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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes:

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

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

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

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

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

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

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

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

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

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

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

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

[13]    Ibid.

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

[15]    Thierer, Permissionless Innovation, at 2.

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

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

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

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

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

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

[22]    Ibid., 27,

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

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

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

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

[27]    Thierer, Permissionless Innovation.

[28]    Thierer, “Failing Better.”

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

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

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

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

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

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

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

[36]    Ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

[50]    Ibid., at 5.

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

Plenty of people claim to favor freedom of expression, but increasingly the First Amendment has more fair-weather friends than die-hard defenders. Michael O’Rielly, a Commissioner at the Federal Communications Commission (FCC), found that out the hard way this week. Last week, O’Rielly delivered an important speech before the Media Institute highlighting a variety of problematic myths about the First Amendment, as well as “a particularly ominous development in this space.” In a previous political era, O’Rielly’s remarks would have been mainstream conservative fare. But his well-worded warnings are timely with many Democrats and Republicans – including some in the White House – looking to resurrect analog-era speech mandates and let Big Government reassert control over speech decisions in the United States.

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

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

But all hope is not lost. There are still brave voices in Republican and conservative circles who continue to stand up the the First Amendment, freedom of speech, and limits on federal regulatory meddling with speech platforms and outcomes. Commissioner O’Reilly basically lost his job because he acted as the equivalent of an intellectual whistle-blower; he called out the ideological rot seen in recent statements and actions by the White House, Senator Josh Hawley, and many other Republicans.

There is nothing remotely “conservative” about calls for reinvigorating the Fairness Doctrine and FCC speech controls. That represents repressive regulation that betrays the First Amendment and which will ultimately backfire badly and come back to haunt conservatives down the road.

Read my new essay with Neil for more details. And down below I have listed all my recent writing on this topic.

Additional Reading:

• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

I’ve always been perplexed by tech critiques that seek to pit “humanist” values against technology or technological processes, or that even suggest a bright demarcation exists between these things. Properly understood, “technology” and technological innovation are simply extensions of our humanity and represent efforts to continuously improve the human condition. In that sense, humanism and technology are compliments, not opposites.

I started thinking about this again after reading a recent article by Christopher Mims of The Wall Street Journal , which introduced me to the term “techno-chauvinism.” Techno-chauvinism is a new term that some social critics are using to identify when technologies or innovators are apparently not behaving in a “humanist” fashion. Mims attributes the term techno-chauvinism to Meredith Broussard of New York University, who defines it as “the idea that technology is always the highest and best solution, and is superior to the people-based solution .” [Italics added.] Later on Twitter, Mims defined and critiqued techno-chauvinism as “the belief that the best solution to any problem is technology, not changing our culture, habits or mindset.”

Everything Old is New Again

There are other terms critics have used to describe the same notion, including: “ techno-fundamentalism ” (Siva Vaidhyanathan), “cyber-utopianism,” and “ technological solutionism ” (Evgeny Morozov). In a sense, all these terms are really just variants of what scholars in the field of Science and Technology Studies (STS) have long referred to as “technological determinism.”

As I noted in a recent essay about determinism, the traditional “hard” variant of technological determinism refers to the notion that technology almost has a mind of its own and that it will plow forward without much resistance from society or governments. Critics argue that determinist thinking denies or ignores the importance of the human element in moving history forward, or what Broussard would refer to as “people-based solutions.”

The first problem with this thinking is there are no bright lines in these debates and many “softer” variants of determinism exist. The same problem is at work when we turn to discussions about both “humanism” and “technology.” Things get definitionally murky quite quickly, and everyone seemingly has a preferred conception of these terms to fit their own ideological dispositions. “Humanism is a rather vague and contested term with a convoluted history,” observes tech philosopher Michael Sacasas. And here’s an essay that I have updated many times over the years to catalog the dozens of different definitions of “technology” I have unearthed in my ongoing research.

Thus, when we hear “humanist” critiques of “technology,” I can’t help but think that many of them begin with an unclear explanation of what both those terms mean and how they are related. Here’s how I think about them.

“Technology” is not some magical force or shiny device that appeared out of thin air. All technology is the product of human design . The most straightforward definition of “technology” is simply the application of knowledge to a task. When critics claim that innovators or their defenders are “chauvinists” who think that technological solutions are “superior to the people-based solution,” they are creating a nonsensical dichotomy because technological solutions are the same thing as “people-based solution.” People create technologies to solve problems. We can imagine the first person who struck two stones together to make a spark and light a fire, or the first humans who fashioned knives or bows and arrows to hunt game. Were they not being “humanist” by pursuing a better way to feed themselves and others? Personally, I cannot think of anything more “humanist” than creating or using whatever tools one can to put the next meal on the table! Eventually, most tools and processes like these become so ordinary that we no longer even consider them “technology” at all. They just become part of the fabric of our lives and we come to take them for granted.

What some critics mean by “humanism” is also confusing for reasons that were nicely identified by Andrew McAfee in his 2015 Financial Times essay , “Who are the humanists, and why do they dislike technology so much?” McAfee pointed out that some “humanist” critiques of technological innovation are relatively banal to the extent they are simply reminding us that all people are important, or that all technological process involve trade-offs that we should be aware of.

Of course these things are true, McAfee noted. But it is also true that technological advancement solves far more problems than it creates by helping to reduce hunger and disease, travel further, communicate more widely, gain leisure time, and so on. Moreover, there are trade-offs associated with all human actions. Limiting ongoing innovations and improvements that could better the human condition gives rise to equally significant trade-offs. In any event, to the extent “humanism” can be reduced to UP WITH PEOPLE! and TRADE-OFFS MATTER!, I think all of us would consider ourselves to be “humanists.”

The Vision of the Anointed

But there’s a third conception of “humanism” McAfee identified that he regarded as far more problematic. I will label it the “ Vision of the Anointed ,” to borrow a phrase Thomas Sowell used in his book about the way some elites allow rhetorical flourishes and good intentions to trump actual real-world evidence and results. McAfee summarized this humanist version of the Vision of the Anointed as follows: “Because I am for the people I should be free from having to support my contentions with anything more than rhetoric.” Or, more simply: “You can trust what I say, because I am on the side of people instead of the cold, hard machines.”

That sort of vision is at work in a great deal of STS scholarship, and has been for a long, long time. Indeed, modern conceptions of “humanism” and critiques of “techno-chauvinism” or “solutionism” are just restatements of the lamentations of countless previous media critics or technology critics from the past, including Jacques Ellul, Lewis Mumford, Neil Postman, Langdon Winner, Christopher Lasch, and many others. Much criticism of this sort ends up suggesting — either directly or implicitly — that technological innovation is anti-human or “de-humanizing” in some fashion and should, therefore, be rejected, reversed, or at least slowed down considerably.

