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- [00:01]
Benjamin Wittes
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- [00:51]
Quinta Jurecik
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- [01:58]
Benjamin Wittes
One of the things that Doge has done immediately is dismantle 18F and the United States Digital Service, the places in the government that were most in sync with current Silicon Valley best practices for software development and maintenance.
- [02:13]
Quinta Jurecik
It's the Lawfare Podcast. I'm senior editor Quinta Jurecik. Today we're sharing audio of a panel discussion on democratic backsliding and the role of technology, which I recently moderated at Fordham Law School's Transatlantic AI and Law Institute.
- [02:31]
Aziz Huq
So a system that the system that creates enormous benefits can also be against the flipping around. The helping hand turns around and becomes the hand bearing the knife.
- [02:44]
Quinta Jurecik
The panelists were Joseph Cox, a journalist and co founder of 404 Media Orly Labelle of the University of San Diego, Aziz Huq of the University of Chicago Law School, and James Grimmelman of Cornell Tech and Cornell Law School. Many thanks to the good people at Fordham for recording and sharing the audio and to Chinmayi Sharma and Olivier Sylvain of Fordham Law School for organizing the event. I want to start by digging into, of course, the title of the panel. We're talking about technology and Democratic Backsliding. Usually democratic backsliding is defined by political scientists as a sort of sustained period of erosion of democratic health in a polity. So rather than a single moment, a coup attempt, something like that, it's a long, slow decline. And there are plenty of conversations that can be had about whether the United States is experiencing experiencing such a thing right now. But before we get into the meat of this, I want to just start by talking about how we understand these two concepts. What is the relationship between technology and democratic backsliding? I want to start by just going down the line. Orli, let's start with you.
- [03:58]
Orly Labelle
Yeah, thanks. Well, thanks to the organizers and our lovely moderator. I think I understand it just like you were describing, that we have a baseline, we have some understanding of what democracy and democratic rights and human rights in a polity are. And we experience not one moment, but all kinds of chipping away threats, plans, proposals, halting of different programs that happen. And you only kind of see the bigger picture. You see the woods when you step back or you see that extended period at some moment. I think right now we are seeing it also in real time and with technology. We'll talk about this a lot more on the panel, but for me it's important to differentiate between the role of tech companies and tech billionaires personalities and the role of technology itself, our newfound capabilities that are happening at the same time that a lot of other things are happening. And how do we discern or stay more focused on what really is contributing to different shifts that we are seeing?
- [05:29]
Benjamin Wittes
James I think the most significant overlap that I can think of is the way in which Internet and Internet media hollowed out news media around the world. And while the Internet initially seemed to offer access from a much wider variety of voices, free of gatekeeping institutions, and in very large measure it has one of the effects of that was to undercut the business models on which journalism and many other media are funded, and to do so in a way that effectively hollowed out a huge professional middle class of working journalists, undercutting a sense of political democratic conversations that could take place in a manner that produced shared consensus about the nature of the world and what was happening and avoided some of the worst pathologies that we've seen. Instead, that's been captured by large tech companies that have used this to fund lots of innovation, but at great cost to the conversations on which democracy depends.
- [06:30]
Aziz Huq
If one takes a formal definition of democracy that focuses upon institutions such as free and fair elections, the existence of liberal rights of speech and association, and the existence of bureaucratic bodies like election authorities, prosecutors operate free of political influence. What one finds is that measuring those institutional traits, there has been a global decline in the quality of democracy since about 2010. The decline is not limited to one part of the world. It's observed in almost every continent. In my own view, technology plays a peripheral as opposed to a central role in that decline. The decline or the deterioration, particularly in European and American democracies, was catalyzed by the perceived failure of extant party systems to respond in particular to economic crisis. Technology is part of that crisis. For example, in the United States, economists like David Auter have charted the effect of migration of manufacturing jobs to China and the effect of automation in the manufacturing sector on rates of discontent and disaffection with what used to be the dominant two party system in the United States. My own view is that the public sphere and the changes to the public sphere have a relatively peripheral role in that process. However, one question I think that remains to be answered is whether once a process of democratic erosion has occurred, power has been centralized in typically the executive branch, whether the existence of certain kinds of technologies facilitate the consolidation and the persistence of non democratic regimes that are not meaningfully responsive to the public.
- [08:36]
Joseph Cox
Yeah, I guess my view is a little bit more narrow than some of the other speakers. Even though I agree with everything everybody said, I focus a lot on how even smaller tech companies you've never heard of, they may undermine democratic norms or what we consider parts of a well functioning democracy. So that will be stuff like location data companies selling the location of your mobile phone to law enforcement without a warrant, something that a lot of people would say is probably not compatible really with a fully functioning democracy. And then in the current context that extends to stuff I'm sure we'll get into, but stuff like Palantir and how they are building basically the technical infrastructure to deport people potentially with no due process. At least that's what it looks like at the moment.
