Here’s the video from a June 6th event on, “Does the US Need a New AI Regulator?” which was co-hosted by Center for Data Innovation & R Street Institute. We discuss algorithmic audits, AI licensing, an “FDA for algorithms” and other possible regulatory approaches, as well as various “soft law” self-regulatory efforts and targeted agency efforts. The event was hosted by Daniel Castro and included Lee Tiedrich, Shane Tews, Ben Shneiderman and me.

Additional Reading :

• Neil Chilson & Adam Thierer, “The Problem with AI Licensing & an ‘FDA for Algorithms,’” June 5, 2023.
• Adam Thierer, “Microsoft’s New AI Regulatory Framework & the Coming Battle over Computational Control,” Medium, May 29, 2023.
• PODCAST: Neil Chilson & Adam Thierer, “The Future of AI Regulation: Examining Risks and Rewards,” Federalist Society Regulatory Transparency Project podcast, May 26, 2023.
• Adam Thierer, “Here Come the Code Cops: Senate Hearing Opens Door to FDA for Algorithms & AI Occupational Licensing,” Medium, May16, 2023.
• Adam Thierer, “What OpenAI’s Sam Altman Should Say at the Senate AI Hearing,” R Street Institute Blog, May 15, 2023.
• PODCAST: “Should we regulate AI?” Adam Thierer and Matthew Lesh discuss artificial intelligence policy on the Institute for Economic Affairs podcast, May 6, 2023.
• Adam Thierer, “The Biden Administration’s Plan to Regulate AI without Waiting for Congress,” Medium, May 4, 2023.
• Adam Thierer, “NEPA for Al? The Problem with Mandating Algorithmic Audits & Impact Assessments,” Medium, April 23, 2023.
• Adam Thierer, “Flexible, Pro-Innovation Governance Strategies for Artificial Intelligence,” R Street Institute Policy Study No. 283 (April 2023).
• Adam Thierer, “A balanced AI governance vision for America,” The Hill, April 16, 2023.
• Adam Thierer, Brent Orrell, & Chris Meserole, “Stop the AI Pause,” AEI Ideas, April 6, 2023.
• Adam Thierer, “Getting AI Innovation Culture Right,” R Street Institute Policy Study No. 281 (March 2023).
• Adam Thierer, “Can We Predict the Jobs and Skills Needed for the AI Era?,” R Street Institute Policy Study No. 278 (March 2023).
• Adam Thierer, “U.S. Chamber AI Commission Report Offers Constructive Path Forward,” R Street Blog, March 9, 2023.
• Adam Thierer, “Statement for the Record on ‘Artificial Intelligence: Risks and Opportunities,’” U.S. Senate Homeland Security and Governmental Affairs Committee, March 8, 2023.
• Adam Thierer, “What If Everything You’ve Heard about AI Policy is Wrong?” Medium, February 20, 2023.
• Adam Thierer, “Policy Ramifications of the ChatGPT Moment: AI Ethics Meets Evasive Entrepreneurialism,” Medium, February 14, 2023.
• Adam Thierer, “Mapping the AI Policy Landscape Circa 2023: Seven Major Fault Lines,” R Street Blog, February 9, 2023.
• Adam Thierer, “Artificial Intelligence Primer: Definitions, Benefits & Policy Challenges,” Medium, December 2, 2022.
• Neil Chilson & Adam Thierer, “The Coming Onslaught of ‘Algorithmic Fairness’ Regulations,” Regulatory Transparency Project of the Federalist Society, November 2, 2022.

It was my pleasure this week to be invited to deliver some comments at an event hosted by the Information Technology and Innovation Foundation (ITIF) to coincide with the release of their latest study, “The Privacy Panic Cycle: A Guide to Public Fears About New Technologies.” The goal of the new ITIF report, which was co-authored by Daniel Castro and Alan McQuinn, is to highlight the dangers associated with “the cycle of panic that occurs when privacy advocates make outsized claims about the privacy risks associated with new technologies. Those claims then filter through the news media to policymakers and the public, causing frenzies of consternation before cooler heads prevail, people come to understand and appreciate innovative new products and services, and everyone moves on.” (p. 1)

