INSTITUTIONAL REASON/LIMITATION

Sean McDonald // Washington DC

The value of public institutions during crisis

The Covid-19 response has been an acid test for the reasoning capacity of the world order. We are rediscovering, failure by failure, the challenges of litigating information politics while responding to the most complex emergency in a century.

Perhaps one step back. One of the most valuable public functions that institutions play—and governance institutions in particular—is to take calm, expert care of people when they can’t do it themselves. In “normal” (I vaguely remember that non-emergency times exist) circumstances, that work focuses on shaping markets, balancing power asymmetries, and building legal tools that help people realize their fundamental rights. In emergencies, though, there are large problems that no amount of individual action is likely to solve. In the Covid-19 response, for example, it’s taken collective action to procure vital supplies like Personal Protective Equipment (PPE). Public institutions leverage collective action and resources for a range of reasons, especially during emergency. One such reason is to ensure that, even amongst the chaos and exigency of disaster, we make sure that the cures, treatments, and response efforts adhere to a basic set of quality and ethical assurances.

In the United States, one of the key institutions charged with ensuring the integrity of response is the Food and Drug Administration (FDA), which acts as the bridge between laboratories and marketplaces for medical and food products. The FDA uses a progressive set of increasingly risky tests that gradually prove that chemicals are fit for human consumption and solve an important problem. While there are a number of valid criticisms of the FDA, their regulation of the integrity of ethical and rigorous protections of human subjects in experiments is an important model of research ethics. Biomedical approaches to ethical oversight are also modeled in the United States’ Common Code—a law that regulates how all federally funded research. The FDA prevents an enormous amount of dangerous, amateur experimentation on people by requiring a lengthy, expensive, and scientifically rigorous process before approving products. 

Unfortunately, most industries—and many countries—don’t have an FDA. One of the most obvious, and often damaging, examples of an industry without the architecture to ensure basic, public interest quality control is technology. It’s difficult to paint with such a broad brush, but the technology industry has made the evasion of institutions and their ability to project themselves globally key mantras to their success. Their canonical “disruption” not only unseats incumbents, it also, often, avoids the mechanisms of accountability and regulation that protect people’s rights. And, largely unchecked, they’ve been successful. 

Public institutional response has been loud, if ineffective. The Davos, G20, and OECD countries spent much of 2019 performatively failing to exert real leverage over the hegemonic platforms, backed by hegemonic countries with superpower economies (and militaries). Even ignoring the political dimension, most governments have failed to meaningfully understand, let alone regulate, the public impacts of a number of algorithmically enabled technology markets. And in failing to create public interest testing and certification systems, we lack both the evaluation criteria to understand the predictable secondary impacts of technology products and the levers to prevent predictably harmful products from being launched into global markets. 

The Covid-19 response has shown us, in full and visceral ways, the enormous number of good, fundamentally dangerous, and downright snake oil technology products that emerge during times of global crisis. Unfortunately, most governments, like most people, can’t tell the difference between them. That’s far from the only problem—more than eighty-four countries have declared some form of official emergency, suspending the function of what regulatory agencies and the basic rights protections they do have. And therein, lies the paradox: testing and protection is how we ensure product quality, and emergencies are when we need protection the most, yet, emergency situations are also the times when we suspend the systems that provide those protections. 

I chose the example of the FDA because it is also the agency that regulates vaccines trials in the US. As the world races to develop vaccines, there are already a number of live, human trials being carried out—some of which are motivated by urgency, some by science, and others by politics. During public health emergencies, the FDA accelerates their normal vaccine testing trials—increasing administrative treatment and parallelizing effective testing and production capacity in the process. But still, they don’t just release whatever someone nearby with good intentions puts into the world. And, the main reason for that isn’t particularly focused on ethics or rights—it’s about basic effectiveness and a commitment to solving clear, defined problems.

Covid-19 response is not, ultimately, about any technology—it’s not even about any single test, therapy, or, hopefully, vaccine. Effective Covid-19 response will instead be measured based on public health. One of the values of independent, systemic review for new tools is that we don’t get distracted by instrumentation when we should be focusing on outcomes. During this pandemic, for example, there has been significant global attention placed on digital approaches to the process of contact tracing. These approaches have so far been practically ineffective, have significant implications for individual and collective data rights, and are ushering in biosurveillance as the “new normal” for “deconfinement.” While each of those terrifying developments are true, they are also largely a distraction from significant political power grabs (as in Hong Kong) and catastrophically managed responses (as in the United States). This popular focus on the dystopian nuances of technology deployments as a means of misdirecting attention from the underlying politics is a calculated tactic—call it Technology Theater. 

The Covid-19 response has made it abundantly clear that in times of great crisis, we will see both technological and biomedical responses. While they are very different, there’s no question that they both can have enormous impacts on our fundamental freedoms and well-being—not only when they don’t work, but most often when they do in the wrong hands. But our technological systems don’t have the benefit of an institutional bridge between the lab and the market. As a result, most companies don’t build a lab, they just use the market. Even in the markets where there are credible industry and consumer protection regulators, many are suspended or running at significantly lower throughput during an emergency. Emergencies are no time to accept the limits of markets or to conduct experiments on vulnerable people. And yet, that has not stopped governments, surveillance companies, and an enormous range of armchair experts from diving into vulnerable contexts with data and technology-led interactions in search of value.

Institutions are the provisions we build for governance, and the provision of its benefits. In the crushing churn of headlines about technologies and politics, it’s hard not to notice the absence of the feeling of familiar authorities. No matter the issue, the positioning and politics of the technology industry are on full display. Meanwhile, mature industries—where legitimate mechanisms to manage disagreements exist—face crisis much more quietly and, arguably, effectively. As we watch the world rush to suspend and limit the role of institutions in response to a prolonged pandemic, I can’t help but observe the ravishes of the institutions we failed to provide. 

Bio:

Sean McDonald is the co-founder of Digital Public and the CEO of FrontlineSMS. He is a Senior Fellow at the Centre for International Governance Innovation, a Research Fellow at Duke’s Center on Law & Technology, and a Hivos Creative Futures Fellow.