For example, in Lasch’s 1991 book, The True and Only Heaven , the social critic lambasted what he called “progressive optimism” for its supposed “denial of the natural limits on human power and freedom.” Lasch desired a “populism for the twenty-first century” that “would find much of its moral inspiration in the popular radicalism of the past and most generally in the wide-ranging critique of progress, enlightenment, and unlimited ambition.”

This gets to the real irony associated with the Humanistic Vision of the Anointed: It doesn’t place a lot of faith in humans! In this highly pessimistic and often quite elitist worldview, the masses seemingly do not understand what is in their own best interests, and the material gains of modern civilization are, at once, both a fiction to be scoffed at and a reality to be scorned as counterproductive or “anti-human.” What is the alternative arrangement for society that is set forth by those subscribing to the Vision of the Anointed? As Lasch suggests, it comes down to acceptance of limits . In closing his book, Lasch called for the return of a humanistic “state of heart and mind” that “asserts the goodness of life in the face of its limits.” In other words, we should be happy with what we’ve got because progress ain’t so great.

Pastoral Myths & the “Good ‘Ol Days”

This also explains the enduring power of “pastoral myths” in the work of such critics. If you spend enough time reading through works of technology and media criticism, you often find allusions made to some supposedly better time  — the proverbial “good ‘ol days” — when life was supposed simplier or better in some way. Other times, it is just implied that life in the present isn’t as good as it was in the past.

The problem is that those good ‘ol days weren’t so great. “Demonizing innovation is often associated with campaigns to romanticize past products and practices,” Calestous Juma noted in his 2016 book, Innovation and Its Enemies: Why People Resist New Technologies . “Opponents of innovation hark back to traditions as if traditions themselves were not inventions at some point in the past.” That was especially the case in battles over new farming methods and technologies, when opponents of change were frequently “championing a moral cause to preserve a way of life,” as Juma discusses in several chapters of his book. New products or methods of production were repeatedly but wrongly characterized as dangerous or anti-human simply because they were not supposedly “natural” or “traditional” enough in character.

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

Humanity has made amazing strides—including being able to feed more people more easily and cheaply than ever before—precisely because we broke with those old, “natural” traditions. Alas, many vested interests, and even quite a few academics, still employ these same pastoral appeals and myths to oppose new forms of technological change. The case studies in Juma’s book powerfully illustrate why that dynamic continues to be a driving force in innovation policy debates and how it delays the diffusion of many important new life-enriching goods and services.

Trial and Error

When the opponents of change rest their case on pastoral myths and nostalgic arguments about the good ‘ol days, we should remind them that those days were, in reality, eras of abject misery. Widespread poverty, mass hunger, poor hygiene, short lifespans, and so on were the norm. What lifted humanity up and improved our lot as a species is that we learned how to apply knowledge to tasks in a better way through incessant trial and error experimentation. In other words, we flourished by innovating . And the results of our innovative activities were called technologies .

In this sense, humanism and technology have gone hand in hand throughout history. Steven Pinker put it best in his new book, Enlightenment Now: The Case for Reason, Science, Humanism, and Progress : “Progress consists of deploying knowledge to allow all of humankind to flourish in the same way that each of us seeks to flourish. The goal of maximizing human flourishing–life, happiness, freedom, knowledge, love, richness of experiences–may be called humanism.”

Our technologies are simply extensions of our knowledge and represent profoundly humanist efforts to improve our lives and the lives of others around us. “We will never have a perfect world, and it would be dangerous to seek one,” Pinker notes. “But there is no limit to the betterments we can attain if we continue to apply knowledge to enhance human flourishing,” he rightly concludes.

The Right Balance

Of course, as Pinker hints, we can go too far sometimes or place too much faith in our tools. Pursuing perfection through technological betterment can end in folly, or worse. In my previous essay, “ Deep Technologies & Moonshots: Should We Dare to Dream ,” I noted that over-exuberant tech boosters are sometimes guilty of the same rhetorical excesses and inflated claims that some humanist critics practice. Some tech evangelists go too far in suggesting that technological innovation can solve all the problems of the world. Other times, they ignore or ridicule the importance of other human values, traditions, or institutions to long-term human flourishing and over-value convenience or efficiency.

When innovation advocates go overboard, they should be called out for it. But that doesn’t mean we should stop striving for a better future, and one in which technology is rightly viewed as the fundamental driver of human well-being. No matter what some critics say, technological solutions are people-based solutions. We craft tools to solve important problems and to better our lives and the lives of our loved ones. What could be more “humanist” than that?

Additional Reading :

• Adam Thierer, “ The Pacing Problem, the Collingridge Dilemma & Technological Determinism ,” Technology Liberation Front , August 16, 2018.
• Adam Thierer, “ Defining ‘Technology ’” Technology Liberation Front , originally published April 29, 2014, last updated July 2017.
• “ Evasive Entrepreneurs and Permissionless Innovation: An Interview with Adam Thierer ,” The Bridge , September 11, 2018.
• Adam Thierer, “ Deep Technologies & Moonshots: Should We Dare to Dream ?” Medium , September 7, 2018.
• Adam Thierer, “ Are “Permissionless Innovation” and “Responsible Innovation” Compatible ?” July 12, 2017.
• Adam Thierer, “ What Does It Mean to “Have a Conversation” about a New Technology ?,” Technology Liberation Front , May 23, 2013.
• Adam Thierer, “On the Line between Technology Ethics vs. Technology Policy,” August 23, 2013.

Over at the Mercatus Center’s Bridge blog, Chad Reese interviewed me about my forthcoming book and continuing research on “evasive entrepreneurialism” and the freedom to innovate. I provide a quick summary of the issues and concepts that I am exploring with my colleagues currently. Those issues include:

• free innovation
• evasive entrepreneurialism & social entrepreneurialism
• technological civil disobedience
• the freedom to tinker / freedom to try / freedom to innovate
• the right to earn a living
• “moonshots” / deep technologies / disruptive innovation / transformative tech
• innovation culture
• global innovation arbitrage
• the pacing problem & the Collingridge dilemma
• “soft law” solutions for technological governance

You can read the entire Q&A over at The Bridge, or I have pasted it down below.

Your research and next book project are focused on “evasive entrepreneurialism” and the freedom to innovate. Tell us a bit more about this work.

Evasive entrepreneurs are innovators who don’t always conform to social or legal norms. Various scholars have documented how entrepreneurs are increasingly using new technological capabilities to circumvent traditional regulatory systems or put pressure on lawmakers or regulators to alter policy in some fashion. Evasive entrepreneurs rely on a strategy of “permissionless innovation” in both the business world and the political arena.

