you like).

Moreover, it’s not just that a remarkably innovative and generative device like the Droid gets widespread release and praise, it’s the fact that there are countless other mobile devices and applications on the market today much like it. On the Zittrainian “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide exactly what type of device you want.  But here’s the more important point: How much of a difference does it even make how “open” these phones and app stores are?  You’ve got more “closed” systems like Apple’s iPhone and Palm’s Pre on one end of the spectrum and then more “open” systems like the Droid and even many Windows Mobile devices on the other end, but do these competing models really result in many difference in terms of functionality and innovation?  The reality is this: tons of innovation is occurring across all of these devices and platforms regardless of how “open” or “closed” they may be.

For example, when I go to Handango, a terrific mobile application marketplace, and search for “all apps” available for my HTC Touch (which runs a Windows Mobile OS), my senses are assaulted with 6,677 choices.  It’s all a bit overwhelming.  Luckily, a quick search can get me right to the important applications I really need — like the “Pocket Fart” app.  Folks, let me tell you, no “generative” device is worth its salt without a good farting application.  I don’t care how bad of a mood my kids are in, when I fire up a fart app, it puts an instant smile on their faces!

But hey, guess what… that “angel of death,” the iPhone Store, offers fart apps, too!  Dozens and dozens of fart apps, in fact.  In terms of Zittrainian generativity, the iPhone is positively fart-tastic. Just check out that video below. And in addition to those dozens of flatulence apps, the Apple AppStore has another 100,000 apps available for downloading, making it the largest applications store in the world. And back in September, Apple announced that more than two billion apps had been downloaded from the App Store in its short existence. That’s Billion with a “B”.  Does this sound like it “portends a serious de-generation of computing” as Weinberger suggests?  Incidentally, if he’s so frightened that Steve Jobs is the Grim Reaper incarnate he can always go find another phone. Seriously, Steve Jobs doesn’t force anybody to buy one of these expensive toys.

http://www.youtube.com/v/IIVN6-yd-xU&color1=0xb1b1b1&color2=0xcfcfcf&hl=de&feature=player_embedded&fs=1

If the iPhone is Good Enough for Zittrain, Why Isn’t It Fine for the Rest of Us?

Incidentally, despite all the fear and loathing about Steve Jobs and the iPhone that one finds in Future of the Internet, I was very entertained to discover that Jonathan Zittrain is an iPhone user himself!  I used some shameless McCarthyite tactics during our debate at New America Foundation last year — “Are you now, or have you ever been, an iPhone user!” — to publicly out him. [Go to the 55:00 minute mark of the video to see.]  But my point to him that day was a serious one: If you so fear the death of generativity because of that little demonic device, than why carry one in your coat pocket?  Why not use a device that lets you break all the rules because it essentially has no rules?  There are multiple open source mobile operating systems and a thriving community of “homebrew” developers. Go spend a few minutes at PCC Geeks or Howard’s Forums and see what I mean.

But the Berkman boys don’t seem content with all that.  And I wouldn’t usually give a damn about the lunacy of these hyper-pessimistic prognostications from the Harvard crew if it was all just harmless cyber-sourpuss ramblings from the ivory tower geeks with too much time on their hands.  But the problem is that these people want regulators to take steps to correct these supposed “code failures,” as Lessig calls them.  Zittrain calls for “API neutrality” in his book, which would force net neutrality-like mandates on digital devices. And in a New York Times editorial this summer entitled “Lost in the Cloud,” he made it clear that cloud neutrality regulation was next on the list. [Others are joining that call.] I’ve got a serious problem with that, as I detailed extensively in earlier essays (here and here), and Berin Szoka and I have discussed how these escalating neutrality wars are bound to lead to the digital equivalent of “mutually assured destruction” within the tech community before it’s all over.

Finally, when the Berkman gang, which is the most respected cyberlaw shop in the land, go around casting these debates with terms like “evil” applications and “angels of death,” then I have a serious problem because the game you are playing becomes hazardous to the health of the digital economy.  This poisons the public policy debate by using absurd moralistic rhetoric about something as fundamentally agnostic as digital platforms and protocols.  These things are neither good nor evil; they are just choices.  They represent different ways of promoting innovation.  And we should be happy that our current digital marketplace is offering us a rich mosaic of business models and options that can fill almost any need and fit almost any picky user’s desires.  If that ain’t progress, I don’t what is.