As Castro and McQuinn describe it, the privacy panic cycle “charts how perceived privacy fears about a technology grow rapidly at the beginning, but eventually decline over time.” They divide this cycle into four phases: Trusting Beginnings, Rising Panic, Deflating Fears, and Moving On. Here’s how they depict it in an image:

The report can be seen as an extension of the literature on “moral panics” and “techno-panics.” Some relevant texts in this field include Stanley Cohen’s Folk Devils and Moral Panics, Erich Goode and Nachman Ben-Yehuda’s Moral Panics: The Social Construction of Deviance, Cass Sunstein’s Laws of Fear, and Barry Glassner’s Culture of Fear. But there’s a rich body of academic writing on this topic and I’ve tried to make a small contribution to this literature in recent years, most notably with a lengthy 2013 law review article, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.” In that paper, I try to connect the literature on moral panic theory (which mostly focuses on panics about speech and cultural changes) to other scholarship about how panics and threat inflation are used in many other contexts, including the fields of national security policy, cybersecurity, and more.

I define “technopanic,” as “intense public, political, and academic responses to the emergence or use of media or technologies, especially by the young.”  “Threat inflation” has been defined by national security policy experts Jane K. Cramer and A. Trevor Thrall as “the attempt by elites to create concern for a threat that goes beyond the scope and urgency that a disinterested analysis would justify.”

Castro and McQuinn’s new study on privacy panic cycles fits neatly within this analytical framework and makes an important contribution to the literature. They warn of the real dangers associated with these privacy panics, especially in terms of lost opportunities for innovation. “Policymakers should not get caught up in the panics that follow in the wake of new technologies,” they argue, “and they should not allow hypothetical, speculative, or unverified claims to color the policies they put in place. Similarly, they should not allow unsubstantiated claims put forth by privacy fundamentalists to derail legitimate public sector efforts to use technology to improve society,” they say. (p. 28)

I think one of the most important takeaways from the study is that, as Castro and McQuinn note, “history has shown, many of the overinflated claims about loss of privacy have never materialized.” (p. 28) They identify many reasons why that may be the case but, most notably, they explain how societal attitudes often quickly adjust and also that “social norms dissuade many practices that are feasible but undesirable.” (p. 28) I have spent a lot of time thinking through this process of individual and social acclimation to new technologies and, most recently, wrote an essay on this topic entitled, “Muddling Through: How We Learn to Cope with Technological Change.”

Castro and McQuinn highlight several historical case studies that illustrate how privacy panics play out in practice. They include studies of photography, the transistor, and RFID tags. They also continue on to map out how various new technologies are currently—or might soon be—experiencing a privacy panic. Those include drones, facial recognition, connected cars, behavioral advertising, the Internet of Things and wearable tech. Here’s where Castro and McQuinn believe each of those technologies falls currently on the privacy panic curve.

One problem with the ITIF report, however, is that it avoids the question of what constitutes a serious enough privacy “harm” that might be worth actually panicking over. Certainly there must be something that deserves special concern – perhaps even a little bit of panic. Of course, as I noted in my remarks at the event, this is problem with a great deal of literature in this field due to the challenge associated with defining what we even mean by “privacy” or “privacy harm.” Nonetheless, while some privacy fundamentalists are far too aggressive in using amorphous conceptions of privacy harms to fuel privacy panics, it can also be the case that others (like Castro, McQuinn, and myself) don’t do enough to specify when extremely serious privacy problems exist that warrant heightened concern.

The ITIF report rightly singles out the many groups that all too often use fear tactics and threat inflation to advance their own agendas. In the academic literature on moral panics, these people or groups are referred to as “fear entrepreneurs.” They hope to create and then take advantage of a state of fear to demand that “something must be done” about supposed problems that are often either greatly overstated or which will be solved (or just go away) over time. (For more on “fear entrepreneurs,” see Frank Furedi’s outstanding 2009 article on “Precautionary Culture and the Rise of Probabilistic Risk Assessment.”) These individuals and groups often end up having a disproportionate impact on policy debates and, through their vociferous activism, threaten to achieve a sort of “heckler’s veto” over digital innovation.

