ntia – Technology Liberation Front https://techliberation.com Keeping politicians' hands off the Net & everything else related to technology Thu, 03 Apr 2025 23:20:10 +0000 en-US hourly 1 6772528 Running List of My Research on AI, ML & Robotics Policy https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/ https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/#respond Fri, 29 Jul 2022 12:51:54 +0000 https://techliberation.com/?p=77020

[last updated 4/3/2025 – Check my Medium page for latest posts]

This a running list of all the essays and reports I’ve already rolled out on the governance of artificial intelligence (AI), machine learning (ML), and robotics. Why have I decided to spend so much time on this issue? Because this will become the most important technological revolution of our lifetimes. Every segment of the economy will be touched in some fashion by AI, ML, robotics, and the power of computational science. It should be equally clear that public policy will be radically transformed along the way.

Eventually, all policy will involve AI policy and computational considerations. As AI “eats the world,” it eats the world of public policy along with it. The stakes here are profound for individuals, economies, and nations. As a result, AI policy will be the most important technology policy fight of the next decade, and perhaps next quarter century. Those who are passionate about the freedom to innovate need to prepare to meet the challenge as proposals to regulate AI proliferate.

There are many socio-technical concerns surrounding algorithmic systems that deserve serious consideration and appropriate governance steps to ensure that these systems are beneficial to society. However, there is an equally compelling public interest in ensuring that AI innovations are developed and made widely available to help improve human well-being across many dimensions. And that’s the case that I’ll be dedicating my life to making in coming years.

Here’s the list of what I’ve done so far. I will continue to update this as new material is released:

2025

2024

2023

2022

2021 (and earlier)

]]> https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/feed/ 0 77020 The Section 230 Executive Order, Free Speech, and the FCC https://techliberation.com/2020/06/03/the-section-230-executive-order-free-speech-and-the-fcc/ https://techliberation.com/2020/06/03/the-section-230-executive-order-free-speech-and-the-fcc/#comments Wed, 03 Jun 2020 18:50:22 +0000 https://techliberation.com/?p=76746

Section 230 is in trouble. Both presidential candidates have made its elimination a priority. In January, Joe Biden told the New York Times that the liability protections for social media companies should be revoked “immediately.” This week, President Trump called for revoking Section 230 as well. Most notably, after a few years of threatening action, the President issued an Executive Order about Section 230, its liability protections, and free speech online. (My article with Jennifer Huddleston about Section 230, its free speech benefits, and the common law precedents for Section 230 was published in the Oklahoma Law Review earlier this year.) 

There have been thousands of reactions to and news stories about the Executive Order and a lot of hyperbole. No, the Order doesn’t eliminate tech companies’ Section 230 protection and make it easier for conservatives to sue. No, the Order isn’t “plainly illegal.”

It’s fairly modest in reach actually. The Executive Order can’t change the deregulatory posture and specific protections of Section 230 but the President has broad authority to interpret the unclear meanings of statutes. Some of the thoughtful responses that stuck out are from Adam Thierer, Jennifer Huddleston, Patrick Hedger, and Adam White. I won’t reiterate what they’ve said but will focus on what the Order does and what the FCC can do.

Election Year Jawboning

The Order is a political document. For the baseball fans, it’s the political equivalent of a brushback pitch to tech companies–the pitcher throws an inside fastball intended to scare the batter without hitting him. (Enjoy 4 minutes of brushback pitches on YouTube.) Most of the time, a pitcher won’t get ejected by the umpire for throwing a brushback pitch. Likewise, here, I don’t see much chance of the Order being struck down by judges. The Order was wordsmithed, even in the last 24 hours before release, in a way to avoid legal troubles.

As Jesse Blumenthal points out in Slate, the Order is just the latest example of the long tradition of politicians using informal means and publicity to pressure media outlets. The political threats to TV and radio broadcasters during the Nixon, LBJ, and Kennedy years were extreme examples and are pretty well-documented.

More recently, there was a huge amount of jawboning of media companies in the runup to the 2004 election. Newspaper condemnation and legal threats forced a documentary critical of John Kerry off the air nationwide. Stations either pulled the documentary or only ran a few minutes of it because activists’ threatened to challenge TV station licenses for years at the FCC if stations ran the documentary. Many people remember the Citizens United case, which derived from the FEC’s censorship of an anti-John Kerry documentary in 2004 and an anti-Hillary Clinton documentary in 2008. Less remembered is that the conservative group started creating political documentaries only after the FEC rejected its complaint to get a Michael Moore’s anti-Bush documentary, Fahrenheit 9/11, off the air before the 2004 election.

The Title II net neutrality regulations were, per advocates close to the Obama White House, imposed largely to rally the base after Democrats’ 2014 midterm losses.

Implementation of the Executive Order

The timing of the Order–a few months before the election–seems intended to accomplish two things:

  1. Rally the Trump base by publicly threatening tech companies’ liability protections and provoking tech companies’ ire.
  2. Focus public and media scrutiny on tech companies so they think twice before suspending, demonetizing, or banning conservatives online.

The legal effect in the short term is negligible. Unless the relevant agencies (DOJ, FTC, NTIA, FCC) patched something together hastily, the Order won’t have an effect on tech companies and their susceptibility to lawsuits in the near term. The most immediate practical effect of the Order is the instructions to the NTIA. The agency is directed to petition the FCC to clarify what some unclear provisions of Sec. 230 mean, particularly the “good faith” requirement and how (c)(2) in the statute interacts with (c)(1).

It’s not clear why the Order makes this roundabout instruction to the NTIA and FCC. (The FCC is an independent agency and can refuse instructions from the White House.) “Good faith” is a term of art in contract law. It seems to me that referring this to the DOJ’s Office of Legal Counsel, not the FCC, would be the natural place for an administration to turn to to interpret legal terms of art and how provisions in federal statutes interact with each other. 

One reason the White House might use the roundabout method is because the administration knows the downsides of weakening Section 230 and isn’t actually intending to make material changes to existing interpretations of Sec. 230. The roundabout request to the FCC allows the White House to do something on the issue without upsetting established interpretations. And if the FCC refuses to take it up, the White House can tell supporters they tried but it was out of their hands.

Alternatively it could be that this was referred to the FCC because Section 230 is within the Communications Act and the FCC has more expertise and jurisdiction in communications law. The FCC has interpreted Section 230 before and has also interpreted what “good faith” means because Congress requires good faith negotiations between cable TV and broadcast TV operators.

If they took it up, I suspect FCC review would be perfunctory. The NTIA petition need not even get decided at the commission level. The FCC can delegate issues to bureau chiefs or other FCC staff. Bureaus can respond to a petition with an enforcement advisory or, after notice-and-comment, a declaratory ruling regarding the interpretative issues. It would take months to complete, but the full commission could also consider and rule on the NTIA petition.

But I suspect the commissioners don’t want to get dragged into election-year controversies. (As I mentioned above, White House staff may have even sent this to the FCC in order to let the issue die quietly.) The FCC is busy with pressing issues like spectrum auctions and rural broadband. Further, the NTIA-FCC relationship, while cordial, is not particularly good at the moment. Finally, the commissioners know the agency’s history of mission creep and media regulation. The Republican majority has consistently tried to untangle itself from legacy media regulations. An FCC inquiry into what “good faith” means in the statute and how (c)(2) in the statute interacts with (c)(1)–while an intriguing academic and legal interpretation exercise–would be a small but significant step towards FCC oversight of Internet services.

Section 230 is in Trouble

The fact is, Section 230 is in trouble. Courts have applied it reluctantly since its inception because of its broad protections. As Prof. Eric Goldman has meticulously documented, in recent years, courts have undermined Section 230 precedent and protection.

At some level the President and his advisors know that opening the door to regulation of the Internet will end badly for right-of-center and free speech. This was the foundation of the President’s opposition to Title II net neutrality rules. As he’s stated on Twitter:

Obama’s attack  on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media.

https://platform.twitter.com/widgets.js

The Executive Order, while it doesn’t allow the FCC to regulate online media like Title II net neutrality did, is the Administration playing with fire. It’s essentially a bet that the Trump administration can get a short-term political win without unleashing long-term problems for conservatives and free speech online.

The Trump team may be right. But the Order, by inviting FCC involvement, represents a small step to regulation of Internet services. More significantly, there’s a reason prominent Democrats are calling for the elimination of Section 230. The trial bar, law school clinics, and advocacy nonprofits would like nothing more than to make it expensive for tech companies to defend their hosting and disseminating conservative publications and provocateurs.

Prominent Democrats are calling for the elimination of Sec. 230 and replacing it with a Fairness Doctrine for the Internet. If things go Democrats’ way, the Executive Order could give regulators, much of the legal establishment, and the left a foothold they’ve sought for years to regulate Internet services and online speech. Be careful what you wish for.

]]> https://techliberation.com/2020/06/03/the-section-230-executive-order-free-speech-and-the-fcc/feed/ 2 76746 Are “Permissionless Innovation” and “Responsible Innovation” Compatible? https://techliberation.com/2017/07/12/are-permissionless-innovation-and-responsible-innovation-compatible/ https://techliberation.com/2017/07/12/are-permissionless-innovation-and-responsible-innovation-compatible/#respond Wed, 12 Jul 2017 18:28:55 +0000 https://techliberation.com/?p=76164

“Responsible research and innovation,” or “RRI,” has become a major theme in academic writing and conferences about the governance of emerging technologies. RRI might be considered just another variant of corporate social responsibility (CSR), and it indeed borrows from that heritage. What makes RRI unique, however, is that it is more squarely focused on mitigating the potential risks that could be associated with various technologies or technological processes. RRI is particularly concerned with “baking-in” certain values and design choices into the product lifecycle before new technologies are released into the wild.

In this essay, I want to consider how RRI lines up with the opposing technological governance regimes of “permissionless innovation” and the “precautionary principle.” More specifically, I want to address the question of whether “permissionless innovation” and “responsible innovation” are even compatible. While participating in recent university seminars and other tech policy events, I have encountered a certain degree of skepticism—and sometimes outright hostility—after suggesting that, properly understood, “permissionless innovation” and “responsible innovation” are not warring concepts and that RRI can co-exist peacefully with a legal regime that adopts permissionless innovation as its general tech policy default. Indeed, the application of RRI lessons and recommendations can strengthen the case for adopting a more “permissionless” approach to innovation policy in the United States and elsewhere.

Definitional Ambiguities, Part 1: “Governance”

Before we can have a constructive conversation about these issues, however, we need to agree upon how narrowly or broadly we are defining some relevant terms, beginning with the word “governance.” When some hear the term “governance” their first reaction might be to think “government,” and formal legal and regulatory processes in particular. That is certainly one form of governance, but it is hardly the only one.

We often speak of the “governance” of corporations, schools, churches, other institutions, and even households. When we do, we usually do not mean government administration of these things; we are instead thinking of some other, more amorphous form of governance by a variety of individuals or groups. The “governance” of a company, for example, includes the interaction of shareholders, board members, corporate officials, workers, and so on. The “governance” of a church might involve clergy, the congregation, and sacred scriptures or traditions.  Household “governance” comes down to decisions made by parents and caretakers. And so on.

Thus, “governance” can certainly have the narrow connotation of being associated with formal regulatory enactments by governments, but it can also describe a much broader universe of norms and rules that are established and enforced by a wide variety of people (or groups of people) in a wide variety of ways.

When we consider questions of technological governance—and specifically the notion of “anticipatory governance,” which is prominent feature of RRI discussions—it helps to specify whether we are speaking of governance in a broad or narrow sense. Whether it is done consciously or not, in much of the literature, RRI scholars and advocates fail to make it clear what type of “governance” they are thinking of when proposing new forms of anticipatory technological governance.

Definitional Ambiguities, Part 2: “Precautionary Principle” & “Permissionless Innovation”

These distinctions are particularly important when we compare and contrast the “precautionary principle” and “permissionless innovation.” These concepts are most useful when viewed as governance dispositions or policy postures and they are usually—although not always—used in the narrow “governance” sense to describe one’s perspective on where legal and regulatory defaults should be set.

Even when applied narrowly, however, both terms are open to interpretation as applied in various policy contexts. For example, precaution could mean an outright prohibition on an innovative activity until such time as it had been proven safe (this is the way many FDA or FAA regulations work). But precaution might be imposed through somewhat less restrictive approaches, such as a set of government-established safety standards buttressed by a recall regime (think NHTSA or CPSC). Even less restrictive but still precautionary in orientation would be a mandatory labeling law or a government-led risk reduction educational campaign. In other words, there are probably as many flavors of the precautionary principle as there are flavors of ice cream.

For the longest time, both proponents and critics of the precautionary principle have failed to put a name on its opposing worldview or governance disposition. I have argued that, despite its uncertain origin and imprecise meaning, “permissionless innovation” provides a useful name for the antithesis of the precautionary principle.

As I noted in a recent speech at an Arizona State University law school conference on technological governance, critics of permissionless innovation sometimes like to imply that it is synonymous with anarchy. (In fact, a few people at that event leveled that accusation at me.) But I’ve written an entire book on this notion and surveyed countless essays and articles that cite the term, and I have never once seen any advocate of permissionless innovation going to such an extreme. In fact, those advocates often don’t even bother calling for the abolition of any laws, programs, or agencies. As I noted in my ASU talk, “most of those defenders of permissionless innovation are using the term as a sort of shorthand when what they really mean to say is something like: ‘give innovators a bit more breathing room,’ or, ‘don’t rush to regulate.’”

And so, as a policy posture, permissionless innovation really comes down to a preference for setting public policy defaults closer to green lights rather than red ones. In my own book on the subject, I defined the term as follows:

“Permissionless innovation 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 any develop, can be addressed later.”

By contrast, the precautionary principle posture generally recommends keeping the light red until innovators can prove their new products and services are “safe,” however that is defined. But there are many points along the spectrum between these two policy postures. And if we can accept the idea that the “precautionary principle” and “permissionless innovation” act more as general governance dispositions instead of fixed and rigid edicts, then it is also easier to imagine how both of those dispositions can incorporate “responsible innovation” notions into their governance visions.

Definitional Ambiguities, Part 3: “Responsible Innovation”

But what exactly constitutes “responsible innovation”? Definitions of responsible research and innovation are still evolving, but a leading article on the subject by René von Schomberg from 2011 argues that it can be defined as:

“A transparent, interactive process by which societal actors and innovators become mutually responsive to each other with a view to the (ethical) acceptability, sustainability and societal desirability of the innovation process and its marketable products (in order to allow a proper embedding of scientific and technological advances in our society).”

A more streamlined definition was offered by Jack Stigloe, Richard Owen, and Phil Macnaghten in a 2013 article: “Responsible innovation means taking care of the future through collective stewardship of science and innovation in the present.” They also proposed four dimensions of responsible innovation—anticipation, reflexivity, inclusion and responsiveness—which they say “provide a framework for raising, discussing and responding to such questions.”

RRI Tools, a European consortium focused on promoting responsible innovation strategies, identifies the six core goals of RRI as: open access, gender equality in science, ethics, science education, governance, and public engagement. Other groups and individuals promoting RRI focus on privacy, safety, and security as crucial values that they hope to work into more product development processes early on.

As with “corporate social responsibility” before it, “responsible innovation” will remain a term that is open to varying interpretations and which can incorporate many distinct values that are context-dependent. What Milton Friedman said of CSR discussions in 1970—that they “are notable for their analytical looseness and lack of rigor”—continues to be somewhat true for both CSR and RRI circa 2017. Nonetheless, what both concepts hold in common is the belief that, whatever those “responsible” values are, they can be “baked in” to corporate decision-making and product design processes in an anticipatory fashion.

And while not everyone will agree on the contours of these concepts, practically speaking, I think we can expect both the CSR and RRI movement will continue to grow in coming years. That will be the case not only because of the pressures applied by various activists, stakeholders, and governments, but also because many companies and their consumers will demand more than just better products and greater profitability.

But Doesn’t RRI Necessitate the Precautionary Principle as a Policy Prerequisite?

But how precisely should RRI notions and recommendations influence policy deliberations over the future course of technological governance in the narrow sense of the term (i.e., more legalistic sense)? Here’s where things get more interesting.

The problem is that many of the advocates of RRI are seemingly more sympathetic to precautionary policy regimes and skeptical of the wisdom of permissionless innovation as a policy default. This is not always well-articulated in their writing. Instead, it is the attitude seemingly on display when I speak with RRI advocates or hear them deliver speeches.  Yet, most of these advocates just won’t ever let you nail them down on the point.

Some RRI advocates do come close to making that connection. In his seminal article, Rene von Schomberg argues that RRI, “can reduce the human cost of trial and error and make advantage of a societal learning process of stakeholders and technical innovators. It creates a possibility for anticipatory governance,” he says. “This should ultimately lead to products which are (more) societal robust.”

He then briefly raises the possibility of RRI informing the application of the precautionary principle in public policy debates:

“The precautionary principle works as an incentive to make safe and sustainable products and allow governmental bodies to intervene with Risk Management decisions (such as temporary licensing, case by case decision making etc) whenever necessary in order to avoid negative impacts.”

Yet, von Schomberg never really spells out the exact relationship between RRI and the precautionary principle as a matter of public policy .

