Using Europe as the model, privacy regulations worldwide are taking a strong turn toward punishment-based regulatory models. But is that the way that American privacy laws should go? What about offering a little carrot instead of all stick?  

 

More on Stuart Brotman.

 

SPEAKERS

Wayne Stacy, Stuart Brotman

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Expert Series Podcast. I'm the Executive Director of BCLT, Wayne Stacy. Recently, there's been significant criticism of tech companies and a lot of call for government regulation, especially in the area of data privacy. Depending on who you ask, tech companies are either out of control, or they're being unfairly blamed for the behavior of their users. So the question is, where's tech policy going and what is a healthy way to analyze these options? To guide us through this important discussion today, we have one of the nation's leading experts on tech policy development. Stewart Brotman, He's professor of Media Management and law at the University of Tennessee, a Distinguished Fellow at the Media Institute, and not a prerequisite for being on the BCLT podcast, but definitely a nice add. He's a Berkeley Law grad. So Stewart, thank you for joining us.

 

Stuart Brotman  01:00

Thanks, Wayne. It's a pleasure to be here.

 

Wayne Stacy  01:03

Well, Stuart, I want to just start at the highest level possible. You know, a lot of times when we talk about tech policy and tech regulation, people just immediately jump into the minutiae. But at a 30,000 foot level, tell us how effective the tech industry has been in helping to shape the digital privacy policy at the national level?

 

Stuart Brotman  01:26

Well, I think a lot of it has been reactive, it'd be somewhat critical, I would say. And this is not different than virtually every other industry that operates in Washington. Typically, it operates reflexively, meaning that it waits for Congress to take a lead in the area and then offer some pushback. I think the tech area is quite different, just because it's so dynamic. And developments happen so quickly, that Congress clearly is not in the position to have an overall framework for tech policy, and often it needs to be educated and guided by the industry first. So I think there needs to be a much better interplay if we wanted to think of it as being proactive versus reactive, I would say at the 30,000 foot level, my perception is that I think the tech policy area has been quite reactive. And certainly the industry has great lobbying resources. But I think most of them have been directed at how to react to specific developments as opposed to this much larger area. Here's why it's important from a political standpoint, as we all saw the election returns from this week, and where the tea leaves seem to be guiding us, and looks highly likely that we are going to not have a unified White House, House and Senate under democratic control, beginning in 2023. And obviously, 2022 is an election year. What that means is that I think many of the themes and perspectives can change quite dramatically. And if I were to have one 30 thousand foot recommendation for the tech policy community, it's to begin to think of strategic areas of development in the new Congress in the 118th Congress. At this point, I think it's safe to say there probably is not going to be any federal privacy legislation that will be enacted in the 117th  Congress, and it doesn't look like the Biden administration is going to be pushing any specific legislation. So that means that we're going to be deferring this for at least another