Some evasive behavior could even be considered “technological civil disobedience” in the sense that many innovators behave in this fashion because they find many rules to be offensive, confusing, time-consuming, expensive, or perhaps just annoying and irrelevant. In that sense, they could also be referred to as “regulatory entrepreneurs” who push back against what Tim Sandefur labels “The Permission Society.”

My book documents “evasive” behavior of this sort and explains why it is happening with increasing regularity. I also make the normative case for embracing the freedom to innovative more generally because of the many benefits society derives from technological innovations and especially “moonshots”—game-changing, transformative technologies.

You mentioned “permissionless innovation.” That was the topic of your last book. Could you explain what that means and how it relates to your new book?

The term “permissionless innovation” is of uncertain origin but generally refers to trying new things without asking for the prior blessing of various authorities. The phrase is sometimes attributed to Grace M. Hopper, a computer scientist who was a rear admiral in the United States Navy. “It’s easier to ask forgiveness than it is to get permission,” she once noted famously.

In my last book, I used the term more broadly to describe a governance philosophy for a variety of emerging technologies and contrasted it with its opposite—the “precautionary principle.” Permissionless innovation, I argued, 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 and problems, if any develop, can be addressed later.

By contrast, the precautionary principle generally recommends disallowing or slowing innovations until their creators can prove that new products and services are “safe,” however that is defined. The problem with making precaution the basis of all technology policy is that it means a great deal of life-enriching (and even life-saving) innovation will never come about if we base policy on hypothetical worst-case scenarios.

The tension between these visions is on display in every major technology field today—drones, driverless cars, crypocurrency, genetics, mobile medicine, 3D printing, virtual reality, the sharing economy, and many others. That’s why we have made these sectors the focus of ongoing Mercatus research.

Could you give us a few examples of how entrepreneurs behave in an “evasive” fashion or how innovators engage in technological civil disobedience?

Many scholars and tech analysts have highlighted the ways in which sharing economy innovators like Uber and Airbnb engaged in regulatory entrepreneurialism, but that’s hardly the only example. Using 3D printers and open source designs, for example, many creative people are pushing up against legal norms when they fabricate prosthetic hands for children with limb deficiencies or create their own firearms for self-defense.

One of my favorite examples is the open source, do-it-yourself Nightscout Project, a non-profit founded by parents of diabetic children. These parents came together and shared knowledge and code to create better insulin remote monitoring and delivery devices for their kids. Their motto is “WeAreNotWaiting.” Specifically, these parents got tired of waiting for the development of new “professional” devices to be approved by the Food and Drug Administration (FDA), which can take many years to get through the regulatory process. Through voluntary collaboration, these parents have created reliable devices that are much less expensive than those FDA-approved devices, which can cost many thousands of dollars.

When average citizens engage in this sort of “biohacking” to create better and cheaper insulin pumps or 3D-printed prosthetic limbs but do not charge anything for it, their actions are of ambiguous legality. But even if they are breaking some laws or bending some rules, it isn’t stopping them from working together to make the world a better place. That’s technological civil disobedience in a nutshell.

So evasive entrepreneurialism can be both commercial and non-commercial in character?

Yes. Abroad range of “evasive” actors exist with large commercial players on one end of the spectrum and purely non-commercial “grassroots” or “household” innovators on the other. MIT economist Eric von Hippel calls the latter activity “free innovation,” which includes things like the 3D-printed creations I already mentioned.

Social entrepreneurialism is a closely related concept. Several of my Mercatus colleagues have documented how social entrepreneurs were instrumental in helping community recovery efforts following hurricanes and other disasters. Entrepreneurs aim to create social value through innovative acts that can assist their communities, while also potentially helping them create new business opportunities later down the road.

What’s interesting about “free innovation” and social entrepreneurialism is that much of this activity happens at the boundaries of what it technically legal. These innovators just want to help others. When laws stand in the way of that, they sometimes creatively evade them to get things done. That’s clearly the case with the open source DIY insulin pumps or 3D-printed prosthetic limbs.

Another example involves drone enthusiasts who often help out in search-and-rescue missions for missing people and pets even though they could be running afoul of various aviation regulations in the process. Even something as routine as children setting up free lemonade stands without local permits serves as an example of how people can behave in an evasive fashion to serve others.

The so-called “pacing problem” figures prominently in your work. Could you explain what it is and why it is important to the future of innovation policy?

As I noted in a recent Bridge essay, the pacing problem refers to the notion that technological change increasingly outpaces the ability of laws and regulations to keep up. The power of “combinatorial innovation,” which is driven by “Moore’s Law,” fuels a constant expansion of technological capabilities. Meanwhile, citizens quickly assimilate new tools into their daily lives and then expect that even more and better tools will be delivered tomorrow.

This makes it difficult for government officials and organizations to keep policy in line with fast-moving marketplace and social developments. That is especially true because of how increasingly dysfunctional and unable to adapt many government bodies and processes have become. This is why I argue that the pacing problem is becoming the great equalizer in debates over technological governance; policymakers are being forced to rethink their approach to the regulation of many sectors and technologies. This is especially the case because the pacing problem can be exploited by evasive entrepreneurs who are looking to do an end-run around slower regulatory processes.

Will “evasive” tactics work for entrepreneurs in every context? It seems like this would be more challenging in some regulatory contexts than others, right?

Evasive techniques are obviously more likely to succeed for technologies and sectors that are “born free” as opposed to “born captive.”  Technologies that are “born free” are not confronted with old laws and regulatory regimes that require permission before new products and services are offered. For example, there is no Federal Robotics Commission, 3D Printing Safety Act, or Virtual Reality Agency. It’s obviously easier to innovate as you wish in those fields, at least currently.

If, however, you want to put a driverless car on the road or a drone in the sky, preemptive approval is required, making evasive acts far riskier. Of course, it is exactly those sectors where evasive acts are potentially most needed! Too many old sectors are immune from new entry and consumer choice due to cronyism and industrial protectionism. As we saw with the ride-sharing services and now electric scooter sharing, sometimes evasive techniques can work for a time and then give innovators more leverage at the bargaining table.

In some cases, like space policy, supersonic transportation, or new FinTech offerings, evasive strategies are largely impossible because of the stifling morass of overlapping laws and regulations. Agencies will not tolerate much (if any) departure from regulatory norms in those instances. The Federal Aviation Administration (FAA), Federal Communications Commission (FCC), and FDA are particularly notorious for stifling entrepreneurial efforts.