Another leading article on the meaning of RRI by Grace Eden, Marina Jirotka, and Bernd Stahl, says that, “The RRI focus is more on mitigating wider societal long-term risks and so favors incremental rather than radical innovation.” That seems to suggest a closer connection between RRI and a formal application of the precautionary principle in policy deliberations about emerging technologies. They also speak of the “two very different approaches to problem solving (anticipatory vs. evidence-based),” which I have argued gets to the heart of the divergence between the precautionary principle and permissionless innovation policy paradigms. Yet, these authors do not dwell on this connection at length, and most of the rest of their article is focused on the ways in which RRI can (and already does) infuse product and service development processes outside of the realm of public policy.

In a 2015 Brookings Institution white paper about RRI, Walter D. Valdivia and David H. Guston offer a more concrete answer to this question when they insist that responsible innovation “is not a doctrine of regulation and much less an instantiation of the precautionary principle; the actions it recommends do not seek to slow down innovation because they do not constrain the set of options for researchers and businesses, they expand it.” They continue on to note that:

“[responsible innovation] considers innovation inherent to democratic life and recognizes the role of innovation in the social order and prosperity. It also recognizes that at any point in time, innovation and society can evolve down several paths and the path forward is to some extent open to collective choice. What RI pursues is a governance of innovation where that choice is more consonant with democratic principles.”

Here, finally, we have a better demarcation between the general notion of RRI and the formal application of the precautionary principle. But is that line really so bright? Do other RRI scholars agree with Valdivia and Guston about this separation between the “responsible innovation” movement and the formal application of the precautionary principle in the policy realm? And, finally, what is meant by “democratic life” and “democratic principles” in this context?

I suspect that many RRI advocates would read that last line from Valdivia and Guston above (“What RI pursues is a governance of innovation where that choice is more consonant with democratic principles.”) and suggest that it favors an embrace of the precautionary principle as the default position in emerging technology policy discussions. But, again, that remains open to debate because so much of the RRI literature lacks precision regarding the connection between these concepts.

How RRI Can be Compatible with Both Visions

Regardless, I would like to suggest that parties on both sides of this debate would be wise to divorce the concept of responsible innovation from their priors regarding optimal regulatory policy toward emerging technology. Properly understood, “responsible innovation” could be a feature of the “precautionary” vision, but it could also be compatible with the “permissionless” governance vision and resulting policy regimes. To reach that understanding, both sides will need to be open to learning from the other and willing to take their concerns seriously.

Advocates of RRI should understand that, just as CSR can do a great deal of good even in the absence of formal regulatory action, the same can be true of RRI, even in a policy regime in which permissionless innovation is the general default.

If, however, the first instinct among the RRI community is to consider advocates of permissionless innovation nothing more than a bunch of uncaring anarchists, they relinquish the opportunity to work with diverse parties to instill wise guidelines into technological development processes. This would be particularly misguided in an age when the so-called “Pacing Problem”—i.e., the growing gap between the introduction of new technologies and time it takes laws and regulations to adjust or be formulated in response—has become an ever-accelerating reality, making traditional “hard law” regulatory enactment increasingly difficult. If the RRI community wants to get any of the values that they care about incorporated into technological development processes, then they will need to be open to the idea that perhaps the only way to do so will be through less formal procedures precisely because law will likely lag so far behind marketplace developments.

Likewise, if the first instinct among the permissionless innovation advocates is to regard the RRI movement as little more than repackaged Ludditism, hell-bent on derailing all the great inventions of the future, then they are foolishly forgoing the chance to work with a diverse group of well-intentioned scholars and stakeholders who could ensure that new products and services gain more widespread acceptance and public trust. More practically, permissionless innovation advocates would be wise to accept the fact that, although technological innovation is generally outpacing the ability of government to keep up, that doesn’t mean most of the traditional regulatory regimes or agencies are going away any time soon. After all, can you name a technocratic law or regulatory body that has been liberalized or eliminated in recent memory? RRI offers a chance to forge a rough peace with agencies and officials who often just want to have a small say in how innovative processes are unfolding. Of course, if regulators seek to have a BIG say in those matters, then policy fights will no doubt ensue. But in my experience, this is less often the case than some defenders of permissionless innovation suggest.

Thus, advocates of permissionless innovation should understand that RRI is not synonymous with a formal precautionary principle-focused policy prescription and that “anticipatory governance” can mean something more generic and beneficial, so long as it does not come to mean the formal application of the precautionary principle as the public policy default.

We Are Already Going Down This Path

Perhaps I am being naïve to think this sort of common ground might exist. But the funny thing is that I know for a fact that it already does! RRI principles have been infusing various multistakeholder processes in the United States for many years now.

For example, here’s a paper I wrote back in 2009 about the various online safety task forces, blue ribbon commissions, and other collaborative efforts that were instilling “safety by design” principles into various online services and digital products. Meanwhile, “privacy by design” and “security by design” efforts are all the rage these days and a wide variety of best practices and codes of conduct have been established to make sure privacy and security values are baked-in to the product design process from the start.

Meanwhile, safety, security, and privacy best practices have increasingly been formulated by the U.S. Department of Commerce (the National Telecommunications and Information Administration in particular), the Federal Trade Commission, FDA, FCC, and the White House Office of Science and Technology Policy. These multistakeholder efforts and agency best practice reports have contained assorted “responsible innovation” principles for technologies as wide-ranging as: big data, artificial intelligence, the Internet of Things, facial recognition, online advertising, mobile phone privacy, mobile apps for kids, driverless cars, commercial drones, genetic testing, medical advertising on social media, 3D printed medical devices, medical device cybersecurity, nanotech, and much more. (I have a forthcoming paper in the works with Ryan Hagemann of the Niskanen Center in which we attempt to document many of these new “soft law” technological governance efforts. There have been so many of these efforts – many of which are still underway – that we are having a hard time cataloging them all!)

I am utterly perplexed why more RRI scholarship has not identified the many ways in which the principles they advocate already infuse multistakeholder processes such as these. Perhaps it is because those scholars feel that some of these multistakeholder processes fail to address the full range of issues or values that they feel are in play. But if you examine recent reports from these agencies and government bodies, I think you will come away quite impressed by the breadth of issues and concerns that they cover. Likewise, the values and best practices they discuss and/or recommend are exactly the sort of responsible innovation principles that the RRI movement cares about.

To some extent, therefore, RRI is already well-entrenched in the technology governance process, it’s just a bit messy. I think some RRI scholars probably fall prey to the old “Goldilocks myth” that we can get these principles just right with enough consideration and oversight. The reality on the ground is that instilling RRI values into the technological design process is a dynamic, iterative, and quite imprecise art.

In closing, there’s still more to the technological governance story that RRI advocates fail to incorporate into their work. To fully appreciate the many ways technological processes are constrained and corrected, they must take into account other governance forces and factors, including the role of:

  • social norms and reputational effects (especially the growing importance of reputational feedback mechanisms);
  • third-party accreditation and standards-setting bodies;
  • courts and common law (including legal solutions like product liability, negligence, design defects law, failure to warn, breach of warranty, and other assorted torts and class action claims);
  • insurance markets as risk calibrators and correctional mechanisms;
  • federal and state consumer protection agencies (such as the FTC), which police “unfair and deceptive practices” and other harms; and
  • media, academic institutions, non-profit advocacy groups, and the general public more generally, all of which can put pressure on technology developers.

Only by taking into account the full range of players and activities at work can we develop a more robust understanding of how technology is actually “governed” in our modern world. I suspect that many in the RRI community of scholars do appreciate these other factors, even though they don’t always account for all of them in their writing and advocacy. Then again, many of those advocates would perhaps decry the more remedial, ex post nature of these governance tools and insist that more ex ante anticipatory planning must be at the heart of technological design and development processes.

In reality, a mix of these two approaches is already at work today and will likely continue to dominate the governance process well into the future. So long as the anticipatory efforts don’t become formal regulatory proposals, there is no reason that this mix of “responsible innovation” governance tools and methods can’t be embraced by a diverse array of scholars and innovators.

Further Reading:

]]> https://techliberation.com/2017/07/12/are-permissionless-innovation-and-responsible-innovation-compatible/feed/ 0 76164 Does “Permissionless Innovation” Even Mean Anything? https://techliberation.com/2017/05/18/does-permissionless-innovation-even-mean-anything/ https://techliberation.com/2017/05/18/does-permissionless-innovation-even-mean-anything/#comments Thu, 18 May 2017 22:49:28 +0000 https://techliberation.com/?p=76143

[Remarks p repared for Fifth Annual Conference on Governance of Emerging Technologies: Law, Policy & Ethics at Arizona State University, Phoenix, AZ, May 18, 2017.]

_________________

What are we to make of this peculiar new term “permissionless innovation,” which has gained increasing currency in modern technology policy discussions? And how much relevance has this notion had—or should it have—on those conversations about the governance of emerging technologies? That’s what I’d like to discuss here today.

Uncertain Origins, Unclear Definitions

I should begin by noting that while I have written a book with the term in the title, I take no credit for coining the phrase “permissionless innovation,” nor have I been able to determine who the first person was to use the term. The phrase is sometimes attributed to Grace M. Hopper, a computer scientist who was a rear admiral in the United States Navy. She once famously noted that, “It’s easier to ask forgiveness than it is to get permission.”

“Hopper’s Law,” as it has come to be known in engineering circles, is probably the most concise articulation of the general notion of “permissionless innovation” that I’ve ever heard, but Hopper does not appear to have ever used the actual phrase anywhere. Moreover, Hopper was not necessarily applying this notion to the realm of technological governance, but was seemingly speaking more generically about the benefit of trying new things without asking for the blessing of any number of unnamed authorities or overseers—which could include businesses, bosses, teachers, or perhaps even government officials.

Today, however, we most often hear the “permissionless innovation” used in discussions about the governance of information technologies as well as a wide variety of emerging technologies. Unfortunately, scholars and advocates who have suggested that permissionless innovation should serve as the governing lodestar in these areas do not always precisely define what they mean by the term.

None of them seem to be suggesting, however, that permissionless innovation is synonymous with anarchy. To the contrary, many of them are quick to note that governments will continue to have a role to play. It is even rare to see advocates of permissionless innovation in these varied contexts calling for the abolition of any laws, programs, or agencies.

Instead, it seems to be the case that most of those defenders of permissionless innovation are using the term as a sort of shorthand when what they really mean to say is something like: “give innovators a bit more breathing room,” or, “don’t rush to regulate.”

This is consistent with my own articulation of the term, which goes as follows:

“Permissionless innovation 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 any develop, can be addressed later.”

Default Policy Positions

Framing the term in this fashion makes it clear that, as it pertains to technological governance, permissionless innovation is about setting our public policy defaults closer to green lights rather than red ones.

It switches the burden of proof to the opponents of ongoing technological change by asserting five things:

  • First, technological innovation is the single most important determinant of long-term human well-being.
  • Second, there is real value to learning through continued trial-and-error experimentation, resiliency, and ongoing adaptation to technological change.
  • Third, constraints on new innovation should be the last resort, not the first. Innovation should be innocent until proven guilty.
  • Fourth, as regulatory interventions are considered, policy should be based on evidence of concrete potential harm and not fear of worst-case hypotheticals.
  • Fifth, and finally, where policy interventions are deemed needed, flexible, bottom-up solutions of an ex post (responsive) nature are almost always preferable to rigid, top-down controls of an ex ante (anticipatory) nature.

Shared Shortcomings of Both Visions

At least on the surface, that sort of governance vision stands in stark contrast to the “precautionary principle.” Defenders of the precautionary principle as the general default position in technology policy debates generally believe that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harm to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

That being said, I’d like to point out some of the shared shortcomings of both of these governance visions.

First, as with attempts to define the parameters of “permissionless innovation,” the precautionary principle is not always as rigid as its critics sometimes suggest. There are as many flavors of the precautionary principle as there are ice cream. Indeed, this is why many have criticized the precautionary principle not for what it says but rather for what it doesn’t say. It doesn’t tell us exactly how and when to apply precautionary measures, or how to evaluate the trade-offs associated with precaution.

This points the second and deeper underlying problem faced by advocates of both precautionary measures and permissionless innovation: Our collective inability to craft a widely-shared definition of what constitutes “technological harm” in various contexts. This is certainly not to suggest that no attempt has been made to do so. Rather, simply that we don’t seem to be any closer to concrete agreement about how or where to draw those lines.

Of course, let’s not kid ourselves into thinking that we can find bright-line answers to all these questions. After all, for many of these technological governance issues we are operating in the realm of “Level 3” or “Earth-level” systems, as Professors Allenby and Sarewitz refer to it in their book, The Techno-Human Condition. These are systems in which we deal with, as they say, “a context that is always shifting, and on meanings that are never fixed.”

That makes it even more challenging to define what we mean by “responsible innovation” or “socially desirable innovation” for purposes of determining optimal technology policy.

Risk Analysis through the Lens of Permissionless Innovation

For me, there are no easy ways out of this mess. But I do know two things for certain.

First, we must continue to refine and improve our risk analysis tools and techniques to make better determinations of when proposed interventions are sensible and cost-effective relative to the many trade-offs at work.

Again, I recognize the challenge of doing this when many of the issues and values in play are amorphous and metaphysical conflicts exist about how to even define some of these things. Most of the emerging technology policy issues I write about today, for example, involve some sort of privacy, safety, or security concern. In each case, however, very little consensus exists about what those terms even mean in varied contexts.

Nonetheless, the fact that benefit-cost analysis is hard should not serve as an excuse for failing to go through the exercise of attempting some sort of valuation of the many variables in play.

Soft Law Alternatives

The second thing I know for certain is that, due the combination of both definitional complexity regarding what constitutes technological harm, as well as the ever-accelerating pace of the so-called “pacing problem,” all roads lead back to soft law solutions instead of hard law remedies.

Last year, I had the pleasure of reading and reviewing Wendell Wallach’s new book and then having a nice conversation with him about it at Microsoft’s DC headquarters. The most interesting thing about our exchange was that, although we do not begin in the same place philosophically-speaking, we largely end up in the same place practically-speaking.

That is, there seemed to be some grudging acceptance on both our parts that “soft law” systems, multistakeholder processes, and various other informal governance mechanisms will need to fill the governance gap left by the gradual erosion of hard law.

Many other scholars, including many of you in this room, have discussed the growth of soft law mechanisms in specific contexts, but I believe we have probably failed to acknowledge the extent to which these informal governance models have already become the dominant form of technological governance, at least in the United States.

I’m currently co-authoring a very long study which documents how the Obama Administration came to rely quite heavily on multistakeholder processes, negotiated “best practices,” and industry codes of conduct as the primary governance mechanisms for a long list of emerging tech issues, including: driverless cars, commercial drones, big data, facial recognition, the Internet of Things and wearable technology, mobile medical applications, 3D printing, artificial intelligence, the Sharing Economy, and much more.

Most of these soft law processes were driven by the NTIA and FTC, but plenty of other agencies with an “N” or an “F” at the beginning of their name have undertaken some sort of soft law process, including NHTSA, the FDA, the FAA, and so on.

Now, I’m willing to bet that many of those involved in these processes who generally favor more anticipatory regulatory approaches would have preferred to start with hard law solutions to some of these issues. And I am equally certain that many of the innovators involved in those multistakeholder processes would have probably preferred not to have had to come to the table at all.

But at the end of the day, for the most part, all sides did come to the table and worked together in a good faith effort to find some rough consensus about what sort of informal guidelines would govern the future of innovation in these sectors.

The Worst of All Systems, Except All the Others

Plenty of questions remain about such soft law systems, and the irony is that defenders of both permissionless innovation and the precautionary principle will quite often be raising very similar concerns regarding the transparency, accountability, and enforceability of these systems.

But I’m inclined to believe that no matter where you sit on the permissionless vs. precautionary spectrum, and no matter what your reservations may be about it the new world of soft law governance that we find ourselves moving into, this is the future and the future is now.

Much as Churchill said of democracy being “the worst form of Government except for all those other forms that have been tried from time to time,” I think we are well on our way to a world in which soft law is the worst form of technological governance except for all those others that have been tried before.

Of course, the devil is always in the details and I suspect that we’ll have plenty of discuss and debate in that regard. Let’s get that conversation going.

]]> https://techliberation.com/2017/05/18/does-permissionless-innovation-even-mean-anything/feed/ 5 76143 Innovation Arbitrage, Technological Civil Disobedience & Spontaneous Deregulation https://techliberation.com/2016/12/05/innovation-arbitrage-technological-civil-disobedience-spontaneous-deregulation/ https://techliberation.com/2016/12/05/innovation-arbitrage-technological-civil-disobedience-spontaneous-deregulation/#comments Mon, 05 Dec 2016 20:06:53 +0000 https://techliberation.com/?p=76096

The future of emerging technology policy will be influenced increasingly by the interplay of three interrelated trends: “innovation arbitrage,” “technological civil disobedience,” and “spontaneous private deregulation.” Those terms can be briefly defined as follows:

  • “Innovation arbitrage” refers to the idea that innovators can, and will with increasingly regularity, move to those jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity. Just as capital now fluidly moves around the globe seeking out more friendly regulatory treatment, the same is increasingly true for innovations. And this will also play out domestically as innovators seek to play state and local governments off each other in search of some sort of competitive advantage.
  • “Technological civil disobedience” represents the refusal of innovators (individuals, groups, or even corporations) or consumers to obey technology-specific laws or regulations because they find them offensive, confusing, time-consuming, expensive, or perhaps just annoying and irrelevant. New technological devices and platforms are making it easier than ever for the public to openly defy (or perhaps just ignore) rules that limit their freedom to create or use modern technologies.
  • “Spontaneous private deregulation” can be thought of as de facto rather than the de jure elimination of traditional laws and regulations owing to a combination of rapid technological change as well the potential threat of innovation arbitrage and technological civil disobedience. In other words, many laws and regulations aren’t being formally removed from the books, but they are being made largely irrelevant by some combination of those factors. “Benign or otherwise, spontaneous deregulation is happening increasingly rapidly and in ever more industries,” noted Benjamin Edelman and Damien Geradin in a Harvard Business Review article on the phenomenon.[1]

I have previously documented examples of these trends in action for technology sectors as varied as drones, driverless cars, genetic testing, Bitcoin, and the sharing economy. (For example, on the theme of global innovation arbitrage, see all these various essays. And on the growth of technological civil disobedience, see, “DOT’s Driverless Cars Guidance: Will ‘Agency Threats’ Rule the Future?” and “Quick Thoughts on FAA’s Proposed Drone Registration System.” I also discuss some of these issues in the second edition of my Permissionless Innovation book.)