]]> https://techliberation.com/2009/11/12/oh-farts-the-droid-the-iphone-the-lessig-zittrain-thesis/feed/ 26 23307 Behavioral Advertising Industry Practices Hearing: Some Issues that Need to be Discussed https://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/ https://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comments Thu, 18 Jun 2009 04:20:58 +0000 http://techliberation.com/?p=18806

by Berin Szoka & Adam Thierer

This morning, the House Energy & Commerce Committee will hold a hearing on “Behavioral Advertising: Industry Practices And Consumers’ Expectations.” If nothing else, it promises to be quite entertaining:  With full-time Google bashers Jeff Chester and Scott Cleland on the agenda, the likelihood that top Google officials will be burned in effigy appears high!

Chester, self-appointed spokesman for what one might call the People for the Ethical Treatment of Data (PETD) movement, is sure to rant and rave about the impending techno-apocalypse that will, like all his other Chicken-Little scenarios, befall us all if online advertisers were permitted to better tailor ads to consumers’ liking. After all, can you imagine the nightmare of less annoying ads that might actually convey more useful information to consumers? Isn’t serving up “untargeted” dumb banner ads for Viagra to young women and Victoria’s Secret ads to Catholic school kids the pinnacle of modern online advertising?  Gods forbid we actually make advertising more relevant and interest-based!  (Those Catholic school boys may appreciate the lingerie ads, but few will likely buy bras.)

Anyway, according to National Journal’s Tech Daily Dose, the hearing lineup also includes:

  • Charles Curran, Executive Director, Network Advertising Initiative
  • Christopher Kelly, Chief Privacy Officer, Facebook
  • Edward Felten, Director, Center for IT Policy, Princeton University
  • Anne Toth, Chief Privacy Officer & Vice President, Policy, Yahoo!
  • Nicole Wong, Deputy General Counsel, Google

That’s an interesting group and we’re sure that they will say interesting things about the issue. Nonetheless, because four of them have a corporate affiliation that fact will inevitably be used by some critics to dismiss what they have to say about the sensibility of more targeted or interest-based forms of online advertising. So, we’d like to offer a few thoughts and pose a few questions to make sure that Committee members understand why, regardless of what it means for any particular online operator, targeting online advertising is very pro-consumer and essential to the future of online content, culture, and competition.  As Wall Street Journal technology columnist Walt Mossberg has noted, “Advertising is the mother’s milk of all the mass media.”  Much of the “free speech” we all cherish isn’t really free, but ad-supported!

Our Approach

We have previously set forth a framework for analyzing advertising policy issues in two PFF reports: “Online Advertising & User Privacy: Principles to Guide the Debate” and “Targeted Online Advertising: What’s the Harm & Where Are We Heading?” At root, our model depends heavily on two common-sense, and inter-related, principles:

  1. We live in a world of trade-offs; and
  2. There is no free lunch.

Their Approach

We are deeply concerned that too few people are talking about—or even understand the relevance of—those two principles in the debate over targeted online advertising. It seems that too many who wish to retard the further evolution of the advertising marketplace are living a lie based upon the antithesis of our model. Many privacy advocates seem to imagine that regulatory actions don’t have consequences and that Congress can simply mandate new privacy standards for the Internet without having any impact on the free flow of ideas supported by, and direct facilitated through, advertising.

Simply put, the privacy critics often imagine that their values are indicative of everyone’s values. Our blogging colleague Jim Harper of the Cato Institute has referred to this as “preference imposition” but we’ll use a simpler term: Elitism. In essence, privacy advocates seem to believe that:

  1. People are too ignorant, busy or just plain stupid, and cannot be trusted to make wise decisions for themselves (or their children); and/or
  2. Everyone shares the same values or concerns when it comes to privacy such that a national “baseline” regulatory standard (namely, mandatory “opt-in” regulations for data collection and use) should govern the entire online marketplace.

Let’s be clear: Such a mandate, and the thinking behind it, would greatly impoverish the future Internet economy. Too many people think of the Internet as a magic box that just keeps cranking out free goodies. But something powers that box of goodies: advertising.  More than anything else, it’s advertising that keeps the Internet “Free, Innovative & Open,” to borrow the slogan of our friends at CDT, which seems to flirt with joining the PETD movement, despite their well-earned reputation for pragmatic skepticism of government interference with the Internet.