But I am sometimes surprised to find evasive efforts happening even in those sectors. While the FAA is quite heavy-handed about strictly regulating airspace, the agency isn’t doing much to enforce its current drone registration requirements. Countless Americans fly their drones every day without a care about what the feds say. And while 23andme got a cease-and-desist order from the FDA due to their evasive efforts with home genetic test kits, the creators of many mobile medical devices and 3D-printed medical objects are currently being allowed to push up against the boundaries of legality under traditional FDA rules. The agency has bent its rules to accommodate that activity. When agencies take a pass on enforcing their own regulations, that is called “rule departure,” and it seems to be happening with greater regularity, probably due to the combined influence of both the pacing problem and evasive entrepreneurialism.

What’s at stake if policymakers push back too aggressively against evasive innovators?

Technological innovation is the fundamental driver of human well-being. When we let people experiment with new and better ways of doing things, we not only allow for the constant expansion of new goods and services, but we grow opportunities, incomes, and knowledge. This is how countries raise their overall standard of living and achieve prosperity over the long haul.

Entrepreneurs are the key to this process because by taking risks and exploring new opportunities, they continuously replenish the well of important ideas and innovations. If, therefore, we punish creative people for seeking creative solutions to hard problems—even those sometimes behaving “evasively”—we will be denied the fruits of those creative efforts. We will also be denying them the right to earn a livingand enjoy the fruits of their labors. In this sense, the freedom to innovate is closely linked with individual autonomy and self-worth and deserves greater protection. It is about being free to pursue happiness however we each see fit.

Policymakers should, therefore, give innovators greater freedom to experiment, even when those efforts prove to be highly disruptive. Moonshots may not happen unless public policy supports a culture of experimentation and risk-taking. This is also crucial to the competitive advantage of nations. Scholars from many different fields have observed how a nation’s attitudes toward entrepreneurialism create a sort of “innovation culture,” which sends signals to individuals and investors about where they should spend their time and money. Unsurprisingly, where public policy frowns upon entrepreneurial effort, you get a lot less of it. Like a plant, innovation must be nurtured to help it and the economy grow.

In today’s highly integrated global economy, you either innovate or perish thanks to the increasing prevalence of “innovation arbitrage.” This refers to the fact that ideas and innovations will often flock to those jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity. We see it happening today with drones, driverless cars, and genetic testing to just name three prominent examples.

Don’t you think that policymakers will bring down the regulatory hammer on evasive entrepreneurs? Should they?

Humility, patience, and flexibility are the key virtues for policymakers in this regard. If policymakers can come to appreciate the ways in which evasive entrepreneurialism can help advance economic and social opportunities, then they should consider giving innovative acts a wide berth—even when entrepreneurs are not in strict compliance with all laws and regulations.

Evasive acts are not usually undertaken to completely defy the law. Instead, they often represent the beginning of a negotiation. Many innovators have grown frustrated with public policies that block new entry or just defy common sense. Evading anti-competitive or illogical restrictions is a way to gain some degree of leverage in political negotiations. Sometimes it works; sometimes it doesn’t. But traditional reform avenues are often foreclosed because incumbents and other defenders of the regulatory status quo don’t like change.

Policymakers should see evasive entrepreneurialism as a signal that politics sometimes fails to serve the public when change is needed most. And once they sit down with innovators to discuss a better way of crafting policy, they need to be willing to adapt and devise more flexible governance frameworks, most of a “soft law” variety. As my colleagues and I explain in a recent law review article, soft lawrefers to a hodge-podge of informal governance tools for emerging tech, such as multistakeholder processes, industry best practices, agency guidance and consultation, and so on. Such informal governance mechanisms will need to fill the governance gap left by the gradual erosion of hard law thanks to the growth of the pacing problem and the expansion of evasive entrepreneurialism.

But what about the worst-case scenarios some fear, like the proverbial mad scientist who concocts a horrific virus in their basement? Even if they are still just hypothetical, aren’t some serious risk worth addressing preemptively?

Indeed, there are some extremely serious harms that are worth addressing preemptively, but that’s all the better reason to  not get obsessed with lesser concerns. Over-regulating entrepreneurial activity is foolish in a world where policymakers are both knowledge- and resource-constrained.

My Mercatus colleagues have documented the astonishing growth and cost of regulatory accumulation. But forget about the burden excessive regulation poses to entrepreneurs and the economy for a moment, and instead consider how all those enforcement activities divert the time and attention of regulators themselves away from bigger problems. When policymakers get lost in a convoluted compliance maze of their own making, they lose the ability to address big risks in a sensible, timely fashion. That’s why we need a new governance vision for the technological age that is more flexible and adaptive than the heavy-handed regulatory regimes of the Industrial Era.

“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:

• Jack Stilgoe, Richard Owen, and Phil Macnaghten, “Developing a Framework for Responsible Innovation,” Research Policy, Vol. 42, No. 9 (2013): 1568–80.
• Rene Von Schomberg (ed.), Towards Responsible Research and Innovation in the Information and Communication Technologies and Security Technologies Fields, A Report from the European Commission Services, (Luxembourg: Publications Office of the European Union, 2011).
• Grace Eden, Marina Jirotka, and Bernd Stahl, “Responsible Research and Innovation,” (IEEE: 2013).
• Walter D. Valdivia and David H. Guston, “Responsible Innovation: A Primer for Policymakers,” Center for Technology Innovation at Brookings Institution, (May 2015),
• “Rethinking the Social Responsibility of Business,” A Reason debate featuring Milton Friedman, Whole Foods’ John Mackey, and Cypress Semiconductor’s T.J. Rodgers, Milton Friedman, John Mackey & T.J. Rodgers,Oct. 1, 2005.
• Milton Friedman, “The Social Responsibility of Business is to Increase its Profits,” The New York Times Magazine, September 13, 1970.
• Adam Thierer, “Wendell Wallach on the Challenge of Engineering Better Technology Ethics,” Technology Liberation Front, April 20, 2016.

This past week I posted two new essays related to my new book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” Just thought I would post quick links here.

First, my old colleague Dan Rothschild was kind enough to ask me to contribute a post to the R Street Blog entitled, “Bucking the ‘Mother, May I?’ Mentality.” In it, I offered this definition and defense of permissionless innovation as a policy norm:

Permissionless innovation is about the creativity of the human mind to run wild in its inherent curiosity and inventiveness, even when it disrupts certain cultural norms or economic business models. It is that unhindered freedom to experiment that ushered in many of the remarkable technological advances of modern times. In particular, all the digital devices, systems and networks that we now take for granted came about because innovators were at liberty to let their minds run wild. Steve Jobs and Apple didn’t need a permit to produce the first iPhone. Jeff Bezos and Amazon didn’t need to ask anyone for the right to create a massive online marketplace. When Sergey Brin and Larry Page wanted to release Google’s innovative search engine into the wild, they didn’t need to get a license first. And Mark Zuckerberg never had to get anyone’s blessing to launch Facebook or let people freely create their own profile pages. All of these digital tools and services were creatively disruptive technologies that altered the fortunes of existing companies and challenged various social norms. Luckily, however, nothing preemptively stopped that innovation from happening. Today, the world is better off because of it, with more and better information choices than ever before.

