Using Law against Technology

On Thursday, a Brazilian judge ordered the text messaging service WhatsApp shut down for 48 hours. It was a monumental action.

WhatsApp is the most popular app in Brazil, used by about 100 million people. The Brazilian telecoms hate the service because it entices people away from more expensive text messaging services, and they have been lobbying for months to convince the government that it’s unregulated and illegal. A judge finally agreed.

In Brazil’s case, WhatsApp was blocked for allegedly failing to respond to a court order. Another judge reversed the ban 12 hours later, but there is a pattern forming here. In Egypt, Vodafone has complained about the legality of WhatsApp’s free voice-calls, while India’s telecoms firms have been lobbying hard to curb messaging apps such as WhatsApp and Viber. Earlier this year, the United Arab Emirates blocked WhatsApp’s free voice call feature.

All this is part of a massive power struggle going on right now between traditional companies and new Internet companies, and we’re all in the blast radius.

It’s one aspect of a tech policy problem that has been plaguing us for at least 25 years: technologists and policymakers don’t understand each other, and they inflict damage on society because of that. But it’s worse today. The speed of technological progress makes it worse. And the types of technology­ — especially the current Internet of mobile devices everywhere, cloud computing, always-on connections and the Internet of Things — ­make it worse.

The Internet has been disrupting and destroying long-standing business models since its popularization in the mid-1990s. And traditional industries have long fought back with every tool at their disposal. The movie and music industries have tried for decades to hamstring computers in an effort to prevent illegal copying of their products. Publishers have battled with Google over whether their books could be indexed for online searching.

More recently, municipal taxi companies and large hotel chains are fighting with ride-sharing companies such as Uber and apartment-sharing companies such as Airbnb. Both the old companies and the new upstarts have tried to bend laws to their will in an effort to outmaneuver each other.

Sometimes the actions of these companies harm the users of these systems and services. And the results can seem crazy. Why would the Brazilian telecoms want to provoke the ire of almost everyone in the country? They’re trying to protect their monopoly. If they win in not just shutting down WhatsApp, but Telegram and all the other text-message services, their customers will have no choice. This is how high-stakes these battles can be.

This isn’t just companies competing in the marketplace. These are battles between competing visions of how technology should apply to business, and traditional businesses and “disruptive” new businesses. The fundamental problem is that technology and law are in conflict, and what’s worked in the past is increasingly failing today.

First, the speeds of technology and law have reversed. Traditionally, new technologies were adopted slowly over decades. There was time for people to figure them out, and for their social repercussions to percolate through society. Legislatures and courts had time to figure out rules for these technologies and how they should integrate into the existing legal structures.

They don’t always get it right –­ the sad history of copyright law in the United States is an example of how they can get it badly wrong again and again­ — but at least they had a chance before the technologies become widely adopted.

That’s just not true anymore. A new technology can go from zero to a hundred million users in a year or less. That’s just too fast for the political or legal process. By the time they’re asked to make rules, these technologies are well-entrenched in society.

Second, the technologies have become more complicated and specialized. This means that the normal system of legislators passing laws, regulators making rules based on those laws and courts providing a second check on those rules fails. None of these people has the expertise necessary to understand these technologies, let alone the subtle and potentially pernicious ramifications of any rules they make.

We see the same thing between governments and law-enforcement and militaries. In the United States, we’re expecting policymakers to understand the debate between the FBI’s desire to read the encrypted e-mails and computers of crime suspects and the security researchers who maintain that giving them that capability will render everyone insecure. We’re expecting legislators to provide meaningful oversight over the National Security Agency, when they can only read highly technical documents about the agency’s activities in special rooms and without any aides who might be conversant in the issues.

The result is that we end up in situations such as the one Brazil finds itself in. WhatsApp went from zero to 100 million users in five years. The telecoms are advancing all sorts of weird legal arguments to get the service banned, and judges are ill-equipped to separate fact from fiction.

This isn’t a simple matter of needing government to get out of the way and let companies battle in the marketplace. These companies are for-profit entities, and their business models are so complicated that they regularly don’t do what’s best for their users. (For example, remember that you’re not really Facebook’s customer. You’re their product.)

The fact that people’s resumes are effectively the first 10 hits on a Google search of their name is a problem –­ something that the European “right to be forgotten” tried ham-fistedly to address. There’s a lot of smart writing that says that Uber’s disruption of traditional taxis will be worse for the people who regularly use the services. And many people worry about Amazon’s increasing dominance of the publishing industry.

We need a better way of regulating new technologies.

That’s going to require bridging the gap between technologists and policymakers. Each needs to understand the other ­– not enough to be experts in each other’s fields, but enough to engage in meaningful conversations and debates. That’s also going to require laws that are agile and written to be as technologically invariant as possible.

It’s a tall order, I know, and one that has been on the wish list of every tech policymaker for decades. But today, the stakes are higher and the issues come faster. Not doing so will become increasingly harmful for all of us.

This essay originally appeared on CNN.com.

EDITED TO ADD (12/23): Slashdot thread.

Posted on December 23, 2015 at 6:48 AM • 59 Comments