My Recent Interview with the Georgetown Tech Law Institute

Thanks much to April Falcon Doss at the Georgetown Law Institute for Technology Law and Policy, for including me in this month's "Fellow Spotlight." I appreciated her thoughtful questions about my work over the past several years, while I've been serving as a fellow with the Institute.

1) You've had a fascinating career:?You've spent time at Google, where you worked on policy and regulatory affairs, and you've since founded NetsEdge and serve as the President of the GLIA Foundation.?How and when did your focus on technology law and policy begin?

My legal career actually began in private law firm practice in DC, in the late ‘80s and early ‘90s.?My primary clients were the early pre-Web online companies – including CompuServe, Prodigy, and America Online.?My interest in the novel legal and policy challenges of these new types of entities – from end user privacy, to content moderation, to cybersecurity, to early inklings of what later became Net neutrality -- led me to join MCI Communications as in-house counsel.?While at MCI, I was fortunate enough to meet and work with Vint Cerf, a true father of the Internet.?Vint inspired me to found one of the first corporate policy groups dedicated to Internet policy issues. Eventually I ran MCI’s DC office, and (in a small way) helped pilot the company out of bankruptcy.

In 2007, I joined Google’s DC office, to begin a 11+ years career as part of the global public policy team.?My last four years were in the Mountain View headquarters, where I served as corporate director for strategic initiatives.?I departed Google in May 2018, and have remained in the Bay Area since then (with semi-regular trips back to DC in pre-pandemic times).

2) Much of your current work is tied to GLIAnet and the GLIA Foundation.?For those who aren't familiar with it, what exactly is GLIAnet, and how did that work come about?

Since leaving Google, I’ve been focused on devising a new overlay for the Web, founded an ecosystem of trustworthy entities and edge-based technologies.?I call it GLIAnet.?The word “glia” is ancient Greek for glue.?I chose it because of the old saying that “trust is the social glue that binds us together” -- as human beings, as communities, and in markets.?There is also the glial network of brain cells that help protect and promote the activities of the neurons.?While societal trust and support has been in significant decline across the board, my perception is that the Web has contributed to that decline.?I believe that a combination of ethically-based human governance systems, and decentralized or edge-based technologies can help restore some of that trust, along with support and mutual benefit, along with some plain cool tech.

3) One of the elements in the GLIAnet ecosystem is what you call a digital fiduciary.?How did you come up with this concept, and why is it so crucial to your vision of this more trustworthy Web??

As an attorney, I’ve long been fascinated by the development of the common law in Europe, and indeed in related concepts in other nations and cultures over time.?One common law prong is that of obligations, which originated in the English courts of equity.?Essentially, if someone has undue power over you – through greater expertise or resources, for example, or the sharing of confidences -- a judge could find that this person owes you certain obligations, to help ensure that this undue power is not used inappropriately.?This concept eventually evolved into the common law of fiduciaries.?Noted scholar Tamar Frankel has called this “the law of contesting power asymmetries.”?This doctrine eventually became the core of modern-day professions, such as doctors and lawyers and certain financial advisors.?In each case, the professional has asymmetrical power, and consequently a set of fiduciary duties towards the individual as a client – including duties of care and of loyalty.?In the US, these obligations and recourse mechanisms have been enshrined in formal codes of conduct, and state-based licensing and certification regimes.

What occurred to me in my last few years at Google was that the Web lacks any such concept.?This missing piece is quite odd.?Arguably, the personal data we share and the relationships we create online are just as prone to these power asymmetries than our health data, or our legal status, or our financial information.?In fact, “personal data” subsumes all of these categories, and far more.

In 2015, Jack Balkin and Jonathan Zittrain at Harvard first developed the notion of the information fiduciary.?In their telling, this entity – typically a large platform company or other holder of our personal data -- would be assigned by the government a mandated duty of care – meaning, responsibility for prudent conduct, and doing no harm.?While I see great value in this particular conception, my own proposal of a digital fiduciary is different.?The digital fiduciary would establish an entirely voluntary, opt-in arrangement, where clients willingly create relationships based on a higher duty of loyalty.?This would mean the digital fiduciary could have no material conflicts of interest, and must promote the client’s best interests.?To me, loyalty that is coerced by legal mandate does not amount to true loyalty.