In this essay, I want to briefly highlight how, over the course of just the past month, a single company has offered us a powerful example of how both global innovation arbitrage and technological civil disobedience— or at least the threat thereof—might become a more prevalent feature of discussions about the governance of emerging technologies. And, in the process, that could lead to at least the partial spontaneous deregulation of certain sectors or technologies. Finally, I will discuss how this might affect technological governance more generally and accelerate the movement toward so-called “soft law” governance mechanisms as an alternative to traditional regulatory approaches.

Comma.ai Case Study, Part 1: The Innovation Arbitrage Threat

The company I want to highlight is Comma.ai, a start-up that had hoped to sell a $999 after-market kit for vehicles called the “Comma One,” which “would give average, everyday cars autonomous functionality.”[2] Created by famed hacker George Hotz, who as a teenager gained notoriety for being the first person to unlock an iPhone in 2007, the Comma One represents an attempt to create autonomous vehicle tech “on the cheap” by using off-the-shelf cameras and GPS technology combined with a healthy dose of artificial intelligence technology.

comma-one

But regulators at the National Highway Traffic Safety Administration (NHTSA), the federal agency responsible for road safety and automobile regulation, were none too happy to hear about Hotz’s plan to unleash his technology into the wild without first getting their blessing. On October 27, the agency fired off a nastygram to Hotz saying: “We are concerned that your product would put the safety of your customers and other road users at risk. We strongly encourage you to delay selling or deploying your product on the public roadways unless and until you can ensure it is safe.”

Hotz responded on Twitter promptly and angrily. After posting the full NHTSA letter, he said, “First time I hear from them and they open with threats. No attempt at a dialog.” In a follow-up tweet, he said, “Would much rather spend my life building amazing tech than dealing with regulators and lawyers. It isn’t worth it.” And then he announced that, “The comma one is cancelled. comma.ai will be exploring other products and markets. Hello from Shenzhen, China.” A flood of news articles followed about Hotz’s threat to engage in this sort of global innovation arbitrage by bolting US shores.[3]

Incidentally, what Hotz and Comma.ai were proposing to do with Comma One—i.e., deploy autonomous vehicle tech into the wild without prior regulatory approval—was recently done by Otto, a developer of autonomous trucking technology. As Mark Harris reported on Backchannel:

When Otto performed its test drive — the one shown in the May video — it did so despite a clear warning from Nevada’s Department of Motor Vehicles (DMV) that it would be violating the state’s autonomous vehicle regulations. When the DMV realized that Otto had gone ahead anyway, one official called the drive “illegal” and even threatened to shut down the agency’s autonomous vehicle program.”[4]

While Nevada regulators were busy firing off angry letters, Otto was busy doing even more testing in others states (like Ohio), which are eager to make their jurisdictions a testbed for autonomous vehicle innovation.[5] In fact, just recently, Ohio Gov. John Kasich announced the creation of the “Smart Mobility Corridor,” which, according to the Dayton Daily News, will be “a 35-mile stretch of U.S. 33 in central Ohio that runs through Logan County. Officials say that section of U.S. 33 will become a corridor where technologies can be safely tested in real-life traffic, aided by a fiber-optic cable network and sensor systems slated for installation next year.”[6]

otto-truck

This is an example of innovation arbitrage will increasingly take root here domestically as well as abroad, and some states (or countries) will use inducements in an effort to lure innovators to their jurisdictions.

Anyway, let’s get back to the Comma One case study. I don’t want to get too sidetracked regarding the merits of the concerns raised by NHTSA in its letter to Hotz and the implications of the agency’s threats for innovation in this space. But EFF board member Brad Templeton did a nice job addressing that issue in an essay about NHTSA’s letter that threatened Comma. As Templeton observed:

I will presume the regulators will say, “We only want to scare away dangerous innovation” but the hard truth is that is a very difficult thing to judge. All innovation in this space is going to be a bit dangerous. It’s all there trying to take the car — the 2nd most dangerous legal consumer product — and make it safer, but it starts from a place of danger. We are not going to get to safety without taking risks along the way.[7]

This gets to the very real trade-offs in play in the debate over driverless car technology and its regulation. In fact, my Mercatus Center colleague Caleb Watney and I recently filed comments [8] with NHTSA addressing the agency’s recently proposed “Federal Automated Vehicles Policy.”[9] We stressed the potentially deleterious implications of prior regulatory restraints on autonomous vehicle innovation by stressing the horrific real-world baseline we live with today, in which over 35,000 people dying on US roadways in 2015 (roughly 96 people per day) and 94 percent of all those crashes being attributable to human error.

Caleb and I noted that, by imposing new preemptive constraints on the coding of superior autonomous driving technology, “NHTSA’s proposed policy for automated vehicles may inadvertently increase the number of total automobile fatalities by delaying the rapid development and diffusion of this life-saving technology.” Needless to say, if that comes to pass, it would be a disaster because “automation on the roads could be the great public-health achievement of the 21st century.”[10]

In our filing, Caleb and I estimated that, “If NHTSA’s proposed premarket approval process slows the deployment of HAVs by 5 percent, we project an additional 15,500 fatalities over the course of the next 31 years. At 10 percent regulatory delay, we project an additional 34,600 fatalities over 33 years. And at 25 percent regulatory delay, we project an additional 112,400 fatalities over 40 years.[11]

So, needless to say, this is a very big deal.

But let’s ignore all those potential foregone benefits for the moment and just stick with the question of whether Hotz’s threat to engage in a bit of global innovation arbitrage (by moving to China or somewhere else) could work, or at least affect policy in some fashion. I think it absolutely could be an effective threat both because (a) policymakers really do want to do everything they can to achieve greater road safety, and (b) the auto sector remains a hugely important industry for the United States, and one that policymakers will want to do everything in their power to retain on our shores.

Moreover, as Templeton observes that “Comma is not the only company trying to build a system with pure neural networks doing the actual steering decisions.” Even if NHTSA succeeds in bringing Comma to heel, there will be others who will follow in its footsteps. It might be a firm like Otto, but there are many other players in this space today, including big dogs like Tesla and Google. If ever there was a truly global technology industry, it the automotive sector. Autonomous vehicle innovation could take root and blossom in almost any country in the world, and many countries will be waiting with open arms if America screws up its regulatory process.

As Templeton concludes:

The USA and California led the way in robocars in part because it was unregulated. In the USA, everything is permitted unless it was explicitly forbidden and nobody thought to write “no robots” in the laws. Progress in other countries where everything is forbidden unless it is permitted was much slower. The USA is moving in the wrong direction.[12]

Comma.ai Case Study, Part 2: The Technological Civil Disobedience Threat

But an interesting thing happened on the way to Comma’s threatened exodus. On November 30, the firm announced that it would now be open sourcing the code for its autonomous vehicle technology. Reporters at The Verge noted that, during a press conference:

Hotz said that Comma.ai decided to go open source in an effort to sidestep NHTSA as well as the California DMV, the latter of which he said showed up to his house on three separate occasions. “NHTSA only regulates physical products that are sold,” Hotz said. “They do not regulate open source software, which is a whole lot more like speech.” He went on to say that “if the US government doesn’t like this [project], I’m sure there are plenty of countries that will.”[13]

So here we see Hotz combining the threat of still potentially taking the project offshore (i.e., global innovation arbitrage) with the suggestion that by open-sourcing the code for Comma One he might be able to get around the law altogether. We might consider that an indirect form of technological civil disobedience.

george-hotz

Incidentally, Hotz may not be aware of the fact that NHTSA is in the process of making a power-play to become a driverless car code cop. While Hotz is technically correct that, under current law, NHTSA officials “do not regulate open source software, which is a whole lot more like speech,” NHTSA’s recent Federal Automated Vehicles Policy claimed that the agency “has authority to regulate the safety of software changes provided by manufacturers after a vehicle’s first sale to a consumer” while also suggesting that the agency “may need to develop additional regulatory tools and rules to regulate the certification and compliance verification of such post-sale software updates.”[14]

Needless to say, this proposal has important ramifications for not only Comma, but all other firms in this sector. Consider the implications for Tesla’s “autopilot” mode, which is really little more than a string of constantly-evolving code it pushes out to offer greater and greater autonomous driving functionality.  How would that iterative process work if every time Tesla wanted to make a little tweak to its code it had to run to Washington and file paperwork with NHTSA petitioning for permission to experiment and improve their systems? And then think about all the smaller innovators out there who want to be the next Elon Musk or George Hotz but do not yet have the resources or political connections in Washington to even go through this complex and costly process.

In any event, I have no idea if Hotz or Comma.ai will follow through with any of these threats or be successful in doing so. It may be the case that he is just blowing off smoke and that he and his firm will end up staying in the U.S. and perhaps even later reversing course on the decision to open source the Comma code. But to the extent that innovators like Hotz even hint that they might split the country or open source their code to avoid burdensome regulatory regimes, it can have an influence on future policy decisions. Or at least it should.

New Tech Realities & Their Policy Implications

Indeed, the increasing prevalence of global innovation arbitrage and technological civil disobedience raise some interesting issues for the governance of emerging technologies going forward. The traditional regulatory stance toward many existing sectors and technologies will be challenged by these realities. That’s because most of those traditional regulatory systems are highly precautionary, preemptive, and prophylactic in character. They generally opt for policy solutions that are top-down, overly rigid, and bureaucratic.

marcandreessen
This results in a slow-moving and sometimes completely stagnant regulatory approval process that can stop innovation dead in its tracks, or at least delay it for many years. Such systems send innovators a clear message: You are guilty until proven innocent and must receive some bureaucrat’s blessing before you can move forward.

Of course, in the past, many innovators (especially smaller scale entrepreneurs) really couldn’t do much to avoid similar regulatory systems where they existed. You either fell into line, or else! It wasn’t always clear what “or else!” would entail, but it could range from being denied a permit/license to operate, waiting months or years for rules to emerge, dealing with fines or other penalties, or some combination of all those things. Or perhaps you would just give up on your innovative idea altogether and exit the market.

But the world has changed in some important ways in recent years. Many of the underlying drivers of the digital revolution—massive increases in processing power, exploding storage capacity, steady miniaturization of computing, ubiquitous communications and networking capabilities, the digitization of all data, and more—are beginning to have a profound impact beyond the confines of cyberspace.[15] As venture capitalist Marc Andreessen explained in a widely read 2011 essay about how “software is eating the world”:

More and more major businesses and industries are being run on software and delivered as online services—from movies to agriculture to national defense. Many of the winners are Silicon Valley-style entrepreneurial technology companies that are invading and overturning established industry structures. Over the next 10 years, I expect many more industries to be disrupted by software, with new world-beating Silicon Valley companies doing the disruption in more cases than not. Why is this happening now? Six decades into the computer revolution, four decades since the invention of the microprocessor, and two decades into the rise of the modern Internet, all of the technology required to transform industries through software finally works and can be widely delivered at global scale.[16]

We can add to this list of a new realities the more general problem of technology accelerating at an unprecedented pace. This is what philosophers of technology call the “pacing problem.”  In his new book,  A Dangerous Master: How to Keep Technology from Slipping beyond Our Control, Wendell Wallach concisely 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 correctly observed, but like other philosophers, he believes that modern technological innovation is accelerating much faster than it was in the past.[17]

What are the ramifications of all this for policy? As technology lawyer and consultant Larry Downes has noted, lawmaking in the information age is now inexorably governed by the “law of disruption” or the fact that “technology changes exponentially, but social, economic, and legal systems change incrementally.”[18] This law is “a simple but unavoidable principle of modern life,” he said, and it will have profound implications for the way businesses, government, and culture evolve. “As the gap between the old world and the new gets wider,” he argues, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.”[19]

laws-of-disruption

The end result of the “law or disruption” and a world relentlessly governed by the ever-accelerating “pacing problem” is that it will be harder than ever to effectively control emerging technologies using traditional legal and regulatory systems and mechanisms. And this makes it even more likely that the related threats of global innovation arbitrage and various forms of technological civil disobedience will become more regular fixtures in debates about many emerging technologies.

New Governance Models

How one reacts to these new realities will depend upon their philosophical disposition toward innovative activities more generally.

Consider first those adhering to a more “precautionary principle” mindset, which I have defined in my recent book as those who believe “that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harm to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.”[20]

Needless to say, the precautionary principle crowd with be dismayed by these new trends and perhaps even decry them as “lawlessness.” Some of these folks seem to be in denial about these new realities and pretend that nothing much has changed. Yet, I have found that most precautionary principle-oriented advocates, and even many regulatory agencies themselves, tend to acknowledge these new realities. But they remain very uncertain about how best to respond to them, often just suggesting that we’ll all need to just try harder to impose new and better regulations on a more expedited or streamlined basis.

Of course, those of us who generally embrace the alternative policy vision for technological governance—“permissionless innovation”—are going to be more accepting of the new technological realities I have described, and we will perhaps even work to defend and encourage them. But while I count myself among this crowd, we cannot ignore the fact that many serious challenges will arise when innovation outpaces law or can easily evade it.

There is some middle ground here, although it is very messy middle ground.

The era of technocratic, top-down, one-size-fits-all regulatory regimes is fading, or at least being severely strained. We will instead need to craft flexible and adaptive policies going forward that are bottom-up, flexible, and evolutionary in character.

What that means in practice is that a lot more “soft law” and informal governance mechanisms will become the new norm. I wrote about this new policy environment in my recent essay, “DOT’s Driverless Cars Guidance: Will ‘Agency Threats’ Rule the Future?” as well as this lengthy review of Wendell Wallach’s latest book about technology ethics.  Along with Gary Marchant of the Arizona State University law school, Wallach recently published an excellent book chapter on “Governing the Governance of Emerging Technologies,” which discussed these soft law mechanisms, which include: “codes of conduct, statements of principles, partnership programs, voluntary programs and standards, certifications programs and private industry initiatives.”[21]

Their chapter appears in an important collection of essays that Gary Marchant edited with Kenneth W. Abbott and Braden Allenby entitled, Innovative Governance Models for Emerging Technologies.

governance-book

What is interesting about the chapters in that book is that seemingly widespread consensus now exists among experts in this field that some combination of these soft law mechanisms are likely to become the primary mode of technological governance for the indefinite future.  This is because, as Marc A. Saner points out in a different chapter of that book, “the control paradigm is too limited to address all the issues that arise in the context of emerging technologies.”[22] By the control paradigm, he generally means traditional administrative regulatory agencies and processes. He and other contributors in the book all seem to agree that the control problem paradigm “has its limits when diffusion, pacing and ethical issues associated with emerging technologies become significant, as is often the case.”[23]

And so the traditional command-and-control ways will gradually give way to a new paradigm for emerging technology governance. In fact, as I noted in my recent essay on driverless cars, we see this happening quite a bit already. “Multistakeholder processes” are already all the rage in the world of emerging technologies and their governance. In recent years, we have seen the White House and various agencies (such as the FTC, NTIA, FDA, and others) craft multistakeholder agreements or best practice guidance documents for technologies as far ranging as:

  • Drones & privacy
  • Sharing economy
  • Internet of Things
  • Driverless cars
  • Big data
  • Artificial intelligence
  • Cross-device tracking
  • Native advertising
  • Online data collection
  • Mobile app transparency and security
  • Mobile apps for kids
  • Mobile medical apps
  • Online health advertising
  • 3D printing
  • Facial recognition

And that list is not comprehensive. I know I am missing other multistakeholder efforts, best practices, or industry guidance documents that have been crafted in recent years.

Of course, many challenging issues need to be sorted out here, most notably: how transparent and accountable will these soft law systems be in practice? How will they be enforced? And what will happen to all those existing laws, regs, and agencies that will continue to exist? More generally, it is worth asking whether we can more closely study these various multistakeholder arrangements and soft law governance mechanisms and determine if there are certain principles or strategies that could be applicable across a wide class of technologies and sectors. In other words, can we a do a better job of “formalizing the informal,” without falling right back into the trap of trying to impose rules in a rigid, top-down, one-size-fits-all fashion?