- [09:26]
Quinta Jurecik
When we started talking about this panel to prepare James, you had brought up what I think is a really interesting point about the historical comparisons to Draw on here. And I'm going to go ahead and break Godwin's Law and say that I think there are some interesting comparisons that we can look to, looking back, not only for the role of technology and potentially allowing the consolidation of backsliding or authoritarian regimes today, but looking backward to the 1930s and 40s. And I know you had some thoughts on that.
- [10:00]
Benjamin Wittes
Yeah, I mean, one of the original prompts for this panel, back in more innocent times when words had different meanings, was about the role of collaboration, collaborations between technology companies and government. And now looking at this, I started to prepare for this panel. That word appeared in a very different cast. So I thought more about the way in which large technology companies affirmatively collaborated with and were implicated in the Nazi state. And so you have things here that are both information technologies. IBM's role in the information processing that led to the Holocaust and was used to carry it out was absolutely part of that. We see that again today, that in order to carry out actions directed at people, a state needs a strong capacity to surveil and then to assemble and act upon that information. And that is exactly the role that Palantir is affirmatively volunteering for. They are putting up the sign saying, in fact, you want to commit human rights crimes against people, we are the ones who will help you do it. I'm also thinking in broader terms about the way in which industrial firms like today's technology titans decided that they were willing to cast their lot in with the Nazi state. And in order to take the contracting and rebuilding that it would provide, that they saw themselves as having cut off the threat of an attack from the left, that we could live under this regime. And in many ways, that turned out to be an incredibly bad bet for them. First of all, it was an incredibly corrupt state, so that Nazi high moral officials were brought in as partners and wound up taking enormous shares in the businesses. The ones who got rich were the insiders, the Goering. The second level led them into a destructive war that ultimately destroyed everything they were trying to build with a strong state and a healthy German country that in fact led to deaths of many millions and the complete destruction of the industries they'd spent their lives building. And then many of them wound up in the dock at Nuremberg for the crimes they volunteered their companies to help carry out. So it seems like to me, in many ways, the technology titans who go to the inauguration and are asking how they can serve are signing themselves up for something very similar.
- [12:12]
Quinta Jurecik
Aziz, I wanted to turn to you here because you've written recently about the concept of the dual state, which I think speaks to some of the dynamics that James is touching on in terms of the corruption of the Nazi state and the kind of difficulty of doing business with it.
- [12:25]
Aziz Huq
I think this is a point that is complementary to the one that James made. The idea of a dual state is associated with a German Jewish lawyer called Ernst Frankl. He's a remarkable man. He managed to survive and practice as a lawyer in Germany, notwithstanding being Jewish up to 1938, largely representing people on the left. He was a member of the Socialist party. And out of his experience representing clients before the German courts, he developed a theory of how power was exercised. He in the early stages, it's important to say early stages of the Nazi regime before he leaves two weeks before Kristallnacht. And the account that he gives focuses upon the idea of a dual state. What does he mean by that? What he means is that the state operates with, you might think, two hats. With one hat, it operates in the normal, ordinary forms of and processes of law. And with its other hat, it operates in a lawless, caprice driven and cruel way. And the key insight that Frankl had was that unlike, say, the Jim Crow state, unlike the apartheid state of South Africa, in the dual state of the 1930s in Germany, there was an official, someone who pulled a switch and decided whether you were in the lawful state or whether you were in the lawless state. Frankl indeed called himself when he was in his legal practice, a switchman, because his job was to make sure that his clients remained within the lawful state, no matter how bad the punishment that they'd receive. Because what was far worse was being in a state where law didn't apply. To my mind, we are at a moment where something like the dual state is emerging in the practices of the present administration. And I think there are a couple of ways in which you can see a switch being pulled moving someone from or an entity from the lawful state to the lawless state. I think one of those switches has absolutely nothing to do with technology. And the other one is facilitated by technology. The one that's not facilitated by technology is simply the confident assertion that the law does not apply to us. Think about the case of Fabrego Garcia, on the other hand. The other form of switching is when the government has a relationship with you, a relationship which is collaborative and which is suddenly and unexpectedly turned from a form of support into a knife. And the application or the weaponization of cooperation, which universities in particular have experienced in very, very sharp way, including My own, I'm sure Fordham has too, is facilitated by technology. It is enabled by mechanization, automation, and the kind of surveillance and inference tools that technology permits. It may not be the most important form of exercise of control or power. It may not be that you couldn't have that kind of switching mechanism occur without it, but the technology dramatically lowers the price of using that switch.
- [16:14]
Quinta Jurecik
And what kind of technology do you have in mind there? Because I can envision technology in the broader sense of the ecosystem through which universities collaborate with the government, collaborate in one sense rather than the other to develop scientific research, technological progress, but also technology in the sense of the ability to, you know, flip the switch and prevent grants from being dispersed.
