Meanwhile, the European Commission and United States are each considering their respective approaches to AI regulation and other digital policy issues.  

On September 10, the Center for Technology Innovation at Brookings will host a webinar to discuss issues of privacy, security, AI, and consumer protection in the context of EU-U.S. relations. EU Justice Commissioner Didier Reynders will make brief opening remarks, followed by a panel discussion and questions. 

 Viewers can submit questions by emailing events@brookings.edu or via Twitter at @BrookingsGov or by using #ThePrivacyDebate. 

       

The rhetoric of the GOP convention, along with limited information on the Trump-Pence platform, make it difficult to forecast the specifics of technology policy under a second term for Donald J. Trump and Mike Pence. Nonetheless, it is possible to discern some high-level tendencies based on first term actions, public speeches, and policy statements. Generally, one can anticipate more deregulation, selective antitrust enforcement, lowered taxes, increased efforts to lead in global artificial intelligence (AI) leadership, round two of an infrastructure bill supporting 5G networks, little to no effort to confront online hate, tolerance of foreign interference in U.S. democracy, limited labor protections for gig workers, and stronger consequences for China as part of the protectionist trade policies of the current administration. For comparison with our thoughts on a possible Biden-Harris administration agenda, see our companion piece “What to Expect from Biden-Harris on Technology Policy, Platform Regulation, and China.”

More deregulation and retaliation against tech firm critics

The hallmark of the first Trump-Pence term was tech deregulation, mixed with “light-touch” approaches in a few areas. In keeping with GOP orthodoxy, few congressional bills designed to address privacy, competition policy, or cybersecurity came out of this current administration. Instead, the preferred vehicles were presidential executive orders and agency reversals of previous tech policies, starting with net neutrality. Within the first month of Trump’s term, the Federal Communications Commission (FCC) rolled back net neutrality rules adopted during the Obama administration to preserve an open internet and lightened regulatory restrictions on major telecommunications firms. Other similar reversals followed, including the repeal of the Obama-era U.S. broadband privacy rules and the revocation of newly minted broadband subsidies as part of the federal Lifeline program.

The most recent exception to the administration’s stance on prior regulations is its own executive order challenging the integrity of social media platforms. Convinced that tech companies are biased against conservatives, Trump’s recent executive order would “limit legal protections for social media platforms if they don’t adhere to standards of neutrality.” While the order is unclear on how “neutrality” would be defined or enforced, firms, such as Twitter and Facebook, that label Trump statements as false, misleading, or in violation of company guidelines are the current administration’s targets. Support for Trump’s critiques of big tech firms were heard throughout the convention, starting with the kick off speech of conservative activist, Charlie Kirk, who referred to the “self-righteous censor in Silicon Valley.”

In a second term, Trump and Pence would most likely promote further deregulation of telecom and tech industries, with occasional spears thrown at specific adversaries that attempt to limit conservative expression or company executives with whom the president has professional and personal differences. These firms should expect harsh responses and possible retaliation during a second term, like the review and modification of Section 230, which indemnifies big tech firms from intermediate or third-party content. But any passage of meaningful federal legislation will be difficult, given the policy gaps with leading Democrats. In the absence of a coherent baseline for federal tech regulation, a second term will see several states and local governments create and adopt their own rules as already evidenced in newly adopted privacy practices and bans on certain technologies like facial recognition.

Selective antitrust enforcement

The last few years have seen political meddling in antitrust enforcement, as noted in a recent Washington Post column by our colleague Bill Baer. More acquisitions and mergers will likely be approved during a second Trump-Pence term with special treatment for friends of the administration and reprisals for the administration’s critics. The latter should expect detailed oversight of their acquisitions and regulatory reviews of their business practices. Federal agencies will also likely be stacked with presidential cronies and afflicted by rapid turnover, enabling selective enforcement largely along partisan lines.

Low taxes (unless Republicans pivot towards deficit reduction)

Taxes likely would remain low for tech companies because there would be little Republican movement toward tax increases or establishing new fees on financial firms or technology companies. This is in keeping with the party’s long-term view that the best circumstances to create jobs and spur innovation are low taxes and deregulation. A business-friendly environment would most likely persist during a second Trump term, fueling continued rises in the stock market.

The only risk in this area would be if Republicans pivot towards deficit reduction and seek to curtail government spending or address the rapidly rising budget deficit. After several years of trillion-dollar deficits, budgetary actions that close tax loopholes or impose new fees and/or taxes on the sector may be explored. Since a number of tech firms pay relatively low percentages of corporate taxes, they could see modest increases in this area.

Renewed focus on artificial intelligence, emerging technologies, and space

COVID-19 has accelerated efforts to address the digital divide, which the Trump FCC believes it is aggressively tackling through investments in rural broadband deployment. The need for expanded digital access will also deepen the creation and use of AI and other emerging technologies, which have already been of interest to the current administration’s Office of Science and Technology Policy (OSTP). As noted in a new Brookings book co-authored by Darrell West and John Allen, “Turning Point: Policymaking in the Era of Artificial Intelligence,” COVID-19 has accelerated movement towards online learning, telemedicine, e-commerce, and education. AI’s use in precision medicine will be particularly critical in the search for a vaccine.

Under a second term, Trump-Pence would continue modest investments in R&D for AI systems and tout telemedicine, digital health and space travel, especially given the recent SpaceX launch. Additional funds for any of these areas will be sought from the private sector, whose support will be directed to research, testing, and implementation. Autonomous vehicles likely will get the “green light” for ramped-up road testing in major American cities. AI in healthcare, especially available to rural residents, will most likely offer more personalized, online care that could be reimbursed to doctors if the Trump-Pence team continue the relaxation of regulatory barriers, including eligibility of services, and Medicare payments, under COVID-19.

