States are failing on big tech and privacy — Biden must take the lead

Last month, the Biden-Harris administration elevated science to the highest levels of the administration, making the White House Office of Science and Technology Policy a cabinet level office.  

While this announcement was praised by many, questions remain regarding what this newly elevated office will address growing public concerns regarding invasive technologies, unregulated tech giants and the predatory business models in the gig economy. Many hoped that Congress would update archaic privacy laws or enact broader reforms and though there have been many congressional hearings on a range of topics including facial recognition and optimization algorithms, no broad reform policies have passed. 

In the absence of federal leadership, state and local governments have led much of the technology policy discourse and legislative actions, but recent revelations about government noncompliance with new state and local laws is raising concerns. 

In California, the law known as AB5 established a three-factor test to decide a worker’s status as an independent contractor, which threatened the business model of app-based, gig companies like Uber and DoorDash. Yet, shortly after this measure became state law, Uber and Lyft issued statements indicating they would not comply with the law and litigation ensued. During this period of legal noncompliance, the gig companies spent over $200 million on a campaign that ultimately led to the passage of ballot initiative, Proposition 22, which overrode AB5 and defined app-based transportation and delivery workers as independent contractors along with requiring the adoption of new labor and wage policies for these workers and companies. 

New York has also experienced noncompliance issues with city and state technology related laws, but with the government itself, not private corporations. In 2019, New York state enacted a law that would create a new commission to study the impact of artificial intelligence, robotics, and automation. Politicians expressed great hopes that this commission would suggest areas of potential regulation and help the state find a comprehensive way to address burgeoning technology concerns. Yet, when an ACLU staff member sought out the commission’s report, due in December 2020, they abruptly discovered that the commission was never created and the law failed to include any accountability measures if the government failed to comply. 

Around the same time advocates discovered that New York City selectively complied with an executive order issued by Mayor Bill de Blasio in November 2019 following a failed task force effort. This order created an algorithms management and policy officer, who would be housed in the mayor’s Office of Operations to guide the city’s oversight and regulation of algorithmic-related technologies. The officer would also consult an algorithms advisory committee composed of experts and community members. During a Nov. 2020 hearing algorithms management policy officer Jeff Thamkittikasem — who is also director of the Office of Operations — admitted his role was only interim, there wasn’t anyone in line to fill the role permanently and the advisory committee was still being formed. The city released a report summarizing agency reporting on algorithmic tools but this list did not include several controversial and publicly known algorithmic tools. 

The truth about regulating our increasingly powerful and prolific technologies is that it is very hard. These intricate systems that have come to define so much of modern life create unintended consequences and interdependencies that most lawmakers struggle to comprehend. And even when lawmakers do take the brave first steps towards regulation, as they have in California and New York, they face an army of high-priced lawyers and lobbyists set on undercutting anything approaching real oversight.

This is why we need leadership from the White House, but not in the way you expect. The regulatory miasma we are mired in is too convoluted to be undone by executive order and executive branch action. Even with the smartest minds in the country — and Biden has more than his share of them at his disposal — the president simply does not have the power to regulate Silicon Valley and the university research labs on his own. But the paths to congressional reform are blocked as well. Some may have the will but far too little expertise and even less bipartisanship to transform that ambition into real laws.

But Biden’s White House can give us more; it can give us a roadmap. Using the bully pulpit of the presidency, Biden’s staff can lay out an evidence-based, consensus-driven model for the future. They can give state and local leaders the guidance they need to push through stronger laws in their own states and cities. But even more, the White House can make the stakes too high for local officials to let yet another task force fail to materialize or to let another proposition simply be ignored. 

It’s not going to be an easy fight, but with federal vision and local will, it’s a fight that civil society can win.

Rashida Richardson is a visiting scholar at Rutgers Law School and Rutgers Institute for Information Policy and Law, where she specializes in race, emerging technologies and the law, and a senior fellow in the Digital Innovation and Democracy Initiative at the German Marshall Fund. Albert Fox Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law.