Conclusion

Those are just a few of the hard questions we will need to consider going forward. For now, however, I think it is safe to conclude that we will no longer see much “law” being made for emerging technologies, at least not in the traditional sense of the term. Thanks to the new technological realities I have described here—and the relentless reality of the “pacing problem” more generally—I believe we are witnessing a wide-ranging and quite profound transformation in how technology is governed in our modern world. And I believe this movement away from traditional “hard law” and toward “soft law” governance mechanisms is likely to accelerate due to the increasing prevalence of innovation arbitrage, technological civil disobedience, and spontaneous private deregulation.

The ramifications of this transformation will be studied by philosophers, legal theorists, and political scientists for many decades to come. But we are still in the early years of this momentous transformation in technological governance and we will continue to struggle to figure out how to make it all work, as messy as it all may be.

[ Note: This essay is condensed from a manuscript I have been working on about The Rise of Technological Civil Disobedience. I’m not sure I will ever get around to finishing it, however, so I thought I would at least post this piece for now. In a subsequent essay, which is also part of that draft manuscript, I hope to discuss how this process might play out for technologies that are “born free” versus those that are “born in captivity.” That is, how likely is it that the trends I discuss here will take hold for technologies that have no pre-existing laws or agencies, while other technologies that are born into a regulatory environment are potentially doomed to be pigeonholed into those old regulatory regimes? What are the chances that the latter technologies can escape captivity and gain the freedom the other technologies already enjoy? How might technology-enabled “spontaneous private deregulation” be accelerated for those sectors? Is that always desirable? Again, I will leave these questions for another day. Scholars and students who are interested in these topics can feel free to contact me if they are interested in discussing them as well as potential paper ideas. Regardless of how you feel about these trends, these issues are ripe for intellectual exploration.]

[1]     Benjamin Edelman and Damien Geradin, “Spontaneous Deregulation,” Harvard Business Review, April 2016, https://hbr.org/2016/04/spontaneous-deregulation.

[2]     Megan Geuss, “After mothballing Comma One, George Hotz releases free autonomous car software,” Ars Technica, November 30, 2016, http://arstechnica.com/cars/2016/11/after-mothballing-comma-one-george-hotz-releases-free-autonomous-car-software.

[3]     See: “NHTSA Scared This Self-Driving Entrepreneur Off the Road,” Bloomberg Technology, October 28, 2016, https://www.bloomberg.com/news/articles/2016-10-28/nhtsa-scared-this-self-driving-entrepreneur-off-the-road; Sean O’Kane, “George Hotz cancels his self-driving car project after NHTSA expresses concern,” The Verge, October 28, 2016, http://www.theverge.com/2016/10/28/13453344/comma-ai-self-driving-car-comma-one-kit-canceled; Brad Templeton, “Comma.ai cancels comma-one add-on box after threats from NHTSA,” Robohub, October 31, 2016, http://robohub.org/comma-ai-cancels-comma-one-add-on-box-after-threats-from-nhtsa.

[4]     Mark Harris, “How Otto Defied Nevada and Scored a $680 Million Payout from Uber,” Backchannel, November 28, 2016,  https://backchannel.com/how-otto-defied-nevada-and-scored-a-680-million-payout-from-uber-496aa07f5ba2#.9rmtb29bl

[5]     Larry E. Hall, “Otto Self-Driving Truck Tests in Ohio; Violated Nevada Regulations,” Hybrid Cars, November 29, 2016, http://www.hybridcars.com/otto-self-driving-truck-tests-in-ohio-violated-nevada-regulations.

[6]     Kara Driscoll, “Ohio to create ‘smart’ road for driverless trucks,” Dayton Daily News, November 30, 2016, http://www.daytondailynews.com/business/ohio-create-smart-road-for-driverless-trucks/25qC7uYjz9rE96q6YFVUUK.

[7]     Brad Templeton, “Comma.ai cancels comma-one add-on box after threats from NHTSA,” Robohub, October 31, 2016, http://robohub.org/comma-ai-cancels-comma-one-add-on-box-after-threats-from-nhtsa/

[8]     Adam Thierer and Caleb Watney, “Comment on the Federal Automated Vehicles Policy,” November 22, 2016, https://www.researchgate.net/publication/311065194_Comment_on_the_Federal_Automated_Vehicles_Policy.

[9]     National Highway Traffic Safety Administration (NHTSA), Federal Automated Vehicles Policy, September 2016.

[10]   Adrienne LaFrance, “Self-Driving Cars Could Save 300,000 Lives per Decade in America,” Atlantic, September 29, 2015

[11]   Adam Thierer and Caleb Watney, “Comment on the Federal Automated Vehicles Policy,” November 22, 2016, https://www.researchgate.net/publication/311065194_Comment_on_the_Federal_Automated_Vehicles_Policy.

[12]   Templeton.

[13]   Sean O’Kane and Lauren Goode, “George Hotz is giving away the code behind his self-driving car project,” The Verge, November 30, 2016, http://www.theverge.com/2016/11/30/13779336/comma-ai-autopilot-canceled-autonomous-car-software-free.

[14]   NHTSA, Federal Automated Vehicles Policy, 76.

[15]   Adam Thierer, Jerry Brito, and Eli Dourado, “Technology Policy: A Look Ahead,” Technology Liberation Front, May 12, 2014, http://techliberation.com/2014/05/12/technology-policy-a-look-ahead.

[16]   Marc Andreessen, “Why Software Is Eating the World,” Wall Street Journal, August 20, 2011, http://www.wsj.com/articles/SB10001424053111903480904576512250915629460.

[17]   Wendell Wallach, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control (New York: Basic Books, 2015), 60.

[18]   Larry Downes, The Laws of Disruption: Harnessing the New Forces That Govern Life and Business in the Digital Age 2 (2009).

[19]   Id.

[20]   Thierer, Permissionless Innovation, at 1.

[21]   Gary E. Marchant and Wendell Wallach, “Governing the Governance of Emerging Technologies,” in Gary E. Marchant, Kenneth W. Abbott & Braden Allenby (eds.), Innovative Governance Models for Emerging Technologies (Cheltenham, UK: Edward Elgar, 2013), 136.

[22]   Marc A. Saner,  “The Role of Adaptation in the Governance of Emerging Technologies,” in Gary E. Marchant, Kenneth W. Abbott & Braden Allenby (eds.), Innovative Governance Models for Emerging Technologies (Cheltenham, UK: Edward Elgar, 2013), 106.

[23]   Ibid., at 94.

]]> https://techliberation.com/2016/12/05/innovation-arbitrage-technological-civil-disobedience-spontaneous-deregulation/feed/ 3 76096 Wendell Wallach on the Challenge of Engineering Better Technology Ethics https://techliberation.com/2016/04/20/wendell-wallach-on-the-challenge-of-engineering-better-technology-ethics/ https://techliberation.com/2016/04/20/wendell-wallach-on-the-challenge-of-engineering-better-technology-ethics/#respond Wed, 20 Apr 2016 19:08:57 +0000 https://techliberation.com/?p=76026

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On May 3rd, I’m excited to be participating in a discussion with Yale University bioethicist Wendell Wallach at the Microsoft Innovation & Policy Center in Washington, DC. (RSVP here.) Wallach and I will be discussing issues we write about in our new books, both of which focus on possible governance models for emerging technologies and the question of how much preemptive control society should exercise over new innovations.

Wallach’s latest book is entitled, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. And, as I’ve noted here recently, the greatly expanded second edition of my latest book, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, has just been released.

Of all the books of technological criticism or skepticism that I’ve read in recent years—and I have read stacks of them!— A Dangerous Master is by far the most thoughtful and interesting. I have grown accustomed to major works of technological criticism being caustic, angry affairs. Most of them are just dripping with dystopian dread and a sense of utter exasperation and outright disgust at the pace of modern technological change.

Although he is certainly concerned about a wide variety of modern technologies—drones, robotics, nanotech, and more—Wallach isn’t a purveyor of the politics of panic. There are some moments in the book when he resorts to some hyperbolic rhetoric, such as when he frets about an impending “techstorm” and the potential, as the book’s title suggests, for technology to become a “dangerous master” of humanity. For the most part, however, his approach is deeper and more dispassionate than what is found in the leading tracts of other modern techno-critics.

Many Questions, Few Clear Answers

Wallach does a particularly good job framing the major questions about emerging technologies and their effect on society. “Navigating the future of technological possibilities is a hazardous venture,” he observes. “It begins with learning to ask the right questions—questions that reveal the pitfalls of inaction, and more importantly, the passageways available for plotting a course to a safe harbor.” (p. 7) Wallach then embarks on a 260+ page inquiry that bombards the reader with an astonishing litany of questions about the wisdom of various forms of technological innovation—both large and small. While I wasn’t about to start an exact count, I would say that the number of questions Wallach poses in the book runs well into the hundreds. In fact, many paragraphs of the book are nothing but an endless string of questions.

Thus, if there is a primary weakness with A Dangerous Master, it’s that Wallach spends so much time formulating such a long list of smart and nuanced questions that some readers may come away disappointed when they do not find equally satisfying answers. On the other hand, the lack of clear answers is also completely understandable because, as Wallach notes, there really are no simple answers to most of these questions.

Just Slow Down!

Moving on to substance, let me make clear where Wallach and I generally see eye-to-eye and where we part ways.

Generally speaking, we agree about the need to come up with better “soft governance” systems for emerging technologies, which might include multistakeholder process, developer codes of conduct, sectoral self-regulation, sensible liability rules, and so on. (More on those strategies in a moment.)

But while we both believe it is wise to consider how we might “bake-in” better ethics and norms into the process of technological development, Wallach seems much more inclined than me to expect that we will be able to pre-ordain (or potentially require?) all this happens before much of this experimentation and innovation actually moves forward. Wallach opens by asking:

Determining when to bow to the judgment of experts and whether to intervene in the deployment of a new technology is certainly not easy. How can government leaders or informed citizens effectively discern which fields of research are truly promising and which pose serious risks? Do we have the intelligence and means to mitigate the serious risks that can be anticipated? How should we prepare for unanticipated risks? (p. 6)

Again, many good questions here! But this really gets to the primary difference between Wallach’s preferred approach and my own: I tend to believe that many of these things can only be worked out through ongoing trial and error, the constant reformulation of the various norms that govern the process of innovation, and the development of sensible ex post solutions to some of the most difficult problems posed by turbulent technological change.

By contrast, Wallach’s generally attitude toward technological evolution is probably best summarized by the phrases: “Slow down!” and, “Let’s have a conversation about it first!” As he puts it in his own words: “Slowing down the accelerating adoption of technology should be done as a responsible means to ensure basic human safety and to support broadly shared values.” (p. 13)

But I tend to believe that it’s not always possible to preemptively determine which innovations to slow down, or even how to determine what those “shared values” are that will help us make this determination. More importantly, I worry that there are very serious potential risks and unintended consequences associated with slowing down many forms of technological innovation, which could improve human welfare in important ways. There can be no prosperity, after all, without a certain degree of risk-taking and disruption.

Getting Out Ahead of the Pacing Problem

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It’s not that Wallach is completely hostile to new forms of technological innovation or blind to the many ways those innovations might improve our lives. To the contrary, he does a nice job throughout the book highlighting the many benefits associated with various new technologies, or he is at least willing to acknowledge that there can be many downsides associated with efforts aimed at limiting research and experimentation with new technological capabilities.

Yet, what concerns Wallach most is the much-discussed issue from the field of the philosophy of technology, the so-called “pacing problem.” Wallach concisely defines 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.” (p. 251) “There has always been a pacing problem,” he notes, but he is concerned that technological innovation—especially highly disruptive and potentially uncontrollable forms of innovation—is now accelerating at an absolutely unprecedented pace.

(Just as an aside for all the philosophy nerds out there…  Such a rigid belief in the “pacing problem” represents a techno-deterministic viewpoint that is, ironically, sometimes shared by technological skeptics like Wallach as well as technological optimists like Larry Downes and even many in the middle of this debate, like Vivek Wadhwa. See, for example, The Laws of Disruption by Downes and “Laws and Ethics Can’t Keep Pace with Technology” by Wadhwa. Although these scholars approach technology ethics and politics quite differently, they all seem to believe that the pace of modern technological change is so relentless as to almost be an unstoppable force of nature. I guess the moral of the story is that, to some extent, we’re all technological determinists now!)

Despite his repeated assertions that modern technologies are accelerating at such a potentially uncontrollable pace, Wallach nonetheless hopes we can achieve some semblance of control over emerging technologies before they reach a critical “inflection point.” In the study of history and science, an inflection point generally represents a moment when a situation and trend suddenly changes in a significant way and things begin moving rapidly in a new direction. These inflections points can sometimes develop quite abruptly, ushering in major changes by creating new social, economic, or political paradigms. As it relates to technology in particular, inflection points can refer to the moment with a particular technology achieves critical mass in terms of adoption or, more generally, to the time when that technology begins to profoundly transform the way individuals and institutions act.

Another related concept that Wallach discusses is the so-called “Collingridge dilemma,” which refers to the notion that it is difficult to put the genie back in the bottle once a given technology has reached a critical mass of public adoption or acceptance. The concept is named after David Collingridge, who wrote about this in his 1980 book, The Social Control of Technology. “The social consequences of a technology cannot be predicated early in the life of the technology,” Collingridge argued. “By the time undesirable consequences are discovered, however, the technology is often so much part of the whole economics and social fabric that its control is extremely difficult.”

On “Having a Discussion” & Coming Up with “a Broad Plan”

These related concepts of inflection points and the Collingridge dilemma constitute the operational baseline of Wallach’s worldview. “In weighing speedy development against long-term risks, speedy development wins,” he worries. “This is particularly true when the risks are uncertain and the perceived benefits great.” (p. 85)

Consequently, throughout his book, Wallach pleads with us to take what I will call Technological Time Outs. He says we need to pause at times so that we can have “a full public discussion” (p. 13) and make sure there is a “broad plan in place to manage our deployment of new technologies” (p. 19) to make sure that innovation happens only at “a humanly manageable pace” (p. 261) “to fortify the safety of people affected by unpredictable disruptions.” (p. 262) Wallach’s call for Technological Time Outs is rooted in his belief that “the accelerating pace [of modern technological innovation] undermines the quality of each of our lives.” (p. 263)

That is Wallach’s weakest assertion in the book and he doesn’t really offer much evidence to prove that the velocity of modern technological is hurting us rather than helping us, as many of us believe. Rather, he treats it as a widely accepted truism that necessitates some sort of collective effort to slow things down if the proverbial genie is about to exit the bottle, or to make sure those genies don’t get out of their bottles without a lot of preemptive planning regarding how they are to be released into the world. In the following passage on pg. 72, Wallach very succinctly summarizes his approach recommended throughout A Dangerous Master:

this book will champion the need for more upstream governance: 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. 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? (p. 72)

Those who have read my Permissionless Innovation book will recall that I open by framing innovation policy debates in almost exactly the same way as Wallach suggests in that last line above. I argue in the first lines of my book that:

The central fault line in innovation policy debates today can be thought of as ‘the permission question.’  The permission question 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 and risk-taking, more generally.  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 harm 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 any develop, can be addressed later.

So, by contrasting these passages, you can see what I am setting up here is a clash of visions between what appears to be Wallach’s precautionary principle-based approach versus my own permissionless innovation-focused worldview.

How Much Formal Precaution?

But that would be a tad bit too simplistic because just a few paragraphs after Wallach makes the statement just above about “upstream management” being superior to ex post solutions formulated “after a technology is deeply entrenched,” Wallach begins slowly backing away from an overly-rigid approach to precautionary principle-based governance of technological processes and systems.

He admits, for example, that “precautionary measures in the form of regulations and governmental oversight can slow the development of research whose overall society impact will be beneficial,” (p. 26) and that can “be costly” and “slow innovation.” For countries, Wallach admits, this can have real consequences because “Countries with more stringent precautionary policies are at a competitive disadvantage to being the first to introduce a new tool or process.” (p. 74)

So, he’s willing to admit that what we might call a hard precautionary principle usually won’t be sensible or effective in practice, but he is far more open to soft precaution. But this is where real problems begin to develop with Wallach’s approach, and it presents us with a chance to turn the tables on him a bit and begin posing some serious questions about his vision for governing technology.

Much of what follows below are my miscellaneous ramblings about the current state of the intellectual dialogue about tech ethics and technological control efforts. I have discussed these issues at greater length in my new book as well as a series of essays here in past years, most notably: “On the Line between Technology Ethics vs. Technology Policy; “What Does It Mean to “Have a Conversation” about a New Technology?”; and, “Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation.”

As I’ve argued in those and other essays, my biggest problem with modern technological criticism is that specifics are in scandalously short supply in this field! Indeed, I often find the lack of details in this arena to be utterly exasperating. Most modern technological criticism follows a simple formula:

TECHNOLOGY –>> POTENTIAL PROBLEMS –>> DO SOMETHING!

But almost all the details come in the discussion about the nature of the technology in question and the apparent many problems associated with it. Far, far less thought goes into the “DO SOMETHING!” part of the critics’ work. One reason for that is probably self-evident: There are no easy solutions. Wallach admits as much at many junctures throughout the book. But that doesn’t excuse the need for the critics to give us a more concrete blueprint for identifying and then potentially rectifying the supposed problems.

Of course, the other reason that many critics are short of specifics is because what they really mean when they quip how much we need to “have a conversation” about a new disruptive technology is that we need to have a conversation about stopping that technology.