 An infrastructure bill that supports 5G networks

Higher spending on digital infrastructure could be an area of bipartisan agreement during a second Trump-Pence term. As noted in a previous article, inadequate and inequitable access to high-speed broadband prevents everyday citizens from benefitting from the new economy. With basic digital infrastructure, citizens will be able to engage in the areas of most importance to their daily lives—remote work, telemedicine, access to government services, and virtual learning for parents who opt out of alternative options provided through school choice. A second term could result in an even larger infrastructure request—last year, the ask was for $1 trillion. The private sector may also be called on to invest, especially in rural areas within red states who may be missing out on the president’s tweets.

In addition, a Trump-Pence second term has floated a controversial idea around the government’s management and control of 5G networks, which are  faster and more efficient than the current 4G-based mobile services. That proposal was roundly criticized by the private sector, who has enjoyed some autonomy from the federal government regarding the build out and expansion of 5G and other mobile networks. A second Trump-Pence term will be challenged to find reasonably priced equipment for 5G networks, potentially taking a chapter from the Chinese government’s subsidies for its own providers. Appointees to lead the FCC, Federal Trade Commission, and Department of Commerce will be hand-picked by the president to drive his agenda items.

Little to no effort to confront online hate

A Trump-Pence second term will largely ignore the existence of online hate speech and its potential to provoke physical violence guided by predominant attitudes about racism. The administration will also ignore major inequities baked into computer models, including AI systems. Cases where biases surface in education, healthcare, criminal justice, and economic opportunity will be of little to no importance for the Trump-Pence administration. There will be few efforts to confront systemic racism and the wealth gap, unless undertaken by federal agencies like NIST where engineers and scientists develop the standards of emerging technologies for commercial or public sector use. After clearly outlining and clarifying the existential threats that diversity in demographics, opinions, and activism present during the GOP convention, it is highly unlikely that any efforts to quell racist and other bigoted online speech will be undertaken in another term of this administration. In fact, emerging technologies may be sanctioned for further surveillance of protestors, immigrants, and other perceived threats by law enforcement and border security officials.

Tolerance of foreign government interference

President Trump has also been quiet regarding foreign government interference in American elections and disinformation campaigns. He has opposed additional funding for state and local governments designed to protect critical infrastructure (including election infrastructure and voting processes). In fact, he has avoided tougher action against foreign governments and entities found to be interfering with U.S. elections. Since its first term, the current administration has had little support for congressional legislation that mandates retaliation against foreign governments found meddling in American elections. Despite evidence gathered by Congress and other third-party groups, a second term would continue to ignore compromised elections or continued cybersecurity threats.

Limited support for gig worker rights

One of the fault lines in the emerging gig economy has been questions surrounding worker rights and the use of independent contractors by tech companies. Right now, companies like Uber and Lyft classify workers as independent contractors and do not provide health or retirement benefits. Another term for Trump-Pence is unlikely to support crackdowns on independent contractor classifications or expanded gig worker protections. Recent California legislation would not be taken as a model for the federal government and there will be little pressure to require companies to count workers as full-time employees receiving relevant benefits.

Uncertain stance toward China

Overall, Trump has been inconsistent in his stance toward China. Early in his administration, he emphasized his close relationship with President Xi Jinping and negotiated a trade deal with China. Yet as he moves into the 2020 election, he has taken a tough stance on China, banned key companies, and labeled the nation a major national security threat. The current administration has also threatened to shut down major Chinese companies.

Which of these two stances could dominate in a second term remains unknown at this time. Trump may have difficulty renewing a friendly relationship with President Xi after the current administration’s harsh denouncements of China. Right now, U.S. public opinion is skeptical of China’s government and many people want tougher action on trade policy, intellectual property, and human rights. Rather than negotiating with China, a second term may still see the president bashing Chinese trade deals, accentuating national security concerns, and making impulsive decisions about companies to secure the virtual borders of domestic trade. A second term may also finally realize the administration’s stated goals of bringing critical supply chains back to the U.S., which would put the country on a collision course with China and spark major conflict. In the area of tech, especially 5G, software, and platforms, other countries will closely examine the U.S. position on China to determine their own stance during a possible second term of leadership.

Facebook is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

       

It’s a cybersecurity vulnerability that would have been unimaginable as recently as last year: A single California-based company, Zoom, is now the foundation for education access from elementary school up through graduate school. It has also become a critical tool for many businesses. When Zoom goes down, teachers can’t teach, students can’t learn, and business meetings, conferences, and webinars grind to a halt.

That was demonstrated in dramatic form on Monday, August 24 when a widespread outage blocked many users from accessing Zoom. Just before 6 AM Pacific time, the company acknowledged the problem in a statement, writing “We are currently investigating and will provide updates as we have them.” An hour later, Zoom said that it had “identified the issue” and was “working on a fix.” Finally, over three hours after it had first acknowledged the problem, Zoom announced that “We have resolved the issue.”

There’s no evidence that the outage was malicious in origin. And it was resolved relatively quickly, although for teachers, students, and participants in business meetings who found themselves unable to convene, not nearly quickly enough. Without information regarding the details of how Zoom’s systems are designed and protected, it’s hard to identify the greatest sources of risk for future service interruptions. But the fact that the August 24 incident occurred at all underscores the possibility that future service outages, whether due to a systems failure or to a cyberattack, could leave classrooms and business meetings shut down for much longer.

There’s nothing new about dependence on digital technologies, which underlie several of the Department of Homeland Security’s 16 critical infrastructure sectors, including “financial services,” “communications,” and “information technology.” But in many of the verticals in these sectors—such as banking or mobile phone services—no single company dominates the market. A cyberattack knocking a leading bank or mobile phone network provider offline for a few hours would be a major event and an enormous inconvenience for thousands of individuals and businesses, but it wouldn’t shut down the entirety of the financial system or of mobile cellular communications. By contrast, a successful cyberattack targeting Zoom could bring education and an enormous amount of business activity to a complete halt.

Another challenge is that Zoom is a relatively young company (founded in 2011) that has experienced some security-related growing pains. In March 2020, the company was widely criticized for a dubious claim that it supported end-to-end encryption for videoconferences. As normally used, the term refers to exchanging encrypted content between two end users in a manner such that it can’t be decrypted while in transit, not even by the company managing the servers through which it passes. For instance, as Apple explains with respect to iMessage and FaceTime, “there’s no way for Apple to decrypt the content of your conversations when they are in transit between devices.”

