Industry Perspective: Legislating in the Face of ‘Disruptive Technologies’

Former state legislator Lloyd Levine offers his views on the challenges of technology-related policymaking.

by / April 5, 2013
Image from Shutterstock

People have often asked me, “If you could repeal one law, what would it be?” My answer is always the same: “The law of gravity, I find it very limiting.”

Obviously I am making a joke, as it is clearly impossible to repeal (or amend) the laws of physics. But what about the effectiveness and enforceability of other laws? Particularly laws that try to regulate technology and the Internet?

The term “Disruptive Technology” was originally used to “describe a new technology that unexpectedly displaces an established technology.” These days, there are so many examples of this that it is no longer a unique phenomenon. Digital music files and online shopping have replaced record stores. Online publications have altered newspaper and magazine publishing in multiple ways, including the elimination of publications. Cell phones have nearly eliminated land line telephones. And, travel agents are being replaced by online travel services. And that is just to name a few.

While not necessarily “disruptive” in the same way, technology has also fundamentally and radically changed policymaking and governing. But that aspect seems to get far less attention and discussion. Email, websites, Facebook, Twitter, online video, and many others inventions have altered the way policymakers and constituents interact. But beyond that, the technologies themselves have altered the way we must govern and regulate if we want those laws and regulations to have any meaning or effect.

I saw this firsthand in my first year in the Legislature. In 2003, cellphones had not yet become the smartphones that we see today. With the exception of a few high-end models, most were simply portable phones you could take with you.

However, despite the similarity to landline phones in function, cellphone rate plans were completely different as mobile carriers had switched to the “one rate”/”bucket of minutes” plans. And landline phone providers were just beginning to follow suit.

That year, legislation was introduced to force providers of mobile telephone service to disclose their rates the same way landline phone providers were required to do. The goal was simple: provide consumers with more information on what they were paying for.

But there was a problem -- how do you disclose the rate when it’s a flat rate?

More importantly, as it relates to the topic of regulating technology, only two members of the committee actually knew about “one rate” plans. Neither the author of the legislation, nor the sponsor was aware of “one rate” plans, let alone understood the implications of such plans on rate disclosure legislation.

Fax machines provide another example. With the fax machine came annoying junk faxes (a precursor to email spam). There was much government action to prohibit junk faxing, and none of it did anything to stop junk faxes.

How about spam emails? We have laws on the books to prevent those as well, yet the effect hasn’t been to eliminate spam. The best tool against spam emails has been more and more sophisticated email filters and virus protection programs. Private firms like Microsoft, McAfee, and Norton have done far more to stop spam than any government law.

More recently, a Berkeley City Councilmember proposed a tax on email to save the post office. While that may sound like an innovative idea to some, those with any understanding of how email works knows it would be as easy to implement as a repeal of the law of gravity. All this to prop up a postal system overcome by the “Disruptive Technologies” of email, scanning, electronic banking and bill payments, and cloud storage of shared documents.

Does that mean any and all attempts to regulate technology are futile? No, it just means that in order to attempt to regulate the technology we must understand how it works. For unless we understand the technology, we will have little chance of achieving the stated purpose of the regulations. And sometimes, by the time we get the law passed, the fast pace of innovation and new technology has made the law outdated.

From privacy to cellphone use in cars to Internet gambling, there are multiple proposals on a variety of topics in the California Legislature at this very moment that attempt to impose some sort of regulation on technology. Policymakers and interest groups seeking to pass legislation or push an agenda must understand the relevant technologies. In each instance, the goals are laudable, but the technology involved forces a different debate and a different set of available policy options.

Sometimes, we may just have to accept that there will be tradeoffs. Like most inventions, the Internet, cellphones, and countless other technological innovations all come with great societal benefits, but they also come with detriments. You simply can’t have one without the other, even if you wanted to. Once a piece of technology is unveiled and a demand created, that technology and its capabilities won’t go away. It may be replaced with a newer technology, but the capabilities remain.

Last year in a veto message, Governor Jerry Brown sagely opined, “Not every human problem deserves a law.” Paraphrasing that, not every technology problem can be solved by a state law.

Hon. Lloyd Levine is President of Filament Strategies, LLC. and a former member of the California State Legislature.

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Lloyd Levine

Hon. Lloyd Levine is President of Filament Strategies, LLC. and a former member of the California State Legislature.