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An agency to rule them all

by on October 26, 2020

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How should government oversee or regulate technology monopolies

 

In the wake of this week’s preliminary antitrust activity, there’s been a flurry of responses and a resurgence of recurring narratives. One of the most cliché (and yet still credible) is the issue of capability and proficiency.

This is the argument that industry proponents have been making for almost three decades, that governments are not able to keep up with technology, and any attempt at regulation or antitrust intervention will only hinder and hurt innovation overall.

However thanks to the work of Lina Khan, that argument has less weight, as some members of Congress have made a successful effort to get up to speed on what kind of policies are needed and effective.

Although that doesn’t stop the argument from being put forward anyway.

As the Justice Department filed an antitrust suit against Google on Tuesday for unlawfully maintaining a monopoly in search and search advertising, a growing number of legal experts and economists have started questioning whether traditional antitrust is up to the task of addressing the competitive concerns raised by today’s digital behemoths. Further help, they said, is needed.

Antitrust cases typically proceed at the stately pace of the courts, with trials and appeals that can drag on for years. Those delays, the legal experts and economists said, would give Google, Facebook, Amazon and Apple a free hand to become even more entrenched in the markets they dominate.

A more rapid-response approach is required, they said. One solution: a specialist regulator that would focus on the major tech companies. It would establish and enforce a set of basic rules of conduct, which would include not allowing the companies to favor their own services, exclude competitors or acquire emerging rivals and require them to permit competitors access to their platforms and data on reasonable terms.

On it’s own this is not a bad idea. There’s reason to be concerned that antitrust action via the courts could take so long as to be ineffective. Similarly there’s wisdom in creating an institution that could develop and apply subject expertise faster than the regular agencies. Finally there’s also the argument that similar initiatives are being pursued in other jurisdictions, and there’s a need to adapt and keep up.

The British government has already said it would create a digital markets unit, with calls for a Big Tech regulator to also be introduced in the European Union and in Australia. In the United States, recommendations for a digital markets regulator have also been made in expert reports and in congressional testimony. It could be a separate agency or perhaps a digital division inside the Federal Trade Commission.

However the problem with this idea is not the concept in general, but the timing of it, and who is promoting it.

Zephyr rightly argues that such an agency is prone to possible corruption and the power to take action already exists.

While I agree that the current timing of this qualifies it as a distraction, I’m not ready to embrace the cynicism that corruption is inevitable therefore we should not create anything new that could be corrupted.

Rather I think there’s tremendous potential in creating dedicated regulatory expertise and authority in an agency who’s mandate is to understand, and anticipate the power and impact of the digital monopolies.

Regulating AI is no trivial issue. The longer governments defer regulation, the harder it will be.

In many ways, technology is a threat to government as we know it. Democratic governments are wrestling with its impact on elections and how AI polarizes the public sphere. Authoritarian governments are paranoid at the potential for algorithms and AI-driven social media to amplify dissent and empower dissidents.

As an industry, AI represents an unprecedented concentration of wealth and power. Governments face a data deficit where the AI industry is in a position to understand the public with far greater accuracy and nuance. Without oversight, it is only a matter of time before the industry uses that power to influence or form the government.

The larger issue is what kind of oversight is needed. One of the potential shortcomings of the current US antitrust approach is that it is focused on economic issues when political and social are also relevant.

AI is not an industrial concern, nor is it purely about research and development. Rather, AI touches all aspects of society. The regulation of AI will need to be far-reaching, and yet also needs to be nuanced, balancing the needs of industry with the rights of society. It has to be responsive, anticipating an ongoing and rapid rate of technological change, but it also has to conform to existing regulations on human rights, freedom of expression and transparency.

This is partly why I’m in favour of a dedicated agency. The job is just too important and complex to leave to chance.

Ryan Calo is an American legal scholar who has been making this argument for a number of years, and in this video rightly argues that this regulatory capacity represents leadership and the ability to influence the overall developmental direction of a technology.

However with all that in mind, I do recognize the danger that such a regulatory agency represents. On the one hand we are critical of the political, economic, and cultural power that the digital monopolies posses. However on the other hand, we do not necessarily want the state to have the power either.

The ideal scenario is that such power rests in the hands of the people, in the spirit of democracy. However short of developing governance models that could achieve that, such a revolution is not going to happen overnight.

Which is why the agency to rule them all is a bit of a paradox. As a democratic society we should have that agency, but in creating such an agency are we centralizing something that ought not to be centralized?

It’s a difficult problem to solve, and likely one we will explore in future issues. In the meantime we did touch upon it in the latest Axis Of Easy salon.

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