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CHAPTER III - A Framework for Effective Policy Intervention in the Digital Era

Richard Whitt, President of the GLIA Foundation, offered his perspective on developing a public policy framework for online activities. His core thesis is that form, to the extent possible, should follow function. The complexity and dynamism of the internet, and of web-based entities, processes and activities, merits a nuanced, contextual approach to achieve durable policy interventions.

A variety of players exist in the online world—content providers, applications providers, social/media platforms, computational systems, hardware manufacturers, operating systems, cloud providers, backbone providers, internet access providers, and others. The lifecycle of data begins with surveillance and extraction, followed by movement and storage, and then processing and distribution. The policy challenge is assigning the appropriate accountability to the right player in the online ecosystem (culpability) consistent with that player’s relevant contribution (proportionality).

Whitt identified various forms of potential intervention: structural, functional, behavioral and informational. Regulation can be proscriptive, seeking to restrict market activities, or prescriptive, seeking to encourage market activities. Individual institutional interventions can occur through the exercise of “hard” power, such as treaties, laws and regulations; “moderate” power exercised in multi-stakeholder forums, certifications and self-regulation; or “soft” power, such as best practices, codes of conduct, industry standards or regulators’ use of the bully pulpit to steer conduct. The goal is to create an optimal fit to the targeted activity to avoid collateral damage by intervening beyond what is necessary, while at the same time remaining effective. The challenge is to make appropriate tradeoffs between accountability and flexibility. Whitt favors a ratchet approach in which government gives companies and the industry time to figure out solutions to problems, and then escalating if they fail to do so.

Other conference participants offered their own perspectives. Larry Downes, Senior Fellow at Accenture Research, pointed out that the choice between a bright future and a pessimistic future is not binary. The answer is not to oppose AI altogether but instead use situational judgement. Donna Epps, Senior Vice President of Public Policy and Strategic Alliances at Verizon, agreed with the hybrid approach, pointing out that society can extract the benefits of AI without sacrificing its core values. She suggested that there needs to be more transparency and accountability about the data that feeds into AI, and to do so in a way that does not disincentivize private investment.

These different approaches are not mutually exclusive. For instance, industry can develop and continue to evolve its codes of conduct or best practices with a requirement to publicly disclose adherence to those codes. Government can be the backstop for enforcement if companies do not comply with those codes of conduct, noted Koy Miller, Head - North America, Connectivity and Access Policy at Facebook. The challenge is keeping pace with the speed of technological innovation which can exceed our ability to assess its implications and amend policy.

Robert Atkinson, Founder and President of the Information Technology and Innovation Foundation (ITIF), pushed back on the notion that computers will outpace us. In his view, we should be focusing solely on governance.

There was consensus among conference participants that policymakers need to be paying closer attention to the evolution of AI. They need to identify when to intervene and when to let market participants figure out a solution. Paula Boyd, Senior Director of Government and Regulatory Affairs at Microsoft, suggested that it is helpful to provide a forum for people to discuss the issues and develop best practices as technology evolves.

Additionally, what is appropriate today may not be appropriate under future market conditions. Susan Fox, Vice President of Government Relations at The Walt Disney Company, made an observation about the temporal element of government decisions: when policymakers decide that an issue does not warrant regulation at a particular point in time, they rarely revisit that conclusion. Nonetheless, time-limited preemption has value because it allows policymakers to revisit past decisions, suggested Jennifer Bradley, Director of the Center for Urban Innovation at the Aspen Institute.

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