The Anatomy of Technology Regulation

The Anatomy of Technology Regulation

The 2020s will undoubtedly be characterized by the regulation of new technologies. But while today’s technologies are global, the rules governing their development and use are not.

The resulting political fragmentation is often attributed to differing values ​​and political ideologies within key jurisdictions: the United States, the European Union and China. In this narrative, the United States prefers digital laissez-faire; Europe opts for the digital socialism of the big states; and China pursues a politically motivated strategy of restricting certain technologies and developing others to maintain social control.

But while there is evidence to support this narrative, such broad characterizations fail to explain stark regulatory differences between countries that fall into the same ideological category. Take for example Australia, New Zealand, Canada, the United States and the United Kingdom. These English-speaking liberal democracies with colonial histories have close ties and belong to a long-standing security and intelligence-sharing pact (The Five Eyes). But each has a unique approach to technology policy.

As Australia charts its own course on everything from encryption laws and extremist content to power imbalances between digital platforms and old news media, New Zealand is forging international partnerships on many of the same issues, such as through the Christchurch Call initiative. Meanwhile, Canada is listening more than it is acting, with its latest attempt to pass online legislation ensuring that Internet-age streaming companies face the same regulations as traditional broadcasters. The United States has imposed technology embargoes on China, but has been reluctant to regulate domestically, even in the face of growing abuses by Big Tech companies. And the UK is realigning itself with its former EU siblings.

As these examples show, several factors beyond ideology shape what we think of as the technological “political space”. Each jurisdiction has its own limited set of options to guide the effects of how new and existing technologies are developed and deployed. And these options, in turn, are circumscribed by at least three key obstacles.

The first is a jurisdiction’s constitutional decision-making authority, legal precedents, and pre-existing agreements with other states or agencies. These factors create a “hard” boundary of legal limits that policy makers will find difficult – but not necessarily impossible – to circumvent. And a related, slightly softer boundary is conflicting political priorities within a single jurisdiction, particularly over national security “red lines.”

The second obstacle is a lack of political cohesion, public support and consensus among key stakeholders, or disagreements between branches of government. These limits are particularly common in systems where the legislative and executive branches may be controlled by different parties, or where different parties control each of the two legislative bodies. Without common ground, little can be done until the composition of decision-makers shifts in favor of one group or another. And a softer version of this limit can occur in democracies if the ruling group avoids decisive action because it worries about an upcoming election.

The third barrier is a government’s lack of capacity for effective policy implementation and enforcement. The most common reasons for this are budgetary constraints, shortage of qualified personnel, inability of a targeted sector to bear the new compliance burden or insufficient infrastructure.

While these potential barriers tend to exclude (or at least render ineffective) many potential policy proposals, technology policy-making is also shaped – and made more uncertain – by a confluence of incentives and trade-offs that operate at multiple levels within and across government. Here we see five main factors that can help explain political divergences between similar countries.

The first stems from the impact of a policy on the power of the state and its relationship to it. Regulatory strategies tend to either centralize government power or delegate power to other agencies and groups. Centralization is often achieved by increasing revenue and tightening control over the private sector and the public, while decentralization usually involves legislating industry standards or deregulating a sector entirely. The ability to alter this balance of power is an incentive in itself, as it involves a redistribution of resources among stakeholders – notably state bureaucracies, on the one hand, and corporate lobbies, on the other.

The second factor is the likely potential impact of a policy on national production and productivity. Technology policies often seek to increase national economic power as part of a government’s broader development strategy, which itself may involve either protectionism or market-opening policies.

Policy decisions can therefore be motivated either by a desire to support domestic activity (to help a country’s producers or workers) or by a desire to promote international activity (to support domestic exporters ). Since technology policies tend to require compliance systems or create liability regimes that discourage business creation or foreign investment, the economic impact must also be factored into policymakers’ calculations.

Then there is national security, which can be affected by a wide range of technology policies. While laws allowing security services to override encryption can enhance the ability of these agencies to deal with foreign and domestic threats, laws or court orders guaranteeing free speech and due process guarantees can complicate their work.

The fourth factor is the likely impact of a policy on consumer rights and protection. Technology policies often seek to ensure that new technologies expand choice, reduce prices and support competitive markets. But consumer protection policies tend to be applied unevenly, due to tensions between national and local authorities, uncertainties about what consumers actually prefer, and the difficulty of assessing issues such as concentration. market (particularly when the goods or services appear to be “free” to end users). ). For example, while some people are happy for technology platforms to track their behavior in order to improve services, others prefer more privacy.

Finally, there is the likely effect of a policy on decision-maker power. Policy makers will naturally be oriented towards measures that could improve their own positions, current and future; but, at the same time, they will quickly abandon policies that prove unpopular with key stakeholders.

Taken together, these limits and incentives provide insight into differences in technology policy-making between countries that otherwise appear similar. With these factors in mind, we can develop a more nuanced understanding of where technology policy is headed in what is sure to be a defining decade.