I also posted an essay over on Medium entitled, ” Why Permissionless Innovation Matters.” It’s a longer essay that seeks to answer the question: Why does economic growth occur in some societies & not in others? I build on the recent comments of venture capitalist Fred Wilson of Union Square Ventures noted during recent testimony: “If you look at the countries around the world where the most innovation happens, you will see a very high, I would argue a direct, correlation between innovation and freedom. They are two sides of the same coin.” I continue on to argue in my essay:

that’s true in both a narrow and broad sense. It’s true in a narrow sense that innovation is tightly correlated with the general freedom to experiment, fail, and learn from it. More broadly, that general freedom to experiment and innovate is highly correlated with human freedom in the aggregate. Indeed, I argue in my book that we can link an embrace of dynamism and permissionless innovation to the expansion of cultural and economic freedom throughout history. In other words, there is a symbiotic relationship between freedom and progress. In his book, History of the Idea of Progress, Robert Nisbet wrote of those who adhere to “the belief that freedom is necessary to progress, and that the goal of progress, from most distant past to the remote future, is ever-ascending realization of freedom.” That’s generally the ethos that drives the dynamist vision and that also explains why getting the policy incentives right matters so much. Freedom — including the general freedom to engage in technological tinkering, endless experimentation, and acts of social and economic entrepreneurialism — is essential to achieving long-term progress and prosperity.

I also explain how the United States generally got policy right for the Internet and the digital economy in the 1990s by embracing this vision and enshrining it into law in various ways. I conclude by noting that:

If we hope to encourage the continued development of even more “technologies of freedom,” and enjoy the many benefits they provide, we must make sure that, to the maximum extent possible, the default position toward new forms of technological innovation remains “innovation allowed.” Permissionless innovation should, as a general rule, trump precautionary principle thinking. The burden of proof rests on those who favor precautionary policy prescriptions to explain why ongoing experimentation with new ways of doing things should be prevented preemptively.

Again, read the entire thing over at Medium. Also, over at Circle ID this week, Konstantinos Komaitis published a related essay, “Permissionless Innovation: Why It Matters,” in which he argued that “Permissionless innovation is key to the Internet’s continued development. We should preserve it and not question it.” He was kind enough to quote my book in that essay. I encourage you to check out his piece.

What follows is a response to Michael Sacasas, who recently posted an interesting short essay on his blog The Frailest Thing, entitled, “10 Points of Unsolicited Advice for Tech Writers.” As with everything Michael writes, it is very much worth reading and offers a great deal of useful advice about how to be a more thoughtful tech writer. Even though I occasionally find myself disagreeing with Michael’s perspectives, I always learn a great deal from his writing and appreciate the tone and approach he uses in all his work. Anyway, you’ll need to bounce over to his site and read his essay first before my response will make sense.

Michael:

Lots of good advice here. I think tech scholars and pundits of all dispositions would be wise to follow your recommendations. But let me offer some friendly pushback on points #2 & #10, because I spend much of my time thinking and writing about those very things.

In those two recommendations you say that those who write about technology “[should] not cite apparent historical parallels to contemporary concerns about technology as if they invalidated those concerns. That people before us experienced similar problems does not mean that they magically cease being problems today.” And you also warn “That people eventually acclimate to changes precipitated by the advent of a new technology does not prove that the changes were inconsequential or benign.”

I think these two recommendations are born of a certain frustration with the tenor of much modern technology writing; the sort of Pollyanna-ish writing that too casually dismisses legitimate concerns about the technological disruptions and usually ends with the insulting phrase, “just get over it.” Such writing and punditry is rarely helpful, and you and others have rightly pointed out the deficiencies in that approach.

That being said, I believe it would be highly unfortunate to dismiss any inquiry into the nature of individual and societal acclimation to technological change. Because adaptation obviously does happen! Certainly there must be much we can learn from it. In particular, what I hope to better understand is the process by which we humans have again and again figured out how to assimilate new technologies into their lives despite how much those technologies “unsettled” well-established personal, social, cultural, and legal norms.

To be clear, I entirely agree with your admonition: “That people eventually acclimate to changes precipitated by the advent of a new technology does not prove that the changes were inconsequential or benign.” But, again, we can agree at least agree that such acclimation has happened regularly throughout human history, right?  What were the mechanics of that process? As social norms, personal habits, and human relationships were disrupted, what helped us muddle through and find a way of coping with new technologies? Likewise, as existing markets and business models were disrupted, how were new ones formulated in response to the given technological disruption? Finally, how did legal norms and institutions adjust to those same changes?

I know you agree that these questions are worthy of exploration, but I suppose where we might part ways is over the question of the metrics by which judge whether “the changes were inconsequential or benign.” Because I believe that while technological change often brings sweeping and quite consequential change, there is a value in the very act of living through it.

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

Even if you don’t agree with all of that, again, I would think you would find great value in studying the process by which such adaptation happens. And then we could argue about whether it was all really worth it! Alas, at the end of the day, it may be that we won’t be able to even agree on a standard by which to make that judgment and will instead have to settle for a rough truce about what history has to teach us that might be summed up by the phrase: “something gained, something lost.”

With all this in mind, let me suggest this friendly reformulation of your second recommendation: Tech writers should not cite apparent historical parallels to contemporary concerns about technology as if they invalidated those concerns. That people before us experienced similar problems does not mean that they magically cease being problems today. But how people and institutions learned to cope with those concerns is worthy of serious investigation. And what we learned from living through that process may be valuable in its own right.

I have been trying to sketch out an essay on all this entitled, “Muddling Through: Toward a Theory of Societal Adaptation to Disruptive Technologies.” [ update: Here it is!] I am borrowing that phrase (“muddling through”) from Joel Garreau, who used it in his book “Radical Evolution” when describing a third way of viewing humanity’s response to technological change. After discussing the “Heaven” (optimistic) and “Hell” (skeptical or pessimistic) scenarios cast about by countless tech writers throughout history, Garreau outlines a third, and more pragmatic “Prevail” option, which views history “as a remarkably effective paean to the power of humans to muddle through extraordinary circumstances.” That pretty much sums up my own perspective on things, but much study remains to be done on how that very messy process of “muddling through” works and whether we are left better off as a result. I remain optimistic that we do!