The regulatory advocates complain that giving consumers the right to opt-out of data collection and use isn’t meaningful because very few consumers will exercise the opt-out.  Again, they presume that this must be because users just don’t know what’s good for them because of course if they really understood what was being done with “their data,” they would never choose to just “give it away” for a few scraps from the advertisers’ table.  It never occurs to them that (i) many, perhaps most, users just don’t care and that (ii) that their “ignorance” about the all specific details of “how the sausage is made” (online data collection and use practices for targeting advertising) may be completely rational.

But just as importantly, would-be privacy regulatory don’t seem to understand—or perhaps simply don’t care—that what’s true of opt-out is also true of opt-in:  in practice, few people will bother doing either.  In a world of perfect information and infinite time, of course, there would be no difference in outcomes with the two different rules.  But in the real world with real constraints on time, knowledge and everything else, mandating opt-in would make all the difference in the world by severely limiting the ability of advertisers to target advertising.

The Ignored Trade-offs

We’ve been assembling evidence on the real-world costs of restricting targeted advertising. Here are just a few data points we’ve seen to give you a sense of what’s at stake:

  • Relevance to Users: The best evidence that users prefer seeing more relevant ads is their increased likeliness to actually click on an ad—instead of just ignoring it or trying to block it. The most recent study of this issue concluded that Click-Through Rates (CTR) can be improved by as much as 670% by using basic behavioral targeting as compared to simple contextual targeting—0r even more than 1000% using more sophisticated targeting. Conversion rates (the percentage of clicks that actually result in a sale) also strongly indicate that consumers find ads more interesting, and in one 2005 study, were estimated to increase up to 3000% with behavioral targeting.
  • Macro: More Revenue to Fund All Services & Content: eMarketer (in June 2008) estimated that U.S. spending on behavioral targeting would grow from $.775 billion in 2008 to $4.4 billion in 2012—representing fully a quarter of display ad spending.  The total amount of money at stake is huge:  U.S. online ad revenues totaled $23.5 billion in 2008.
  • Micro: More Revenue for Individual Publishers: Estimates on the increased profitability of behavioral targeting range as high as 1200% (eMarketer).

While these examples illustrate the broad outlines of the trade-offs ignored by privacy regulatory advocates, the key dilemma to understand is this: If, under an opt-in regime, publishers would be able to target advertising for webpages based on the keywords contained within those pages, and not on other content the user has looked at, the value of most Internet content will depend not on how many eyeballs it attracts but primarily on the economic value of the keywords that are directly associated with it. Pages with keywords related to products and services will fetch a fine price because advertisers will be able to make money off ads on those pages ( e.g., a site for digital camera reviews). But content with little commercial value will generate little revenue. Indeed, this is perhaps the single greatest problem faced by journalism sites. Who wants to advertise on a story about North Korea? How many users are going to be interested in taking a honeymoon in the DMZ?

But if such websites could target advertising to users’ user’s likely interests based on an anonymous profile of their interests created by collecting data about their browsing “behavior,” web content becomes valuable because of the audience it attracts, not just because the content itself serves as a rough proxy for a user’s interests. This democratization of Internet advertising revenue is essential for sustaining the future of journalism in particular, but also for “free” culture more generally.

As we noted in our response to the FTC’s proposed self-regulatory guidelines on data collection for advertising:

Depending on how regulation is structured, therefore, it is possible that new privacy mandates would severely curtail the overall quantity of content and services offered—and greatly limit the ability of new providers to enter the market with innovative offerings. Alternatively, or perhaps additionally, companies would change the character of their offerings and water-down sophisticated services that cater to consumer demand; in other words, the quality of service would deteriorate. Bottom line: Something must give because there is no free lunch. Regulation is a giant game of economic whack-a-mole: Attempting to control one of the primary variables of price, quantity, or quality inevitably results in non-optimal adjustments in the other two variables. The absence of price as a variable in this context means there is one less variable for the government to control in the first place. Simply stated, stifling the evolution of the online advertising marketplace will likely result in fewer free online services and less content, less high-quality online services and content, or some combination of both… We stand at an important crossroads in the debate over the online marketplace and the future of a “free and open” Internet. Many of those who celebrate that goal focus on concepts like “net neutrality” at the distribution layer, but what really keeps the Internet so “free and open” is the economic engine of online advertising at the applications and content layers. If misguided government regulation chokes off the Internet’s growth or evolution, we would be killing the goose that laid the golden eggs…. These observations are even more relevant to the online marketplace, where advertising has been shown to be the only business model with any real staying power. Walled gardens, pay-per-view, micropayments, and subscription-based business models are all languishing. Consequently, the overall health of the Internet economy and the aggregate amount of information and speech that can be supported online are fundamentally tied up with the question of whether we allow the online advertising marketplace to evolve in an efficient, dynamic fashion. Heavy-handed privacy regulation (or co-regulation) could, therefore, become the equivalent of a disastrous industrial policy for the Internet that chokes off the resources needed to fuel e-commerce and online free speech going forward.