- [16:39]
Aziz Huq
Well, I know that Joe's going to talk about Palantir, so I'm going to be very careful not to tread on your. Tread on your.
- [16:45]
Joseph Cox
My entire thing.
- [16:46]
Aziz Huq
Tread on your toes. Your toes have Palantir written all over them. But I think that the example of the cancellation of visas of students is a rich example. We don't exactly know the technological tools that are being used to single out students who are present in the United States either on F visas or J visas for termination. The termination is not being done through any kind of. It's not being done through any kind of agency adjudicative process. It's not being done through any kind of. There's not been any judicial process. There have been ex post challenges. The ex post challenges have recently been successful. But for example, the University of Chicago has a few thousand non citizen grad students. I have lots of non citizen students who are LLMs in my classes and out of those thousands, seven people were identified and had their visas terminated without notice to them. That is the exercise of some kind of automated discretion through which individuals are identified, in all likelihood through the assimilation or the aggregation of multiple databases, potentially including social media. So that is an example of the kind of technology and I just flag. This is a sort of simple law and econ point which is you lower the cost of any activity and you dramatically increase the amount of activity that will occur. So you lower the cost of exercising that kind of discretion, you're going to see a lot more of it occurring.
- [18:22]
Benjamin Wittes
The flip side of that also is if you raise the cost of implementing something through it, you can make it much harder. Which is exactly one of the reasons why DOGE has gone for the databases in every agency. Some of it is for surveillance, but a lot of it is so that they can pull individual records or destroy the records so that it becomes impossible to reboot the agency's function once they've gone.
- [18:46]
Quinta Jurecik
Now that we've had a bit of foreshadowing, Joseph, I want to go to you to talk about your work on Palantir.
- [18:52]
Joseph Cox
Sure. First, just a point you made about how something can switch and it becomes a knife. I think that is basically the key takeaway from all of these individual stories that you're reading about. And there's the Doge stuff of a master database. There's the Palantir stuff. There's some other ICE stuff I'll talk about as well. But this idea that immigrants or citizens or really anybody have given data to various government agencies and now the context has shifted under their feet and now that data can be weaponized against them in a different way. Probably the clearest example is that the IRS is now going to provide data basically to ice, severing that very important firewall. I obtained a document describing a tool currently in use by ICE called Alien Tracker, or atrack, and that has FBI, DEA data, normal law enforcement agencies, but they are already saying we plan to integrate Department of Labor data, Urban and Housing Development, Health and Human Services as well, agencies that traditionally have nothing to do with immigration enforcement. So sort of to get what the previous question was, the technology there is linking all of these databases together. But almost more important than the technology itself is the underlying data. Because Palin, to move into that, doesn't generate its own data. It's not getting data really of its own. It's just joining a bunch of other stuff together. And sources I have in the banking industry and various other ones, they think it's okay. They're not particularly blown away by it, but it's a resourceful tool. But now here it's so much more powerful because it's going to have real world consequences. So just to very briefly say where we are with Palantir right now, and again, you said we don't know everything about how people are being targeted. And that's basically still true, even with all this reporting that's coming out. But I reported that Palantir's got another $30 million to improve targeting for ICE. And it turned out there was a tool called Immigration os. I then got some internal Palantir documents where they sort of lay out the justification for it. And I think the parallel with the Holocaust and what IBM did is absolutely apt. I've been rereading that book, IBM and the Holocaust, as I continue to report on Palantir. And it is very, very fascinating when you read the 2,000 words of their justification where they say, we believe we're doing the right thing because we're actually going to make immigration enforcement fairer and more efficient and more accountable and more transparent. We're the good guys here. They're basically saying, by allowing the facilitation of this. And I guess you can't deny when you're reading the thousands of words of justification that they have thought about it, but they've still reached this conclusion where they're going to provide the technical infrastructure for these things. And, of course, people are still being deported without due process as well. So the Palantir involvement is sort of very, very new. As in, it really started in March and April, at least this latest iteration. I don't think we've even seen the impact of it yet. Like all of these other deportations and all of these people being picked up off the street. I don't necessarily think that's necessary to do with Palminter yet, but I think we're going to see that pretty soon. We're going to see the fruits of whatever they've been developing.