As always, I look forward to our continuing dialog over these interesting issues and I wish you all the best.

Cheers,

Adam Thierer

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

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

One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

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

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

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

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

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

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

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

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

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

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

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

Related Essays :

• “The Growing Conflict of Visions over the Internet of Things & Privacy,” Technology Liberation Front, January 14, 2014.
• “CES 2014 Report: The Internet of Things Arrives, but Will Washington Welcome It?” Technology Liberation Front, January 8, 2014.
• “Who Really Believes in ‘Permissionless Innovation’?” Technology Liberation Front, March 4, 2013.
• “What Does It Mean to ‘Have a Conversation’ about a New Technology?” Technology Liberation Front, May 23, 2013.
• “On the Line between Technology Ethics vs. Technology Policy,” Technology Liberation Front, August 1, 2013.
• “Planning for Hypothetical Horribles in Tech Policy Debates,” Technology Liberation Front, August 6, 2013.
• “Edith Ramirez’s ‘Big Data’ Speech: Privacy Concerns Prompt Precautionary Principle Thinking,” Technology Liberation Front, August 29, 2013.
• “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,” Technology Liberation Front, April 29, 2011.
• “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges,” Technology Liberation Front, April 10, 2012.
• “Can We Adapt to the Internet of Things?” IAPP Privacy Perspectives, June 19, 2013.
• “Why Do We Always Sell the Next Generation Short?” Forbes, January 8, 2012.
• “The Six Things That Drive ‘Technopanics,’” Forbes, March 4, 2012.

Jack Schinasi discusses his recent working paper, Practicing Privacy Online: Examining Data Protection Regulations Through Google’s Global Expansion published in the Columbia Journal of Transnational Law. Schinasi takes an in-depth look at how online privacy laws differ across the world’s biggest Internet markets — specifically the United States, the European Union and China. Schinasi discusses how we exchange data for services and whether users are aware they’re making this exchange. And, if not, should intermediaries like Google be mandated to make its data tracking more apparent? Or should we better educate Internet users about data sharing and privacy? Schinasi also covers whether privacy laws currently in place in the US and EU are effective, what types of privacy concerns necessitate regulation in these markets, and whether we’ll see China take online privacy more seriously in the future.

Download

Related Links

• Practicing Privacy Online: Examining Data Protection Regulations Through Google’s Global Expansion, SSRN
• Journal of Transnational Law, Columbia University

Robert Scoble, Startup Liaison Officer at Rackspace discusses his recent book, Age of Context: Mobile, Sensors, Data and the Future of Privacy, co-authored by Shel Israel. Scoble believes that over the next five years we’ll see a tremendous rise in wearable computers, building on interest we’ve already seen in devices like Google Glass. Much like the desktop, laptop, and smartphone before it, Scoble predicts wearable computers represent the next wave in groundbreaking innovation. Scoble answers questions such as: How will wearable computers help us live our lives? Will they become as common as the cellphone is today? Will we have to sacrifice privacy for these devices to better understand our preferences? How will sensors in everyday products help companies improve the customer experience?

Download

Related Links

• Age of Context: Mobile, Sensors, Data and the Future of Privacy , Amazon
• Naked Conversations: How Blogs are Changing the Way Businesses Talk with Customers, Amazon
• The Rackspace Blog & Newsroom, Scoble

Alice Marwick, assistant professor of communication and media studies at Fordham University, discusses her newly-released book, Status Update: Celebrity, Publicity, and Branding in the Social Media Age. Marwick reflects on her interviews with Silicon Valley entrepreneurs, technology journalists, and venture capitalists to show how social media affects social dynamics and digital culture. Marwick answers questions such as: Does “status conscious” take on a new meaning in the age of social media? Is the public using social media the way the platforms’ creators intended? How do you quantify the value of online social interactions? Are social media users becoming more self-censoring or more transparent about what they share? What’s the difference between self-branding and becoming a micro-celebrity? She also shares her advice for how to make Twitter, Tumblr, Instagram and other platforms more beneficial for you.

Download

Related Links

• Status Update: Celebrity, Publicity, and Branding in the Social Media Age, Marwick
• Engineered Performances Alice E. Marwick’s ‘Status Update’, The New York Times
• Biography, Marwick

I think I owe Tom Brokaw an apology. When I first started reading his most recent Wall Street Journal column, “Imagine the Tweets During the Cuban Missile Crisis,” I assumed that I was in for one of those hyper-nosalgic essays about how the ‘good ‘ol days’ of mass media had passed us by and why the new media era is an unmitigated disaster. Instead, I was pleased to read his very balanced and sensible view of the old versus news media environments. Reflecting on the evolution of the media marketplace over the past 50 years since JFK’s assassination, Brokaw notes that:

The media climate has changed dramatically. The New Frontier, as Kennedy liked to call his administration, received a great deal of attention, but 50 years ago the major national information sources consisted of a handful of big-city daily newspapers, a few weekly news periodicals and two dominant TV network evening newscasts. Now the political news comes at us 24/7 on cable, through the air, the digital universe, on radio and print. And it comes to us more and more as opinion rather than a recitation of the facts as best they can be determined. News is a hit-and-run game, for the most part, with too little accountability for error.

This leads Brokaw to wonder if the amazing media metamorphosis has been, on net, positive or negative. “The virtual town square has been wired and expanded,” he notes, “but the question remains whether more voices make for a healthier political climate. With a keystroke we can easily move from an online credible source of information to a website larded with opinion or deliberately malicious erroneous claims. Have we simply enlarged the megaphone, cranked up the decibel level, and rallied the like-minded without regard to facts or consequences?”

While he’s obviously concerned about what we might label “quality control issues” associated with some new media outlets, Brokaw’s answer to the previous question he posed generally gets it right:

Still, as a child of an earlier media era, I much prefer the contemporary news and information culture—even when I am occasionally singled out by one side or the other for something I’ve said. I like the range of choices, the new voices, the ease of cross-checking and getting the most obscure information with a minimum of effort. This empowers us as no technological advancement has before. And while it may be easier to stay within one’s ideological comfort zone, left or right, it is a good deal more stimulating to wander beyond the boundaries to find what else is out there.

Good for Tom Brokaw. That generally reflects my own thinking on the issue, which can be found in the essays down below. Generally speaking, we’re better off with today’s world of information abundance than the old world of information scarcity, limited outlets, constrained choices, and homogenous fare.  That’s not to say everything is perfect in the new media ecosystem. In particular, Brokaw is right to point to the quality control issues that accompany a world were every voice can be heard. But we’re still figuring out ways to grapple with that problem, largely by encouraging still more voices to join the endless conversation and check the assertions made by others. As Brokaw correctly notes, “This empowers us as no technological advancement has before.” And it leads to more truth and wisdom in the long-run.

