The Obama-era architect of net neutrality has a message for today’s regulators in their ongoing struggle to rein in Big Tech: Innovate or die. In his new book published this week, “Techlash: Who Makes The Rules In The Digital Age?”, former Federal Communications Commission Chair Tom Wheeler says regulators have failed to rein in Big Tech because they’re using outdated tools. Call it something like “regulatory futurism” — Wheeler is saying now is the time for the government to get innovative by setting up new agencies with wide-reaching powers to determine what is and isn’t in the public’s best interest when it comes to tech. “We have to come up with a regulatory structure that is transparent, risk-based and agile, which is the kind of structure that protects consumers, protects competition, and protects and encourages innovation,” Wheeler said. What does that look like in practice? Wheeler said it could involve investigating companies the government determines are not working in the public interest, in service of convenience, or of necessity, the pillars of what his FCC called a “general conduct" standard when it was enforcing net neutrality. Many internet service providers, and Republicans, hated this standard, saying it gave too much power and discretion to the FCC, and made the regulatory landscape too uncertain and subject to the commission’s whims. (Net neutrality rules were ultimately repealed by the Trump administration in 2017, although the commission moved just today to begin restoring them.) To that end, Wheeler is calling on regulators to get creative and adopt similar measures to that general conduct standard to overcome the advantage the tech industry currently enjoys. The government’s done it before, he says, pointing to innovations dating back to the aftermath of the Industrial Revolution when former President Theodore Roosevelt created the Department of Commerce and Labor. “In the late 19th century… [regulators] were confronting never-before-seen realities, and having to develop never-before-seen regulatory structures,” Wheeler said. “The digital economy is the largest ungoverned space in the American economy, and that's not good for the companies, for consumers, or for the country, and we need to do something about it. But that requires that we be as innovative as the innovators who built these companies.” Much of “Techlash” explores the risks posed by many of the technologies that you’ve read about at length in this newsletter, like the privacy-shattering potential of the metaverse or the ability for AI to subtly, unaccountably shape our lives. Wheeler says that his proposed form of “agile” regulation is the only way for the federal government to keep up with the pace of AI development while not stifling innovation in the way the private sector and more libertarian-minded critics fear. “The [AI] agreements that were signed recently are moving beyond aspirational, but are so general as to be able to be interpreted almost any way and to be virtually unenforceable,” Wheeler said. “Old-style regulation does affect innovation and investment, but the answer is not to get rid of regulation, because that hurts the public, but to do better regulation that reflects these new [technological] realities.” He points to quasi-governmental regulatory bodies like the Financial Industry Regulatory Authority or ISO-New England, the nonprofit charged with overseeing that region’s energy market, as models to follow — each created in response to crises like the Great Depression and a series of avoidable blackouts, respectively. Wheeler says Congress should create a new regulatory body to oversee tech — and that although he supports them, the current efforts to rein in the industry via antitrust action will ultimately prove insufficient. “This is not an anti-antitrust proposal, this is additive. But antitrust only takes you so far,” Wheeler said. “Antitrust is focused on individual incidents and individual companies, where you need broad rulemaking authority to say what [companies’] behavior should look like.” One of the book’s most interesting rhetorical points arises near its end, where Wheeler points out that major tech firms for the first time have an incentive to come to the table and make concessions to regulators — namely, to allow the government to create a regulatory framework that might make it harder for smaller, newer companies to compete. To him, that’s a good thing — as long as the government is willing to step up to the plate and take full advantage. “God bless Sam Altman and Brad Smith and these folks who are proposing [AI] licensing, because they're at least moving away from the previous position, which was to be against any regulation,” Wheeler said.
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