- [22:19]
Quinta Jurecik
One thing that I think this gets to is how effective this technology is. I think often when we think about sort of technological dystopias, Skynet, things like that, the anxiety is about a system that is extremely effective, efficient, accurate, and the terror is that it's able to pick out specific people accurately. On the other hand, I think a lot of what we have seen in recent months is a very different kind of anxiety, which is an anxiety about technology that works poorly and a state, in fact, that is in many ways functioning poorly. So I think the examples of student visas and of Kamara Abrego Garcia, although that's less technologically focused, are good ones. Abrego Garcia has become such an important case precisely because he is in El Salvador by mistake. The cases of these student visas that have been deleted from the Sevis system, as you said, it's not clear why people's information has been deleted. Sometimes it can be traced to a minor interaction, a traffic ticket, something like that. But sometimes it's completely unclear. And so there's an element of randomness that actually makes me think more than anything of the Terry Gilliam film Brazil, where the inciting incident is a typo that sort of leads to this cascade and this authoritarian state. And so I'm curious for all of your thoughts on how conceptualizing technology used for democratic backsliding as efficient and effective versus inefficient and sloppy, how that should affect our Understanding of the relationship between technology and consolidating authoritarianism.
- [24:11]
Orly Labelle
Yeah. No, I think that with all our debates about technology and specifically with the rise of AI, we have both of those conversations going on and sometimes we conflate them. The fear of technology being too good, too perfect, so powerful and quick and fast and accurate that we're losing control over it and it knows everything. And at the same time, so much of the talk about AI bias and algorithmic harms are about the inaccuracies, the mistakes, the kind of not being ready yet for deployment. And for me, and this goes to a lot of the. We just heard a lot of really scary and concerning stuff. And I keep thinking, you know, what is the best that we can do? We being the people in the room, attorneys, law professors, future lawyers. I think first of all, that metaphor of a switch to move us to the law side, we heard a lot about that lever over or the switch to going to the lawlessness we have now, these powerful tools that are becoming more available to the public, to a lot of, to journalists, to activists to use. For me, it's always been very important when I think about technology, both wrongs and potential and opportunities to ask it in a comparative way compared to what we heard James talk about this really low level technology of IBM, just really having these basically digitized lists. It wasn't the powerful technologies that we have today and that was just kind of recording things. Now we have technology that and some of the descriptions of what Palantir was doing and what Aziz was describing seems to me just really using data and not using technology to improve decision making. For me, the question is, what are we comparing? What is the alternative? How do we stay informed about what is happening and thinking all the time about the potential for the digital trail that we have, that technology is enabling to bring us to that law part, or to the oversight, to the transparency, to really kind of exposing things that are happening.
- [27:10]
Benjamin Wittes
I want to point out that in many ways today, the irrationality and the chaos are the point that the ways in which the Trump administration is using technology are actually deliberately turning their back on the capability to use it with effective controls that achieve results that are reliable and predictable. One of the things that Doge has done immediately is dismantle 18F and the United States Digital Service, the places in the government that were most in sync with current Silicon Valley best practices for software development and maintenance. Instead, they've implemented a largely chaotic process of individual people parachuting in making changes to production servers largely arbitrarily Doing things without any of the version control, without any of the code reviews or development processes that we associate with high quality software and data science in the technology companies at the bleeding edge. That's in fact, because this is a movement that sees rationality and organization and bureaucracy as very much the enemy. And since those are the tools of the state that they're trying to root out, those are the things they're attempting to destroy and replace it with. What would be a more personalist regime, one in which that switch gets flipped and somebody can make the database entry by themselves directly, without going through checks and balances or controls. And that means if you deploy straight to the production server, that's what you do.
- [28:39]
Aziz Huq
I think that Quintus question is terrific. And I would point to particular effects that are achieved through automation, even in the absence of accuracy, that I think are salient in moments of democratic backsliding or transition. The first I've already alluded to is scale, and the second is internalization. So scale is simply being able to perform an activity at an exponentially larger rate or higher rate than you would otherwise have been able to do with the resources that you have. So regardless of your error rate with respect to deportations, if you can deport millions as opposed to thousands or tens of thousands, from a certain perspective, that is a policy success without regard to the error rates, you're accurately deporting far more people, even if you're inaccurately deporting far more people than you otherwise would be. So scale can be an objective in and of itself. Scale, I think, is also important because scale, which is famously the first principle of Silicon Valley economics, the aim is to identify the technology, the killer app, that will scale up and push other affordances from the market. Scale conduces to a certain kind of political economy, a certain relationship between the state and the private sector that is characterized by or that is well fitting to the companies that have developed out of Silicon Valley in particular. And so that emphasis on scale is going to lead to certain kinds of relationships between the government and private actors. So that's the first thing that I would point out. The second thing that I would point out is internalization. If you're able to scale something up, if you're able to make people induce in people a belief that you are able to know whether they are, for example, thinking about getting reproductive care, whether they are a parent and their child has asked for medical care, with respect to the possibility of a transition, you will behave differently. Differently if you believe that your behavior can be inferred from other things, whether or not that inference is accurate or not. So the fact of scaling up, regardless of whether it is done well or badly, can induce what we lawyers like to call a chill far beyond what the state would otherwise be capable of reaching. There's an interesting parallel to China's social credit system, which I think is not well understood, and I will concede that I do not fully understand it. But the best reporting and the best academic coverage that I've seen is by Shazana Ahmed, who is affiliated to Stanford. And Ahmed's work suggests that the social credit scheme, which is demonized in the west, for example, it's one of the ForBotan uses of AI under the AI act in Europe, I think, because of China, according to Ahmed, the social credit scheme is just a bunch of cobbled together databases that kind of work well sometimes, but kind of don't work well others. But she might be right about that. But it might also be the kind of system that generates compliance and anticipation even if there are very, very high error rates. So scale and internalization, I think are phenomena effects that you might see even with really high error rates.