Zoom’s approach was different. As a March article in The Intercept explained, Zoom was actually using “transport encryption, which is different from end-to-end encryption because the Zoom service itself can access the unencrypted video and audio content of Zoom meetings. So when you have a Zoom meeting, the video and audio content will stay private from anyone spying on your Wi-Fi, but it won’t stay private from the company.” While Zoom subsequently announced that it was working on new software that will allow it to introduce end-to-end encryption, the fact that confusion on this point had arisen at all is concerning from a security standpoint.

There are plenty of alternatives to Zoom, including Skype, Webex, and GoToMeeting. The challenge of course, is that Zoom has benefited from an enormous network effect. The time people have invested learning how to use Zoom and the licenses companies and universities have signed to make it their main platform for real-time video interactions create strong incentives against adopting an alternative. Just as most people wouldn’t want to purchase and carry two mobile phones, each connected to a different cellular network in case one of the networks goes down, organizations aren’t going to want to pay for licenses to non-Zoom videoconferencing platforms that they may rarely or never need. And people who have spent hours getting used to Zoom don’t want to start over on another platform.

In combination, these factors mean that we aren’t likely to shake our dependence on Zoom anytime soon. That’s a concern, because if a list of critical infrastructure sectors were created from scratch today, it would probably include videoconferencing as a distinct sector. Organizations that rely on video conferencing—and today, that’s most organizations—would be well served to put backup plans in place to minimize the disruption from future Zoom outages.

Apple is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

       

The Republican Party platform for the 2020 campaign has been released—and it does not exist!

As published on the party’s official web site, the “Resolution Regarding the Republican Party Platform” states:

“RESOLVED, That the Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention.”

We all know that party platforms are traditionally about mom and apple pie—but at least they tell us the party is in favor of apple pie rather than cherry pie. I was on the drafting committee for the 2012 Democratic platform; the process is one of grappling with diverse interests and priorities. The diversity of those issues and interests reflect the challenges of governing.

The Republican resolution cites COVID-19 as a reason for cutting back on platform development. Yes, “strict restrictions on gatherings and meetings” have changed the nature of the 2020 political conventions. Such restrictions, however, did not stop the development of the 2020 Democratic platform to address the issues of the day and let Americans know what the party stood for.

There will be no grappling with the issues raised by our current national crisis by the Republican Party, however. There will be no forward-looking agenda to define what the party stands for.

But there is really no need for platforms anyway, the resolution suggests: “All platforms are snapshots of the historical contexts in which they are born, and parties abide by their policy priorities, rather than their political rhetoric.”

In an apparent attempt to address those “policy priorities” there is appended to the online version of the Republican non-platform a copy of the 2016 Republican platform. Of course, in 2016 the “historical contexts” for those policies bear little resemblance to the hydra-headed national crisis of 2020.

So, what are the “policy priorities” for the Republican Party in 2020?

It would appear from the resolution that in the context of a pandemic, recession, social inequity, and climate crisis the party’s policy is simply:

“RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda.”

It is hard to read this “platform” as anything other than “we stand for whatever Donald Trump wants.” And we know how Donald Trump interprets such a blank check. At an April 13, 2020 press conference discussing COVID-19 he told us: “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be…It’s total.”

The Republican resolution is correct that platforms are the product of “historical contexts.” In the absence of a statement as to what the Republican Party stands for, the historical context that comes to mind is provided by the French king Louis XIV, the “Sun King,” and the divine right of kings. “L’etat, c’est moi”—“I am the state”—Louis reportedly said in the 17^th century.

Party platforms represent a difficult grappling with diverse ideas and constituencies, for sure. The absence of such grappling and a public enunciation of what the party stands for, thus, can only create a “what’s next” void.

If Donald Trump wins, does he have a mandate for anything (other than himself)? If the Republicans end up controlling one or both houses of Congress, do they have a policy agenda? And how is it possible to establish international leadership on policies if you have no domestic policy platform?

Rather than deal with these issues, rather than tell the American people and foreign governments what it stands for, it appears as though the Republican Party has codified that it is for whatever Donald Trump wants to do. As the Sun King might have said, “Le parti, c’est moi.”

       

In a world of autonomous vehicles, much of the nation’s policing that is devoted to enforcing traffic safety laws, and the sometimes fatal altercations that result, would not exist. Policymakers should be motivated by this benefit, among many others, to expedite adoption of these vehicles.

The United States has more than 800,000 state and local law enforcement officers. A large fraction of their work during a given year is spent pulling over some 20 million motorists who appear to be breaking a traffic law, controlling the flow of traffic following many of the 6 million accidents, and filling out endless forms. In addition, more than one officer per week is killed in a highway accident, accounting for nearly one-third of all police officer deaths in the line of duty.

Autonomous vehicles could virtually eliminate the need to use police resources to enforce traffic safety laws and more officers could concentrate on reducing the most serious criminal activity. The reason is that autonomous vehicles obey the speed limit, do not drive erratically, reach a valid final destination, and prevent their occupants from jeopardizing highway safety even if they are under the influence of alcohol or drugs.

Importantly, autonomous vehicles give the police little cause to stop or approach a vehicle and to confront the driver. Nationwide, Black drivers are almost twice as likely to be pulled over as white drivers. Recent confrontations involving Black male drivers have resulted in fatal police shootings that could have been avoided in a world of autonomous vehicles. Examples include Maurice Gordon, who was fatally shot by a police officer after being stopped for driving over 100 miles per hour on the Garden State Parkway, and Rayshard Brooks, who was fatally shot by a police officer after being approached in his car that was parked in a Wendy’s drive-through instead of in a parking space.