Additional Read ing:

• Thoughts on Andrew Keen, Part 1: Why an Age of Abundance Really is Better than an Age of Scarcity
• We Are Living in the Golden Age of Children’s Programming
• Book Review: Eli Pariser’s “Filter Bubble”
• Television: From Vast Wasteland to Vast Wonders
• testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”
• Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society

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

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Related Links

• Here are eight ways investing in Bitcoins could go horribly wrongn, Lee
• Blind advocates: Hollywood lobbying threatens deal for accessible books, Lee
• New Job, Lee

David Garcia, post doctoral researcher at the Swiss Federal Institute of Technology and co-author of Social Resilience in Online Communities: The Autopsy of Friendster, discusses the concept of social resilience and how online communities, like Facebook and Friendster, withstand changes in their environment.

Garcia’s paper examines one of the first online social networking sites, Friendster, and analyzes its post-mortem data to learn why users abandoned it.

Garcia goes on to explain how opportunity cost and cost benefit analysis can affect a user’s decision whether or not to remain in an online community.

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Related Links

• Social Resilience in Online Communities: The Autopsy of Friendster, Garcia, Mavrodiev, Schweitzer
• An autopsy of a dead social network, The Physics arXiV Blog
• Researchers conduct ‘autopsy’ of dead social network Friendster, Solon

As I noted in an addendum to my previous post, less than an hour after I posted an essay about how the District of Columbia’s subsidy deal with LivingSocial was potentially set to unravel, I received a call from two representatives of the D.C. Mayor’s office asking me to clarify a few aspects of the deal. The tone and substance of the call was courteous and profession from the start and I told them I would be happy to post a quick update to my essay letting readers know of the points that they wanted stressed.

After I did so, however, I kept thinking how strange it was that I received such a quick response from the Mayor’s office about my little post. After all, I can’t imagine that the Technology Liberation Front is on the top of their morning reading list! I just figured that someone in the Mayor’s office probably had a Google Alert set up that caught it.  But then, as luck would have it, I was reading through the Wall Street Journal at lunch and came across a story entitled, “In D.C., Social-Media Surveillance Pays Off” by Sarah Portlock. She reports that:

The local government in the nation’s capital is paying hundreds of thousands of dollars to a startup to gather comments on Twitter, Facebook and other online message boards as well as the government’s own website. The data help form a letter grade for the bureaucracies that handle drivers licenses, building permits and the like. These social-media analytics services are already common for businesses such as restaurants and hotel chains that want to go beyond the comment cards most customers ignore. The D.C. experiment suggests governments are beginning to mirror the private sector in seeking real-time unvarnished feedback.

The D.C. government apparently has a 2-year $670,000 contract with newBrandAnalytics, Inc. to gather social media feedback and insights about the District.  So, I figure that’s how the folks in the D.C. Mayor’s office stumbled upon my little rant. I had posted a link to my essay on both Twitter and Google+ and they probably got an immediate report back about it.

In any event, that got me wondering about how people are going to respond to this sort of “surveillance” of social media sites and activities by governments.

I can imagine that some people will feel it’s “creepy” and suggest it violates some privacy norms. But the sort of “surveillance” happening here isn’t the typical “law-and-order” stuff. What we’re talking here about is really just the same sort of customer service efforts that many private sector companies undertake regularly. Like those private companies, the District is interested in getting feedback about how it’s doing its job. The Journal article quotes Nicholas Majett, head of the District’s Department of Consumer and Regulatory Affairs, saying: “Knowing that every day you’re going to get a report about how you’re doing, that actually puts you on your toes and makes sure you’re doing the best possible job.”

In that sense, I applaud the District’s effort to gather impressions and insights from social media sites and use them to improve their public service record. (Of course, I’m of the mind that the District government is doing far more than it needs to and that many of its licensing and regulatory processes, for example, should be completely abolished or privatized. I’m also not sure that the system is worth $670,000 of taxpayer money.)

About the only way I could imagine any of this raising privacy concerns is if the District was gathering these social media insights, matching them up with other databases they have access to, and then using that information to somehow intimidate citizens or deny them some sort of service. It’s always easy to conjure up privacy boogeyman stories like that, but until there is any evidence that social media insights are being used in some nefarious way, I’m not too worried about what the District is doing here.

Going forward, however, it will certainly be interesting to see what happens when government “customer service” efforts such as these grow more sophisticated and come into conflict with certain privacy expectations. While I’m not of the mind that you really have much of a reasonable expectation of privacy on Facebook, Google+ or Twitter, I can imagine that many people are going to be freaked out if they start getting regular emails, tweets, texts, or even phone calls from government officials responding to complaints that were written just moments prior on their favorite social media sites.

Of course, these efforts are also worth monitoring to see if they actually do anything to help improve government service / responsiveness. If these efforts can make my DMV experience even moderately more tolerable, I would probably consider them a success!

The Mercatus Center at George Mason University has just released my new white paper, “The Perils of Classifying Social Media Platforms as Public Utilities.” [PDF] I first presented a draft of this paper last November at a Michigan State University conference on “The Governance of Social Media.” [Video of my panel here.]

In this paper, I note that to the extent public utility-style regulation has been debated within the Internet policy arena over the past decade, the focus has been almost entirely on the physical layer of the Internet. The question has been whether Internet service providers should be considered “essential facilities” or “natural monopolies” and regulated as public utilities. The debate over “net neutrality” regulation has been animated by such concerns.

While that debate still rages, the rhetoric of public utilities and essential facilities is increasingly creeping into policy discussions about other layers of the Internet, such as the search layer. More recently, there have been rumblings within academic and public policy circles regarding whether social media platforms, especially social networking sites, might also possess public utility characteristics. Presumably, such a classification would entail greater regulation of those sites’ structures and business practices.

Proponents of treating social media platforms as public utilities offer a variety of justifications for regulation. Amorphous “fairness” concerns animate many of these calls, but privacy and reputational concerns are also frequently mentioned as rationales for regulation. Proponents of regulation also sometimes invoke “social utility” or “social commons” arguments in defense of increased government oversight, even though these notions lack clear definition.

Social media platforms do not resemble traditional public utilities, however, and there are good reasons why policymakers should avoid a rush to regulate them as such. Treating these nascent digital services as regulated utilities would harm consumer welfare because public utility regulation has traditionally been the archenemy of innovation and competition. Furthermore, treating today’s leading social media providers as digital essential facilities threatens to convert “natural monopoly” or “essential facility” claims into self-fulfilling prophecies. Related proposals to mandate “API neutrality” or enforce a “Separations Principle” on integrated information platforms would be particularly problematic. Such regulation also threatens innovation and investment. Marketplace experimentation in search of sustainable business models should not be made illegal.