- [32:43]
Joseph Cox
Just very, very briefly, and I hope I'm not repeating myself too much, but on that, yeah, on one side you'll have, let's say the data's really bad and it leads to more people being mistakenly deported. That's awful, that's bad. And it's, let's say, I don't know, I'm just going to say hundreds or whatever. And then Palantir or whoever comes in and they say, we're going to improve the data quality, we're going to clean it, we're going to match it together. All of a sudden the data is a lot better. And now you're deporting hundreds of thousands, millions. Is that, oh, well, I thought you were going to fix it. And there isn't a good solution either way. Essentially, when the data is bad, they're going to make mistakes. When the tools are really good, it's going to have, as you say, impacts of scale, which are going to be much, much larger. And the private sector is crucial to that because when you read some of these documents, they say that HSI and ice, they were unable to build something like this by themselves because there is a massive sense of urgency inside ICE right now to execute on these executive orders. They can't cobble this together. They for worse. Obviously they need Doge, they need Palantir to be able to execute on these visions.
- [33:58]
Quinta Jurecik
That goes to something That I think is really important, again, which is this issue of state capacity, that the visions of government activity enabled by this sort of imagined enormous data set, which in fact is cobbled together from many different sources, are, especially in the area of immigration, actually quite difficult for the federal government to carry out because there simply aren't enough people and there's also not enough data. And so there is a need to engage with the private sector, as you say, at the same time as doge within the federal government is actively destroying government capacity. And I think this goes, Aziz, to your point about the political economy of all of this. And one thing that I have been really struck by is that the first Trump administration, many arguments were had, I was part of many of them, about to what extent it could be fairly characterized as authoritarian. I think it is fair to say that whatever the answer was to those questions, the second administration is certainly rocketing in that direction with much greater speed than the first one ever did. And part of that is enabled by and driven by these interactions with technology companies. And it is not obvious to me which is the chicken and which is the egg, that there is an extent, as we've been discussing, to which the engagement with technology companies, the idea of technology AI in particular, as a force that will kind of enable these projects, is certainly allowing some attempts at carrying out this vision. But there's also been plenty of reporting on the sort of deepening ties between the Trump camp and certain figures in Silicon Valley, most notably, of course, Elon Musk, which themselves are increasingly moving in an authoritarian direction. And so I am curious for all of your thoughts on how we should understand that relationship. Is it purely economic? To what extent is it a sort of ideological anti democratic commitment? And which is the chicken and which is the egg?
- [36:16]
Joseph Cox
I think just briefly, on the Silicon Valley stuff, it's sort of a mix, right, where the Trump administration will have a vision for what they want to do, and then companies will come out of the woodwork or they'll be very prominent, and then they will try to execute on those. But then you also just have the reality these people are billionaire multibillionaire CEOs. They give a million dollars each to the inauguration fund, right? They all turn up to the inauguration, presumably to save their own skin in some sort of capacity. You know, meta facing various actions against it, Amazon trying to maintain its business, Elon Musk trying to, it seems, be loved. I'm not exactly sure what that's about, that aside. And now that is all, and that's all blowing up spectacularly in their faces, especially when it comes to Mark Zuckerberg and then, of course, Amazon, for a brief moment, putting on the cost of tariffs potentially to the consumer. I know this is a little bit hazy about what exactly we're going to do with it, but the reporting seems in park with Trump then calling up Bezos and being very, very mad about it. I think, to answer your question, I think it's a mix of. A lot of it is the administration wants to execute on something and then they deliver it. But then Silicon Valley comes out because they have their own motivations and of course, their businesses, they want to maintain whatever will keep themselves, their shareholders and their companies the ability to. To do this Silicon Valley growth. They want to keep growing. During this administration and a lot of these CEOs and other companies, they were hoping for an accelerationist president, which is very much a term used in AI. And we published a piece recently where they voted for that with their probable literal votes and their money. And what they got was a decel president instead, which is a derogatory term in the AI community for somebody that is driving tech backwards. And Trump is absolutely that. He's actually awful for the tech companies, at least in some ways.