Our Challenge to the Advocates of Privacy Regulation

For these reasons, we have repeatedly issued the following three-part challenge in our previous work to those who advocate the regulation of online advertising:

  1. Identify the harm or market failure that requires government intervention.
  2. Prove that there is no less restrictive alternative to regulation.
  3. Explain how the benefits of regulation outweigh its costs.

We’re still waiting…

We’ve also made it clear that there is an alternative to the pre-emptive, one-size-fits-all regulation demanded by the regulatory advocates:  We’ve proposed a “layered approach” based on user education, user empowerment, self-regulation and FTC enforcement of privacy policies.  Our goal is as follows:

The ideal state of affairs would be to create a system of tools and data disclosure practices that would empower each user to implement their personal privacy preferences while also recognizing the freedom of those who rely on advertising revenues to “condition the use of their products and services on disclosure of information”—not to mention the viewing of ads! Self-regulatory efforts can be refined, especially through technological innovation to better satisfy the concerns of policymakers, privacy advocates, and average consumers. For example, if websites and ad networks participating in a self-regulatory framework supplemented their current “natural language” privacy policies with equivalent “machine-readable” code [ e.g., P3p], that data could be “read” by browser tools that would implement pre-specified user preferences by blocking the collection of information depending on whether the privacy policies of certain websites or ad networks met the user’s preferences about data-use. Such robust and granular disclosure, if implemented for behavioral advertising, would exceed the wildest dreams of those who argue that users currently do not read privacy policies—without disrupting the browsing experience or cluttering websites. But this system would only work if users had to make real choices about “pay*ing+ for ‘free’ content and services by disclosing their personal information.”

A Final Word About Advertising

On some level, this debate isn’t about user privacy at all, but about the alleged evils of advertising as inherently manipulative.  Jeff Chester straddles both camps.  His rantings about the use of “neuromarketing” boil down to the same simple idea that the Neo-Marxists have been pushing for decades:  Since people are stupid, ignorant and/or lazy (see above), they’re easy to control and trick with shiny objects, pretty faces, memorable slogans, and catchy jingles. No better response to this argument has ever been made than was offered in this 1959 magazine ad by the ad firm Young & Rubicam (emphasis added for Chester’s benefit):

There is no chestnut more overworked than the critical whinny: “Advertising sells people things they don’t need.” We, as one agency, plead guilty. Advertising does sell people things they don’t need. Things like television sets, automobiles, catsup, mattresses, cosmetics, ranges, refrigerators, and so on and on. People don’t really need these things. People don’t really need art, music, literature, newspapers, historians. wheels, calendars, philosophy, or, for that matter, critics of advertising, either. All people really need is a cave, a piece of meat and, possibly, a fire. The complex thing we call civilization is made up of luxuries. An eminent philosopher of our time has written that great art is superior to lesser art in the degree that it is “life-enhancing.” Perhaps something of the same thing can be claimed for the products that are sold through advertising. They enhance life, to whatever degree they can.
]]> https://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/feed/ 23 18806 The AutoAdmit Case and the Future of Sec. 230 https://techliberation.com/2009/02/16/the-autoadmit-case-and-the-future-of-sec-230/ https://techliberation.com/2009/02/16/the-autoadmit-case-and-the-future-of-sec-230/#comments Mon, 16 Feb 2009 18:46:26 +0000 http://techliberation.com/?p=16726

David Margolick has penned a lengthy piece for Portfolio.com about the AutoAdmit case, which has important ramifications for the future of Section 230 and online speech in general. Very brief background: AutoAdmit is a discussion board for students looking to enter, or just discuss, law schools. Some threads on the site have included ugly — insanely ugly — insults about some women.  A couple of those women sued to reveal the identities of their attackers and hold them liable for supposedly wronging them.  The case has been slowly moving through the courts ever since. Again, read Margolick’s article for all the details.  The important point here is that the women could not sue AutoAdmit directly for defamation or harassment because Section 230 of the Communications Decency Act of 1996 immunizes websites from liability for the actions of their users.  Consequently, those looking to sue must go after the actual individuals behind the comments which (supposedly) caused the harm in question.