However, as I stressed in my remarks at ITIF’s launch event for the study, I believe that Castro and McQuinn were wrong to single out the International Association of Privacy Professionals (IAPP) as one of these troublemakers. Castro and McQuinn claim that “there is now a professional class of people whose job is to manage privacy risks and promote the idea that technology is becoming more invasive. These privacy professionals have a vested interest in inflating the perceived privacy risk of new technologies as their livelihood depends on businesses’ willingness to pay them to address these concerns.” (8)

I think that mischaracterizes the role that most IAPP-trained privacy professionals play today. I have done a lot of work with IAPP itself and many of the privacy professionals they have trained. In my experience, these folks aren’t trying to fan the flames of “privacy panics.” To the contrary, many (perhaps most) IAPP professionals are actively involved in putting out those fires or making sure that they do not start raging in the first place. This is particularly true of the huge number of IAPP-trained privacy professionals who work for major technology companies and who work hard every day to find practical solutions to real-world privacy and security-related concerns.

Of course, as with any large membership organization, one can find some IAPP-trained privacy professionals who may indeed be guilty of fueling privacy panics for personal or organizational purposes. After all, some IAPP-trained folks work for privacy advocacy organizations which could be classified as “privacy fundamentalists” in their philosophical orientation. But just because some IAPP-trained people play techno-panic games, it certainly doesn’t mean that most of them do.

Relatedly, another small nitpick I have with the ITIF study is that it groups together a large number of privacy and security-focused tech policy groups and implies that they are all equally guilty of fueling privacy panics. In reality, there is a small core group of individuals and advocacy organizations who are far more vociferous and extreme in their privacy panic rhetoric. Others may be guilty of that at times, but not nearly to the same extent as the most panicky Chicken Littles.

The only other problem I had with the study, and this is really quite a small matter, is that I would have liked to have seen some discussion about some strategies we might be able to employ to help counter privacy panics, or lessen the likelihood that they develop at all. In my own work, I have tried to develop constructive solutions to privacy and security-related concerns that might give rise to panics. Those solutions include things like education and tech literacy efforts, empowerment tools, transparency efforts, and so on. It’s also worth reminding concerned critics that there exists a broad range of existing legal remedies that can help address privacy concerns after the fact. These include torts and common law solutions, contractual remedies, class actions, other targeted legal solutions, and enforcement of “unfair and deceptive practices” by the Federal Trade Commission or state attorneys general. And there’s also important industry self-regulatory efforts and best practices that can help alleviate many of these privacy concerns. I would have liked to have seen the ITIF study address these or other potential solutions to privacy panics.

Overall, however, I thought that the ITIF report makes an important contribution to the literature in this field and provides us with a useful analytic framework to help us evaluate and critique privacy-related technopanics in the future.

The video of the launch event is below and the full paper can be found here. Also, for further reading on technopanics, see my compendium of 40 essays I have written on the topic.

Today on Capitol Hill, the House Energy and Commerce Committee is holding a hearing on the NTIA’s recent announcement that it will relinquish its small but important administrative role in the Internet’s domain name system. The announcement has alarmed some policymakers with a well-placed concern for the future of Internet freedom; hence the hearing. Tomorrow, I will be on a panel at ITIF discussing the IANA oversight transition, which promises to be a great discussion.

My general view is that if well executed, the transition of the DNS from government oversight to purely private control could actually help secure a measure of Internet freedom for another generation—but the transition is not without its potential pitfalls.

The NTIA’s technical administration of the DNS’ “root zone” is an artifact of the Internet’s origins as a U.S. military experiment. In 1989, the government began the process of privatizing the Internet by opening it up to general and commercial use. In 1998, the Commerce Department created ICANN to oversee the DNS on a day-to-day basis. The NTIA’s announcement is arguably the culmination of this single decades-long process of privatization.

The announcement also undercuts the primary justification used by authoritarian regimes to agitate for control of the Internet. Other governments have long cited the United States’ unilateral control of the root zone, arguing that they, too, should have roles in governing the Internet. By relinquishing its oversight of the DNS, the United States significantly undermines that argument and bolsters the case for private administration of the Internet.