- [38:27]
Benjamin Wittes
I think I'm going to say two things or two slogans that can help to understand this relationship. The first is that the Trump administration under Trump is a they, not an it, that there's not a singular, unified agenda being pursued here. There are a bunch of individual goals that align in some ways and are in deep tension in others. Trump himself deeply wants tariffs, and he's under the influence of Peter Navarro, who makes the case for very high tariffs. And there's a part of his base that really wants this and many others who do not. Trump wants very strong immigration enforcement. Many, many people in the Trump coalition want this. The tech industry is much more split on this. You can go down the list of policies towards the size of government, government spending, the role of the military, tax policy, and there is not a master list drawn up that's been negotiated over, that has been conceived as these are our policy goals. It is a bunch of things being done simultaneously and chaotically. And so tech companies are trying to sign up for parts of this, even as they are horrified by others. And there's an absolute authoritarian slant towards many of them, and that's driven by both personal ideological goals. But I suspect that many in the tech world have been blindsided to realize they're not negotiating or trying to partner with a government that has a coherent thought through policy. It is instead of a bunch of conflicting influences, it's cats in a bag fighting, and they've been surprised at which ones had the sharpest cause. On top of that, I would also say John Ganz's theory of bossism is very helpful for understanding the relationship of the people in Silicon Valley, like Musk and Andreessen, who are very strong Trump supporters, which is essentially, they want a world in which their power as titans of industry is recognized and is unchecked by government regulation, or by activists claiming what they're doing is bad, or by employee unions, or by other things that deny to them the cultural centrality and the power that they feel that their success in making money entitles them to. And so they want the strong state to help them crush their opposition, and they will sign up for that. And in fact, there's an enormous indifference as to what the government does beyond crush competing sensors of power.
- [41:07]
Aziz Huq
I think I might add something that complements what James just said by pointing to the diversity of ideological positions in Silicon Valley itself. So, for example, very much consistent with what Joe said. I had Karen Howe, who's a journalist for the Atlantic and for MIT Tech Review, in my class earlier this week, and I asked her about Sam Altman because she's got a book coming out about OpenAI and about what his incentives are at this moment. And her view was very much that Sam Altman is just a very, very wealthy venture capitalist who wants to do well under whatever political circumstances obtain. So that's one possibility, and that's a very familiar type going back to James. Identification of the relationship between industrialists in the 1930s in Germany and the Nazi regime. Indeed, I was preparing for this discussion and read an essay by Arendt, Hannah Arendt, on personal responsibility in times of dictatorship. And she identifies this go along to get along well attitude. But that's not to say that there are not genuine ideologues within Silicon Valley. Mosque, for example, I think it's now reasonably well documented, was shaped by the fact that he grew up in apartheid era South Africa. He's the child of a man who was deeply committed to the apartheid project. Quinn Slobodian, the historian, has a book that's forthcoming. Maybe it's already out. I haven't read it. On the influence of ideas about race science in Silicon Valley and on in particular the neoliberal right in general. That's one constellation of ideas I think that is influential and that you do see playing out, for example, through Doge, a different constellation of ideas is the one around Peter Thiel, where Thiel has a set of ideas about the trajectory of the United States as a superpower and its inevitable decline as it hits certain limits. And at least one theory of Thiel or Thiel's beliefs is that Thiel wants to accelerate, not accelerate the technology, but accelerate the process of national combustion, such that something better rises from the ashes, such that this is the kind of Leninist theory of political development. You accelerate the contradictions of the moment, the moment explodes, and then you're able to build something new in the first instance. So, for example, one might explain the fact that the tariff policy adopted at the beginning of April was one that not just led to. I think at one point it was a 17 or 18% decline in equities, but led to a sharp increase in yields on the dollar. A quite astonishing and if not historically unprecedented, then certainly surprising in light of recent history. Challenge to the dollar's status as the global reserve currency and the currency of account used for transnational transactions that came in under pressure. And there's at least a theory that collapsing the dollar, driving the dollar out from its status as reserve currency, it's just the quickest and most expedient way to destroy the United States as a superpower, which is probably true, and build something better in its place. And I thought there was a moment in early April where it did seem possible, it did seem possible that that would happen, which is quite extraordinary. I think that is one of the most extraordinary things that people have not quite got their head around. We almost drove the United States. Not we personally. I disclaim responsibility. I was not betting against the dollar or anything, but there was a moment where the United States almost got driven into the ground as a global superpower by losing its principal instrument of financial and monetary control. How on earth does that happen? Well, the tech industry might be one explanation at least, if you start to disaggregate it by ideology.
- [45:40]
Benjamin Wittes
This reminds me also of the attitude that many evangelical Christians have towards Trump, which is that, well, of course, he is the sinful secular ruler. He's not himself one of us, but his rise is necessary as part of what's foretold in Revelation.
