September 26, 2018

Codifying “Soft Law” Governance in Statute



Today, Sen. Brian Schatz (D-HI) and Sen. Cory Gardner (R-CO) introduced their “AI in Government Act of 2018” (AIGA). The bill would authorize the creation of an Emerging Technology Policy Lab (ETPL) under the authority of the General Services Administration, with the twin goals of (1) advising on, and promoting, the use of emerging technologies within the federal government and (2) improving the government’s “cohesion and competency” in the use of, and rulemaking aimed at governing, emerging technologies. In an age of hyper-partisan political brinkmanship, this bill is a refreshing breath of fresh bipartisan air.  

Bills that attempt to tackle the many complex and difficult issues issues related to emerging technologies – such as autonomous vehicles and artificial intelligence (AI) – very often take on an amorphous character, providing little in the way of discernible, concrete steps towards action. While some may claim the AIGA fits that nature, it is actually a far more monumental and noteworthy proposal than many will give it credit for. The reason? This legislation would, in many important respects, codify some of the most crucial elements of “soft law” governance in emerging technologies – an important issue that the Niskanen Center has repeatedly emphasized as the defining system of how emerging technologies are currently, and should continue to be, governed in the Digital Age.

The AIGA codifies the essential features of a soft law governance doctrine – prioritizing multistakeholder engagement, housing those deliberative assemblies under the auspices of a non-rulemaking agency (which incentivizes industry to participate with government and civil society without the fear of threats or preemptive regulatory action), and offering pathways for providing recommendations that could, if necessity requires, materialize as best practices and other “soft criteria.” This multistakeholder approach is further strengthened by the inclusion of a provision that calls for explicit coordination with the Office of Management and Budget and Office of Science and Technology Policy. By prioritizing multistakeholder engagement among a wide and diverse assortment of actors, this legislation provides a market-friendly governance platform for discussion and collaboration without championing an overly-restrictive or precautionary approach to addressing the challenges facing the emerging technology ecosystem.

As described in the legislation, the ETPL will act as the emerging technology-focused multistakeholder-organizing body – of individuals from industry, government, the academy, nonprofits, and civil society – that has been so sorely lacking in the regulatory ecosystem. In this role, ETPL is also specifically tasked to work “with industry to improve the leadership of industry in emerging technology,” and ensure the American technology sector is able “to compete successfully in international markets.” Thus, the AIGA embraces not only the underlying tenets of soft law governance practices, but the basic principles of the 1997 Framework for Global Electronic Commerce, which – as the Niskanen Center has been emphasizing for many years – helped lay the policy foundation upon which the Internet was able to flourish.

In short, the AIGA is precisely the type of soft law platform America needs for the Digital Age.

By strengthening the government’s role as one of collaboration and coordination, the AIGA provides an effective platform for multistakeholder engagement on the broad scope of emerging technologies that promise untold benefits for the American economy and society. Because these benefits will be realized, first and foremost, by innovators and startups in the technology industry, it is appropriate that the ETPL provides the opportunity for government and civil society to work with industry to ensure America remains the world leader in innovation and technological progress.

The Niskanen Center applauds Sens. Schatz and Gardner for this forward-looking, bipartisan legislation.