Does AI need an antitrust exemption so it doesn't kill everyone???? | Decoder

The people who ran Twitter and Facebook and YouTube did not run around saying they might kill everyone. The lack of action by Congress is not an excuse to deliver dangerous products. If you believe your product is going to destroy humanity, then don't build it.

It's like we've invented cars and trucks, but we have no lines on the road, no traffic lights, no stop signs, and no speed limits. We've invented this incredibly powerful technology that's transforming how we live our lives, how we conduct business, how we socialize, how we seek and generate and consume information. And we need some basic rules of the road. If you don't build a safe and secure product, then perhaps there should be robot jail for your agents, and this should be taken off the market.

Always a pleasure to be back.

I can say whatever I want. I feel so free.

I plan to as well.

So the state of the world right now is it's like we've invented cars and trucks. But we have no lines on the road, no traffic lights and no stop signs and no speed limits. We've invented this incredibly powerful technology that's transforming how we live our lives, how we conduct business, how we socialize, how we seek and generate and consume information. And we need some basic rules of the road. And I think about it in two fronts: what are the things that companies should be doing and what are things that government should be doing, and I think there are responsibilities on both ends. And so I'm happy to dive into both.

Kind of. So let me give you my interpretation from the most generous to the most cynical. Neither of which, TL;DR, should result in any sort of antitrust exemption. So the most generous is they're afraid of the pace of innovation and the lack of regulation means they don't see any lines on the road. They don't know where to drive and they're worried about driving off the road or hitting somebody else. And so they're begging for the government to step in and do something. That's probably — there's a modicum of truth to that. I think they certainly — people I believe they believe it could destroy humanity. I'm not sure that that doomsday scenario is accurate, but I believe they believe that. That's the more generous. The more cynical is they're spending so much money. They're hemorrhaging cash and they can't keep this up. But if they pull back, it's going to affect their valuation as part of the IPO. So they would like somebody to give them all permission to stop spending so much money and slow the pace of innovation so that they don't have to compete as hard so they can figure out their economics before they go public.

This is on that cynical side of the interpretation. There's a lot of 'you just want regulatory capture, you want to make a cartel, you want to foreclose competition.' That is a risk, certainly, of that kind of arrangement. So let me — let's walk through what's necessary and what's not. Let me just be very clear. These companies do not need to coordinate in order to deliver safe and secure products to society. Think about this. Imagine like Boeing and Airbus. Boeing's Boeing, you know, a few years ago had doors falling off the plane. It wasn't Airbus's fault and they didn't need to slow down innovation with Airbus in order to prevent those doors from flying off the plane. They needed to figure out how to build planes that were safer. If you build cars that explode while you're driving, it's not the other car company's fault and you don't need to come together and figure out how to solve those problems. You need to figure out where it went wrong in your manufacturing process. If you create products that create AI agents that break into somebody else's and hack somebody else's technology, it is no different in my mind than having an employee go do that. You have a responsibility to build safe and secure products. And companies should be held liable when their agents — whether those agents are digital in binary, or whether those agents are AI, or whether those agents are humans — if they start doing bad things, the company that employs them can and should be held responsible. So those are the basic rules of the road. There are areas where there is legitimate collaboration in the context of safety and security. So for example, having a clearinghouse to properly share threats, you know, malicious bots or other things, so that you can create a repository so that everyone can build safer products. Those are the kinds of collaboration that happen in other industries and you don't need an antitrust exemption because the antitrust laws don't prohibit that kind of work. If two companies say we're competing too hard and we need to slow down, yes, that could implicate the antitrust laws, but that's not what we should be doing here. We should be innovating. But companies should have the responsibility to build safe and secure products, and the government should be responsible for putting lines on the road that say if you don't build a safe and secure product, here's what the consequences are. If you don't build a safe and secure product, here's what my liability might look like. If you don't build a safe and secure product, then perhaps there should be robot jail for your agents, and it should be taken off the market.

Both. And right. And so companies employ people and they build technology. And when those people and those technologies do things that are problematic, including stealing or breaking into someone else's property on behalf of their employer, there's liability. And that can be products liability, but it could be more than products liability. It's just people doing bad things or companies creating technology that's doing bad things. And the products liability framework actually did work most recently in the case against Meta for Facebook and Instagram and child safety and security and mental health.