- [45:58]
Orly Labelle
Well, I'll just add to the conversation the role of the kind of lifelong public servant people that are in government. And I think the fact that we have so much chaos and randomness and no policy really is a source of strength to the agencies themselves. I think we saw there is some evidence of that from the first Trump administration, where different works and compliance and enforcement paths and processes were really kind of kept in place because there wasn't enough of that clear guidance. And there again, I think that we can think about technology as both a source of fear and an opportunity where when we have such scarcity and cutting of the budget, inevitably we need to think about scaling the way that as he's talking about scale. Well, scale is also something that is an enabler. When you have environmental enforcement that has to be done. When you have welfare and benefits that need to be delivered. When we want to do, we're cutting so much from research and FDA approval processes and all of these different things that we care about, it actually will have to be. We talked earlier this morning in our workshops about procurement, about the role of introducing AI and inevitably partnering with the private sector to move forward and really kind of think about those heroes that stay in government because I know that so many are quitting, but so important to actually point to those who are staying. Despite all odds, despite all these challenges.
- [48:04]
Benjamin Wittes
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Quinta Jurecik
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Benjamin Wittes
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Quinta Jurecik
And out feels better, right? That's 15 seconds of self care. Imagine what you could do with more visit betterhelp.com randompodcast for 10% off your first month of therapy. No pressure, just help. But for now, just relax. Let me try to draw on that and maybe think about what it would take to move us in a slightly more hopeful direction. I think the discussion we're having now is really particularly striking when you compare it to the discussions that we might have been having 10, 15 years ago about democracy and technology. If you said those two words together in 2005 2010, I think they would conjure a very different set of images. Twitter in particular, of course, is often credited with the rise and influence of the Arab Spring. There's an idea of technology as something that can be a democratizing force, something that takes down dictators and enables sort of of collective action in a democratic space. So my two questions are first off, what changed? And second off, is there any way that we can think about the role of technology and democracy together that might allow us to kind of reconfigure things into a more optimistic path? Is there somewhere else that we can go?
- [54:30]
Benjamin Wittes
Let me give if not an optimistic take, at least not a completely bleak one. And in the same way that public opinion drifts back between extremes, political science will call it the thermostatic model, in which as one party gains dominance and does unpopular things, people start to say, hey, we liked the old way better, we didn't appreciate at the time, but this is even worse. And there's something maybe somewhat similar in the realm of technology and its relationship to politics. In the same way that technologies will often leapfrog, a country that develops extensive wired Internet infrastructure will be slower to develop wireless than one that never had that strong infrastructure and went mobile first. When something is successful, it established and is much harder to displace. You could see that maybe there's something like that in the realm of politics and social media, in which you have the 2000 and tens association between the social media technologies of the day and how they're used and the left and popular movements there. It may simply be that the natural cycle of new networks and new technologies that support each other are taken advantage of by different political actors because they are untaken territory. They are spaces to which they can expand that aren't yet associated with their adversaries. And so something like blogs are left coded and Twitter becomes over time, right coded and podcasts today are seen as more right coded. But maybe TikTok will be left Coded. And it's just simply the natural tendencies of people to follow the fads and find new things, become associated with different political tendencies. And that's sitting here 10 years from now. Will be asking what changed from 2025?
- [56:28]
Joseph Cox
I don't have an optimistic thing at the end.
- [56:31]
Quinta Jurecik
I was trying so hard.
- [56:32]
Joseph Cox
Yeah, definitely not the right person for that. But just the journalist perspective of sort of what changed back then. I mean, tech coverage back then in the mid 2000s, late 2000s, all very positive about all these tech companies, all these startups coming up, all this money is getting thrown around and then soon that coverage starts to change when it turns out a lot of these companies are sort of full of it. Oh, they are actually doing some bad things. Some of these startups are failing. And a lot of these people at the head of these companies, they were not used to that sort of coverage and they had no idea what to do or how to react when coverage did start to be more adversarial. And you sort of fast forward to now or a year ago or two years ago, you have those same sort of people, and especially Mark Zuckerberg, where they're kind of like, well, screw you. And they do a 180 and they say, well, I'm drawing away from that and I'm just going to be myself, whatever that is, and I'm going to go on rogue and I'm going to do this. I'm going to just not engage as much with legacy or traditional media because they don't get me and they don't respect what I'm doing or whatever. So it wasn't just sort of a flip of, well, the media flipped and then started doing it more adversarial and skeptically. And then the leaders also turned and they leaned into their positions as well.