Where Shall We Draw the Line between Hard and Soft Law?

But this is what I found most peculiar about Wallach’s book: He never really gives us a good standard by which to determine when we should look to hard governance (traditional top-down regulation) versus soft governance (more informal, bottom-up and non-regulatory approaches).

On one hand, he very much wants society to exercise greatly restraint and precaution when it comes to many of the technologies he and others worry about today. Again, he’s particularly concerned about the potential runaway development and use of drones, genetic editing, nanotech, robotics, and artificial intelligence. For at least one class of robotics—autonomous military robots—Wallach does call for immediate policy action in the form of an Executive Order to ban “killer” autonomous systems. (Incidentally, there’s also a major effort underway called the “Campaign to Stop Killer Robots” that aims to make such a ban part of international law through a multinational treaty.)

But Wallach also acknowledges the many trade-offs associated with efforts to preemptively controls on robotics and other technology. Perhaps for that reason, Wallach doesn’t develop a clear test for when the Precautionary Principle should be applied to new forms of innovation.

Clearly there are times when it is appropriate, although I believe it is only in an extremely narrow subset of cases. In the 2 nd Edition of my Permissionless Innovation book, I tried to offer a rough framework for when formal precautionary regulation (i.e., highly-restrictive policy defaults are necessary, such as operational restrictions, licensing requirements, research limitations, or even formal bans) might be necessary. I do not want to interrupt the flow of this review of Wallach’s book too much, so I have decided to just cut-and-paste that portion of Chapter 3 of my book (“When Does Precaution Make Sense?”) down below as an appendix to this essay.

The key takeaway of that passage from my book is that all of us who study innovation policy and the philosophy of technology—Wallach, myself, the whole darn movement—have done a remarkably poor job being specific about precisely when formal policy precaution is warranted. What is the test? All too often, we get lazy and apply what we might call an “I-Know-It-When-I-See-It” standard. Consider the possession of bazookas, tanks, and uranium. Almost all of us would agree that citizens should not be allowed to possess or use such things. Why? Well, it seems obvious, right? They just shouldn’t! But what is the exact standard we use to make that determination.

In coming years, I plan on spending a lot more time articulating a better test by which Precautionary Principle-based policies could be reasonably applied. Those who know me may be taken aback by what I just said. After all, I’ve spend many years explaining why Precautionary Principle-based thinking threatens human prosperity and should be rejected in the vast majority of cases. But that doesn’t excuse the lack of a serious and detailed exploration of the exact standard by which we determine when we should impose some limits on technological innovation.

Generally speaking, while I strongly believe that “permissionless innovation” should remain the policy default for most technologies, there certainly exists some scenarios where the threat of harm associated with a new innovation might be highly probable, tangible, immediate, irreversible, and catastrophic in nature. If so, that could qualify it for at least a light version of the Precautionary Principle. In a future paper or book chapter I’m just now starting to research, I hope to fuller develop those qualifiers and formulate a more robust test around them.

I would have very much liked to see Wallach articulate and defend a test of his own for when formal precaution would make sense. And, by extension, when should we default to soft precaution, or soft law and informal governance mechanisms for emerging technologies.

We turn to that issue next.

Toward Soft Governance & the Engineering of Better Technological Ethics

Even though Wallach doesn’t provide us with a test for determining when precaution makes sense or when we should instead default to soft governance, he does a much better job explaining the various models of soft law or informal governance that might help us deal with the potential negative ramifications of highly disruptive forms of technological change.

What Wallach proposes, in essence, is that we bake a dose of precautionary directly into the innovation process through a wide variety of informal governance/oversight mechanisms. “By embedding shared values in the very design of new tools and techniques, engineers improve the prospect of a positive outcome,” he claims. “The upstream embedding of shared values during the design process can ease the need for major course adjustments when it’s often too late.” (p. 261)

Wallach’s favored instrument of soft governance is what he refers to as “Governance Coordinating Committees” (GCCs). These Committees would coordinate “the separate initiatives by the various government agencies, advocacy groups, and representatives of industry” who would serve as “issue managers for the comprehensive oversight of each field of research.” (p. 250) He elaborates and details the function of GCCs as follows:

These committees, led by accomplished elders who have already achieved wide respect, are meant to work together with all the interested stakeholders to monitor technological development and formulate solutions to perceived problems. Rather than overlap with or function as a regulatory body, the committee would work together with existing institutions. (p. 250-51)

Wallach discussed the GCC idea in much greater detail in a 2013 book chapter he penned with Gary E. Marchant for a collected volume of essays on Innovative Governance Models for Emerging Technologies. (I highly recommend you pick up that book if you can afford it! Many terrific essays in that book on these issues.) In their chapter, Marchant and Wallach specify some of the soft law mechanisms we might use to instill a bit of precaution preemptively. These mechanisms include: “codes of conduct, statements of principles, partnership programs, voluntary programs and standards, certification programs and private industry initiatives.”

If done properly, GCCs could provide exactly the sort of wise counsel and smart recommendations that Wallach desires. In my book and many law review articles on various disruptive technologies, I have endorsed many of the ideas and strategies Wallach identifies. I’ve also stressed the importance of many other mechanisms, such as education and empowerment-based strategies that could help the public learn to cope with new innovations or use them appropriately. In addition, I’ve highlighted the many flexible, adaptive ex post remedies that can help when things go wrong. Those mechanisms include common law remedies such as product defects law, various torts, contract law, property law, and even class action lawsuits. Finally, I have written extensively about the very active role played by the Federal Trade Commission (FTC) and other consumer protection agencies, which have broad discretion to police “unfair and deceptive practices” by innovators.

Moreover, we already have a quasi-GCC model developing today with the so-called “multistakeholder governance” model that is often used in both informal and formal ways to handle many emerging technology policy issues.  The Department of Commerce (the National Telecommunications and Information Administration in particular) and the FTC have already developed many industry codes of conduct and best practices for technologies such as biometrics, big data, the Internet of Things, online advertising, and much more. Those agencies and others (such as the FDA and FAA) are continuing to investigate other codes or guidelines for things like advanced medical devices and drones, respectively. Meanwhile, I’ve heard other policymakers and academics float the idea of “digital ombudsmen,” “data ethicists,” and “private IRBs” (institutional review boards) as other potential soft law solutions that technology companies might consider. Perhaps going forward, many tech firms will have Chief Ethical Officers just as many of them today have Chief Privacy Officers or Chief Security Officers.

In other words, there’s already a lot of “soft law” activities going on in this space. And I haven’t even begun an inventory of the many other bodies or groups that already exist in each sector today that has set forth their own industry self-regulatory codes, but they exist in almost every field that Wallach worries about.

So, I’m not sure how much his GCC idea will add to this existing mix, but I would not be opposed to them playing the sort of coordinating “issue manager” role he describes. But I still have many questions about GCC’s, including:

  • How many of them are needed and how we will know which one is the definitive GCC for each sector or technology?
  • If they are overly formal in character and dominated by the most vociferous opponents of any particular technology, a real danger exists that a GCC could end up granting a small cabal a “heckler’s veto” over particular forms of innovation.
  • Alternatively, the possibility of “regulatory capture” could be a problem for some GCCs if incumbent companies come to dominate their membership.
  • Even if everything went fairly smoothly and the GCCs produced balanced reports and recommendations, future developers might wonder if and why they are to be bound by older guidelines.
  • And if those future developers choose not to play by the same set of guidelines, what’s the penalty for non-compliance?
  • And how are such guidelines enforced in a world where what I’ve called “global innovation arbitrage” is an increasing reality?

Challenging Questions for Both Hard and Soft Law

To summarize, whether we are speaking of “hard” or “soft” law approaches to technological governance, I am just not nearly as optimistic as Wallach seems to be that we will be able to find consensus on these three things:

(1) what constitutes “harm” in many of these circumstances;

(2) which “shared values” should prevail when “society” debates the shaping of ethics or guiding norms for emerging technologies but has highly contradictory opinions about those values (consider online privacy as a good example, where many people enjoy hyper-sharing while other demand hyper-privacy); and,

(3) that we can create a legitimate “governing body” (or bodies) that will be responsible for formulating these guidelines in a fair way without completely derailing the benefits of innovation in new fields and also remaining relevant for very long.

Nonetheless, as he and others have suggested, the benefit of adopting a soft law/informal governance approach to these issues is that it at least seeks to address these questions in more flexible and adaptive fashion. As I noted in my book, traditional regulatory systems “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)

So, despite the questions I have raised here, I welcome the more flexible soft law approach that Wallach sets forth in his book. I think it represents a far more constructive way forward when compared to the opposite “top-down” or “command-and-control” regulatory systems of the past. But I very much want to make sure that even these new and more flexible soft law approaches leave plenty of breathing room for ongoing trial-and-error experimentation with new technologies and systems.

Conclusion

In closing, I want to reiterate that not only did I appreciate the excellent questions raised by Wendell Wallach in A Dangerous Master, but I take them very seriously. When I sat down to revise and expand my Permissionless Innovation book last year, I decided to include this warning from Wallach in my revised preface: “The promoters of new technologies need to speak directly to the disquiet over the trajectory of emerging fields of research. They should not ignore, avoid, or superficially dampen criticism to protect scientific research.” (p. 28–9)

As I noted, in response to Wallach: “I take this charge seriously, as should others who herald the benefits of permissionless innovation as the optimal default for technology policy. We must be willing to take on the hard questions raised by critics and then also offer constructive strategies for dealing with a world of turbulent technological change.”

Serious questions deserve serious answers. Of course, sometimes those posing those questions fail to provide many answers of their own! Perhaps it is because they believe the questions answer themselves. Other times, it’s because they are willing to admit that easy answers to these questions typically prove quite elusive. In Wallach’s case, I believe it’s more the latter.

To wrap up, I’ll just reiterated that both Wallach and I share a common desire to find solutions to the hard questions about technological innovation. But the crucial question that probably separates his worldview and my own is this: Whether we are talking about hard or soft governance, how much faith should we place in preemptive planning vs. ongoing trial and error experimentation to solve technological challenges? Wallach is more inclined to believe we can divine these things with the sagacious foresight of “accomplished elders” and technocratic “issue managers,” who will help us slow things down until we figure out how to properly ease a new technology into society (if at all). But I believe that the only way we will find many of the answers we are searching for is by allowing still more experimentation with the very technologies that he and others seek to control the development of. We humans are outstanding problem-solvers and have the uncanny ability among all mammals to adapt to changing circumstances. We roll with the punches, learn from them, and become more resilient in the process. As I noted in my 2014 essay, “Muddling Through: How We Learn to Cope with Technological Change”:

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. [. . .] 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.

Will the technologies that Wallach fears bring about a “techstorm” that overwhelms our culture, our economy, and even our very humanity? It’s certainly possible, and we should continue to seriously discuss the issues that he and other skeptics raise about our expanding technological capabilities and the potential for many of them to do great harm. Because some of them truly could.

But it is equally plausible—in fact, some of us would say, highly probable—that instead of overwhelming us, we learn how to bend these new technological capabilities to our will and make them work for our collective benefit. Instead of technology becoming “a dangerous master,” we will instead make it our helpful servant, just as we have so many times before.

APPENDIX: When Does Precaution Make Sense?

[excerpt from chapter 3 of Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom. Footnotes omitted. See book for all references.]

But aren’t there times when a certain degree of precautionary policymaking makes good sense? Indeed, there are, and it is important to not dismiss every argument in favor of precautionary principle–based policymaking, even though it should not be the default policy rule in debates over technological innovation.

The challenge of determining when precautionary policies make sense comes down to weighing the (often limited) evidence about any given technology and its impact and then deciding whether the potential downsides of unrestricted use are so potentially catastrophic that trial-and-error experimentation simply cannot be allowed to continue. There certainly are some circumstances when such a precautionary rule might make sense. Governments restrict the possession of uranium and bazookas, to name just two obvious examples.

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.

Precaution might make sense when harm is … Precaution generally doesn’t make sense for asserted harms that are …
Highly probable Highly improbable
Tangible (physical) Intangible (psychic)
Immediate Distant / unclear timeline
Irreversible Reversible / changeable
Catastrophic Mundane / trivial

 

But most cases don’t fall into this category. Instead, we generally allow innovators and consumers to freely experiment with technologies, and even engage in risky behaviors, unless a compelling case can be made that precautionary regulation is absolutely necessary.  How is the determination made regarding when precaution makes sense? This is where the role of benefit-cost analysis (BCA) and regulatory impact analysis is essential to getting policy right.  BCA represents an effort to formally identify the tradeoffs associated with regulatory proposals and, to the maximum extent feasible, quantify those benefits and costs.  BCA generally cautions against preemptive, precautionary regulation unless all other options have been exhausted—thus allowing trial-and-error experimentation and “learning by doing” to continue. (The mechanics of BCA are discussed in more detail in section VII.)

This is not the end of the evaluation, however. Policymakers also need to consider the complexities associated with traditional regulatory remedies in a world where technological control is increasingly challenging and quite costly. It is not feasible to throw unlimited resources at every problem, because society’s resources are finite.  We must balance risk probabilities and carefully weigh the likelihood that any given intervention has a chance of creating positive change in a cost-effective fashion.  And it is also essential to take into account the potential unintended consequences and long-term costs of any given solution because, as Harvard law professor Cass Sunstein notes, “it makes no sense to take steps to avert catastrophe if those very steps would create catastrophic risks of their own.”  “The precautionary principle rests upon an illusion that actions have no consequences beyond their intended ends,” observes Frank B. Cross of the University of Texas. But “there is no such thing as a risk-free lunch. Efforts to eliminate any given risk will create some new risks,” he says.

Oftentimes, after working through all these considerations about whether to regulate new technologies or technological processes, the best solution will be to do nothing because, as noted throughout this book, we should never underestimate the amazing ingenuity and resiliency of humans to find creative solutions to the problems posed by technological change.  (Section V discusses the importance of individual and social adaptation and resiliency in greater detail.) Other times we might find that, while some solutions are needed to address the potential risks associated with new technologies, nonregulatory alternatives are also available and should be given a chance before top-down precautionary regulations are imposed. (Section VII considers those alternative solutions in more detail.)

Finally, it is again essential to reiterate that we are talking here about the dangers of precautionary thinking as a public policy prerogative—that is, precautionary regulations that are mandated and enforced by government officials. By contrast, precautionary steps may be far more wise when undertaken in a more decentralized manner by individuals, families, businesses, groups, and other organizations. In other words, as I have noted elsewhere in much longer articles on the topic, “there is a different choice architecture at work when risk is managed in a localized manner as opposed to a society-wide fashion,” and risk-mitigation strategies that might make a great deal of sense for individuals, households, or organizations, might not be nearly as effective if imposed on the entire population as a legal or regulatory directive.

Finally, at times, more morally significant issues may exist that demand an even more exhaustive exploration of the impact of technological change on humanity. Perhaps the most notable examples arise in the field of advance medical treatments and biotechnology. Genetic experimentation and human cloning, for example, raise profound questions about altering human nature or abilities as well as the relationship between generations.

The case for policy prudence in these matters is easier to make because we are quite literally talking about the future of what it means to be human.  Controversies have raged for decades over the question of when life begins and how it should end. But these debates will be greatly magnified and extended in coming years to include equally thorny philosophical questions.  Should parents be allowed to use advanced genetic technologies to select the specific attributes they desire in their children? Or should parents at least be able to take advantage of genetic screening and genome modification technologies that ensure their children won’t suffer from specific diseases or ailments once born?

Outside the realm of technologically enhanced procreation, profound questions are already being raised about the sort of technological enhancements adults might make to their own bodies. How much of the human body can be replaced with robotic or bionic technologies before we cease to be human and become cyborgs?  As another example, “biohacking”—efforts by average citizens working together to enhance various human capabilities, typically by experimenting on their own bodies —could become more prevalent in coming years.  Collaborative forums, such as Biohack.Me, already exist where individuals can share information and collaborate on various projects of this sort.  Advocates of such amateur biohacking sometimes refer to themselves as “grinders,” which Ben Popper of the Verge defines as “homebrew biohackers [who are] obsessed with the idea of human enhancement [and] who are looking for new ways to put machines into their bodies.”

These technologies and capabilities will raise thorny ethical and legal issues as they advance. Ethically, they will raise questions of what it means to be human and the limits of what people should be allowed to do to their own bodies. In the field of law, they will challenge existing health and safety regulations imposed by the FDA and other government bodies.

Again, most innovation policy debates—including most of the technologies discussed throughout this book—do not involve such morally weighty questions. In the abstract, of course, philosophers might argue that every debate about technological innovation has an impact on the future of humanity and “what it means to be human.” But few have much of a direct influence on that question, and even fewer involve the sort of potentially immediate, irreversible, or catastrophic outcomes that should concern policymakers.

In most cases, therefore, we should let trial-and-error experimentation continue because “experimentation is part and parcel of innovation” and the key to social learning and economic prosperity.  If we froze all forms of technological innovation in place while we sorted through every possible outcome, no progress would ever occur. “Experimentation matters,” notes Harvard Business School professor Stefan H. Thomke, “because it fuels the discovery and creation of knowledge and thereby leads to the development and improvement of products, processes, systems, and organizations.”

Of course, ongoing experimentation with new technologies always entails certain risks and potential downsides, but the central argument of this book is that (a) the upsides of technological innovation almost always outweigh those downsides and that (b) humans have proven remarkably resilient in the face of uncertain, ever-changing futures.

