Regulation and technological innovation: Myths, memes and the marginalisation of law

Centre for IT & IP Law, KU Leuven

Three decades @ the crossroads of IP, ICT and Law4 September 2019

Prof Karen Yeung

Birmingham Law School & School of Computer Science

University of Birmingham, UK

Take home message

• We must abandon our romantic infatuation with 21st century technological innovation, in favour of a more clear-eyed view – which we owe to ourselves and to future generations

• To call upon lawyers and legal scholars to think critically, creatively and ‘institutionally’ – about the adequacy of our existing institutions to safeguard our foundational values and freedoms that are essential for peaceful cooperation within democratic communities

1. Introduction

Aim: Highlight and debunk a series of “myths and memes” that have dominated public and policy discussion about regulation and technological innovation

Outline‘Myths and memes’ vs ‘inconvenient truths’ about tech innovation and its governance:

(1) Myths:

- Our romantic enchantment

- The alleged superiority of the market

(2) Re-centring the law and its challenges

(3) Conclusion

A. Our romantic ‘enchantment’ with tech innovation

• Myth 1: That all innovation is intrinsically ‘good’

• Myth 2: The tech entrepreneur as ‘moral hero’

• Myth 3: The ‘equivalence’ of new vs old tech

B. The alleged superiority of markets

• Myth 4: Regulation stifles innovation

• Myth 5: The law can’t keep pace with technological innovation

• Myth 6: The governance of tech innovation is best left to the market

• Myth 7: That tech ‘ethics’ will fix any problems

Our romantic fixation with tech innovation

Myth 1: That all innovation is intrinsically ‘good’

Inconvenient Truth:

Not all innovation is beneficial

Even beneficial innovation may have damaging (unintended) side effects

Our romantic fixation with tech innovation

Myth 2: The tech entrepreneur as ‘moral hero’

Inconvenient Truth

Tech innovators often take risks with the rights and interests of others (not only self-regarding risks)

Yet these externalities often overlooked or ignored

Our romantic fixation with tech innovation

Myth 3: The ‘equivalence’ of new vs old tech

Inconvenient Truth

Meaningful comparisons must attend to ALL effects, not merely functional performance

Seductive logic of equivalence esp dangerous in public sector adoption, where legal basis may be lacking for new tech adoption (eg facial recognition in UK)

The superiority of markets

Myth 4: Regulation stifles innovation

Inconvenient Truth

Regulation may stimulate and accelerate innovation

Legal regulation critical in setting boundaries for a level playing field that guards against societal harm and maintains collective values

The superiority of markets

Myth 5: The law can’t keep pace with innovation

Inconvenient over-simplification

Tech innovation poses challenges for governance by rules

‘Pacing’ problem arises due to uncertainty: in effects and identification of appropriate norms & balance of norms

Choices, often difficult choices, cannot be avoided despite continuing uncertainty of impact

The superiority of markets

Myth 6: The governance of tech innovation is best left to the market

Inconvenient truth

Markets are undemocratic

Reliance on ex post litigation is inadequate

Allows anti-democratic ‘colonisation’ by tech industry fostering distributive injustice and enables ‘reverse taking’

The superiority of markets

Myth 7 : Tech ‘ethics’ will fix any problems

Inconvenient truth

•Ethics cannot provide democratically legitimate and effective social protection against other-regarding impacts of tech innovation

•Language ethics currently serves as an ‘empty vessel’

•Can be hijacked to promote personal preferences

What role for law, lawyers and legal scholars?

Law has a critical role in establishing and enforcing safeguards against externalities of tech innovation: but often hard to see, and adverse effects may be cumulative

Law can foster democratic deliberation and provides democratic legitimation (in the form of legislation)

Lawyers can frame and highlight what as it stake for our foundational values

Conclusion

Bring the law out from the margins and into the heart of discussions about how to govern technological innovation responsibly: we cannot leave it to the market

More critical, active reflection on the strength and shortcomings of our existing institutions of governance

Be warned: you will be swimming against the tide...

Conclusion

“Innovation is not only a technological process, but a profoundly human and socially embedded one” (Cristie Ford)