The Pacing Problem and the Future of Technology Regulation

What happens when technological innovation outpaces the ability of laws and regulations to keep up?

This phenomenon is known as “the pacing problem,” and it has profound ramifications for the governance of emerging technologies. Indeed, the pacing problem is becoming the great equalizer in debates over technological governance because it forces governments to rethink their approach to the regulation of many sectors and technologies.

The Innovation Cornucopia

Had Rip Van Winkle woken up his famous nap today, he’d be shocked by all the changes around him. At-home genetics tests, personal drones, driverless cars, lab-grown meats, and 3D-printed prosthetic limbs are just some of the amazing innovations that would boggle his mind. New devices and services are flying at us so rapidly that we sometimes forget that most did not even exist a short time ago. At this point, it feels like our smartphones have been in our lives forever, but even just a decade ago, very few of us had one. Likewise, plenty of people now regularly enjoy the benefits of the sharing economy, but ten years ago, Uber, Lyft, and Airbnb did not even exist. Most of the social networking platforms or online video and audio streaming services that we use today had not even been created 15 years ago. Back then, Netflix’s DVD mail subscription service seemed downright revolutionary.

With every innovation comes more questions about how the law should keep pace, or whether it even can. “There has always been a pacing problem,” observes Yale University bioethicist Wendell Wallach, author of A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. But what Wallach and many other scholars worry about today is that the pace of change has been kicked into overdrive, making it more difficult than ever for traditional legal schemes and regulatory mechanisms to stay relevant. Larry Downes refers to this as “The Law of Disruption.” In his 2009 book on this “law,” Downes showed how “technology changes exponentially, but social, economic, and legal systems change incrementally” and that this law was becoming “a simple but unavoidable principle of modern life.”

Moore’s Law Quickens the Pace

There are three primary reasons the pacing problem is such a force in our modern world. The root cause lies in the power of “combinatorial innovation,” which is driven by “Moore’s Law.”  The Information Revolution spawned a stunning array of new technological capabilities that build on top of one another in a symbiotic fashion. Think about the shared foundational elements of most modern inventions: microchips, sensors, digital code, big data, cloud computing, remote data storage, wireless networking and geolocation capabilities, machine-learning, cryptography, and more. Each of these underlying capabilities is becoming faster, cheaper, smaller, more powerful, and easier to find and use. Innovators are combining them as part of their ongoing search for new and better ways of doing things.

Moore’s Law powers these developments. Moore’s Law is the principle named after Intel co-founder Gordon E. Moore, who first observed in 1965 that “computing would dramatically increase in power, and decrease in relative cost, at an exponential pace” in coming years. Indeed, it has continued to do so for the past half century for many information technologies. A recent Technology Policy Institute white paper noted that “data transit prices fell from about $1200 per Mbps in 1998 to $0.02 per Mbps in 2017.”

These forces are now revolutionizing other sectors as “software eats the world” and innovators utilize these new technologies to address nearly every conceivable need and want. In the field of genetics, the biological equivalent of Moore’s Law is known as the “Carlson curve.” The past two decades have seen the cost of sequencing a human genome fall from over $100 million to under $1,000, a rate nearly three times faster than Moore’s Law.

What the Public Wants, the Public Gets

The second reason the pacing problem is accelerating is that the public wants it to! It is true that many people say they are uneasy with many emerging technologies. When new gadgets and services first gain attention, a “technopanic” attitude often ensues. That is unsurprising because, as others have noted, “fear has gone hand in hand with technological advancements throughout history.”

But societal attitudes toward technological change often shift rapidly. They do so even faster today as citizens quickly assimilate new tools into their daily lives and then expect that even more and better tools will be delivered tomorrow. As more people begin to realize how new technologies improve our lives in meaningful ways, it becomes extremely hard for policymakers to take those innovations away or even tell us not to expect better ones. This relationship between technological change and societal expectations acts as an extraordinarily powerful check on the ability of regulators to “roll back the clock” on innovative activities.

Broken Government Exacerbates the Problem

Finally, the pacing problem is becoming more acute because “demosclerosis” and “kludgeocracy” have taken hold within American government. Jonathan Rauch coined the term demosclerosis in his 1999 book Government's End: Why Washington Stopped Working to describe “government’s progressive loss of the ability to adapt.” “[A]s layer is dropped upon layer,” he argued, “the accumulated mass becomes gradually less rational and less flexible.”