Those benefits alone should arouse the public’s interest, but there are many other ways that autonomous vehicles could ameliorate the nation’s social problems. Covid-19 presents critical public health and economic problems that could be mitigated through use of autonomous vehicles. Autonomous vehicles would answer the call from the Centers for Disease Control and Prevention for people to drive alone. In contrast to carpooling, transit, and ridesharing, cars provide solo occupants with protection from the coronavirus. The millions of households who do not own cars and the lower-paid essential workers who cannot afford to drive alone would particularly benefit from being able to use a clean vehicle at low cost. By reducing disruptions to the workforce and the supply chain, autonomous vehicles would help to maintain economic activity.

In the midst of a severe economic downturn, the nation needs a spur to economic growth. Autonomous vehicles could provide it by significantly reducing congestion that adversely affects job matching and employment, trade flows, and productivity. In our recent book, Quentin Karpilow and I estimate that the economic gains from more people working, consuming, and trading because of greater mobility would be at least 1 percentage point of GDP. The virtual elimination of driver-caused accident fatalities, injuries, and vehicle damage would add even more to the nation’s welfare.

All of this may sound too good to be true, but autonomous vehicle technologies have advanced at such a rapid rate that there is little doubt that the autonomous vehicle industry will be able to solve its remaining technological challenges.

It is federal policymakers who have dragged their feet in passing important legislation to jumpstart the testing that is essential to the formal autonomous vehicle adoption process; in guiding state and local officials to plan investments to upgrade infrastructure technology so autonomous vehicles can use roads safely; and in reforming inefficient highway pricing and investment policies that have compromised travel in non-autonomous vehicles for decades.

Given the extraordinary range of potential social benefits, including better use of police resources, far fewer traffic-related confrontations and accidents, and a more efficient economy, policymakers should be doing everything they can to expedite adoption of a life-changing innovation that the nation desperately needs during these troubled times.

       

As the pandemic spring has turned into the pandemic summer—and with no sign of abating once fall arrives—Americans are beginning to grapple with how the disease will change daily life forever. Across the country, empty streets and empty office towers don’t just mean a change in how we work—entire communities have relocated to new places.

“Reopen the economy” has entered the pantheon of American political catchphrases. And while white collar workers may reap the benefits of a post-COVID world—one in which employers recognize that—with a powerful enough internet connection, anyone can work from home—blue collar workers won’t see those benefits. 

But it’s not just in the workplace. Medicine and education are also being rethought in real time. Come September, school will look radically different than it did a year ago—but who are the students that stand to gain from at-home learning? How can we ensure that all students—regardless of race and family wealth—can thrive while learning digitally? And how do we make sure that doctor’s appointments conducted over the internet are accessible to everyone who needs care? 

One day the pandemic will end. But before that happens, we need to make sure that the world it leaves in its wake is a just and equitable one. Finding the answers to these questions is the first step.

In this episode of the TechTank podcast, CTI Senior Fellow Darrell West hosts a conversation with Annelies Goger, a David M. Rubenstein Fellow in the Metropolitan Policy Program, and Makada Henry-Nickie, a fellow in Governance Studies. The three discuss how COVID-19 is impacting employment, healthcare, and education during pandemic-related shutdowns and how its effects may be felt in these areas long after the virus subsides.

Listen to the episode and subscribe to the TechTank podcast via Apple, Spotify, or Acast.

TechTank is a bi-weekly podcast from Lawfare and The Brookings Institution exploring the most consequential technology issues of our time. From racial bias in algorithms to the future of work, TechTank takes big ideas and makes them accessible. In a series of roundtable discussions and interviews with technology experts and policymakers, moderators Dr. Nicol Turner Lee and Darrell West unpack tech policy debates and highlight new data, ideas, and policy solutions. Future episodes will explore the role of technology in election interference, disinformation campaigns, school reopening and broadband access, the digital divide and more. Sign up to receive the TechTank newsletter for more research and analysis from the Center for Technology Innovation at Brookings.

       

Recounting her experiences working with Barak Obama as a candidate and as president, Alyssa Mastromonaco says he would often challenge his staff with the question, “Uh, who thought this was a good idea?” It was an attempt to ensure his advisers took personal responsibility for the recommendations they made, especially when things went wrong.

It’s about time someone asked that question about facial recognition software. It would oblige the developers and users of the technology to explain exactly why they think it’s a good idea to create something with that level of power.

Asking that question of facial recognition software is one way of participating in what legal scholar Frank Pasquale calls the “second wave of algorithmic accountability.” In the first wave, computer scientists working on applied artificial intelligence (AI) algorithms asked how the tools could be made more accurate and less biased. In the current second wave, advocates and critics are asking developers and users why they are using the technology at all and whether the payoffs are really worth it.

“It would oblige the developers and users of [facial recognition] technology to explain exactly why they think it’s a good idea to create something with that level of power.”

Major manufacturers of facial recognition software, including Microsoft, Amazon, and IBM, have responded to this second-wave thinking by pausing or abandoning their distribution of facial recognition technology to law enforcement. What is good for government use of the technology is good for the private sector as well. Asking how facial recognition software will be used commercially strikes me as the right way forward.

Despite its rapid evolution, a number of things stand in the way of this values-based idea of technology management. One of those obstacles is consent. For the commercial use of facial recognition technology data, subject consent seems to be the main mechanism adopted to manage the new technology. Another obstacle is private right of action. Combining consent with a private right of action creates conflicts to obtain the former. Previous legal battles suggest a private right of action would likely lead to expensive legal disputes—which is worth examining as an almost paradigm case of technology mismanagement.

The Illinois Biometric Privacy Identification Act

The paradigm example is the Biometric Privacy Identification Act (BPIA), a 2008 Illinois state law. It is a sweeping law for all private parties (but not state or local governments) that collect or use biometric information, including facial images, fingerprints, and retinal scans. BIPA requires notice and affirmative written consent for the collection and use of this information. It provides for a private right of action and damages of up to $5,000 per violation. With millions of users involved in some cases, the law exposes technology companies to fines in the billions of dollars if plaintiffs can establish that they were injured.

