Resilience: A New Tool in the Risk Governance Toolbox for Emerging Technologies

Innovation and Economic Growth and Artificial Intelligence

Article Snapshot

Author(s)

Gary Marchant and Yvonne A. Stevens

Source

U.C. Davis Law Review, Vol. 51, No. 1, pp. 233-271, 2017

Summary

The risks of nanotechnology, biotechnology, artificial intelligence (AI), robotics, and neuroscience are hard to assess in advance, making these sectors hard to regulate. Regulators should adapt their rules on an ongoing basis, as the technology’s effects are understood.

Policy Relevance

Regulators should require monitoring of the effects of complex technologies. Regulators should require key actors to plan to mitigate unforeseeable harm.

Main Points

  • Under the “precautionary principle” regulators err on the side of caution, restricting a technology until it is proven safe; this approach fails to acknowledge the risks of not allowing a technology to develop.
     
  • Under a “risk assessment” approach, regulators use information available in advance to adopt rules to restrict the known risks of a technology; this approach is not ideal because of gaps in the available data.
     
  • Resilience measures, a new approach to regulation, would minimize harm after it occurs.
     
    • Monitoring programs detect harm at the earliest possible time.
       
    • “Kill switches” (for example, “suicide genes” in genetically modified bacteria) could disable a harmful technology.
       
    • Software developers fix glitches based on feedback.
       
  • Different technologies call for different regulatory approaches:
     
    • The precautionary principle is appropriate for a genetically modified virus held in a lab.
       
    • Liability for negligence could address most accidents involving autonomous cars.
       
    • Artificial intelligence calls for measures to ensure resilience, such as monitoring and kill switches.
       
  • A resilience approach is suited to complex technologies with the potential to create unanticipated surprises unforeseeable or preventable in advance; such measures include “procedural” measures to detect harm early, and “substantive” measures to reduce the harm.
     
  • The Administrative Procedure Act (APA) is not compatible with adaptive regulation, calling for rules to be set out in advance after years of rulemaking procedures; however, some measures that would improve resilience are consistent with the APA.
     
    • Regulations can be periodically reviewed.
       
    • Regulations can include a sunset period.
       
    • Federal agencies can require state and local governments to make plans in case of harm.
       
    • Regulations can require monitoring of harm.
       
    • Rules can assure that key actors are financially able to mitigate harm.
       

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