by Adam Thierer. Original source: The Federalist Society for Law & Public Policy Studies
The Internet and the Digital Revolution gave us an abundance of riches—powerful computers, tablets, and smartphones; faster broadband and wireless connections; countless online websites and social networking platforms; and much more. But there’s another equally important benefit of the Internet Revolution that is often ignored: It is ushering in a momentous change in the legal and regulatory treatment of modern technological innovations.
Most information technologies of the analog era (broadcasting, cable, and telephony) were, in essence, “born in captivity.” The old policy approach that governed them was ex ante and highly prohibitionary in character, imposed in the form of top-down, command-and-control restrictions. Unfortunately, prospective regulations based on rooting out hypothetical future harms did little to advance consumer welfare and instead simply discouraged new innovation, competition, and consumer choice.
Media and communications law remains largely stuck in this box today, forcing anyone who wants to disrupt this space to first fall in line with the “Mother May, I” regulatory regime that treats new innovations as guilty until proven innocent.
By contrast, the Internet and other modern networked technologies were largely “born free.” Thanks to a series of sensible policy decisions by Congress and the Clinton Administration in throughout the mid-1990s, digital entrepreneurs were given a clear green light that they could innovate without needing to first receive some regulator’s blessing.
This new tech policy paradigm is often referred to as “permissionless innovation.” As I note in a recent book about this notion, it stands for the proposition that innovation and economic growth are far more likely when creative minds are generally left free to experiment with new technologies and any problems that develop are instead addressed in an ex post fashion.
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