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Democratic Source Code for a New U.S.-EU Tech Alliance – Lawfare


Code is law. Lawrence Lessig’s 1999 assertion was that in a digital world, programmers were scripting a values system into their technology, often in a fit of absentmindedness. Twenty years later, the U.S. and Europe are living in the geopolitical landscape those early pioneers created. One-time plucky startups have grown into supergiants vacuuming up ever more data and market share. Artificial intelligence (AI) is becoming both an enabler for social well-being and an instrument of authoritarian control. Emerging technologies are transforming militaries, creating new battlefields and changing the nature of warfare. U.S. and Chinese officials crisscross the world in a geostrategic great game for 5G dominance. And social media has become a vector for bad actors—including illiberal states like Russia and China—to disrupt and degrade democracies. In 2020, code is power.

The coronavirus has accelerated these trends. The pandemic has fueled data processing in contacttracing apps; exposed vulnerabilities in supply chains; created new dependencies in classrooms and boardrooms on video communications technologies; and powered a spike in anti-vaxxer disinformation, QAnon conspiracy theories and radicalization.

Against this backdrop, President-elect Joe Biden has signaled America’s return to multilateralism, collective action and defending democratic values as the center of gravity in geotech shifts to the Asia-Pacific region. On the geopolitics of tech policy, that means binding corporate and state power with legally enshrined principles to ensure human rights, fair trade rules and accountability after crime or cyberwar are enforceable.

The Biden administration will need allies in these efforts. But when it comes into office in January 2021, the new administration will find that the potential force of a U.S.-EU alliance for democratic technology governance is largely untapped. Data protection negotiations continue. The 5G-Huawei debate seems to be converging. And the U.S. surprisingly joined other nations in the Organization for Economic Cooperation and Development’s (OECD) quest for AI norms even if it walked away from taxation efforts negotiated at the same forum. But generally, a transatlantic tech agenda that advances human dignity, individual rights and democratic principles has been neglected even as the geopolitical stakes have risen and China has emerged as a malignant tech player.

Instead, Europe has been chastened by the sometimes erratic punitive actions and statements of the Trump administration. In some ways, Brussels’s scramble for digital sovereignty can be seen as part of a European attempt to inoculate itself from a U.S. that could weaponize Europe’s dependencies and take advantage of its vulnerabilities. That trust must be earned again. In her State of the Union address at the European Parliament Plenary, Commission President Ursula von der Leyen proactively extended a hand, calling for a new transatlantic agenda with technology as a top priority.

Now is the moment to take up her call. The U.S. and EU have a window to set a joint agenda toward an international democratic order for the digital world. They can do so in three ways. First, President-elect Biden’s Summit of Democracies, expected to take place early in his term, should take up the EU’s push to extend human rights online to all citizens within the democratic space. This effort—with the U.S., EU and other like-minded states such as the United Kingdom, South Korea, Japan, Australia, Ukraine and Mexico—could also redefine standards for data protection and against surveillance at home. It could include guidelines for transparency and accountability in automated decision-making, algorithmic bias and use of facial recognition technologies. It should also establish consequences with teeth for those who use repressive technologies to silence dissent, track activists and bring physical harm to those acting in service of basic human rights.

Second, Washington and Brussels should establish a U.S.-EU Technology and Trade Council to create the operating framework for democratic governance of trade flows in the digital space. Such an interdisciplinary effort, chaired by Commission President von der Leyen and Vice President-elect Kamala Harris, would pull the full force of governments—across departments and portfolios—on both sides of the Atlantic to set objectives on emerging tech regulation, research and development, data governance, and cybersecurity. On the U.S. side, Harris is uniquely well-positioned to take this role given her legal background; political history in the world’s top tech incubator, California; and past work on the Homeland Security, Judiciary and Intelligence Committees. The agenda for such a council would be large. For instance, in the platform regulation space, the EU is already moving ahead in four areas governing large platforms: competition, content moderation and liability, data protection and privacy, and digital taxation. In each area, U.S. sentiment is moving in Europe’s direction, but tough questions remain about implementation and aims. Through enforcement and updated rules, both sides are advancing major antitrust initiatives that would expose too-big-to-control gatekeepers, including Google and Facebook, to greater market dynamism and give users more choice. A U.S.-EU Trade and Technology Council would be uniquely able to forge a whole-of-government consensus on these issues in ways that no single government entity could.

Third, the U.S. and Europe should work in tandem with other democracies to regain ground in standard setting and digital development—areas that were ceded to authoritarian states like China partially by the leadership vacuum left by the Trump administration. Together, EU leaders and the Biden administration should form democratic caucuses with other like-minded actors in multilateral organizations to promote technical standards based on openness, interoperability and competition. The U.S. and Europe should also work in a panoply of informal groupings aimed at good governance in the digital world. The U.K.’s D-10 initiative of democratic tech powers, the OECD and the G7 will offer some markers to coordinate rules and provide guidelines in the democratic space. Finally, the U.S., EU and like-minded states should link connectivity, digital infrastructure and development in a way that provides a democratic answer to China’s Belt and Road Initiative and gives local communities more ownership of their digital futures. The EU remains a development powerhouse while the U.S. could leverage its technological advantages to engage developing economies.

U.S. and European sentiments on tech governance are converging. On both sides of the Atlantic, growing numbers of citizens want to confront the twin challenges of surveillance capitalism and techno-authoritarianism. Both are reaching a sense of urgency around China’s digital governance model as it uses mass surveillance to hold more than a million Uighurs captive, suppress democratic descent in Hong Kong, pilfer private data and bully critics worldwide. Both are also moving quickly to push back on market dominance and unfair practices of big tech players with antitrust cases and debates on new competition instruments. Finally, Brussels and the incoming Biden administration will look to use coronavirus recovery packages to boost emerging technologies that cut carbon emissions and enhance environmental sustainability.

Building a democratic governance alliance will not be easy. Political volatility remains after the 2020 election. Unifying the U.S.—a central objective of the Biden presidency—will take time. Any international effort to hardwire democratic governance into everything digital will inevitably be linked to that mission. The U.S. and EU have a chance to build a transatlantic tech alliance that would serve that cause. For the sake of their democratic values, industrial base and influence in the world, they have to take it.





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