The United States’ stewardship of the root zone is largely apolitical. This apolitical approach to DNS administration is precisely what is at stake during the transition, hence the three pitfalls the Obama administration must avoid to preserve it.

The first pitfall is the most serious but also the least likely to materialize. Despite the NTIA’s excellent track record, authoritarian regimes like Russia, China, and Iran have long lobbied for the ITU, a clumsy and heavily politicized U.N. technical agency, to take over the NTIA’s duties. In its announcement, the NTIA said it would not accept a proposal from an intergovernmental organization, a clear rebuke to the ITU.

Nevertheless, liberal governments would be wise to send the organization a clear message in the form of much-needed reform. The ITU should adopt the transparency we expect of communications standards bodies, and it should focus on its core competency—international coordination of radio spectrum—instead of on Internet governance. If the ITU resists these reforms at its Plenipotentiary Conference this fall, the United States and other countries should slash funding or quit the Union.

ICANN’s Governmental Advisory Committee (GAC) presents a second pitfall. Indeed, the GAC is already the source of much mischief. For example, France and Luxembourg objected to the creation of the .vin top-level domain on the grounds that “vin” (wine) is a regulated term in those countries. Brazil and Peru have held up Amazon.com’s application for .amazon despite the fact that they previously agreed to the list of reserved place names, and rivers and states were not on it. Last July, the U.S. government, reeling from the Edward Snowden revelations, threw Amazon and the rule of law under the bus at the GAC as a conciliatory measure.

ICANN created the GAC to appease other governments in light of the United States’ outsized role. Since the United States is giving up its special role, the case for the GAC is much diminished. In practice, the limits on the GAC’s power are gradually eroding. ICANN’s board seems increasingly hesitant to overrule it out of fear that governments will go back to the ITU and complain that the GAC “isn’t working.” As part of the transition of the root zone to ICANN, therefore, new limits need to be placed on the GAC’s power. Ideally, it would dissolve the GAC.

The third pitfall comes from ICANN itself. The organization is awash in cash from domain registration fees and new top-level domain name applications—which cost $185,000 each—and when the root zone transition is completed, it will face no external accountability. Long-time ICANN insiders speak of “mission creep,” noting that the supposedly purely technical organization increasingly deals with trademark policy and has aided police investigations in the past, a dangerous precedent.

How can we prevent an unaccountable, cash-rich technical organization from imposing its own internal politics on what is supposed to be an apolitical administrative role? In the long run, we may never be able to stop ICANN from becoming a government-like entity, which is why it is important to support research and experimentation in peer-to-peer, decentralized domain name systems. This matter is under discussion, among other places, at the Internet Engineering Task Force, which may ultimately play something of a counterweight to an independent ICANN.

Despite these potential pitfalls, it is time for an Internet that is fully in private hands. The Obama administration deserves credit for proposing to complete the privatization of the Internet, but we must also carefully monitor the process to intercept any blunders that might result in politicization of the root zone.

This looks like a good one to me. An ITIF event tomorrow called “Info-Communism:” A Progressive Path Forward or a Political and Intellectual Dead End?

Overheated rhetoric around information policy and intellectual property damages the quality of the debate. In this paper, featured speaker and Syracuse University information studies professor Milton Mueller warns against pouring these debates into old ideological molds. Doing so preserves controversy rather than fostering the discovery of common ground. (Or “commons” ground—couldn’t help it!)

I don’t know that this forum will solve the problem, but I know it will be interesting. The sign-up page indicates that the event will be streamed.

It is commonly believed that intellectual property law in the form of copyright and patent is necessary for innovation and the creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies.

But Michele Boldrin and his coauthor David K. Levine argue that intellectual property laws are costly and dangerous government grants of private monopoly over ideas. Their book “Against Intellectual Monopoly” seeks to show through theory and example that these legal regimes are not necessary for innovation and are damaging to growth, prosperity, and liberty.

The argument that intellectual property laws actually retard progress is a fascinating challenge to conventional beliefs about their foundations and utility. At the onset of the Information Age, the role of copyright, patent, and other legal regimes in the progress of science and arts is centrally important.