Recently, three cases against Amazon, Google, and Microsoft were filed in Washington and California, which makes them subject to the Ninth Circuit’s generous interpretation of standing.  The cases allege that the companies violated the requirement to obtain affirmative consent when they used images from IBM to train their facial recognition software. IBM had initially gathered the photos from Flickr and painstakingly labeled them to enable facial recognition developers to improve the fairness and accuracy of their programs. IBM says it provides opportunities to “opt-out” for those who don’t want their photos used for this purpose. Although, that is not what the statute demands—it requires affirmative “opt-in” consent. There is also no indication that Microsoft, Amazon, or Google have taken steps to notify all data subjects and obtain their consent before collecting images from IBM and using them to train their facial recognition software.

The Facebook precedent

Legal precedent involving Facebook suggests that Microsoft, Amazon, and Google should be worried. In February of this year, Facebook settled a similar BIPA lawsuit for $550 million, one of the largest settlements in history, after trying and failing to acquire a review of the Ninth Circuit decision.

Facebook had provided an opt-out option for users of its facial recognition software, but the statute specifies “opt-in.” After the suit began in 2016, it changed to an opt-in option but still faced potentially millions of violations for use of its software prior to making the change. Legal exposure easily ran into the billions of dollars.

Facebook argued that even though there might have been a technical violation of the statute, this was a case of no harm, no foul. The company had a colorful argument, too. Under the 2016 Supreme Court Spokeo decision, a statutory violation is not sufficient for a lawsuit—a plaintiff has to show concrete injury as well. In this case, Facebook argued there had been no concrete injury in the difference between the opt-out choice it offered its users and the opt-in consent required by the statute.

In the August 2019 Patel v. Facebook decision, the Ninth Circuit Court of Appeals said a statutory violation may cause a concrete injury if (1) the statutory provisions were established to protect the plaintiff’s concrete interests, and (2) the violations alleged actually harm, or present a material risk of harm, to such interests. An intangible harm, like the violation of a statutory privacy right, could therefore be grounds for a lawsuit. As the Ninth Circuit said, “Using facial-recognition technology without consent (as alleged in this case) invades an individual’s private affairs and concrete interests.”

Facebook wasn’t done. There was a split in the circuits. The Second Circuit interpreted Spokeo differently, requiring tangible harm as a concrete injury. Facebook tried to get the Supreme Court to take its case to resolve the split, but in January of this year, the Supreme Court rejected the appeal without comment. In February, Facebook settled.

Commentators predicted that this would open the floodgates to copycat class-action suits. Sure enough, the new cases against Microsoft, Amazon, and Google appeared this month.

The way forward

To the average person, this back and forth about legal standing is bewildering. It is hard to believe that the fate of a promising new technology should depend on the way judges might parse the meaning of “concrete injury.” But the bottom line is legal trouble for companies and less than fully rational policy for the country. We must change direction and find a new way forward to manage the development and introduction of facial recognition.

The time is ripe for several steps toward a national strategy for facial recognition. One step would be a nationwide, pre-emptive facial recognition law. Commercial uses of facial technology infringe on interstate commerce and should be regulated at the national level. Conflicting state laws should be pre-empted, creating a single national policy for all. This would include BIPA in so far as its requirements are inconsistent with the new policy set out in the national statute.

The second step would be to ensure that a federal agency would be responsible for implementation and enforcement, rather than through private rights of action with potentially unlimited liability for commercial users of facial recognition technology. Sensible management of a new technology is not possible when it can be disrupted by the oddities of court interpretations, the uncertainties of class certifications, and a myriad of other legal minefields.

One further step is to question whether data subject consent is the right way to protect people from the potential harms associated with applications of facial recognition software. Of course, no one should be forced to buy a new technology if they don’t want it. But should we really have to ask every individual whose information might be used to train a new algorithm if they want it used for that purpose? Training facial recognition programs to be accurate and free of bias seems to be a public good. Why should it be frustrated by assigning even opt-out rights to data subjects? What have we gained as a nation if Microsoft, Google, and Amazon continue to use biased and inaccurate facial recognition software? Should they face billions of dollars in lawsuit fines for seeking to perfect their products?

The bill recently introduced by Sens. Bernie Sanders and Jeff Merkley unfortunately would mimic many of the problematic features of the Illinois BIPA law, including affirmative opt-in consent for collection and use of biometric information, enforcement by private right of action, and damages per violation up to $5,000. And it does not pre-empt inconsistent state laws.

“Even if a facial recognition program can identify major demographics in an unbiased, accurate, and efficient way, we have to ask ourselves if that is a goal we want to pursue.”

Of course, we can argue about whether the use of a facial recognition program in a particular case makes sense. A new law should set up a process for such values-based evaluation. Even if a facial recognition program can identify major demographics in an unbiased, accurate, and efficient way, we have to ask ourselves if that is a goal we want to pursue. These cases of improper or dangerous usage of facial recognition technology will not be rare corner cases. As applications of facial recognition technology increasingly emerge, it will become clear that central uses of the technology will be questionable because of their underlying purposes.

This is what Pasquale is arguing for as part of the second wave of algorithmic accountability—to ask not just whether the technology is fair and accurate, but whether it should be used in a particular case at all.

We recognize the dependence of technology in the international arena, where the U.S. and its allies seek to promote “emerging technology that advances liberal democratic values,” in the words of Tarun Chhabra of Georgetown’s Center for Security and Emerging Technology. The second wave of algorithmic accountability is a domestic version of this values-based vision of technology management. It is time to apply it to the specific case of facial recognition technology.

If there’s no good way to establish in national law a mechanism for evaluating the uses of facial recognition technology, then we are left with the legal tools we have. Many might believe that the commercial uses of facial recognition under current standards are so dangerous to the public that throwing sand in the gears with billion-dollar class-action lawsuits is the best of the bad options available. Given the track record of the last 40 years of regulatory indifference to the consequences of technology applications—and the resulting troubles that surround us in the form of harmful spill-over effects of internet-related technologies—it is hard to argue with the pessimistic assessment that slowing facial recognition technology down in this way might be a fully rational way to proceed if there are no other alternatives.