In sum, when it comes to managing or coping with the risks associated with technological change, flexibility and patience is essential. One size most certainly does not fit all. And one-size-fits-all approaches to regulating technological risk are particularly misguided when the benefits associated with technological change are so profound. Indeed, “[t]echnology is widely considered the main source of economic progress”; therefore, nothing could be more important for raising long-term living standards than creating a policy environment conducive to ongoing technological change and the freedom to innovate.

]]> https://techliberation.com/2016/04/20/wendell-wallach-on-the-challenge-of-engineering-better-technology-ethics/feed/ 0 76026 New research on how to inject federal spectrum into private markets https://techliberation.com/2015/09/10/new-research-on-how-to-inject-federal-spectrum-into-private-markets/ https://techliberation.com/2015/09/10/new-research-on-how-to-inject-federal-spectrum-into-private-markets/#comments Thu, 10 Sep 2015 17:16:26 +0000 http://techliberation.com/?p=75699

The most pressing challenge in wireless telecommunications policy is transferring spectrum from inefficient legacy operators like federal agencies to the commercial sector for consumer use.

Reflecting high consumer demand for more wireless services, in early 2015 the FCC completed an auction for a small slice of prime spectrum–currently occupied by federal agencies and other non-federal incumbents–that grossed over $40 billion for the US Treasury. Increasing demand for mobile services such as Web browsing, streaming video, the Internet of Things, and gaming requires even more spectrum. Inaction means higher smartphone bills, more dropped calls, and stuttering downloads.

My latest research for the Mercatus Center, “Sweeten the Deal: Transfer of Federal Spectrum through Overlay Licenses,” was published recently and recommends the use of overlay licenses to transfer federal spectrum into commercial use. Purchasing an overlay license is like acquiring real property that contains a few tenants with unexpired leases. While those tenants have a superior possessory right to use the property, a high enough cash payment or trade will persuade them to vacate the property. The same dynamic applies for spectrum.

Overlay licenses have been used to reassign non-federal spectrum but never federal spectrum. The paper presents new evidence from a 2006 spectrum auction (AWS-1) that suggests that billions of dollars of underused federal spectrum could be deployed more quickly than other policy alternatives. Crucially, overlay licenses allow agencies to receive payment for spectrum sales and this reordering of spectrum rights would benefit taxpayers and wireless broadband users.

Policymakers are interested in spectrum policy because spectrum availability improves broadband access and generates substantial government revenues. Further, conservative estimates place the consumer surplus losses from misallocation of spectrum at hundreds of billions of dollars per year. Therefore, policymakers should favor reform proposals, like overlay licenses, that show promise in repurposing federal spectrum relatively quickly. The paper compares two policy proposals for spectrum reform: regulation-intensive dynamic spectrum sharing and market-oriented overlay licenses.

Regulation-Intensive Approach. A 2012 President’s Council of Advisors on Science and Technology (PCAST) report promotes complex spectrum-sharing technologies to enable consumer use of fallow federal spectrum in order to avoid clearing agencies from their spectrum.

  • According to the PCAST report, widespread dynamic spectrum sharing would take decades to implement. The proposal relies on precise government planning and complex device requirements to enable intensive use of federal spectrum. However, the sharing technologies contemplated are in early development and will not be in routine deployment for many years. Social welfare losses mount quickly in the interim.
  • Despite recognizing that agencies have no incentive to improve efficient use of their spectrum, this proposal does little to encourage efficient government use of spectrum. Dynamic spectrum sharing techniques allow wasteful legacy systems to operate indefinitely, and PCAST recommends against clearing inefficient federal users.
  • Implementation of the PCAST proposal would likely degenerate into regulatory failure. Previous attempts at spectrum sharing between different wireless systems, like the TV White Spaces allocation that PCAST lauds, frequently resulted in rent seeking, severe deployment delays, and relatively few consumer benefits.

Market-Based Approach. A superior reform proposal is to auction off overlay licenses to certain federal spectrum bands. These winning overlay licensees can put unused federal spectrum into service rapidly. For the remaining spectrum that agencies are using, the winning licensee can pay the agency to vacate the bands or upgrade to more efficient systems. Agency resistance may be mitigated because agencies can negotiate compensation for selling rights to their spectrum.

  • The FCC has conducted overlay auctions in the past and they represent an “off-the-shelf” tool to reorder spectrum rights. In previous overlay auctions, the process was effective and winning bidders compensated existing users like state public safety agencies and public utilities to vacate their valuable spectrum.
  • Overlay license auctions and clearing deadlines transfer spectrum into the market and to its highest-valued uses. For example, in as few as two years after the 2006 AWS-1 auction, existing users and federal agencies vacated their spectrum, allowing carriers to invest billions of dollars into networks and deploy mobile broadband in cities like San Francisco and New York.
  • A combination of clearing federal agencies from their spectrum and using overlays to clear nonfederal users has freed about 210 MHz of prime spectrum for mobile broadband use, supplying over one third of spectrum held by mobile carriers today.

Government agencies sit on wireless spectrum worth hundreds of billions of dollars rent-free. This federal spectrum is often unused or underutilized and the misallocation of this valuable resource is socially costly. My paper proposes that Congress permit agencies to sell some of their spectrum to private parties after an overlay auction. No other reform proposal has enabled widespread consumer use and economic investment as rapidly as have overlay auctions combined with clearing deadlines. Overlays and clearing deadlines in the recent past have permitted commercial deployment of cutting-edge wireless technologies in encumbered spectrum within a few years.

Related Research Reclaiming Federal Spectrum: Proposals and Recommendations

]]> https://techliberation.com/2015/09/10/new-research-on-how-to-inject-federal-spectrum-into-private-markets/feed/ 1 75699 How to Privatize the Internet https://techliberation.com/2014/04/02/how-to-privatize-the-internet/ https://techliberation.com/2014/04/02/how-to-privatize-the-internet/#comments Wed, 02 Apr 2014 15:52:08 +0000 http://techliberation.com/?p=74378

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.

]]> https://techliberation.com/2014/04/02/how-to-privatize-the-internet/feed/ 3 74378 Toward a Post-Government Internet https://techliberation.com/2014/03/17/toward-a-post-government-internet/ https://techliberation.com/2014/03/17/toward-a-post-government-internet/#comments Mon, 17 Mar 2014 13:41:53 +0000 http://techliberation.com/?p=74294

The Internet began as a U.S. military project. For two decades, the government restricted access to the network to government, academic, and other authorized non-commercial use. In 1989, the U.S. gave up control—it allowed private, commercial use of the Internet, a decision that allowed it to flourish and grow as few could imagine at the time.

Late Friday, the NTIA announced its intent to give up the last vestiges of its control over the Internet, the last real evidence that it began as a government experiment. Control of the Domain Name System’s (DNS’s) Root Zone File has remained with the agency despite the creation of ICANN in 1998 to perform the other high-level domain name functions, called the IANA functions.

The NTIA announcement is not a huge surprise. The U.S. government has always said it eventually planned to devolve IANA oversight, albeit with lapsed deadlines and changes of course along the way.

The U.S. giving up control over the Root Zone File is a step toward a world in which governments no longer assert oversight over the technology of communication. Just as freedom of the printing press was important to the founding generation in America, an unfettered Internet is essential to our right to unimpeded communication. I am heartened to see that the U.S. will not consider any proposal that involves IANA oversight by an intergovernmental body.

Relatedly, next month’s global multistakeholder meeting in Brazil will consider principles and roadmaps for the future of Internet governance. I have made two contributions to the meeting, a set of proposed high-level principles that would limit the involvement of governments in Internet governance to facilitating participation by their nationals, and a proposal to support experimentation in peer-to-peer domain name systems. I view these proposals as related: the first keeps governments away from Internet governance and the second provides a check against ICANN simply becoming another government in control of the Internet.

]]> https://techliberation.com/2014/03/17/toward-a-post-government-internet/feed/ 1 74294 New House bill pays federal agencies to clear spectrum https://techliberation.com/2013/12/13/new-house-bill-pays-federal-agencies-to-clear-spectrum/ https://techliberation.com/2013/12/13/new-house-bill-pays-federal-agencies-to-clear-spectrum/#respond Fri, 13 Dec 2013 19:22:40 +0000 http://techliberation.com/?p=73977

It’s encouraging to see more congressional movement in repurposing federal spectrum for commercial use. This week, a bill rewarding federal agencies for ending or moving their wireless operations passed a House committee. The bipartisan Federal Spectrum Incentive Act of 2013 allows agencies to benefit when they voluntarily give up their spectrum for FCC auction.

In the past, an agency could receive a portion of auction proceeds but only to compensate the agency for relocating its systems. Agencies complained, sensibly, that this arrangement does little to encourage them to give up spectrum. Federal agencies had to go through the hassle of modifying their wireless equipment and sharing spectrum with another agency but were left no better off than before. In some cases, the complications with sharing spectrum made them worse off, so there was risk of downside and no upside.

This House bill provides that an agency can keep 1% of auction proceeds in addition to relocation costs. With this additional carrot, the hope is, agencies will be more willing to modify their equipment and make room for mobile broadband carriers.

The bill is a good start but I think it’s a little too restrictive. A one percent claim on auction receipts seems insufficient to induce dramatically improved agency participation. Given how poorly federal agencies use spectrum, Congress should be doing much more to force agencies to justify their spectrum usage. Additionally, how agencies can use that 1% benefit seems too limited. The bill allows the funds to be used 1) to offset sequestration cuts, and 2) to compensate other agencies if they agree to share spectrum. Some journalists are reporting that agencies can use the funds to expand existing programs but I don’t see that language in the proposed bill. It wouldn’t be a bad idea, though, to have fewer restrictions on the payments since it would likely increase agency participation.

Further Reading:

See my Mercatus paper on the subject of repurposing federal spectrum.

]]> https://techliberation.com/2013/12/13/new-house-bill-pays-federal-agencies-to-clear-spectrum/feed/ 0 73977 New Progress in the 2014 Spectrum Auctions https://techliberation.com/2013/11/26/new-progress-in-the-2014-spectrum-auctions/ https://techliberation.com/2013/11/26/new-progress-in-the-2014-spectrum-auctions/#comments Tue, 26 Nov 2013 21:35:31 +0000 http://techliberation.com/?p=73886

Both parties of Congress has been increasingly critical of federal agencies’ inefficient use of spectrum in the past few years and it seems like agencies are getting the message. The NTIA, which is the official manager of federal agency spectrum, released a letter yesterday announcing that the Department of Defense would be relocating some of its systems. Defense had reached an agreement with broadcasters that Defense systems will share spectrum in the Broadcast Auxiliary Service (BAS) band.

The soon-to-be vacated band held by Defense will eventually be auctioned off–hopefully in 2014–for billions of dollars and likely used for mobile broadband provided by wireless carriers like AT&T, Verizon, Sprint, and T-Mobile. These carriers face serious congestion problems because of government-created scarcity of spectrum.

The carriers actually had targeted some of BAS spectrum because they weren’t convinced Defense would be willing to move their systems. The broadcaster deal reached with Defense means everyone’s apparently happy–the broadcasters can keep their BAS spectrum, the feds get new equipment and Congress off their back (temporarily), and the carriers get new spectrum for auction.

The deal is welcome news because the spectrum will be put to a higher-valued use once auctioned. The federal government pays almost nothing for its own spectrum and is a poor steward of the resource. Transferring spectrum from agencies to carriers means lower phone bills and more mobile broadband coverage. Government agencies are notoriously resistant to moving their systems or sharing with others, so entering into a sharing pact with the broadcasters indicates some of the resistance is thawing.

It’s not unequivocal good news, though.

The government is clearing out from a 25 MHz band of spectrum and occupying the larger, 85 MHz BAS band that will be shared with broadcasters. The military will need a larger band because sharing imposes some capacity constraints necessitating new, agile systems that search the airwaves to make sure they don’t interfere with existing broadcast users. Dynamic sharing like this only adds to the cost and complexity and may imperil next years’ planned auction.

Further, the BAS band is unavailable for auction only because of the antiquated command-and-control regime the FCC uses to award spectrum licenses. BAS is mostly used for electronic news gathering, which relays local and national newscasts from reporters on the scene to broadcast studios. Broadcasters have used BAS spectrum since the 1960s when it was allocated to them for free.

In a market, broadcasters likely would not have as much BAS spectrum as they currently have. In fact, because of technology changes and squeezed newsroom budgets, broadcasters are finding cheaper alternatives. Increasingly, journalists are using carriers’ LTE technology to transmit their breaking newscasts since the technology costs a fraction of the cost of news vans and equipment needed for BAS transmissions. That is to say, there are alternative business models in the absence of Soviet-style allocations.

So despite these industry changes, BAS spectrum cannot be auctioned for its highest-valued use (probably mobile broadband) under current FCC rules. Further, it will be even more difficult to bring the benefits of auctions to the airwaves if federal users are intermingling with existing users, broadcasters in this case. It’s a trend to be wary of. Let’s just hope that next year’s planned auctions occur on time so that more consumers can benefit from mobile broadband.

]]> https://techliberation.com/2013/11/26/new-progress-in-the-2014-spectrum-auctions/feed/ 1 73886 How Can Congress Accommodate Both Federal and Commercial Spectrum Demand? https://techliberation.com/2013/06/27/how-can-congress-accommodate-both-federal-and-commercial-spectrum-demand/ https://techliberation.com/2013/06/27/how-can-congress-accommodate-both-federal-and-commercial-spectrum-demand/#comments Thu, 27 Jun 2013 11:32:55 +0000 http://techliberation.com/?p=45028

“Permitting voluntary spectrum transactions between federal and commercial users would harness the power of market forces to put both commercial and federal spectrum to its highest and best uses.”

The House Energy and Commerce Committee’s Subcommittee on Communications and Technology is holding a hearing today to ask, “How can Congress meet the needs of Federal agencies while addressing carriers’ spiraling demand for spectrum in the age of the data-intensive smartphone?” In my view, the answer requires a flexible approach that permits experimentation among multiple approaches.

There are challenges and opportunities for  both (1) clearing and reallocating federal spectrum for commercial use and (2) sharing spectrum among federal and commercial users. Economic and technical issues may require different strategies for different spectrum bands and different uses. Experience indicates that voluntary negotiations among interested parties – not bureaucratic fiat – are likely to produce the most efficient strategy in any particular instance. Unfortunately, current law does not provide market incentives or mechanisms for the relevant parties (federal and commercial spectrum users and spectrum regulators) to achieve efficient outcomes.

Congressional action creating markets for spectrum transactions between federal and commercial users would provide the relevant parties with an opportunity to maximize their spectrum use through voluntary negotiation. A market-oriented approach would permit experimentation, encourage innovation, and promote investment while increasing the efficiency of spectrum use. The result would benefit consumers, federal agencies, and the economy.

Federal users lack incentives to relinquish or share spectrum with commercial users

The law requires the NTIA and FCC to jointly plan spectrum allocations to accommodate all users and promote the efficient use of the spectrum. Although the agencies have agreed to share spectrum when the potential for harmful interference is low, the NTIA typically does not voluntarily agree to repurpose federal spectrum for exclusive commercial use. That typically requires a Presidential memorandum, Congressional legislation, or both.

The reason: NTIA and its constituent federal spectrum users have no  incentive to voluntarily relinquish federal spectrum rights.

First, government agencies generally cannot profit from relinquishing their spectrum (i.e., they are not subject to the opportunity costs applicable in commercial markets). They are entitled to reimbursement for the costs of relocating their wireless systems after a commercial spectrum auction, but the majority of auction proceeds are remitted to the general Treasury.

Second, government agencies face an uncertain funding environment (i.e., they cannot raise capital in commercial markets). Agencies often reserve federal spectrum allocations for planned wireless systems that are unfunded, which can result in federal spectrum lying fallow for years. An agency that reserves spectrum for a planned system can remain optimistic that it will receive funding in the next budget cycle. But, if the agency relinquishes its spectrum, it cannot build the planned system even if it does receive funding.

The lack of potential benefits and the funding uncertainty inherent in the government budgeting process combine to create an environment in which federal agencies have low opportunity costs for reserving spectrum and high opportunity costs for relinquishing it. Creating market mechanisms that  reverse these opportunity costs would provide government agencies with incentives to voluntarily relinquish or share their spectrum in ways that promote overall spectrum efficiency.

Federal users lack incentives to share spectrum with other federal users

The lack of incentives for efficient use of federal spectrum extends to intra-agency sharing as well.

There are approximately eighty different federal entities that are authorized to use federal spectrum. It would be more efficient for multiple agencies to share spectrum and systems in certain bands, but the lack of market incentives combined with jurisdictional issues make it difficult for them to work together. For example, DOJ, DHS, and DOT tried to build a shared wireless network for voice communications, but, “despite costing over $356 million over 10 years,” the project failed to achieve the results intended.

Market mechanisms that permit federal agencies to profit from their spectrum could eliminate the funding issues and alleviate the “turf wars” that plague intra-agency projects.

Potential mechanisms for repurposing federal spectrum

The current proposals for repurposing federal spectrum fall into three general categories.

One option is to create a GSA-like agency for federal spectrum users. This would provide an incentive for efficient use of federal spectrum by imposing an opportunity cost for inefficiency (in the form of rents paid by federal spectrum users to the new agency), but it would not improve funding mechanisms for federal wireless systems.

