Tech Policy Breakdown: A Systematic Evaluation of What Works and What Doesn't in Technology Policy

Why is technology policymaking such a challenge? Consider attempts at privacy regulations concerning digital communications: The Electronic Communications Privacy Act (ECPA) was passed by the U.S. Congress in 1986 as an ambitious effort to boldly modernize communications privacy law just as a revolutionary technology — email — was entering widespread adoption. The bill’s key author, Patrick Leahy, sought to change the law almost as soon as it went into effect, yet it has remained on the books largely unchanged since before the public internet, the widespread adoption of mobile phone service, social media, and cloud computing — all topics of legal controversy and ambiguity that are ill-suited for ECPA to address. Digital communications is not the only area of tech policy breakdown: Revisions to copyright law intended to protected digital media from piracy have been employed by printer manufacturers to block the use of aftermarket toner cartridges—an application of the law not likely intended by Congress. These are examples of what we label “tech policy breakdown,” in which policy making seems to be a site of half-measures, unintended consequences, and outright failure. We might console ourselves in the knowledge that this kind of policy work is just hard. Yet, prior generations of policymakers and jurists at every level of government have done this before. Railroads, airplanes, and other disruptive industrial sundries once required new social understandings and novel policy approaches in a wide range of policy areas, including property rights and labor relations. Adapting law and policy to such changes has never been trivial. Yet there appears to be something particularly challenging in dealing with successive waves of digital technology as demonstrated by courts and legislatures lurching from constitutional questions about online speech to prospective liability problems for artificial intelligence. Some of these questions not only demand adaptations in existing social and legal institutions but also challenge the legitimacy and core functions of those institutions. As we look at the recent history of technology policy struggles, we see policymakers scrambling to address emerging technologies that potentially threaten the physical safety and social fabric of modern society while inadequately equipped with the tools and resources necessary to manage our technological future. We see recurring themes and patterns in recent tech policy breakdowns and offer a framework for understanding those patterns as a means for improving how technology policies are conceived and implemented. In this working paper, we offer our Tech Policy Breakdown framework. We have studied dozens of tech policy cases and developed a classification scheme that identifies actionable categories of policy breakdowns and root cause diagnoses. Technology-aware research that offers support to policymaking activities is a significant, ongoing need. We propose that the clearest way forward is through an analytical look at what has not worked well in technology policy making. We propose two typologies: Evidence of Tech Policy Breakdown and Mechanisms of Tech Policy Breakdown, together forming a body of work that incorporates the collection, analysis, categorization, and synthesis of technology policy adventures for use in guiding future policymaking work.