We have to recognize that this is a miserable way to manage technology and we can do better. When things go seriously wrong with applications of facial recognition technology, or when its introduction is unreasonably delayed by irrational lawsuits—as will inevitably happen if there is no sensible values-based plan to manage its introduction—no one will want to answer the Obama question: “Uh, who thought this was a good idea?”

The Brookings Institution is a nonprofit organization devoted to independent research and policy solutions. Its mission is to conduct high-quality, independent research and, based on that research, to provide innovative, practical recommendations for policymakers and the public. The conclusions and recommendations of any Brookings publication are solely those of its author(s), and do not reflect the views of the Institution, its management, or its other scholars.

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The recent launch of the Mars rover Perseverance is the latest U.S. space mission seeking to understand our solar system. Its expected arrival at the Red Planet in mid-February 2021 has a number of objectives linked to science and innovation. The rover is equipped with sophisticated instruments designed to search for the remains of ancient microbial life, take pictures and videos of rocks, drill for soil and rock samples, and use a small helicopter to fly around the Jezero Crater landing spot.

Mars is a valuable place for exploration because it can be reached in 6 ½ months, is a major opportunity for scientific exploration, and has been mapped and studied for several decades. The mission represents the first step in a long-term effort to bring Martian samples back to Earth, where they can be analyzed for residues of microbial life. Beyond the study of life itself, there are a number of different benefits of Mars exploration.

Understand the Origins and Ubiquity of Life

The site where Perseverance is expected to land is the place where experts believe 3.5 billion years ago held a lake filled with water and flowing rivers. It is an ideal place to search for the residues of microbial life, test new technologies, and lay the groundwork for human exploration down the road.

The mission plans to investigate whether microbial life existed on Mars billions of years ago and therefore that life is not unique to Planet Earth. As noted by Chris McKay, a research scientist at NASA’s Ames Research Science Center, that would be an extraordinary discovery. “Right here in our solar system, if life started twice, that tells us some amazing things about our universe,” he pointed out. “It means the universe is full of life. Life becomes a natural feature of the universe, not just a quirk of this odd little planet around this star.”

The question of the origins of life and its ubiquity around the universe is central to science, religion, and philosophy. For much of our existence, humans have assumed that even primitive life was unique to Planet Earth and not present in the rest of the solar system, let alone the universe. We have constructed elaborate religious and philosophical narratives around this assumption and built our identity along the notion that life is unique to Earth.

If, as many scientists expect, future space missions cast doubt on that assumption or outright disprove it by finding remnants of microbial life on other planets, it will be both invigorating and illusion-shattering. It will force humans to confront their own myths and consider alternative narratives about the universe and the place of Earth in the overall scheme of things.

As noted in my Brookings book, Megachange, given the centrality of these issues for fundamental questions about human existence and the meaning of life, it would represent a far-reaching shift in existing human paradigms. As argued by scientist McKay, discovering evidence of ancient microbial life on Mars would lead experts to conclude that life likely is ubiquitous around the universe and not limited to Planet Earth. Humans would have to construct new theories about ourselves and our place in the universe.

Develop New Technologies

The U.S. space program has been an extraordinary catalyst for technology innovation. Everything from Global Positioning Systems and medical diagnostic tools to wireless technology and camera phones owe at least part of their creation to the space program. Space exploration required the National Aeronautics and Space Administration to learn how to communicate across wide distances, develop precise navigational tools, store, transmit, and process large amounts of data, deal with health issues through digital imaging and telemedicine, and develop collaborative tools that link scientists around the world. The space program has pioneered the miniaturization of scientific equipment and helped engineers figure out how to land and maneuver a rover from millions of miles away.

Going to Mars requires similar inventiveness. Scientists have had to figure out how to search for life in ancient rocks, drill for rock samples, take high resolution videos, develop flying machines in a place with gravity that is 40 percent lower than on Earth, send detailed information back to Earth in a timely manner, and take off from another planet. In the future, we should expect large payoffs in commercial developments from Mars exploration and advances that bring new conveniences and inventions to people.

Encourage Space Tourism

In the not too distant future, wealthy tourists likely will take trips around the Earth, visit space stations, orbit the Moon, and perhaps even take trips around Mars. For a substantial fee, they can experience weightlessness, take in the views of the entire planet, see the stars from outside the Earth’s atmosphere, and witness the wonders of other celestial bodies.

The Mars program will help with space tourism by improving engineering expertise with space docking, launches, and reentry and providing additional experience about the impact of space travel on the human body. Figuring out how weightlessness and low gravity situations alter human performance and how space radiation affects people represent just a couple areas where there are likely to be positive by-products for future travel.

The advent of space tourism will broaden human horizons in the same way international travel has exposed people to other lands and perspectives. It will show them that the Earth has a delicate ecosystem that deserves protecting and why it is important for people of differing countries to work together to solve global problems. Astronauts who have had this experience say it has altered their viewpoints and had a profound impact on their way of thinking.

Facilitate Space Mining

Many objects around the solar system are made of similar minerals and chemical compounds that exist on Earth. That means that some asteroids, moons, and planets could be rich in minerals and rare elements. Figuring out how to harvest those materials in a safe and responsible manner and bring them back to Earth represents a possible benefit of space exploration. Elements that are rare on Earth may exist elsewhere, and that could open new avenues for manufacturing, product design, and resource distribution. This mission could help resource utilization through advances gained with its Mars Oxygen Experiment (MOXIE) equipment that converts Martian carbon dioxide into oxygen. If MOXIE works as intended, it would help humans live and work on the Red Planet.

Advance Science

One of the most crucial features of humanity is our curiosity about the life, the universe, and how things operate. Exploring space provides a means to satisfy our thirst for knowledge and improve our understanding of ourselves and our place in the universe.