I am big defender of Section 230 and have argued that it has been the cornerstone of Internet freedom. Keeping online intermediaries free from burdensome policing requirements and liability threats has created the vibrant marketplace of expression and commerce that we enjoy today. If not for Sec. 230, we would likely live in a very different world today.

Sec. 230 has come under attack, however, from those who believe online intermediaries should “do more” to address various concerns, including cyber-bullying, defamation, or other problems.  For those of us who believe passionately in the importance of Sec. 230, the better approach is to preserve immunity for intermediaries and instead encourage more voluntary policing and self-regulation by intermediaries, increased public pressure on those sites that turn a blind eye to such behavior to encourage them to change their ways, more efforts to establish “community policing” by users such that they can report or counter abusive language, and so on.

Of course, those efforts will never be fool proof and a handful of bad apples will still be able to cause a lot of grief for some users on certain discussion boards, blogs, and so on.  In those extreme cases where legal action is necessary, it would be optimal if every effort was exhausted to go after the actual end-user who is causing the problem before tossing Sec. 230 and current online immunity norms to the wind in an effort to force the intermediaries to police speech.  After all, how do the intermediaries know what is defamatory?  Why should they be forced to sit in judgment of such things?  If, under threat of lawsuit, they are petitioned by countless users to remove content or comments that those individuals find objectionable, the result will be a massive chilling effect on online free speech since those intermediaries would likely play is safe most of the time and just take everything down.

Which brings up back to the danger of a 230 backlash following the AutoAdmit case. As Margolick notes of the case:

By any standard, the plaintiffs’ catch has been meager. Even with one of the country’s top intellectual-property lawyers, backed by a super-elite law firm, going after them, most of the worst offenders got off scot-free. The fact that so few prey were netted could prompt calls to modify Section 230(c), if only to give victims of internet abuse more of a chance. Brian Leiter, the professor and vocal critic of AutoAdmit, sees it coming. He calls the free pass enjoyed by Google and other carriers “a disaster” and says change is inevitable. “The point at which some senator’s daughter becomes the target of this kind of campaign of online vilification and harassment on the next iteration of AutoAdmit — something’s going to happen,” predicted Leiter, who now teaches at the University of Chicago Law School.

Unfortunately, although I obviously don’t agree with Prof. Leiter about Sec. 230 being “a disaster,” I think he’s right to assume that one particularly visible and sensitive case could end up bringing 230 back up for political reconsideration.  Commenting on this on the Info/Law blog, William McGeveran of the University of Minnesota Law School summarizes my own feelings regarding the potential danger we face going forward:

the response will be a dramatic evisceration or even elimination of Section 230 immunity. We might end up with some kind of notice-and-takedown regime that could be abused just as it is in the DMCA setting, allowing anyone to effectively force the elimination of web content they dislike with the mere untested allegation that it was tortious. Worse, we might see an effort to repeal section 230 altogether, making it impossible to run an open online forum for user-generated content without risking significant liability.

Indeed, there have already been calls for variants of a notice-and-takedown regime for speech put forward by law professors such as Mark Lemley and Daniel Solove. And the rising calls at the state level for legislation to address cyber-bullying could become another pressure point in the movement to deputize the middleman.

Importantly, however, the “[AutoAdmit] case has already made a difference,” Margolick notes:

Things have calmed down on AutoAdmit, where, Cohen says, he’s driven away the worst actors and enlisted volunteer moderators. Some post­ers, moreover, have announced their “retirement”; any further self-expression, they’ve concluded, is clearly not worth the risk. Thanks to the case, casual defamers — those who take potshots for sport — may now refrain out of empathy for the plaintiffs, while the more malicious may have been intimidated into silence. The case may also have helped Heller and Iravani [the plantiffs in the case] cleanse their Google pages, as the old slurs have fallen farther down the screen. And last spring, Cohen quietly removed the offending threads. He’d have done so sooner, he says, had he been asked more nicely.

