Outlook 2016: Policymaking and Technology Will Continue to Diverge

Outlook 2016: Policymaking and Technology Will Continue to Diverge
By Rick Falkvinge

Policymaking and technology have diverged for the past 30 years, in the battle between an imaginary “right to incumbency” on one hand and disruptive makers on the other. Eventually, one side has to give.

Technology optimism is everywhere. If it’s one sentiment that’s widespread among the diehardest tech entrepreneurs, it’s that laws somehow don’t apply to their particular masterpiece, as they are making all inconvenient laws irrelevant anyway with the code they’re writing. This goes from Uber (which succeeded in several places with this attitude) to Aereo (which didn’t). What’s interesting here isn’t that some succeed and some don’t, but the general attitude that the world is changing so fast that laws are left behind anyway and it’s a matter of building or being outbuilt, and that you can outbuild the legal framework just like anything else.

Meanwhile, a whole lot of incumbent industries woke up to the Internet as a threat to their business model, or at least to their aspirations of control. The industries with connections to policymaking diverted innovation resources to writing their incumbency into law, which is never a particularly successful business model in the long run. Most of these industries – the copyright industry in particular – seems to genuinely believe that if they’re only allowed to punish the future a little longer, a magical unicorn will appear that will save this industry from the passage of time. This has not been a very successful strategy for industries in the past, or indeed for any powerholders. However, they do cause quite a bit of damage to the development capacity of their environment in their attempts to compete using police batons and courtrooms instead of attempting to compete with better products and services.

In other words, we can observe that for the existence of the popular Internet, policymaking people have tried to tame the technology using law and policy, and technology makers have tried to tame policymaking using technology. Neither has succeeded particularly well, and as they say: if you keep doing what you’ve been doing before, it’ll probably go as it has gone before.

As far back as the mid-1980s, when politicians tried to legislate owner liability for the operations of Bulletin Board Systems (think pre-Internet discussion forums), making the sysadmins liable for speech communicated between other people on the board (yes, really, and yes, the law is still in effect), people who understand technology have been shaking their heads at the utter cluelessness in policymaking. This hasn’t changed in 30 years, with today’s candidates for the office of President of the United States urging technology industries to invent cryptography that can only be circumvented by certain people. As anybody who is capable of tying their shoelaces unsupervised can attest to, mathematics is inherently incapable of working for one person and not working for another person. And yet, these are the people running for access to the world’s largest collection of nuclear warheads. It is an understatement to say that frustration in the tech camp has been building up for a long time.

The same frustration exists in the policymaking and the incumbent-industry camp; “why won’t technology obey the laws we make?”. But as Jan Carlzon, the then-CEO of Scandinavian Airlines observed in the 1980s while turning the company around, “policymaking beats the market, but technology beats policymaking”. This illustrates the rock-paper-scissors powerplay problem: if you’re a technology business, are you a market player (which can be beat by policymaking) or a technology player (which beats policymaking)? The impression remains that most startups see themselves as purely technology players, before the business side of operations hits them like a ton of bricks.

This is also why free-software and open-source movements truly don’t care about laws; they don’t have that business side that is beatable by policy. That’s why you’ll always have strong encryption, not just like today’s open VPN technology implementable by anybody with a privacy passion, but also like Tor and Signal.

Ten years ago, it was observed that the first movement to successfully cross the bridge between technology and policymaking and work successfully from within both camps would win the world. The copyright industry tried establishing a legal bridgehead into the tech camp with the DMCA, the EUCD, and similar laws, which made it illegal to use technology in ways the copyright industry didn’t approve of – a law which the pretty much the whole world ignored from its inception until present time, so you can’t really say the copyright industry worked their way out of laughingstock status. No such dual-camp player has emerged as dominant, not as of yet.

The outlook for 2016 would therefore be that tensions will continue to escalate, and will continue to do so until we have policymakers who understand the Internet. Judging from the age of political candidates, that’s not likely to happen of its own accord until people who were born with the Internet are of candidate age, which places us well into the 2050s. The field is ripe for anybody who wants to disrupt this observation.

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January 1, 2016 at 09:22AM
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