Space travel already has exploded centuries-old myths and promises to continue to confront our long-held assumptions about who we are and where we come from. The next decade promises to be an exciting period as scientists mine new data from space telescopes, space travel, and robotic exploration. Ten or twenty years from now, we may have answers to basic questions that have eluded humans for centuries, such as how ubiquitous life is outside of Earth, whether it is possible for humans to survive on other planets, and how planets evolve over time.

The author would like to thank Victoria E. Hamilton, staff scientist at the Southwest Research Institute, for her helpful feedback on this blog post.

       

In August 1864, as the national election approached, Abraham Lincoln expected to lose and was planning for an orderly transition of power. One hundred fifty-six years later, the month of August 2020 sees a down-in-the-polls Donald Trump suggesting he might delay the election or not recognize its validity if he is defeated.

Donald Trump wants us to believe that expanding voting procedures to deal with a national crisis is unique and threatening. Yet, the circumstances of the 2020 election mirror in at least three ways those of 1864: The first was whether an election could be conducted amidst a national crisis. The second was the need to change voting laws. The third was the availability of a new technology to spread the president’s words.

Lincoln knew his opponent’s victory would mean the dissolution of the nation he had fought to preserve. The Democratic nominee, Union General George B. McClellan, formerly the army’s top general, was positioned as the man who could bring the war to an end by means of a negotiated peace.

On August 23, Lincoln presented the cabinet with a document he had prepared. “This morning, as for some days past, it seems exceedingly probable that this Administration will not be re-elected,” he wrote. “Then it will be my duty to so co-operate with the President elect, as to save the Union between the election and the inauguration; as he will have secured his election on such grounds that he cannot possibly save it afterwards.” Each cabinet member was expected to sign the document.

“The People are wild for peace,” New York’s powerful Republican Thurlow Weed wrote Secretary of State William Seward. “I told Mr. Lincoln that his re-election was an impossibility.” To a friend, Lincoln confided, “You think I don’t know I am going to be beaten? but I do, and unless some great change takes place, beaten badly.”[1]

Surely, the soldiers bearing the brunt of Lincoln’s decisions would support their old commander and peace, over Lincoln and war. But would those soldiers be able to vote?

Historically, state laws required being physically present at the polling station. Most states changed their laws so that soldiers and sailors could vote remotely. But five states—Indiana, Illinois, Delaware, New Jersey, and Oregon—continued the no absentee tradition. Among other effects, this meant that Abraham Lincoln was unable to vote for his own reelection since he could not leave Washington to return to Illinois.

Just as today, the scramble to change the voting laws to allow for the extenuating circumstances became political. In some states, fearing the unknown, Democrats blocked the reform.

The new voting procedures also created confusion. Some states allowed soldiers to mail in their ballots, while other states sent delegations to the troops to collect their votes. New rules that were being tried for the first time and carried out in different ways would determine the fate of the nation.

Many Democrats felt confident the soldier vote would go their way. One Democratic newspaper publisher predicted, “We are as certain of two-thirds of that vote for General McClellan as the sun shines,”[2] Yet, Lincoln did not discourage the new voting practices.

Not only did Lincoln not attack the new voting methods, but he also facilitated the soldier franchise. On his instructions, the Secretary of War oversaw granting of furloughs to go home and vote to soldiers who were in hospitals or were otherwise unfit for field duty. The army even furnished the necessary transportation.[3]

This did not mean that Lincoln was passive in his reelection effort. In his own words he was “more of a politician than anything else”[4] and he used every political lever available. The relatively new telegraph played the role of today’s internet, fulfilling an insatiable demand for information. In response, Lincoln developed a sophisticated political information apparatus. For the first time, government agencies began producing press releases for distribution to local newspapers by telegraph. Lincoln sat down for an unprecedented number of one-on-one interviews with journalists that were then telegraphed to papers throughout the nation.[5] Like today, the president understood how the electronic network of the era reshaped political discourse.

In the end, as we all know, Lincoln won the 1864 election. He carried the vote of those who cast their ballot at home as well as the soldier vote in the field. Some argue that Lincoln was pro-soldier vote in the belief it would help him. In sharp contrast to today, however, his actions were in favor of the franchise. In the face of expected defeat, Abraham Lincoln put into practice what he so eloquently spoke of a year earlier, that we are a “government by the people.”

[1] David Herbert Donald, Lincoln, Simon & Schuster, 1996, p. 529

[2] Doris Kearns Goodwin, Team of Rivals, Simon & Schuster, 2005, p. 663

[3] Official Records, Series 1, vol. 39 (Part III), p. 603

[4] Roy Basler, ed., The Collected Works of Abraham Lincoln, Rutgers University Press, 1953, vol. VII, p. 398

[5] Tom Wheeler, Mr. Lincoln’s T-Mails, HarperCollins, 2006, p. 165

       

Democratic candidate Joe Biden’s decision to put U.S. Senator Kamala Harris on his ticket means that we now have the fall lineup against Republicans Donald Trump and Mike Pence. Biden’s historic choice to put a prominent and well-respected African American woman on the ticket as his vice presidential selection guarantees high-level attention on Democrats’ bid to reclaim the White House.

What is less clear, however, is what the Biden-Harris combination will mean for technology policy, internet platform regulation, emerging technologies like artificial intelligence (AI), and relations with China. Harris has been critical of technology companies on several issues, but also has close personal ties with a number of leading tech executives. In looking at Biden’s “Build Back Better” plan for economic recovery and other papers, though, several likely principles and projects stand out, which are outlined below. Taken together, these principles may form the basis of a new policy regime for the technology sector that shifts the prevailing guardrails in meaningful ways.

Greater tech sector regulation

The mounting techlash against internet platforms outlined in a new Brookings book, Turning Point:  Policymaking in the Era of Artificial Intelligence means a Biden-Harris administration is likely to move towards greater regulation of the technology sector. That includes stronger action on competition policy, antitrust enforcement, privacy policy, cybersecurity, and Section 230 reforms.