The Cato Institute will be hosting a forum on Monday, November 10th that will surely be an interesting discussion of the book with coauthor Michele Boldrin, featuring commentary from Robert Atkinson, founder and president of the Information Technology and Innovation Foundation.

Register here.

http://penny-arcade.com/comic/2008/9/26/

Speaking of snakes, I am just returned from a camping trip along the Appalachian trail in the Michaux Forest, quite out of wireless reception range. Several days’ heavy rain had washed the forest clean, left the moss glowing green and the mushrooms, salamanders, crayfish, and frogs quite content. There one combats the same problems confronted by earlier settlers–mice (and the snakes they attract), staying dry and tolerably warm, the production of decent meals, and keeping small children from wandering off into the woods. Why do some people enjoy briefly returning to this world? Despite being one of those people, I can’t say. Now I am back and my day is easy and comfortable (comparatively), with time to spare contemplating the meta-structures of finance, property, and capital. Let’s all hope these structures are not nearly as fragile as our confidence in them, which, judging from the tone of remarks at last week’s ITIF conference on innovation, has fallen quite low.

In particular, the dominant concern seemed to be involve U.S. competitiveness in the face of developments in India and China, low growth in jobs and real wages, and so on. One commentator described the last ten years of liberalized trade as an experiment in moving jobs overseas in the hope that consumers would reap considerable benefits, which he seemed to think had not come about. While every event needs a little pessimism, this particular low mood seemed to have spread to nearly everyone. (Intellectuals seem to be as susceptible to mass psychology effects as anyone else, if anything perhaps more so, because they live in their heads). I would not have been surprised if the attendees had spontaneously all broken into tears (oh, all right, I would have been).

ITIF’s policy proposals for the next administration suffered somewhat from being embedded in this glum context. Nonetheless, there are some good ideas there. In order of merit, the best ideas include:

1. Letting foreign grad students in the sciences and tech fields get green cards.

2. Let companies expense IT investments in the first year.

3. Significantly expand the R&D tax credit (overall tax reform and reductions would be preferable, but that isn’t happening, so this is a third best).

4. Establish a federal office of Information CIO. Not, I hope, to inform what goes on in the private sector, but to follow it, on the off chance that systems and records might be kept so that we might begin to understand how leviathan actually works (or doesn’t work), or even do something about improving it.

Next come ideas that I would count as worth pondering further, with the caveat that one might do more than good:

5. Reform the Patent System. What a can of worms that is…

6. Implement an Innovation-based National Trade Policy. ITIF seems to be supporting more aggressive WTO actions against nations that do not do such a good job of IP enforcement, for example. I think attention to this policy issue makes sense, but until the U.S. winds down agricultural subsidies and pressures Europe to do the same, we had better be wary of starting a more punitive trend. Better to focus on coming up with blueprints for better low-cost enforcement, carrots rather than sticks. Our own enforcement methods are rather archaic, at that.

And a few ideas that are not so good. However much I have benefited from Rob Atkinson’s sense over the years, I am skeptical that we should:

7. Create a national innovation foundation.

OR

8. Implement a national broadband policy by a) adding broadband to universal service coverage (even if reverse auctions are established) b) funding joint federal-state initiatives or c) initiate educational programs on how to use broadband. The idea of making more spectrum available, though, is good sense. (See, for example, a recent paper of mine at http://www.ipi.org/, “Should the U.S. Favor a Free Nationwide Wireless Network Provider.”

Overall, one ought not denigrate the contribution that innovation has made to the economy. But micro-tinkering with federal policy in support of innvation in the technical sense is less likely to yield real growth than a) figuring out how to address problems with the federal budget without increases in taxes b) looking to innovate public institutions so that they do not cause more problems than they solve c) avoiding disastrous commitments to entitlements and d) seeing the opportunity and promise in the growth of India and China (as speaker Kathleen Wallman alone pointed out). Otherwise we go the way of Europe, which has all the national plans, policies, and foundation conceivable, and where they are holding conferences at which speakers ponder why their own innovation is lagging behind that of the United States. Yes, tax rates do matter. And it is not, and never will be, a good thing for the United States to try to return to policies that leave more hungry children in Calcutta.