Another option is the sharing-only approach proposed by the President’s Council of Advisors on Science and Technology (PCAST). This approach could provide commercial users with additional access to federal spectrum, but it would not alter federal incentives or funding and lacks the degree of certainty that is typically necessary for substantial commercial investment.

The third option would permit federal spectrum users to sell or lease their spectrum rights and use the funds to build new systems or secure usage rights on commercial systems. This could be accomplished through the use of incentive auctions in some circumstances, though individually negotiated transactions between federal and commercial users would provide significantly more flexibility. This alternative would tend to reverse (by merging) the incentives discussed above: Federal users would face higher opportunity costs for reserving spectrum and lower opportunity costs for relinquishing it.

The third option also has the advantage of permitting multiple approaches to the issue of apportioning spectrum for federal and commercial uses. I expect that, even if government agencies were permitted to engage in secondary market transactions with commercial spectrum users, they would still prefer sharing on a non-interference basis in bands with unique requirements, which would accommodate additional spectrum for unlicensed uses. If it appeared that federal users still lacked sufficient incentives to improve the efficiency of their spectrum use, Congress would retain the option of creating a GSA-like agency to charge rents to federal spectrum users.

Permitting voluntary spectrum transactions between federal and commercial users would harness the power of market forces to put both commercial and federal spectrum to its highest and best uses. As FCC Commissioner Rosenworcel noted recently, “our federal spectrum policy needs to be built on carrots, not sticks.” Giving federal spectrum users an opportunity to negotiate a share in the benefits of repurposing federal spectrum would be a carrot worth pursuing.

]]> https://techliberation.com/2013/06/27/how-can-congress-accommodate-both-federal-and-commercial-spectrum-demand/feed/ 5 45028 Bad news from Obama’s memo on federal spectrum https://techliberation.com/2013/06/19/bad-news-from-obamas-memo/ https://techliberation.com/2013/06/19/bad-news-from-obamas-memo/#comments Wed, 19 Jun 2013 18:55:12 +0000 http://techliberation.com/?p=44988

A few days ago, the big news in the telecom world was that President Obama again ordered federal agencies to share and sell their spectrum to expand commercial mobile broadband use. This effort is premised on the fact that agencies use their gifted airwaves poorly while demand for mobile broadband is surging. While the presidential memorandum half-heartedly supports clearing out agencies from some bands and selling it off, the focus of the memo is shared access, whereby federal agencies agree to allow non-federal users to use the same spectrum bands with non-interfering technologies.

The good news is that there is no mention of PCAST’s 2012 recommendation to the president to create a 1000 MHz “superhighway” of unlicensed federal spectrum accessed by sensing devices. This radical proposal would replace the conventional clearing-and-auction process with a spectrum commons framework reliant on unproven sensing technologies. Instead of consumers relying on carriers’ spectrum for mobile broadband, this plan would crudely imitate (in theory) wifi on steroids, where devices would search out access over a huge portion of valuable spectrum, avoiding federal users. Its omission in the recent memo likely means the unlicensed superhighway won’t be pursued.

Still, this doubling-down on other forms of dynamic spectrum sharing is unfortunate for several reasons. First, it mostly entrenches the disastrous status quo by acceding to federal agencies’ claims that they can’t be safely moved. Giving federal agencies free spectrum decades ago was a costly mistake that needs to be corrected through pricing and through clearing. By throwing their hands up and saying that clearing and auctioning federal spectrum is too difficult and sharing is the best alternative, the administration forces us to suffer for the mistakes of the past.

Second, sharing, as envisioned in the memo, will not be accomplished quickly or extensively. Whatever technologies come out of this–there are several options, which only adds research delays–will be constrained by what interference risks the agencies accept. Engineering tests and simulations cannot answer this question; it is an economic and political question, and the economics is very distorted as it is. Federal agencies and particularly the military are very jealous of their spectrum. And who can blame them, since their wireless systems are often used for communications and training exercises that, if not directly protecting the lives of civilians, employees, and soldiers, are an important component of preparation for combat. But this jealousy means agencies are not good at sharing wireless bandwidth.

For “sharing skeptics,” UWB’s experiences illuminates our concerns. Ultrawideband (UWB) is a wireless low-power technology used for radar and data services and, beginning in 1989, its proponents sought regulatory approval to share federal spectrum for UWB commercial applications. UWB uses huge portions of spectrum but is very low power–transmissions from a cellphone are millions of times more powerful than UWB transmissions. Even then, UWB applicants were subjected to a process that can only be described as Kafka-esque as it went–for 13 years–agency to agency, submitting filings and completing interference tests, attempting to show that the technology would not threaten federal operations, before it finally got approval. Indicative of agency foot-dragging, a UWB manufacturer noted,

It took NTIA nearly a year to obtain internal sign off by government users of spectrum to approve with conditions the requests for waivers submitted by [UWB] companies. This despite the fact that the devices . . . were lifesaving instruments for public safety and law enforcement personnel, and all 2500 devices requested, if operating together in a single room, would emit less than one quarter the power of a cell phone.

That same UWB applicant made over 100 trips to DC in 6 years and spent millions of dollars to push his technology. Another large UWB company backed by Intel went out of business in the meantime. To be clear, the technologies contemplated in the memo are different from UWB, but UWB is not alone and the institutional resistance will be the same for future sharing technologies. There will be extensive tests, frequent denials, delays, and billions of dollars of continued waste of underused federal spectrum.

I have no doubt the heads of NTIA and DoD favor making mobile broadband more available to consumers. But it is also their duty to ensure that military and federal systems work well all the time. Given these two priorities (faster mobile downloads of cat videos versus public safety and military training), guess which one the NTIA and agencies will favor? What probability of service disruption will federal agencies tolerate? The answer–as we’ve seen in previous sharing attempts–is vanishingly small. That means if any technologies are approved for sharing on federal bands–a process that will take years–they will be likely constrained by very conservative technical criteria and low-power operations.

The memo’s best recommendation is exploring “incentives” (that is, pricing) for federal agencies to relinquish spectrum. Blair Levin–who worked on the FCC’s 2010 National Broadband Plan–voiced support for creating a “GSA for spectrum” at a Washington Post forum this week, and hopefully this sentiment will become a priority. Until agencies are paying market prices for this valuable resource, attempts to force agencies to share are bound to run into these problems since there is no way to analyze the economic tradeoffs.

But a GSA for spectrum is a long ways off and I suspect the regulatory risks and delays in the interim, combined with the poor economics of the permitted technologies, will scare away most investment. Whatever does emerge will be a poor substitute for the robust wireless networks we see everyday on our smartphones using exclusively licensed commercial spectrum, which is why the memo’s focus on sharing–not clearing and auctioning–is sorry news.

For more on proposals for reclaiming federal spectrum through clearing and auctioning, please see my hot-off-the-presses Mercatus working paper.

]]> https://techliberation.com/2013/06/19/bad-news-from-obamas-memo/feed/ 4 44988 Federal agencies have too much spectrum https://techliberation.com/2013/06/04/too-much-spectrum/ https://techliberation.com/2013/06/04/too-much-spectrum/#comments Tue, 04 Jun 2013 13:26:35 +0000 http://techliberation.com/?p=44892

Few dispute that mobile carriers are being squeezed by the relative scarcity of radio spectrum. This scarcity is a painful artifact of regulatory decisions made decades ago, when the regulators gave valuable spectrum away for free to government agencies and to commercial users via so-called “beauty contests.” As more Americans purchase tablets and smartphones (as of a year ago, smartphones comprise a majority of phone plans in the US), many fear that consumers will be hurt by higher prices, stringent data limits, and less wireless innovation.

In the face of this demand, freeing up more airwaves for mobile broadband became a bipartisan effort and many scholars and policymakers have turned their hungry eyes to the ample spectrum possessed by federal agencies, which hold around 1500 MHz of the most valuable bands. The scholarly consensus–confirmed by government audits–is that federal agencies use their spectrum poorly. Because many licensees use spectrum under the old rules (free spectrum) and use it inefficiently, President Obama directed the FCC and NTIA to find 500 MHz of spectrum for mobile broadband use by 2020.

I recently published a Mercatus working paper surveying plans that encourage federal agencies to economize on their use of radio spectrum, with the ultimate goal of auctioning cleared spectrum to the highest bidders (probably mobile broadband service providers given consumer needs). In my research, interviewees pointed to two problems with reclaiming federal spectrum: (a) there is no effective process to get federal users (especially the powerful Department of Defense) to turn over spectrum, and (b) federal users don’t pay market prices for spectrum, resulting in inefficient use and billions of dollars of value annually wasted.

I’ll note two of the promising spectrum management plans here. As for improving the process of quickly getting federal spectrum auctioned off, there is a bill, promoted by Sen. Kirk and Rep. Kinzinger, to “BRAC the spectrum.” BRAC (the Base Realignment and Closure procedure), as Jerry Brito documents, was a move by Congress in 1988 to successfully accomplish the politically difficult task of closing military bases. BRAC-ing the spectrum would mean the congressional creation of a commission with the authority to clear federal users out of their spectrum. All spectrum-clearing decisions by this commission during its tenure would stand, absent a disapproving joint resolution from Congress. The identified spectrum could be auctioned off within a few years and the proceeds could be used to move the federal systems to other bands, with the remainder going to the Treasury.

The second proposal I highlight is the creation of a GSA-like agency that controls federal spectrum. This proposal, from Thomas Lenard, Lawrence White, and James Riso, would accomplish the second goal of making federal users pay substantial fees for their spectrum. The federal government pays market rates for many important inputs–tanks, carriers, land, etc.–so why is spectrum free? The GSA, the authors explain, owns real estate and buildings and it leases those to federal agencies. Just as paying rent forces federal agencies to economize on building size and amenities, a “GSA for spectrum” would lease spectrum to agencies, hopefully preventing the sort of waste currently seen in federal bands.

I’m probably the first TLF author to favor the creation of 2 new federal agencies in a post (hopefully not my last!), but these proposals may be necessary given the damaging status quo. Federal waste of spectrum assets isn’t disputed and the consumer benefits of freeing up spectrum are obvious. The fight lies primarily between powerful interest groups and affected congressional committees, some of whom will see their constituent oxen gored (DoD, defense contractors, technology firms). Given the urgent needs, it’s foolish to continue to do nothing.

]]> https://techliberation.com/2013/06/04/too-much-spectrum/feed/ 8 44892 Commerce Department’s “Dynamic Policy” Privacy Approach – Likes & Concerns https://techliberation.com/2010/12/16/commerce-departments-%e2%80%9cdynamic-policy%e2%80%9d-privacy-approach-likes-concerns/ https://techliberation.com/2010/12/16/commerce-departments-%e2%80%9cdynamic-policy%e2%80%9d-privacy-approach-likes-concerns/#comments Fri, 17 Dec 2010 00:18:17 +0000 http://techliberation.com/?p=33668

Earlier today the Commerce Department’s Internet Policy Task Force issued its expected privacy report. Commerce waded into shark-filled privacy waters and produced a report that overall is thoughtful, comprehensive and has lots of meat for strengthening the nation’s privacy framework. Of course, we have our quibbles too. On first read, here’s what I like and what concerns me:

Like:

  • “Dynamic policies”. The report appropriately proposes what it calls “dynamic policies.” We agree that technology and information flows are constantly changing, so a privacy policy regulatory framework should not be static, nor should it be proscriptive.
  • Privacy Policy Office. Because it would be located within Commerce, the office would be a vital advocate for online companies doing business overseas. It could help outreach with European regulators and coordinate certification procedures to enable cross-border data flows.
  • Transparency through purpose specification and use limitation (NOT collection limitation and data minimization). The report proposes consumer assurances principles that would require data collectors to specify all the reasons for collecting personal information and then specify limits on the use of that information. This is a flexible approach compared to proscriptive regulations limiting data collection and requiring data minimization.
  • Encourage Global Interoperability. In our comments, NetChoice advocated strongly for international privacy reciprocation, and where appropriate, harmonization.
  • ECPA Review. We like how the report calls for a review of the Electronic Communications Privacy Act (ECPA). The law is outdated and doesn’t do a good job of clarifying the roles of online companies when responding to law enforcement requests.

Concerns:

  • The Uncertainty of FIPPs. The report advocates the creation of Fair Information Practice Principles (FIPPs) that could be voluntarily adopted by industry. But what would the look like? The report mentions, but doesn’t explicitly endorse, FIPPs from the Department of Homeland Security—which are of course binding on government, and might not all be desirable for the private sector. According to the report, the proposed Privacy Policy Office would coordinate these. The FIPPs have been wrongly characterized as a consumer privacy “bill of rights” by some media outlets (they are industry codes of conduct, not affirmative consumer rights).
  • Privacy Policy Office. While we like this, we’re also concerned by it. The process of convening multi-stakeholders means multi-viewpoints and multi-disagreements. We’d prefer the marketplace to be the venue and consumers to be the ultimate arbiter on privacy principles.
  • National Requirements for Security Breaches. The report calls for Congressional legislation to create a nationwide data security breach law. But is this really necessary? 46 states already have a relatively consistent and reasonable approach toward how companies should safeguard data and the processes involved when there’s a breach.
  • FTC Rulemaking. The report leaves open for further comment whether the FTC needs enhanced (APA) rulemaking authority in the privacy area. NetChoice has opposed giving the FTC blanket, no-hold-barred APA authority, and we’d also oppose this for an issue as broad as privacy.

Likes and concerns aside, 2011 is shaping up to be a busy privacy year! Look forward to working with stakeholders from government, industry and civil society to help refine and implement some of the core recommendations of this document.

]]> https://techliberation.com/2010/12/16/commerce-departments-%e2%80%9cdynamic-policy%e2%80%9d-privacy-approach-likes-concerns/feed/ 1 33668 Summary of Remarks by Daniel Weitzner (NTIA) at FTC Privacy Workshop https://techliberation.com/2010/01/28/summary-of-remarks-by-daniel-weitzner-ntia-at-ftc-privacy-workshop/ https://techliberation.com/2010/01/28/summary-of-remarks-by-daniel-weitzner-ntia-at-ftc-privacy-workshop/#respond Thu, 28 Jan 2010 21:56:47 +0000 http://techliberation.com/?p=25523

At today FTC’s “Exploring Privacy” roundtable event at Berkeley Law School, were heard a lunchtime address from Daniel J. Weitzner, Associate Administrator for Policy, National Telecommunications and Information Administration (NTIA) at the Department of Commerce. Down below is a brief summary of his remarks. (Berin Szoka and have been live-tweeting the event at @AdamThierer and @BerinSzoka). You can view all our tweets here.

  • Obama Administration is looking at nexus between privacy & innovation
  • Success of Internet has depended upon creative use of information
  • Predictability and certainty is imp for both consumers and companies on this front
  • Believes we CAN have both innovation and privacy protection; but there will be some tensions
  • Challenge of the 3rd decade of Internet policymaking = to get together set of policies to bring security to Net while preserving freedom
  • Does domestic & global patchwork of #privacy policies hurt or help innovation?
  • Need to take a hard look at the traditional notice & choice framework
  • Rules for COLLECTION or USE of data is key question
  • Concepts of “accountability” … to what or whom?
  • a Notice of Inquiry coming from NTIA about privacy to help shape privacy policy for Obama Admin
]]> https://techliberation.com/2010/01/28/summary-of-remarks-by-daniel-weitzner-ntia-at-ftc-privacy-workshop/feed/ 0 25523 BroadbandCensus.com’s Request For Assistance – And a Broadband Breakfast Club Invite https://techliberation.com/2009/11/09/broadbandcensus-coms-request-for-assistance-and-a-broadband-breakfast-club-invite/ https://techliberation.com/2009/11/09/broadbandcensus-coms-request-for-assistance-and-a-broadband-breakfast-club-invite/#comments Mon, 09 Nov 2009 19:38:33 +0000 http://techliberation.com/?p=23236

Here’s something that may appeal to transparency enthusiasts, as well as to environmental skeptics…

WASHINGTON, November 9, 2009 – BroadbandCensus.com has been investigating broadband stimulus projects and focusing on the preferred projects from the states. We still lack letters to the National Telecommunications and Information Administration – or notices that states are demanding confidentiality for their letters – from 13 states and territories.

The first person to send any letters from the following states will get a complimentary seat at the November 10 Broadband Breakfast Club at Clyde’s of Gallery Place at 707 7th Street NW, Washington, DC. The breakfast runs from 8 a.m. to 10 a.m., and the topic is “Setting the Table for the National Broadband Plan: The Environment.” Information about the event, and registration, is available at http://broadbandbreakfast.eventbrite.com.

BroadbandCensus.com has not recieved either a notice of confidentiality or a copy of the letter from the state to the NTIA from:

  • American Samoa
  • Arkansas
  • Delaware
  • District of Columbia
  • Guam
  • Iowa
  • Louisiana
  • Mississippi
  • New Jersey
  • New Mexico
  • North Dakota
  • Puerto Rico
  • Rhode Island

Please send letters to MacRae@BroadbandCensus.com.

Here is an up-to-date list of where the other states stand:

Confidential or not Public at this time: Indiana, Kentucky, Minnesota Northern Mariana Islands, and South Dakota.

We have letters from: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington State, West Virginia, Wisconsin, and Wyoming.