Under one model, the information fiduciary and its lower-level duty of care could be mandated by Congress, while the digital fiduciary and its higher-level duty of loyalty would be a separate but complementary market-based arrangement.?Senator Schatz’s “Data Care Act” and Senator Warner’s “ACCESS Act,” both now pending in Congress, contain provisions that could help make possible this two-tiered model.?

4) Are there other areas of technology innovation that you're particularly focused on right now?

In addition to fiduciary doctrine-based governance, the other half of the equation is the technology itself.?All the edge-based technologies – what I call “edgetech” – have the potential to give Web users much greater control and agency over their online experiences.?Think for example personal data pods, and identity layers, and Personal AIs, and tokenized data, and the like.?Much of this now is being developed in the so-called Web 3.0 world, of blockchains and smart contracts and non-fungible tokens (NFTs).?Over the past several years I’ve been fortunate to be advising and working with a number of interesting startups in this decentralized Web space.

The so-called metaverse – the blend of AR/VR/MR/XR tech – is another area that hold huge potential to shift power from online platforms to the edge.?Mark Zuckerberg’s recent announcement of Facebook’s decision to become a metaverse-first company is fascinating.?For starters, the various governance regimes necessary to run such an ecosystem – from the content, to the data, to the economics -- are not even drawn up yet. If done right, however, a deeply interconnected and inclusive set of metaverses could bring end users significant benefits, while at the same time giving them a more formal say in how these technologies are being deployed and utilized in their lives.

5) This is a particularly busy time in the landscape of technology policy and regulation in both the U.S. and around the world as legislators and regulators continue to explore, and in some cases enact, frameworks governing a wide range of issues including data privacy and data protection, algorithmic impact, content moderation, digital advertising, and more.?

Agreed!?So much going on in so many facets of the tech policy world.?One trend I continue to see is governments and multi-stakeholder organizations looking for ways to hold the large tech platforms more transparent and accountable for their actions -- whether in protecting data, or engaging less biased AI systems, or serving less harmful content.?And all this work is hugely important.?By the same token, however, I am concerned that these proposed changes alone may not do enough to give each of us true autonomy and agency online.?In Europe, the data protection law (GDPR) is a good example.?While many of its provisions have improved Web user rights, it is also the case that the regulatory regime is premised on certain outmoded concepts, such as real-time consent to a plethora of privacy policies and terms of service.?We’ve all witnessed first-hand the endless cookie banners on our Web browser, with websites and apps seeking our approval to continue collecting and using our data.?The resulting cognitive overload ironically makes it more difficult for the average person to exercise their data rights.

I believe the bigger battles to come should be contested on higher ground.?The objective should be building technologies and governance systems premised on supporting human autonomy (freedom of thought) and agency (freedom of action).?So, to me, the digital fiduciary, helping its clients employ Personal AIs and data pods and other agential tech, could be a powerful tool for achieving that goal.

6) Students in Georgetown's technology law and policy programs might be interested to know that you're a Georgetown alum.?The Tech Institute oversees three academic programs in technology law and policy for J.D., L.L.M., and M.L.T. students; each of these students comes into these programs with different backgrounds and perspectives.?What advice would you have for current studies on how they might make the most of their time at Georgetown, and planning for the future as they consider pursuing, or continuing, a career in tech law and policy.?

I am a big believer in cross-academy, multi-disciplinary approaches to the law, and it’s great to see how the Tech Institute is helping bring students into that way of thinking.?One piece of advice is for students interested in tech policy to take advantage of the different perspectives on offer, and stake out a blend of legal, technical, economic, and ethics expertise.?In addition to deepening one’s knowledge base, the student also makes herself more attractive to a wider swath of potential employers.?Blurring the academic lines is the way to go!