That's the problem. This is where the government needs to step in, right? And so companies have an obligation today to build safe and secure products and the pace of innovation isn't an excuse not to go do that. So let's be very clear about that. At the same time, we've invented cars and trucks and trains and we have no crossings, we have no lights, we have no lines on the road. And Congress is completely incapable of pretty much doing anything. And while these tech companies are out there saying that they want regulation, they're actively lobbying against it and have been for a very long time. And so the whole thing is a complete mess. And it's a symptom of our system which is a complete mess. And frankly, if the political scientist in me would trace that back to things like gerrymandering and Citizens United where our process has gotten out of control and Congress, which should be doing its basic job of putting, you know, basic safety standards and responsibilities in place, hasn't done that. That having been said, the lack of action by Congress is not an excuse to deliver dangerous products. If you believe your product is going to destroy humanity, then don't build it. If you believe your product is going to break into someone else's stuff, then go back to the drawing board and figure out how you build it in a way that's safer. And guess what? That's innovation. These are innovation problems, not just regulatory problems. We need to do a better job incentivizing our companies to build safer and secure products. And when they do that, those products will perform better. And we will see better innovation. Right now, innovation is asymmetric because it's done without the proper regard for safety and security just like we saw in social media. And as a result, now we have products that are good at — really, really good and really effective at letting people communicate, but really bad when it comes to childhood addiction and mental health. And so perhaps we should learn our lesson and encourage people to build safer, more secure products from the get-go at the outset of this technology.

They did lose one to a jury, right? They did lose one to a jury and this case wasn't going well. But fundamentally, they settled. They gave up. And there's a view that if they had fought and appealed, they would have won on some First Amendment grounds, right? That the products liability case maybe wasn't as strong as we all thought it was. And the only reason I'm saying that is Meta gave in to the regulator, right? And their posture at the end was a settlement. They gave in and they accepted some regulation. It took a long time for the products liability version of this to get a company like Meta to concede some regulation, to concede some controls.

Yes. This is the job of Congress, which is to clarify the law. But I think the environment today is noticeably different than the environment was 15, 20 years ago. 15, 20 years ago, we had Section 230 which actually granted massive amounts of immunity to online companies which actually made it harder to sue them and gave them more flexibility to innovate without regard for consequences. And this is not partisan because it can go back to the Obama administration, the very hands-off, 'oh my goodness, our economy depends on these wonderful companies from Silicon Valley, let's let them do whatever they want' and essentially allow them to set up camp at the White House and in Congress and tell us how to write or not write our rules. I think the results of that have eroded or destroyed any trust the public has in these technology companies and I think one of the reasons we're having this conversation a lot earlier in the process now is because people are like, well, you know, fool me once, shame on you, fool me twice, shame on me. And so I think the good news is I think there's greater public awareness and appreciation for the problems and a desire to do something meaningful. The problem is we have a system in Congress because of things like Citizens United, because of things like gerrymandering that have a government that is not responsive to the needs of the people. And that is the impasse that we're all confronting. So, we're going to have to in the meantime rely on things like products liability or others to help get us some semblance of structure. But, you know, the other piece is states. States have actually done a better job than the federal government. And you can rewind back six months or a year. We had people in Congress without imposing any affirmative rules saying we should put a 10-year moratorium on the ability of states to impose their own rules and regulations at a time when Congress had no affirmative solutions of its own. So hopefully that moment has passed and I think the public is saying and the companies are saying let's sit down and figure out something sensible. The polling data is clear that the American public does not trust these companies, does not like these products, and is afraid of the consequences to come, even if those consequences are hazy in the long term. They seem not so hazy in the short term.

So, it's actually a realignment of the realignment. You know, going back to Trump one, we started seeing the kind of ends of the horseshoe starting to meet where folks, you know, left, right, and center were all concerned about the power of big tech. And when people like Lina and I came into office, we had a mandate and a lot of public support, frankly, to be aggressive in enforcing the law against big tech. And then, you know, came the inevitable backlash and the Trump administration in the second incarnation was a lot more friendly with those companies rather than the first and then it became cozy again and now I think we're seeing that dam break once more.