For information on the project, please visit: http://broadbandcensus.com/2009/11/request-for-assistance-state-preferred-broadband-stimulus-projects-to-the-ntia/

]]> https://techliberation.com/2009/11/09/broadbandcensus-coms-request-for-assistance-and-a-broadband-breakfast-club-invite/feed/ 4 23236 Le JPA est Mort, Vive l’Affirmation!: ICANN’s New Agreement With the Department of Commerce https://techliberation.com/2009/09/29/le-jpa-est-mort-vive-le-jpa-icanns-new-agreement-with-the-department-of-commerce/ https://techliberation.com/2009/09/29/le-jpa-est-mort-vive-le-jpa-icanns-new-agreement-with-the-department-of-commerce/#comments Wed, 30 Sep 2009 00:25:35 +0000 http://techliberation.com/?p=22108

Louis XVI

Louis XVI

Americans often quote, or allude to, the French expression ” Le Roi est mort, vive le Roi!” But few realize that this apparent paradox was meant quite literally by the French:From its first official proclamation in 1422 upon the coronation of Charles VII to 1774, when Louis XV finally died, the term expressed the abstract constitutional concept that sovereignty transfered from the old king (the first “Le Roi“) to the new king (the second  “Le Roi“) the very instant the old king died. Thus, France was literally never without a king until until the monarchy was finally dis-established in early 1793. When Louis XVI was guillotined later that year, his death was acclaimed simply with “Le Roi est mort!“

Tomorrow, September 30, ICANN’s Joint Project Agreement with the Department of Commerce finally terminates. “ Le JPA est mort!” But a new agreement (the “Affirmation”) will take its place, apparently providing more accountability than the JPA ever did. Vive l’Affirmation! There may come a day when, like Louis XVI, ICANN’s JPA-like agreement with Commerce terminates and nothing is there to replace it, but that day has not yet come.

Grant Gross has a great piece on this new agreement. Grant extensively quotes my PFF Adjunct Fellow (my ICANN mentor and former ICANN board member) Mike Palage, who explained that the JPA’s successor (JPA II?):

will tell [ICANN] what it should do, but it can’t legally bind them [much like past agreements]… It gives the appearance in the global community that the U.S. government has recognized that ICANN has done what is was supposed to do. What it’s also doing is … it’s putting in some accountability mechanisms.”

Yet Palage expressed concern about the new agreement:

Now while the devil will be in the detail, the only concern I have is that the private sector be on equal footing with the public sector in being able to hold ICANN accountable… If ICANN is to remain a public-private partnership that is founded on the principles of openness, transparency, inclusiveness, accountability and bottom-up coordination, then both the private and public sectors should have equal confidence in the accountability mechanism available to them.

Mike explained how to choose the “Right Path to a Permanent Accountability Framework” in a PFF paper in August, and has explained a clear vision for ICANN 3.0.

]]> https://techliberation.com/2009/09/29/le-jpa-est-mort-vive-le-jpa-icanns-new-agreement-with-the-department-of-commerce/feed/ 6 22108 Transcript of 7/27 PFF Event on Child Safety, Privacy, and Free Speech https://techliberation.com/2009/08/18/transcript-of-727-pff-event-on-child-safety-privacy-and-free-speech/ https://techliberation.com/2009/08/18/transcript-of-727-pff-event-on-child-safety-privacy-and-free-speech/#comments Tue, 18 Aug 2009 18:41:21 +0000 http://techliberation.com/?p=20461

On July 27th, The Progress & Freedom Foundation hosted a Capitol Hill panel discussion entitled “Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States.” The event featured remarks from:

  • Parry Aftab, Executive Director, WiredSafety.org
  • Todd Haiken, Senior Manager of Policy, Common Sense Media
  • Jim Halpert, Partner, DLA Piper
  • Berin Szoka, Senior Fellow, The Progress & Freedom Foundation

We’ve just released the transcript of the event, which I have also pasted down below the fold in a Scribd document reader. Also, the audio for this event can be heard by clicking below:

Download mp3

Here is the full event description:

Online child safety, privacy, and free speech remain hotly debated issues at both the federal and state level. Bills introduced in Congress to address cyberbullying concerns propose either educational initiatives or a criminalization approach. Access to objectionable content also remains a concern and a new, government-mandated task force is looking into those issues. Meanwhile, state officials, including many state attorneys general, continue to explore age verification mandates for social networking sites and some have considered building on the federal Children’s Online Privacy Protection Act (COPPA) to expand “parental notification” mandates. The Federal Trade Commission (FTC) has recently announced an expedited review of COPPA to see if it is keeping up with new developments. The FTC is also exploring child safety in virtual worlds. New concerns about “sexting,” or the sending of sexual explicit images over mobile devices, has also raised new concerns led some lawmakers to ponder penalties.

How serious are these concerns? Is legislation or regulation needed to address them? What free speech issues are at stake? Should Congress take the lead or leave it to the States to experiment with different models? These and other issues were discussed by a panel of leading experts in the field of online safety and privacy policy.

Transcript PFF Online Child Safety Privacy Hill Event (7-27-2009) http://d.scribd.com/ScribdViewer.swf?document_id=18756666&access_key=key-1blb7az1ag406howibuk&page=1&version=1&viewMode=

]]> https://techliberation.com/2009/08/18/transcript-of-727-pff-event-on-child-safety-privacy-and-free-speech/feed/ 5 20461 Five Online Safety Task Forces Have Generally Agreed https://techliberation.com/2009/07/09/five-online-safety-task-forces-have-generally-agreed/ https://techliberation.com/2009/07/09/five-online-safety-task-forces-have-generally-agreed/#comments Thu, 09 Jul 2009 04:06:05 +0000 http://techliberation.com/?p=19258

In an earlier post, I mentioned an important new online child safety task force report that has just been released from the “Point Smart. Click Safe.” Blue Ribbon Working Group. It’s a great report and I encourage you to read the whole thing. It was my great pleasure to serve on this task force, and as we started finalizing our conclusions and recommendations, I started thinking about how much of what we were finding and recommending was consistent with what past online safety task forces had also concluded.

By way of background, over the past decade, five major online safety task forces or blue ribbon commissions have been convened to study online safety issues. Two of these task forces were convened in the United States and issued reports in 2000 (“COPA Commission”) and 2002 (“Thornburgh Commission“). Another was commissioned by the British government in 2007 and issued in a major report in March 2008 (“Byron Review“). Finally, two additional online safety task forces were formed in the U.S. in 2008 and concluded their work, respectively, in January (“Internet Safety Technical Task Force“) and July (“Point Smart. Click Safe.“) of 2009. [And yet another task force — the Online Safety Technology Working Group — was recently formed and has now gotten underway.]

In a new PFF white paper, ” Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” I walk through a chronological summary of each of these past task forces [click on covers of each report below to read them in their entirety] and highlight some of the similar themes and recommendations from them.

COPA Commission cover Thornburgh Commission cover Byron Commission report cover

ISTTF cover Point Smart Click Safe report cover Altogether, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety. While each of these task forces had different origins and unique membership, what is striking about them is the general unanimity of their conclusions. Among the common themes or recommendations of these five task forces:

  • Education is the primary solution to most online child safety concerns. These task forces consistently stressed the importance of media literacy, awareness-building efforts, public service announcements, targeted intervention techniques, and better mentoring and parenting strategies.
  • There is no single “silver-bullet” solution or technological “quick-fix” to child safety concerns. That is especially the case in light of the rapid pace of change in the digital world.
  • Empowering parents and guardians with a diverse array of tools, however, can help families, caretakers, and schools to exercise more control over online content and communications.
  • Technological tools and parental controls are most effective as part of a “layered” approach to child safety that views them as one of many strategies or solutions.
  • The best technical control measures are those that work in tandem with educational strategies and approaches to better guide and mentor children to make wise choices. Thus, technical solutions can supplement, but can never supplant, the educational and mentoring role.
  • Industry should formulate best practices and self-regulatory systems to empower users with more information and tools so they can make appropriate decisions for themselves and their families. And those best practices, which often take the form of an industry code of conduct or default control settings, should constantly be refined to take into account new social concerns, cultural norms, and technological developments.
  • Government should avoid inflexible, top-down technological mandates. Instead, policymakers should focus on encouraging collaborative, multifaceted, multi-stakeholder initiatives and approaches to enhance online safety. Additional resources for education and awareness-building efforts are also crucial. Finally, governments should ensure appropriate penalties are in place to punish serious crimes against children and also make sure law enforcement agencies have adequate resources to police crimes and punish wrong-doers.

The consistency of these findings from those five previous task forces is important and it should guide future discussions among policymakers, the press, and the general public regarding online child safety.  As I note in the paper, the findings are particularly relevant today since Congress and the Obama Administration — including 3 federal agencies (NTIA, FCC, & FTC) are actively studying these issues. So, in light of all that, I hope this short paper can shed some light on the collective wisdom of the past task forces. While more study of online child safety issues is always welcome — including additional task forces or working groups if policymakers deem them necessary — thanks to the work of these five task forces, we now have better vision of what is needed to address online safety concerns.

Five Online Safety Task Forces Agree [PFF – Adam Thierer] http://d.scribd.com/ScribdViewer.swf?document_id=17181137&access_key=key-z6cxfgrjkqaqtxbix&page=1&version=1&viewMode=

]]> https://techliberation.com/2009/07/09/five-online-safety-task-forces-have-generally-agreed/feed/ 4 19258 Mike Palage: ICANN 3.0 Should “Refocus” on Original Purpose https://techliberation.com/2009/06/20/mike-palage-icann-30-should-refocus-on-original-purpose/ https://techliberation.com/2009/06/20/mike-palage-icann-30-should-refocus-on-original-purpose/#comments Sat, 20 Jun 2009 22:22:38 +0000 http://techliberation.com/?p=18709

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

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

http://d.scribd.com/ScribdViewer.swf?document_id=16259082&access_key=key-4ogiv8r7bb9dag4hor5&page=1&version=1&viewMode=list]]> https://techliberation.com/2009/06/20/mike-palage-icann-30-should-refocus-on-original-purpose/feed/ 21 18709 NTIA names Online Safety Technical Working Group members https://techliberation.com/2009/04/28/ntia-names-online-safety-technical-working-group-members/ https://techliberation.com/2009/04/28/ntia-names-online-safety-technical-working-group-members/#comments Tue, 28 Apr 2009 23:06:49 +0000 http://techliberation.com/?p=18019

Today, the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) announced the members of the new Online Safety and Technology Working Group (OSTWG).  I am honored to be among those chosen to participate in this new task force and I look forward to continuing the work started last year with the Harvard Berkman Center’s Internet Safety Technical Task Force (ISTTF), which I also served on.   I was very proud of the work done by the ISTTF and the impressive final report that Prof. John Palfrey crafted to reflect our findings.  I am eager to investigate these issues further and take a look at the latest research and technologies that can help us better understand how to protect our kids online while also protecting the free speech and privacy rights of Netizens.

The new NTIA working group, which was established under the “Protecting Children in the 21st Century Act,” will report to the Assistant Secretary of Commerce for Communications and Information on industry-implemented online child safety tools and efforts. Within a year of convening its first meeting, the group will submit a report of its findings and make recommendations on how to increase online safety measures.

Below the fold I have listed the complete roster of OSTWG task force members.  I very much looking forward to working with this outstanding group.  And I’m happy to report that my TLF blogging colleague Braden Cox will be joining me on this task force!

Ms. Parry Aftab, WiredSafety Ms. Elizabeth Banker, Yahoo! Inc. Mr. Christopher Bubb, AOL Ms. Anne Collier, Net Family News, Inc./ConnectSafely.org Mr. Braden Cox, NetChoice Coalition Ms. Caroline Curtin, Microsoft Mr. Brian Cute, Afilias U.S.A. Mr. Jeremy Geigle, Arizona Family Council Ms. Marsali Hancock, Internet Keep Safe Coalition Mr. Michael Kaiser, National Cyber Security Alliance Mr. Christopher Kelly, Facebook Mr. Brian Knapp, Loopt, Inc. Mr. Timothy Lordan, Internet Education Foundation Mr. Larry Magid, SafeKids.com/ConnectSafely.org Mr. Brian Markwalter, Consumer Electronics Association Mr. Michael McKeehan, Verizon Communications, Inc. Dr. Samuel McQuade, III, Rochester Institute of Technology Ms. Orit Michiel, Motion Picture Association of America, Inc. Mr. John Morris, Center for Democracy & Technology Mr. Jonathon Nevett, Network Solutions, LLC Mr. Hemanshu Nigam, MySpace/Fox Interactive Media Ms. Jill Nissen, Ning, Inc. Mr. Jay Opperman, Comcast Corporation Mr. Kevin Rupy, United States Telecom Association Mr. John Shehan, National Center for Missing & Exploited Children Mr. K. Dane Snowden, CTIA – the Wireless Association Mr. Adam Thierer, Progress & Freedom Foundation Ms. Patricia Vance, Entertainment Software Rating Board Mr. Ralph Yarro, The CP80 Foundation

  • denotes co-chairs of the task force
]]> https://techliberation.com/2009/04/28/ntia-names-online-safety-technical-working-group-members/feed/ 10 18019 ICANN at a Crossroads: Please Choose Carefully https://techliberation.com/2009/03/19/icann-at-a-crossroads-please-choose-carefully/ https://techliberation.com/2009/03/19/icann-at-a-crossroads-please-choose-carefully/#comments Thu, 19 Mar 2009 17:31:01 +0000 http://techliberation.com/?p=17523

By Mike Palage,  PFF Adjunct Fellow & former ICANN Board  Member

TPI’s Tom Lenard and Larry White released a study yesterday entitled ICANN at a Crossroads:  A Proposal for Better Governance and Performance (PDF).  ICANN is, indeed, at a crossroads:  A number of critical Internet governance issues will be decided over the next 6-12 months-such as:

  • How to roll out new gTLDs like .BLOG, which I’ve discussed here and here (PDF).
  • ICANN’s future as an increasingly independent organization, which I’ve discussed here. 

There is an acute need to better educate the public and policymakers about these complex issues and about how ICANN works-something that will be addressed by my upcoming primer on ICANN.  For that reason, I welcome TPI’s contribution to this important debate about the future of the Internet.  I share TPI’s concerns about the inadequacy of mechanisms currently in place to ensure ICANN’s accountability and the absence of any checks on ICANN’s ever-expanding budget. 

But I strongly disagree with TPI’s conclusion that:

ICANN should remain a nonprofit organization, but it should be governed by and accountable to its direct users: the registries and the registrars.  The seats on ICANN’s board could be rotated among the major operators in a manner that would reflect the diversity of viewpoints among the registries and registrars.

Having worn many hats in the ICANN eco-system-as a consultant for both registries and registrars and as a business user and IP attorney-I must say that adopting this model of direct-user control would be suicidal for ICANN.  Filling the ICANN Board with registries and registrars would create at least the appearance of a cartel, allowing those opposed to ICANN’s underlying model of public/private-partnership to capture the organization.  Neither capture by private interests opposed to the “public” part of the model nor a counter-attack by those who object to the “private” part of the model would be a good thing for Internet users or ICANN stakeholders.

Having invested over 10 years of my life in ICANN’s diverse and inclusive public/private partnership model, I speak from first-hand experience that ICANN is far from perfect as an organization.  I’ve often feared that ICANN is heading in the wrong direction and I’ve never hesitated to say so. But despite these shortcomings, the various stakeholders I work with in the seemingly byzantine “ICANN process” remain as committed as ever to the principles set forth in NTIA’s 1998 White Paper as the foundations of Internet governance.  The staying-power of this shared belief in a common set of principles among all stakeholders reaffirms my faith in the public/private partnership-whatever other changes need to be made.

Lenard and White are right about one thing:  We do need a new model for ensuring ICANN’s accountability after the expiration of ICANN’s current relationship with the U.S. Government.  But the model they suggest isn’t it—as Steve Delbianco has pointed out.

]]> https://techliberation.com/2009/03/19/icann-at-a-crossroads-please-choose-carefully/feed/ 3 17523 Gutierrez: Strong demand for free money https://techliberation.com/2008/01/07/gutierrez-strong-demand-for-free-money/ https://techliberation.com/2008/01/07/gutierrez-strong-demand-for-free-money/#comments Mon, 07 Jan 2008 21:29:55 +0000 http://techliberation.com/2008/01/07/gutierrez-strong-demand-for-free-money/

Commerce Secretary Carlos Gutierrez issued this statement on Friday:

The TV Converter Coupon Program opened as scheduled on January 1, and is off to a great start. Americans have begun requesting coupons that will help them get the converter boxes needed for when our television signals change on February 17, 2009. With these coupons, the federal government will defray $40 of the cost of an eligible converter, which is expected to cost between $50 and $70. The demand for coupons is strong. We’ve taken requests from every state for nearly 1.9 million coupons from more than one million households.

The demand is strong? Really? For something that’s free? You’re kidding.

Let’s see, 1.9 million coupons requested at $40 a pop is $76 million of taxpayer money out the door in just four days. As Secretary Gutierrez says, “off to a great start” indeed. At this “great” pace it’s good to know the coupon fund totals $1 billion.

What are you waiting for? Get your piece of the American dream here.

]]> https://techliberation.com/2008/01/07/gutierrez-strong-demand-for-free-money/feed/ 8 10251