Remedies less onerous than regulation are available. Transparency and data-portability policies would solve many of the problems that concern critics, and numerous private empowerment solutions exist for those users concerned about their privacy on social media sites.

Finally, because social media are fundamentally tied up with the production and dissemination of speech and expression, First Amendment values are at stake, warranting heightened constitutional scrutiny of proposals for regulation. Social media providers should possess the editorial discretion to determine how their platforms are configured and what can appear on them.

This 63-page paper can be found on the Mercatus site here, on SSRN, or on Scribd.  I’ve also embedded it below in a Scribd reader. Eventually, a shorter version of this paper will appear as a chapter in a MIT Press book.

Social Networks as Public Utilities [Adam Thierer]

I have a lot of respect for danah boyd and have had the pleasure to interact with her when we both served on the Harvard online child safety task force, and at other times. She’s a very gifted social media researcher.  But there are three big problems with her argument that Facebook should be treated as a “utility” and regulated as such. (See: “ Facebook is a Utility; Utilities Get Regulated.”)

What a Utility Is, and Isn’t

First, and most obviously, the term “utility” has a fairly well-understood meaning in economic literature and Facebook does not possess the same qualities:

• A utility is usually something thought to be an “essential facility” in that the service or network in question is highly unique and possess few (or no) good alternatives. (Regulators typically require “non-discriminatory access” for that reason.)
• The service in question is also typically regarded as being something approximating a “life-essential” service, like water or electricity.  (Regulators typically require all to be served in a fairly uniform fashion for that reason.)
• The service is also something that typically entails significant fixed costs and that requires us to pay good money to use. (Regulators typically impose price regulation for fear of “gouging” for that reason.)

Again, Facebook possess none of those qualities.   I realize that some people speak of Facebook as a sort of “social utility” or a “social commons” and claim that it is essential to one’s social existence, but that’s just silly.  Life can go on without Facebook. Many of us barely touch the site and still have plenty of ways to find and interact with friends or others. My Facebook page is basically a street sign pointing people to the other places I want them to find me (like this blog or Twitter) or connect with me (like LinkedIn or even just via email). Lots of other Facebook users are like that.  And there are many other ways to “quit without quitting” entirely by minimizing your social presence on the site.

But even if you are an aggressive Facebook user, there’s still nothing stopping you from porting your digital presence over to another site entirely. There are some “exit costs” here, but they are not that significant.  Again, Facebook is hardly a “life-essential” service. And let’s not forget that you don’t pay for Facebook. Not one penny. And most of its competitors don’t charge, either.

So, let’s review:

• There are plenty of alternatives to Facebook (it’s not unique or life-essential).
• Escape from Facebook is reasonably easy.
• You don’t have to pay for Facebook (or most of its competitors).

So let’s stop using “utility” to describe Facebook.  It’s simply incorrect.

“Utilities” are Anti-Innovation

But even if you’re unconvinced and still think of Facebook as a “utility,” here’s why you don’t want it regulated as one:  Utilities are, by their very nature, non-innovative. The whole point of regulating a utility is to get everyone access to it at a cheap rate.  The problem is, there is no free lunch. Regulation is not costless. It entails trade-offs. Regulation is a giant game of economic whack-a-mole: Attempting to control one of the primary variables of price, quantity, or quality inevitably results in non-optimal adjustments in the other two variables.  This is why innovation always suffers in utility businesses. Regulators typically prioritize by regulating access (quantity) and price and then let quality be the free-floating variable.  It’s hardly surprisingly, therefore, that we witness lackluster innovation in utility industries since the incentive to take risks and invest has been greatly diminished. In essence, the regulated utility becomes a “plain vanilla” service.

Now, again, in Facebook’s case, price is not a variable. It’s free! Or, more specifically, it’s ad-supported such that we enjoy the service without paying a direct fee for use. If it was suddenly classified as a “utility” and regulated accordingly, that leaves one less lever for bureaucrats to tinker with.  Regulation in the social networking business will likely be related to the quality variable.  More specifically, to the extent regulation was imposed on Facebook or other social networking sites, it would like be on their data collection practices, advertising business models, privacy policies, etc.

Thus, price quickly could become part of the response for Facebook if it becomes a regulated entity. Namely, the site might – for the first time – impose a fee for service. Seriously, is that really unthinkable? If regulators so undercut the economic engine that powers this and most other Web 2.0-era sites, what else is a site to do?  Do we think sites and services like this just fall like manna from heaven?  Again, there is no free lunch.  Something has to give.

Regulation Tends to Lock Us In

Finally, there’s the problem of “regulated monopoly” becoming a self-fulfilling prophecy.  Again, the irony of people thinking of Facebook as a utility is that Facebook has plenty of competitive (and free) alternatives. That’s not usually the case for other industries we consider “utilities.” But one of the reasons that it typically is not the case for those other sectors is that the very act of imposing “utility” status on a company tends to lock it in as the preferred or only choice. Regulation tends to shelter a utility from competition once it is enshrined as such.  Or, by forcing standardizing or a common platform, regulation can help lock it in for the long-haul.  I think this is less of a concern for Facebook than it is for other technologies or economic sectors, but it’s still worth considering the anti-competitive effects of regulation, because they are legion.

For these reasons, regulating Facebook as a “utility” would be an unmitigated disaster. It would likely result is less innovation by the site or could encourage it to potentially impose fees for a service that has traditional been free to the public.  While I have no problem with danah and others pressuring Facebook to change its privacy policies or approach to other issues / concerns, I do hope they reconsider the wisdom of treating Facebook as a plain-vanilla regulated utility. And if we go the opposite direction and impose regulation, I don’t want to hear any of you complaining when Facebook starts charging $19.95 per month for service!

Addendum: In my haste to post this rant this morning, not only did I make a mistake in the title (doh!) but I failed to address a point I’ve stress repeatedly in other essays calling for “utility” regulation within high-tech markets. Namely, we need to have a sense of historical perspective here and an appreciation for the pace of change in high-tech markets. That is, it’s important to remember that Facebook has only been with us a few of years now. It’s gone from bit player to market leader fairly rapidly but there’s no reason that the opposite couldn’t occur just as rapidly. As I noted in addressing “code failure” arguments in this debate with Larry Lessig, when markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. So, we need to have a sense of perspective here and not too quickly jump to declare “market failure” and then box a specific technology or provider into “utility” status. Evolution and continued experimentation are good.  Regulation tends to head all that off.

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.

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=