No. No. Although again, you know, I will say this. When I went up before Congress, I had support from Senator Mike Lee and Chuck Grassley and Josh Hawley and Matt Gaetz asked me if I was tired of winning at one of my oversight hearings. And then I had a bunch of, you know, Democrats, many of whom supported me, some of whom were very adherent to the big tech companies who would criticize me. These signs of this stuff being all over the map have been around for a while. The fight between little tech and big tech — and this is the part that I think a lot of folks don't see from the outside — but the biggest antagonists of the big tech companies are the other tech companies. I did a speech before the Chamber of Commerce when I was in office and I brought a whole box of like fake mustache and glasses and I said I wanted — I'm here to say thank you because all your members are coming in and helping us figure out how to bring our cases and I know you don't like that, the reputational hit of that. So here are some, you know, disguises you can put them on next time you come in. But the truth of the matter is most people hate the monopolist unless you're the monopolist. And companies want the opportunity to compete on the merits and win or lose on the merits of their own innovations and their own business acumen. So I think a lot of this stuff actually has wide-range appeal. The politics of it get kind of weird and funky like you're describing. But I think if you look at the data center issue, for example, I mean, it's not left or right. It's all of the above. And part of this is to me a suggestion that we're actually in a healthier place, as unhealthy as the whole thing is, than we were during the, you know, kind of internet and social media revolution where, you know, even criticizing those companies or saying we needed something was seen as like a very fringe position. The truth of the matter is people want some lines on the road. They don't want to stop innovation. They don't want to stop progress. They're not saying we have to burn the whole thing down. Although Bernie kind of wants a complete stoppage, I don't think that is realistic. We don't want to stop innovation. We just want to have innovation result in safe and secure products that make us better as a society. And I think that requires some correction in terms of the course as opposed to the path we're on right now.

It's largely a convenient boogeyman. So, we've been, you know, we've been dealing with these kinds of issues. I was thinking back to the breakup of AT&T. At the time, AT&T made the argument to the Reagan administration that it should not be broken up because in order to win the Cold War, we needed a national telecommunications network that was nice and strong. And the Reagan administration rejected that argument. The fact of the matter is the way to compete against China is to lean into what makes us great as a country. What makes us great as a country is we care about our people. Also, just let's be very clear, China is not doing what we're doing. China limits the way in which kids can interact with technology. China censors what people see in its borders. China actually manages centrally, controls a lot of its corporations through state-owned enterprises and influenced enterprises. So this idea that the only way to compete against China is to let us deliver unsafe products is kind of ridiculous. The way we win, whatever that means, against China, is to make sure that we are delivering great innovations and products that benefit society, that we are protecting people from harmful uses of those products, and then we're allowing a free market to function within those constraints. That's how we beat China. And as I was saying before with social media, the lack of rules, the lack of accountability resulted in a lack of innovation in how to build these products at the outset in a way that's more safe and that's more secure and better for, let's say, mental health of people. It is not a bad thing and it's not bad for innovation to require people to deliver safe and secure products. It is the responsibility of the country to make sure that our companies are innovating within the boundaries of a free market but doing so in a way that is beneficial.

So the best framework is we should promote dynamic aggressive competition inside the borders of the United States, right? And so we want companies, including foreign companies usually, but certainly domestic companies, to compete hard because our system is a market-based system. It's one where people innovate and the opportunity to be successful encourages people to try new things, invest money and capital and make great products. All that is good. We don't want to — the idea that we need monopolies at home in order to compete abroad is antithetical to our way of life, right? We were founded in rejecting the — I mean, the Tea Party was founded as a revolution against the British monopoly over the necessities of life. I mean, this goes back to the founding of our country. Our freedom is in part an economic freedom and we need to make sure we promote that. So, you know, saying that we should tolerate monopolies domestically in order to compete abroad is wrong. There are legitimate questions, some of which this administration is raising, about how do we deal with foreign nations that, you know, try to dump cheap products below cost and things like that. I was reading with my law students the other day a case from the '80s where the allegations were that Japan — companies in Japan were cartilizing television sets in Japan to sell them at a higher price so they can cross-subsidize below pricing in the United States in order to drive out the domestic US manufacturers. And that was the height of the Chicago school libertarian movement. And the Supreme Court actually used some just, you know, kind of cockamamie version of economics to suggest that wasn't an antitrust violation and sort of set the stage for what happened next. There are legitimate questions about what we need to do to make sure that, you know, there is fair competition and a fair playing field and that we're protecting the ability of people domestically to compete successfully. But the way to deal with that question is not to allow monopolization of our markets domestically in order to compete abroad. That's just an excuse and that is leaning away from rather than into what makes us really special as a nation.