This is consistent with information compiled during the House Antitrust Subcommittee investigation into big tech firms like Amazon, Apple, Facebook, and Google. In a recent hearing, legislators accused these firms of engaging in anticompetitive practices, predatory behavior, and using their market power to buy or undermine competitors. In a forthcoming report, Democrats are likely to propose stronger enforcement of these issues and greater support for small and medium-sized tech firms, with the goal of improving upon the consumer welfare standard and maintaining greater competition in the marketplace.

In his tenure during the Obama administration, Biden was quite critical of Silicon Valley, which may still be the case if he wins the election. Senator Harris, with a background as a skilled prosecutor and interrogator, may follow suit to ensure the appropriate level of enforcement against practices not deemed to be in the public interest. Both leaders may seek to address these issues within the context of big tech’s role in non-technology issues, including election interference.

Tougher anti-bias enforcement

Another area of synergy on the Biden-Harris ticket will be in addressing the lack of diverse workforces in the technology industry and the biases that appear in AI systems, which amplify stereotypes and lead to disparate impacts for protected groups. As a prosecutor, Senator Harris will most likely promote algorithmic accountability and transparency, especially in areas like criminal justice, employment, housing, health care, and education. A Biden-Harris administration will lend support to tougher anti-bias rules for the digital economy and stronger enforcement against internet platforms that fail to comply with civil rights and other data privacy protections.

In their efforts to address their past and current positions on criminal justice and policing, both Biden and Harris are more likely to support stronger guardrails on the use of facial recognition and other surveillance technologies, particularly among law enforcement and border security officials. Senator Harris may also address the technical flaws in the accurate identification of diverse populations in facial recognition.

Stronger action against foreign government interference

As suggested, both Biden and Harris have been outspoken on the need for more action by social media companies against foreign government interference in American elections, especially in disinformation campaigns. Each has supported more money for state and local governments to protect critical infrastructure (including election infrastructure and voting processes) and tougher action against foreign governments and entities found to be interfering with U.S. elections. If there is evidence of foreign interference in the 2020 election, as already alleged by the American intelligence community, a Biden-Harris administration would take strong action against the offending countries. With the heightened attacks on voting rights protections, processes and campaign integrity by the GOP, this one issue may very well become of highest importance to the ticket and the Democratic party.

More support for worker rights in the gig economy

One of the fault lines in the emerging gig economy has been questions surrounding worker rights and the use of independent contractors by tech companies. Right now, companies like Uber and Lyft classify workers as independent contractors and do not provide health or retirement benefits despite the apparent branding of workers’ vehicles and clothing. Biden’s economic plan calls for an “updated social contract that treats American workers and working families as essential at all times, not just times of crisis – with higher wages, stronger benefits and fair and safe workplaces.” Given the economic vulnerabilities created by the pandemic, a Biden-Harris ticket will look closer at worker reclassification and protections to promote more economic security for workers.

Following the lead of recent California legislation, the federal government may also make it harder to classify workers as independent contractors and require companies that engage in certain practices to count workers as full-time employees receiving relevant benefits. In more traditional telecommunications industries, a Biden-Harris ticket may also look more closely at improved collective bargaining agreements for contract workers and protection of unions as broadband expansion, especially through wireless 5G networks, enables job growth.

Higher spending on digital infrastructure and adoption programs

Inadequate and inequitable access to high-speed broadband prevents ordinary citizens from benefitting from the new economy. Our research has noted that basic digital infrastructure increasingly is required to access telemedicine, engage in online learning, apply for jobs, or get loans and mortgages. A Biden-Harris ticket could make closing the digital divide a national priority, especially for vulnerable urban and rural populations where obstacles in network deployment, affordability, and adoption still exist.

Senator Harris, who has already been vocal about the health disparities contributing to higher rates of COVID-19 infection for African Americans, may be likely to embrace the expansion of telemedicine and digital health as opportunities to narrow these gaps. Biden could take swift action on the equity challenges limiting distance learning for disadvantaged students and immediately call for the modernization of the federal E-Rate program to promote home access for disconnected students. New leadership at the Federal Communications Commission will also advance the Biden-Harris agenda.

More support for an open internet as a matter of social justice

Both Biden and Harris are also likely to reinvigorate discussions around net neutrality, given the Trump FCC’s repeal of Open Internet Order. Senator Harris has supported net neutrality principles of an open internet in the past and is likely to push for those provisions as a matter of social justice given the role of the internet in broadcasting and sharing the incidents leading to the death of George Floyd. It is likely that she will also work to directly address discriminatory practices or paid prioritization in internet traffic.

Representing Silicon Valley, Harris will be open to working with technology and telecommunications firms but insist that they respect the basic values of an open internet. A Biden-Harris ticket will probably resolve the unsettled debates over federal privacy protections, but Harris may endorse states’ privacy laws, rejecting the possibility of federal preemption. To honor their commitments to their multicultural and multi-generational voting blocs, a Biden-Harris ticket may also aim to find resources that support tech start-ups led by diverse founders.

More competition but less confrontation with China

The next administration’s relationships with China is going to be a major challenge, largely due to the harsh denouncements of the country by the current administration. Right now, U.S. public opinion is skeptical of that country’s government and many people want tougher action on trade policy, intellectual property, and human rights. A Democratic administration is likely to negotiate hard and seek meaningful resolution through joint engagement and consultation between the two countries.

Joe Biden already has discussed the importance of bringing critical supply chains back to the U.S. as a matter of national security, which may follow the course of bans on Chinese companies and products. On other China issues, rather than engaging in unilateral actions, a President Biden is likely to work closely with European allies and build an international coalition against practices deemed unfair, unjust, and in direct violation of human and civil rights. It is also likely that based on his picks for the lead roles in the commerce and state departments, Chinese technology issues will be considered national security concerns, given the previous privacy and data security vulnerabilities. How Biden and Harris address issues with China may possibly become a rubric for their cybersecurity plans.

It is too early to suggest definitive insights, but the early indications suggest that a Biden-Harris ticket will mix traditional Democratic values with a tougher stance on technology firms.

Amazon, Apple, Facebook, and Google are general, unrestricted donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.