In his remarks at this year’s GET conference at ASU, Thierer explores the relevance of the term “permissionless innovation” to the governance of emerging technologies. He provides a good description (not surprising, since he’s written a book about it), notes the apparent contrast with the “precautionary principle,” and then points out some of their shared shortcomings.
He concludes that “all roads lead back to soft law solutions instead of hard law remedies.” He mentions his review of Wendell Wallach’s 2015 book, and notes that, “although we do not begin in the same place philosophically-speaking, we largely end up in the same place practically-speaking.”
(According to USLegal.com, “Soft law refers to rules that are neither strictly binding in nature nor completely lacking legal significance. In the context of international law, soft law refers to guidelines, policy declarations or codes of conduct which set standards of conduct. However, they are not directly enforceable.” Thierer identifies it with “multistakeholder processes, and various other informal governance mechanisms will need to fill the governance gap left by the gradual erosion of hard law.”)It reminded me of my musings about internet governance as forestry. I was inspired by Michael Pollan’s book "Second Nature," which argues that gardening lies between leaving it to nature, and total control. Looking back, I’m again struck by the power of the regulation-is-gardening metaphor. I can’t say it better than Pollan, so here are a few excerpts:
“The trick, I realize now, is somehow to find a middle ground between these two positions [of laissez-faire and total control]. And that is what a garden is, or should be: a midspace between Dudleytown [an abandoned nineteenth-century settlement near Pollan’s place that had reverted to wilderness] and the parking lot, a place that admits of both nature and human habitation. But it is not, as I had imagined, a harmonious compromise between the two, nor is it stable; from what I can see, it requires continual human intervention or else it will collapse. The question for the gardener—and in a way it's a question for all of us—is, What is the proper character of that intervention?”Near the end of the book, Pollan makes an explicit analogy between Nature and the Market: “Indeed, the wilderness ethic and laissez-faire economics, antithetical as they might at first appear, are really mirror images of one another. Each proposes a quasi-divine force—Nature, the Market—that, left to its own devices, somehow knows what’s best for a place.” He argues that the nature/culture dichotomy is misconceived:
“A society that produces "gardens" (or "anti-gardens”) like Central park is one that assumes nature and culture are fundamentally and irreconcilably opposed. And it seems to me that in order to design true gardens of distinction one must have a vision of how the two can harmonized. It may be this that we lack. Americans have historically tended to regard nature as a cure for culture, or vice versa. Faced with the question of what to do with the land, we always seem to come up with the same crude alternatives: to virtuously subdue it in the name of "progress," or to place it strictly off-limits in "wilderness areas," hallowed places we go seeking an antidote to city life.”After a description of the conflict in his little community about whether and how to respond to a storm’s destruction of a revered local pine forest, which pitted “let nature take its course” against “remake it exactly as it was,” he comes to what—to me—is the theme of the book, and the lesson for regulation
“But as far apart as the two sides seemed to stand, they actually shared ground than they realized. Both started from the premise that man and nature were irreconcilably opposed, and that the victory of one necessarily entailed the loss of the other. Both sides, in other words, accepted the premises of what we might call the "wilderness ethic," which is based on the assumption that the relationship of man and nature resembles a zero-sum game. … Watching my little local debate unfold over the course of the summer, and grow progressively more shrill and sterile, I began to wonder if perhaps the wilderness ethic itself, for all that it has accomplished in this country over the past century, had now become part of the problem. I also began to wonder if it might be possible to formulate a different ethic to guide us in our dealings with nature, at least in some places some of the time, an ethic that would be based not on the idea of wilderness but on the idea of a garden.”
“[Forest ecologists and other experts] told me that the classical theory of pine-forest succession probably does describe the underlying tendency at work in Cathedral Pines. But it turns out that a lot can go, if not "wrong" exactly, then at least differently. . . . Nobody, in other words, can say what will happen in Cathedral Pines' And the reason is not that forest ecology is a young or imperfect science, but because nature herself doesn’t know what 's going to happen here. Nature has no grand design for this place.”His comments about gardeners also seem to me to be applicable to wise regulators and policy makers:
“All the accomplished gardeners I know are surprisingly comfortable with failure. They may not be happy about it, but instead of reacting with anger or frustration, they seem freshly intrigued by the peony that, after years of being taken for granted, suddenly fails to bloom. They understand that, in the garden at least, failure speaks louder than success.”
“The successful gardener, I’ve found, approaches science and folk wisdom, even magic, with like amounts of scepticism and curiosity. If it works, then it’s “true.” Good gardeners tend to be flat-out pragmatists not particularly impressed with science.”As a geek, of course, I believe that the FCC could make more use of engineering insights to guide policy; but it good to be reminded why pragmatism is the order of the day.