Instead of cleaning up old legalistic messes and adapting to the times, government solutions are more often clumsily cobbled together to patch past problems and create temporary solutions. Steven Teles refers to this as kludgeocracy. “The complexity and incoherence of our government often make it difficult for us to understand just what that government is doing,” Teles says. Kludgeocracy creates serious costs for individual citizens, governments themselves, and to our democratic systems more generally, he argues. Taken together, demosclerosis and kludgeocracy breed highly dysfunctional governments and make it even easier for the pacing problem to speed ahead.

Can Policymakers Adapt?

Regulators are not oblivious to the challenges posed by the pacing problem. “I have said more than once that innovation moves at the speed of imagination and that government has traditionally moved at, well, the speed of government,” remarked Michael Heurta, head of the Federal Aviation Administration, in a 2016 speech regarding drones. Shortly after Huerta made those comments, the Department of Transportation released a report on the regulation of driverless car technology which noted that “The speed with which [driverless cars] are advancing, combined with the complexity and novelty of these innovations, threatens to outpace the Agency’s conventional regulatory processes and capabilities.”

Food and Drug Administration (FDA) regulators have increasingly referenced the pacing problem when discussing the challenge of keeping up with new medical innovations. The New York Times recently asked Dr. Peter Marks, director of the FDA’s Center for Biologics Evaluation and Research, how the agency planned to deal with hundreds of “rogue” stem cell treatment clinics. “There are hundreds and hundreds of these clinics,” he said. “We simply don’t have the bandwidth to go after all of them at once.”

The pacing problem has even crept into antitrust enforcement. The US Department of Justice (DOJ) sought to break up Microsoft in the late 1990s, but as the legal proceedings dragged on through the early 2000’s, the market moved and made the DOJ’s case moot. Google Chrome and Mozilla Firefox emerged as legitimate competitors to Microsoft’s Internet Explorer without regulatory remedy. In the end, Microsoft reached a settlement with the DOJ that fell far short of the government’s original ambitions to bust up the firm, all because the market moved at a pace much faster than the regulator’s pace. More recent antitrust action in the US and EU also suffer from the pacing problem. Multi-year antitrust investigations reach conclusions that don’t reflect market trends in the intervening years and offer remedies that may be “too little, too late,” especially in the information technology sector.

Lawmakers or regulators cannot simply double-down on the lethargic and unwieldy technocratic regulatory schemes of the past.

Is the Pacing Problem Really the Pacing Benefit?

What should policymakers do in light of these new challenges? The extremes will not work. Lawmakers or regulators cannot simply double-down on the lethargic and unwieldy technocratic regulatory schemes of the past. Command-and-control tactics are not going to be effective in an age when technology evolves in a quicksilver fashion. In a world where “innovation arbitrage” is easier than ever, repressive crackdowns on new tech will often backfire. Evasive entrepreneurs will often move to those jurisdictions where their innovative acts are treated more hospitably. That, too, exacerbates the pacing problem.

From the perspective of many innovation advocates, this will make it seem like the pacing problem is more like the pacing benefit. Generally speaking, that intuition is sound. Innovation is the fundamental driver of human betterment. We need more “moonshots”—“radical but feasible solutions to important problems”—to ensure that current and future generations enjoy more choices, greater mobility, increased wealth, better health, and longer lifespans. We don’t want archaic regulatory schemes and regimes holding that back.

We need a new governance vision for the technological age.

Constructive Solutions

But policymakers will not abandon oversight of emerging technologies altogether, nor should we want them to. The potential harms associated with some new technologies could be significant enough that a certain degree of regulatory oversight will be required. But the pacing problem means the old, inflexible, top-down approaches will need to be discarded and that the administrative state itself must become more entrepreneurial.

In a forthcoming law review article entitled, “Soft Law for Hard Problems: The Governance of Emerging Technologies in an Uncertain Future,” Jennifer Skees, Ryan Hagemann, and I discuss how “soft law” mechanisms—multi-stakeholder processes, industry best practices and standards, workshops, agency guidance, and more—can help fill the governance gap as the pacing problem accelerates. Many agencies are already tapping soft law tools to help guide the development of new technologies such as driverless cars, drones, the Internet of Things, mobile medical applications, artificial intelligence, and others. In fact, we argue that soft law has already become the dominant form of technological governance for emerging tech in the US.

Critics might decry soft law as either being too lax (and open to private abuse) or too informal (and open to government abuse), but the pacing problem makes both arguments increasingly irrelevant. We need a new governance vision for the technological age. Our new governance systems must be more flexible and adaptive than the heavy-handed regulatory regimes that preceded them.