New York, Oct. 3, 2012—The Internet “police” barely can keep up with the innovations that emerge daily from Silicon Valley, the hotbed of technology in the United States. A steady stream of new software, applications, and high-tech devices creates unprecedented challenges for U.S. regulators, who often are armed with outdated laws.
But there may be a way to reboot the regulatory system by letting the private sector take a lead role in developing the laws that govern them.
That’s the innovative approach proposed by Travis LeBlanc, a Special Assistant Attorney General of California, in a recent discussion at Columbia Law School entitled “@Silicon Valley: #RegulationIsDead.” LeBlanc warned that Silicon Valley is “outpacing, out-innovating, and outdating our regulatory system,” and explained that he believes the traditional legislative process is too slow and cumbersome to provide adequate protection.
“Legislation, administrative enforcement, and litigation simply take too long,” said LeBlanc, who emphasized he was not speaking on behalf of California Attorney General Kamala D. Harris. “By the time these processes are finished, the regulated technology has evolved so profoundly that the regulatory solution is outdated.”
In his position at the California Department of Justice, LeBlanc advises Attorney General Harris on technology, high-tech crime, privacy, antitrust, human trafficking, and health care issues. He was invited to speak as the Law School’s Fall 2012 Visitor from Government Practice—a Social Justice Initiatives program that introduces students to high-level government practitioners.
Ellen Chapnick, Dean for Social Justice Initiatives, in her introductory remarks, described LeBlanc as “an accomplished and dedicated public servant,” and described the "Visitor from Government" speaker series and program as “emblematic of our commitment to supporting students dedicated to public service.”
LeBlanc, who served in the Obama administration as an attorney in the U.S. Department of Justice’s Office of Legal Counsel from 2009 to 2011, explained that the technology industry also is harmed by the gap between innovation and regulation.
“Having outdated laws is not only bad for consumers—because the laws regulate problems that no longer exist—but it’s also bad for industry and innovation which become constrained by the outdated laws in ways that no legislator ever intended,” he said.
LeBlanc proposed an alternative framework in which regulation is drafted in collaboration with industry, relevant agencies, and consumers.
“The industry knows more about existing and future technology than the government; it can move quicker than the government; and an industry-driven regulatory process is cheaper than the legislative process,” he said.
No enforcement mechanisms would be lost by allowing industry to participate in the regulatory process. Instead, after the government approved the codes, it would be able to hold companies accountable for violating them.
LeBlanc noted that public-private collaboration is critical to regulating emerging technologies. As an example, he pointed to a recent agreement California Attorney General Harris announced with Amazon, Apple, Google, Hewlett-Packard, Microsoft, Facebook, and Research-in-Motion that resulted in an increase in privacy policies in mobile applications.
“Rather than suing these companies, we collaborated with them to arrive at a solution that would better protect consumers everywhere,” he said.
But such a dramatic shift in regulatory framework would require a long-term commitment, and LeBlanc stressed the immediate need to modify current practices, something Congress could do by adopting more flexible, intent-driven doctrine to keep government regulation of the information economy relevant in the 21st Century.
“We need to move towards laws that impose flexible standards and requirements around the use of the technology,” he said. “Legislators must legislate to achieve certain protections or principles, not allow or prohibit discrete technologies or behaviors.”
In his role as a state regulator, LeBlanc noted the need for regulatory innovation at the state level.
“States were historically understood as the ‘laboratories of democracy,’” he said. “Today, they must also be innovators of new technologies of regulation.”
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