This gets back to my point about how self-regulation, social norms, and public pressure can be an effective way to counter online harassment without resorting to major changes in law or liability norms. Again, I think Sec. 230 is worth preserving and the efforts to tinker with it are likely to open a Pandora’s Box of problems for intermediaries and average users alike.  The question going forward is, do we let the presence of a few bad apples online justify the complete upending of a legal standard that has made the Internet the most vibrant platform for free speech that the world has ever known?  I certainly hope not.

Some additional reading on the case:

]]> https://techliberation.com/2009/02/16/the-autoadmit-case-and-the-future-of-sec-230/feed/ 27 16726 Cutting the (Video) Cord Part 3: The Growing Relevance of Internet TV https://techliberation.com/2009/01/05/the-growing-relevance-of-internet-tv/ https://techliberation.com/2009/01/05/the-growing-relevance-of-internet-tv/#comments Tue, 06 Jan 2009 00:10:33 +0000 http://techliberation.com/?p=15191

Continuing the “Cutting the (Video) Cord” series started by my PFF colleague Adam Thierer:  The WSJ had two great pieces yesterday about the increasing competitive relevance of television distributed by Internet—a trend that was at the heart of an amicus brief PFF recently filed in support of C omcast’s challenge of the FCC’s 30% cap on cable ownership.  The first WSJ piece declares that:

After more than a decade of disappointment, the goal of marrying television and the Internet seems finally to be picking up steam. A key factor in the push are new TV sets that have networking connections built directly into them, requiring no additional set-top boxes for getting online. Meanwhile, many consumers are finding more attractive entertainment and information choices on the Internet — and have already set up data networks for their PCs and laptops that can also help move that content to their TV sets.

The easier it is for consumers to receive traditional television programming (in addition to other kinds of video content) distributed over the Internet on their television, the less “gatekeeper” or “bottleneck” power cable distributors have over programming.  So the Netflix-capable and Yahoo-widget-capable televisions described by the WSJ piece go a long way to increasing the substitutability of what we call Internet Video Programming Distributors (IVPDs) for Multichannel Video Programming Distributors (MVPDs), such as cable, satellite television and fiber services offered by telcos such as Verizon’s FiOS.  

While such televisions are only expected to reach 14% of all TV sales by 2012, one must remember that a growing number of set-top boxes ( e.g., the Roku Digitial Video Player, game consoles like the Microsoft XBox 360 and Sony PlayStation 3, and TiVo DVRs) allow users to users to receive IVPD programming on their existing televisions.  

As we argued in our amicus brief, the immense competitive importance of IVPDs lies not in the potential for some users to “cut the cord” to cable and other MVPDs (though that will surely happen), but in the immediate impact IVPDs have as an alternative distribution channel for programmers.  In the pending D.C. Circuit case, we argue that both the FCC’s 30% cap, issued in December 2007, and the underlying portions of the 1992 Cable Act authorizing such a cap should be struck down as unconstitutional because the ready availability of IVPDs as an alternative distribution channel means that cable no longer has the “special characteristic” of gatekeeper/bottleneck power that would justify imposing such a unique burden on the audience size of cable operators.  (Of course, Direct Broadcast Satellite and Telco Fiber are also eating away at cable’s share of the MVPD marketplace.)

The second WSJ piece, an op/ed, illustrates beautifully how cable operators are already losing “market power” (or at least negotiating leverage) in a very tangible way:  they’re having to pay more for programming.  Specifically, the Journal describes how Viacom plaid chicken with Time Warner—and won.  

 The Viacom network had threatened to pull its 19 channels, including Nickelodeon with its “Dora the Explorer” and “SpongeBob SquarePants” cartoons, from the 13 million subscribers to the Time Warner Cable system…. The game of chicken included Viacom advertisements that unless Time Warner Cable agreed to pay more, it would pull the channels, encouraging viewers to call to say they wanted their MTV and other Viacom channels. One ad asked, “Why is Dora crying?” Time Warner countered that consumers would pay more if its costs rose. Bernstein Research analyst Michael Nathanson noted that neither party could afford “mutually assured destruction.” Viacom needs to find more subscription revenue as advertising revenues soften, while Time Warner Cable has to worry about satellite and telecom competitors. New media was the new factor. Many popular Viacom shows are widely available on the Web, including on its own sites. When it looked as if Comedy Central would be pulled, Wired magazine helpfully posted a guide for accessing the shows on the Web, pointing out that Jon Stewart’s “The Daily Show” can be accessed on Hulu and that “South Park” episodes are on Fancast. The best parts of “The Colbert Report” are often viewed as email attachments or as snippets on mobile phones.

