My 2024 Tech Policy Prediction is Same as Always: No Legislative Action

With the U.S. Congress now back in session, I’ll make the same tech policy bet for 2024 that I’ve made every year for the past decade: No major technology policy regulatory measure will be implemented by federal lawmakers this year on artificial intelligence (AI) or other leading tech issues.

This is actually a remarkably safe bet that I almost always win because Congress has increasingly put too much on their plate and partisan political games also now make policy action on even the most basic things (the budget, the border, etc) impossible to accomplish without protracted and bitter battles. That means almost no time or willingness is left to achieve consensus on complicated, ever-changing technology policy matters. And then there are all the special interests and advocacy groups that pull policymakers a zillion different directions on these issues. The combination of these factors means that Congress has essentially become a non-actor on tech policy regulatory issues like AI, privacy, driverless car policy, and so on.

As a result, most major tech policy actions will continue to be driven by a combination of three other things: (1) bureaucratic edicts and administrative state jawboning at the federal level; (2) occasionally important state and local laws (especially when California passes them); and (3) an endless flow of missives from European Union technocrats.

If you care about expanding innovation outcomes, the best hope of overcoming this regulatory morass is that technological change continues to outpace all that red tape, leaving those pesky bureaucrats scrambling to respond — but usually leaving them one step behind the real action. Some will decry that notion, but for some of us, one person’s “pacing problem” is another’s pacing benefit!

Unfortunately for innovation defenders, the problem with that logic is that the world of technology — including many emerging technologies — is already extensively regulated at the federal level and increasingly threatened by the imperial ambitions of all the various government agencies and officials that want to stake their own claim on the shape of innovation’s future landscape. Thus, some federal legislative action probably is needed to harmonize or preempt the extensive patchwork of existing and emerging rules for emerging technologies like AI and give innovators more of a green light. But that doesn’t mean we’ll ever get that sort of legislation through Congress. In fact, there are basically zero bills currently pending in Congress that would adopt such a pro-freedom approach to tech policy matters in any sector.

Meanwhile, there are many other folks who want greater congressional involvement in tech policy because they desire comprehensive new regulations for emerging technologies. They argue new federal laws and agencies are needed because they (quite mistakenly) believe that most emerging technologies are completely unregulated. This crowd will be even more troubled by the inability of federal lawmakers to get their act together and get things done. But all the wishful thinking in the world can’t change the reality on the ground: Congress is just hopelessly broken.

Many regulatory advocates seem to understand that now and have plowed their energy into cheerleading on those efforts by bureaucracies to greatly expand the scope of their ambitions even if Congress has not granted them any statutory authority to do so. This is why so many of those regulatory advocates cheered the Biden administration’s AI executive order so vociferously. During debates, I’ve even heard some of those AI regulatory advocates refer to this new Executive Order as “a law” or “a regulation,” even though it is nothing of the sort. In the age of ends-justify-the-means policymaking, so long as your guy is in power and doing what you want through executive decrees, then all is well and the Constitution be damned! “It’s good to be the King,” Mel Brooks once taught us.

To the extent any tech-related legislation stands a chance of passing, it would probably be one of the many “online child safety” bills floating out there. There has been growing momentum for implementing such regulations and now that some tech companies like Meta are pushing for federal regulations “for the children,” it perhaps improves the odds of something being implemented, at least a bit.

But I’ll still stick with my prediction that nothing will come of it or any other push for federal tech legislation this year, especially because 2024 is an election year, which shortens the legislative calendar considerably. No matter what sort of federal action you desire, you can at least all take solace in the fact that your opponent won’t get what they want either!

Additional Reading:

· Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium, American Enterprise Institute (April 2022).

· “The Pacing Problem and the Future of Technology Regulation,” Mercatus blog, August 8, 2018.

· “Artificial Intelligence Legislative Outlook: Fall 2023 Update,” R Street blog, October 17, 2023.

· “The Biden Administration’s Plan to Regulate AI without Waiting for Congress,” Medium, May 4, 2023.

· “The Many Ways Government Already Regulates Artificial Intelligence,” Medium, June 2, 2023.

· “Congress as a Non-Actor in Tech Policy,” Medium, February 4, 2020.