02/02/2021

Beset by growing calls for regulation (Democratic Congress Prepares to Take On Big Tech), Big Tech is taking the initiative to set out its own vision: e.g. Microsoft has published 10 fairness principles by which it will manage the Microsoft Store.

Australia’s homegrown global tech player, Atlassian, also recently published ‘8 principles for sound tech policy’:

“As technology becomes indispensable, it is inevitable and appropriate that governments take steps to mitigate the risk factors from this deep integration of digital technologies into our day-to-day lives…One of the Atlassian values is “open company, no bullshit”. Sharing and being open about our perspective is part of who we are....If we are to encourage government to engage with us and the broader industry, we, too, have to be open with government about our perspective and approach.”

8 Atlassian principles for regulating technology

In summary, Atlassian’s 8 principles are:

  • Sound tech policy should have clear objectives. This means the regulatory solution should be clearly targeted at the identified problem.
  • Sound tech policy should be developed with a clear understanding of the relevant technology.
  • Sound tech policy should be proportionate, and should always seek to minimise unintended consequences – don’t use a regulatory hammer where a scalpel would better do the job.
  • Sound tech policy should be developed through open, consultative processes, which can ensure all sides are heard and mitigates against misunderstanding the technology.
  • Sound tech policy should provide for transparency in government decision-making and set forth fair procedures that allow meaningful challenge of and detailed inquiry into those decisions – no regulatory decision making in a ‘black box’;
  • Sound tech policy should seek to mould and target behaviours across a sector or drive outcomes on a systemic basis – and not single out individual providers.
  • Sound tech policy should be mindful of global standards and enhance global interoperability – competing national frameworks will impair innovation.
  • Regulatory outcomes should be measured, fair, and reliable, protecting consumers but also providing business with the confidence to grow and invest in jobs, infrastructure, and improved products for their customers.

What might regulation built around the Atlassian principles look like (our views, not Atlassian’s)?

First, regulation would be a lot less ex post (use of enforcement powers) and much more ex ante (setting the ‘road rules’ upfront); and in setting those upfront road rules, involve less unilateral decision making by the regulator and more a co-regulatory approach between the regulator and industry. The UK Government’s Furman Report on the digital economy strongly endorsed such an approach:

“the Panel wants to introduce a system where industry has greater clarity and confidence over what constitutes acceptable practice and the rules that apply. The best way of achieving these outcomes is through introduction of a digital platform code of conduct…developed collaboratively…with platforms and other affected parties will provide the opportunity to clarify what constitutes unfair or unacceptable conduct

Australia is currently heading in the opposite direction, with the ACCC crafting a broad general standard of ‘unfairness’ backed by more powerful enforcement powers. In a recent article, Gilbert + Tobin's competition and regulation lawyers Andrew Low and Luke Woodward said the ACCC’s approach:

“the use of significant penalties for the purposes of specific or general deterrence is only meaningful if there is clarity in the conduct seeking to be deterred. Absent such clarity in a dynamic digital economy, is over emphasizing the importance of penalties in order to drive business norms likely to lead to effective outcomes?”

Second, no regulatory system – even Furman’s co-regulatory ‘nirvana’ – will ever be able to keep pace with technological change. We need to develop new tools of transparency, responsibility and accountability between tech providers and users: in short, a penumbra of ‘trust’ which sits around the more formal regulatory system. This will require a shift in decision making by tech providers from ‘is there anything stopping me doing this?’ to ‘should I do this?’

The UK Government’s Centre for Data Ethics and Innovation (CDEI) advocates that tech providers implement formal processes for ‘anticipatory governance [which].. aims to foresee potential issues with new technology, and intervene before they occur, minimising ..the amount of individual regulatory or corrective action’. This would be no easy ‘feel good’ process, but require investment in consultation with stakeholders, executives prepared to make hard decisions balancing profit and ethics,and transparency in compliance.

Third, we may need a new kind of regulator to deliver on this new approach. Enforcement-based regulators like the ACCC will continue to play a key role ‘when things go wrong’ or individual tech providers go ‘AWOL’. However, as Low and Woodward say in their article:

‘Over reliance on a policy review undertaken by a competition regulator will inevitably reflect that regulator’s institutional character or specific capability in the policy solutions it proposes. For competition regulators, that capability is couched primarily in enforcement capability.’

The UK’s CDEI is an example of new type of Government agency designed to promote and contribute to a new regulatory model for the digital economy. Its mission is ‘to connect policymakers, industry, civil society and the public to develop the right governance regime for data-driven technologies.’ It is to do this by:

  • horizon-scanning new and emerging technologies and associated governance implications
  • reviewing the regulatory framework to identify gaps in response to data use and barriers to ethical innovation;
  • identifying steps to ensure that law, regulation and guidance keep pace with developments in data and AI technologies; and
  • recommending ways to support safe and ethical innovation through policy and legislation.

So, will Atlassian turn out to be a prophet in its homeland or a voice in the wilderness?

 

Read more: Competition Policy Developments and Challenges for the Digital Economy

 

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