So, in a nutshell, the fact that consumers could get Viacom programming available through IVPDs gave Viacom more leverage against MVPD Time Warner because it increased the credibility of Viacom’s threat to simply shut off programming to Time Warner if the cable giant didn’t cough up more cash.  While this fact seems to have carried the day for Viacom, the availability of Viacom’s content through IVPDs did have some secondary effects that also are worth noting:

During the negotiations, Time Warner Cable threatened to make it easier for its subscribers to connect laptop computers to their televisions so that Viacom shows could stream directly onto subscribers’ televisions.

This is essentially a reversal of the tactic often employed by local broadcasters in their battles with cable operators:  give your customers a set of rabbit ears so they can still get your signal if you actually take your programming off the local cable network.  While this tactic doesn’t seem to have helped Time Warner here, it does point to a long-term trend that could fundamentally change the programming marketplace:

The cable company also argued that it shouldn’t have to pay more to distribute shows that Viacom made available free in other media.

I suspect that, as IVPDs further erode the viewership of cable and other MVPDs, the MVPDs will become more desperate for content—and therefore willing to pay more for it.  But it seems likely that both of the key revenue sources for MVPDs—subscriptions and advertising—will, at some point, begin to decline as Americans spend more time watching IVPD content and become less willing to pay for expensive MVPD plans.  As this happens, cable may have less revenue to share with programmers per subscriber, even as their need for that programming grows.

So how will this all end?  I doubt anyone really knows.  But I feel reasonably comfortable making two predictions.  

First, the overall health of the video programming content market will become increasingly dependent on the profitability of advertising—for MVPDs, IVPDs as well as programmers.  This will require technological innovation to produce smarter advertising.  The better advertising is targeted to a specific consumer’s interests, the more revenue it will produce for all concerned.  But if the government short-circuits this process by hindering the evolution of targeted advertising in the name of protecting consumers’ privacy (or simply to protect them from the supposed inherent unfairness of advertising—an old Marxist shibboleth), the total amount of funding available for content could plummet.  The dynamics described so well by Chris Anderson in “Free! Why $0.00 Is the Future of Business” could drive video programmers to make their content available online for “free” (i.e., at no charge to the user) even if that content ends up producing (via advertising, etc.) significantly less revenue than it currently does on MVPDs (primarily from subscription revenue).  Plenty of smart people have explored this question and have far more intelligent things to say about it than I do.  But since the long-term trend seems to be that consumers are increasingly unwilling to pay even small sums for content, I just don’t see any alternative to increasing advertising revenues—other than public financing, which will necessarily bring with it government control and censorship.

Second, the other part of the solution to this problem will be business model innovation:  If individual consumers won’t pay for online video content, and if future ad revenues for online video content  don’t replace existing revenue streams, programmers are going to look for other sources of funding.  This dynamic seems to be on a collision course with net neutrality mandates.  The WSJ reported:

At one point, it looked as if Viacom might have escalated by trying to block Time Warner Cable broadband subscribers from accessing its Web sites to see its shows.

Whatever actually happened here, one can easily imagine a programmer like Viacom at some point in the future trying to get ISPs to start paying money per broadband subscriber for video content just as MVPDs currently pay per subscriber.  This is really the inverse of the fear generally expressed by net neutrality advocates that ISPs would try to charge programmers for the bandwidth used to transmit their content to an ISP’s subscribers.  If it’s true that programmers (the Viacoms of the world) and not distributors (Time Warner Cable the MVPD or Time Warner Cable the ISP) really have the market power, as this story suggests, then such arrangements might well be the economic salvation of content creators.  As with regulation of advertising, I only hope that government mandates against such innovation in the name of abstract “neutrality” principles don’t end up dooming us to a future where, with free market solutions (better advertising, revenue sharing with ISPs) rendered ineffective by government, government itself seems to be the only option left.

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