The Biden administration’s Oct. 30 “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” proposes to “govern… the development and use of AI safely and responsibly” by “advancing a coordinated, Federal Government-wide approach to doing so.” (Emphasis added.)

This “all-of-government approach,” which echoes the all-of-government approach of the 2021 “Executive Order on Competition” (see here and here), establishes a blueprint for heightened regulation to deal with theorized problems stemming from the growing use of AI by economic actors. As was the case with the competition order, the AI order threatens to impose excessive regulatory costs that would harm the American economy and undermine competitive forces. As such, the order’s implementation warrants close scrutiny.

Read the full piece here.

Here in New Jersey, where I live, the day before Halloween is commonly celebrated as “Mischief Night,” an evening of adolescent revelry and light vandalism that typically includes hurling copious quantities of eggs and toilet paper.

It is perhaps fitting, therefore, that President Joe Biden chose Oct. 30 to sign a sweeping executive order (EO) that could itself do quite a bit of mischief. And befitting the Halloween season, in proposing this broad oversight regime, the administration appears to be positively spooked by the development of artificial intelligence (AI).

The order, of course, embodies the emerging and now pervasive sense among policymakers that they should “do something” about AI; the EO goes so far as to declare that the administration feels “compelled” to act on AI. It largely directs various agencies to each determine how they should be involved in regulating AI, but some provisions go further than that. In particular, directives that set new reporting requirements—while ostensibly intended to forward the reasonable goal of transparency—could end up doing more harm than good.

Read the full piece here.

How did you come to be interested in the regulation of digital markets?

Prior to joining Levy & Salomão Advogados, I worked with the Brazilian government for nine years, four of which I served as head of the government agency in charge of antitrust enforcement and consumer protection policy. During this time, I was very lucky to participate in the early beginnings of the policy discussions on the need for enforcement in digital markets. Also, for a long time, this has been a very popular dinner conversation topic at home: my husband is in the software business and my stepdaughter is a computer engineer.

Read the full piece here.

With yet another win for NetChoice in the U.S. District Court for the Northern District of California—this time a preliminary injunction granted against California’s Age Appropriate Design Code (AADC)—it is worth asking what this means for the federally proposed Kids Online Safety Act (KOSA) and other laws of similar import that have been considered in a few states. I also thought it was worthwhile to contrast them with the duty-of-care proposal we at the International Center for Law & Economics have put forward, in terms of how best to protect children from harms associated with social media and other online platforms.

In this post, I will first consider the Bonta case, its analysis, and what it means going forward for KOSA. Next, I will explain how our duty-of-care proposal differs from KOSA and the AADC, and why it would, in select circumstances, open online platforms to intermediary liability where they are best placed to monitor and control harms to minors, by making it possible to bring products-liability suits. I will also outline a framework for considering how the First Amendment and the threat of collateral censorship interacts with such suits.

Read the full piece here.

Today marks the release of a white paper I have been working on for a long time, titled “Knowledge and Decisions in the Information Age: The Law & Economics of Regulating Misinformation on Social-Media Platforms.” In it, I attempt to outline an Austrian law & economics theory of state action under the First Amendment, and then explain why it is important to the problem of misinformation on social-media platforms.

Read the full piece here.

Presidential administrations over the last 50 years have pursued widely varying policy goals, but they have agreed—at least, in principle—that policies should be efficient and improve social welfare. Now, the Biden administration is taking steps to unravel that bipartisan consensus. We focus on different policy areas (Dudley on regulation and Sullivan on antitrust) and are struck by the similarities among the radical changes being proposed.

Read the full piece here.

An issue that came up during a terrific panel that I participated in last Thursday—organized by the Federalist Society’s Regulatory Transparency Project—was whether age-verification laws for social-media use infringed on a First Amendment right of either adults or minors to receive speech anonymously.

My co-panelist Clare Morell of the Ethics and Public Policy Center put together an excellent tweet thread summarizing some of her thoughts, including on the anonymous-speech angle. Another co-panelist—Shoshana Weissmann of the R Street Institute—also has a terrific series of blog posts on this particular issue.

Continuing this ongoing Truth on the Market series on anonymous speech, I wanted to respond to some of these ideas, and to argue that the primary First Amendment and public-policy concerns with age-verification laws really aren’t about anonymous speech. Instead, they are about whether such laws place the burden of avoiding harms on the least-cost avoider. Or, in the language of First Amendment jurisprudence, whether they are the least restrictive means to achieve a particular policy end.

Read the full piece here.

I participated yesterday in a webinar panel hosted by the Federalist Society’s Regulatory Transparency Project. The video was livestreamed at YouTube. Below, I offer my opening remarks, with some links.

Thank you for having me. As mentioned, I’m a senior scholar in innovation policy at the International Center for Law & Economics (ICLE). This means I have the institutional responsibility to talk to you today about Ronald Coase and transaction costs. Don’t worry, I’ll define my terms and explain why these things are important. In fact, I think it could help to frame our discussion, before offering my own preliminary thoughts on the debates over a duty of care to protect minors online and online age-verification and parental-consent laws.

Read the full piece here.

We at the International Center for Law & Economics (ICLE) have written extensively on the intersection of the First Amendment, the regulation of online platforms, and the immunity from liability for user-generated content granted to platforms under Section 230 of the Communications Decency Act of 1996.

One of the proposals we put forward was that Section 230 immunity should be conditioned on platforms making reasonable efforts to help potential plaintiffs be able to track down users for illegal conduct. This post is the second in a series on the right to anonymity. In this edition, I will explore the degree to which the First Amendment protects the right to anonymous speech, and whether it forecloses the application of such a statutory duty of care.

Read the full piece here.