Tech regulation is difficult because we expect privacy from our platforms, integrity from our content providers, accountability from our algorithms, and security from our infrastructures, but often end up disappointed.
The difficulty of regulating digital technologies has been commonly attributed to the pacing problem, but this framing of the problem is simplistic.
A more plausible explanation is that our inability to control the undesired consequences of digital technologies is due to misaligned interests, a hostile political and economic environment, and asymmetrical power and capacities between regulators and the regulated.
Tech Regulation Involves Multiple Factors
Tech regulation involves rulemaking, rule monitoring, and rule enforcement for digital technologies.
To understand the tech regulation problem, we need to consider six factors: ambiguous rulemaking, ineffective rule monitoring, insufficient incentives for compliance, asymmetry in capacities, pro-business political and economic environment, and the complexity of regulating digital technologies.
For example, the European Union’s General Data Privacy Regulation (GDPR) warns of “singling out”, but the concept means different things to different actors.
Ambiguous Rulemaking
Rulemaking is often ambiguous and unclear, allowing companies to twist the meaning of the law.
The GDPR’s requirement for “meaningful consent” was reduced to a common industry practice, until a Belgian court rejected it as inconsistent with the GDPR.
Similarly, the EU’s Artificial Intelligence (AI) Act and China’s Generative AI Interim Measures employ vague language.
This vagueness is usually bad news for society, as companies can exploit the ambiguity to their advantage.
Ineffective Rule Monitoring
Tech regulators lack effective and independent rule monitoring, making it difficult to monitor and enforce regulatory requirements.
Companies have a clear interest in masking how their algorithms make decisions and support their business models.
For instance, when the NYU Ad Observatory wanted to investigate how Facebook delivers ads, Facebook quickly shut the researchers’ accounts down.
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Asymmetry in Capacities
There is a clear asymmetry in capacities between regulators and the regulated, which questions effective regulatory enforcement.
Regulators lack the capacity and expertise to monitor and enforce regulatory requirements from tech companies.
They cannot be proactive or investigate each and every case of potential regulatory violation.
Pro-Business Political and Economic Environment
Tech regulators work within a pro-business political and economic environment, where tech companies have significant influence over policy discussions.
It is a challenge to regulate tech companies in this environment.
Regulatory Challenges
Technology has been developed in certain ways and become ingrained in society, making it hard to diverge from existing arrangements.
It is hard to imagine new secure protocols to communicate between cyber infrastructures, despite existing ones being vulnerable to cyber-attacks.
Society struggles to imagine new ways to develop AI that puts the public interest as a top priority, instead of current private AI giants that train their algorithms on users’ data without consent.
However, there are examples of how society was able to move toward more secure ways for connecting digital infrastructures, such as the gradual shift to IPv6, secure DNS, and secure BGP.
One possible solution is to substitute legal ambiguities with a call for machine-readable indicators of compliance, allowing automatic verification of tech regulation.
Additionally, regulatory innovations, such as requiring data center operators to register with the state, can provide more transparency on the business models and data management policies of leading technology companies.
Regulators should also systematically receive assistance from other stakeholders, such as academics and civil society, to address the asymmetries in power and capacity between regulators and technology companies.
Ultimately, tech regulation is hard but not impossible, and with a structural change across the factors identified, the tech future can be a more pleasant one.