- [57:52]
Aziz Huq
I'd like to pick up on something that Orly said about the possibilities for beneficial uses. I think that the wave of coverage of technology in the early 2000s was focused upon technologies in the communications sector. But I would point to technologies in the banking sector as an area in which in fact there's been enormous public facing goods created. Say for example, Brazil, which is a country with a reasonably high degree of still quite extreme poverty in the last five years has rolled out a central bank digital currency called Pix. And Pix is Now responsible for 45% of transactions that are conducted in Brazil. And you don't need a bank account which many, many people, especially the impoverished, lacked in Brazil. All you need is a mobile phone. The rollout of pix, eliminates the transaction fees charged by intermediaries such as commercial banks, eliminates the physical risk and security risks that come from storing value in the form of hard currency in your home, carrying it around with you, reduces the incentives to conduct certain kinds of assault and robberies, and surely massively increases human welfare. And that is a story of technology. That is a story of technology being scaled up in exactly the way that Orlais described so as to facilitate the flourishing of human beings. And you have similar systems in, in other, what used to be called developing countries. I believe Mexico and I believe India have parallel systems. I don't know if they're successful as Brazil's, but the point that I would make about that possibility, which I think is real and important, the fact of raising people out of poverty through the provision of these technologies strikes me as just an unqualified human good. But the fact is that is that the pick system means that the Brazilian government, the central bank, has an enormous amount of data about individuals. To see how that data might be misused, look at the Indian electronic identification system called Aadhaar. Aadhaar has been rolled out over the last five or ten years under the BJP government in India. And it facilitates access to welfare benefits. It enables people to confirm their identity in order to engage in transactions like family law matters, marriage, divorce, et cetera. Surely has, in the aggregate, increased human welfare, eliminated forms of human suffering in really important ways. But it's also been the platform for the BJP's effort, particularly in the northeast of India, to strip non Hindus, Christians and Muslims off their citizenship, to exclude them from the polity and to render life impossible for them by cutting them off from the economic system. So the system that creates enormous benefits can also be, again, it's the flipping around. The helping hand turns around and becomes the hand bearing the knife. Right? It's the same thing. And I think that a question that I don't have an answer to, but I think is really important for actually the lawyers, I'm sure the technologists, yes, we need to talk to them. But it's really a law question. It's what's the legal framework that prevents that flipping of the helping hand into the knife?
- [61:46]
Orly Labelle
Well, just to pick up on that, I just got back from Bhutan and that's a tiny kingdom with very few resources. I met with the Minister of Health there. They were talking about how they don't get even close to what the World Health Organization has as per capita physicians per patients. And it would just be really wildly problematic to ignore the fact that technology, and in particular what we see now with generative AI can really tackle these questions or these challenges of access to health, access to education, access to finance and independence, to gender equality and access to information and knowledge. And then yes, we have this big fear that that also comes with great power of data collection. So my I think take on that is that. Aziz, you were asking, what's the role for lawyers? I think that we've been focused too much in the policy proposals, policy reforms that I've seen in Europe, in California, proposals before Congress. We focus too much on these, on off ideas or frameworks of either collect or not collect data minimization. One purpose, and what I think will be more effective is really to recognize that it's about the uses and about just the ways that we frame our purposes. What can be done, what is done by government, by the private sector as well. So for example, with reproductive rights, I really believe that we can figure it out, how to resist what's happening. And we see all these things that are coming. A lot of it comes out of states or the states because we have such stagnation federal administration. We see how technology can connect, can create, just lower the cost of creating communication and access across state lines. Just advancements also in how we do abortion these days. Actually the majority of abortions now is just shifting to pills rather than has to be in hospitals. So those really, I think give me hope that it's not a technology problem. Rather, technology has to be part of the solution and the problems are with really bad intentions of certain people in power. The one other thing that I'll say about hope is that but being I'm a dual citizen and having this historical perspective and also the comparative perspective, I do think that a system here has, it still has a lot of checks and balances of federalism, of continuity of the agency or the administration, the lifetime civil servants, as I mentioned before, and just four years of a presidency, which also really gives me a lot of hope.
- [65:30]
Quinta Jurecik
I want to make sure we leave time for audience questions. If anyone has any, they like to ask.
- [65:35]
Aziz Huq
I thank you for this wonderful panel. So law schools welcomed LEXIS and Westlaw with open arms when they were owned by legal publishers. But now that they are owned by multinational media companies RELX Group and Thomson Reuters that have data brokerage arms with contracts with ICE and other government agencies. Should law schools alter our relationship with.
- [65:57]
Benjamin Wittes
These legal research tools? Well, yes, but law schools could be doing this anyway. The entire purpose is to lock people into becoming addicted to and used to their particular offerings so that they will pay large money for access to legal information, the vast majority of which is in the public domain to start with and should be readily accessible to all freely online.
- [66:23]
Quinta Jurecik
Hi, Courtney Cox, Fordham Law School. So this has been really fantastic. I want to pick up on a couple of themes that was maybe begun with Orly's comment about when you say tech, like, what do we mean? Do we mean the faces of the tech company? Do we mean the technology companies themselves, or do we mean the actual product? And I guess one of the things I find myself continuously wondering is to what extent does using even this kind of phrase, technology obscure not just those distinctions, but meaningful distinctions between the tools themselves in a way that kind of enables some of the obfuscation about what's happening, that maybe we can't understand what it is, when really it's just basic database scraping, or it's something where even those who do kind of of are at the forefront of it don't fully appreciate exactly why they know the thing works, but not why the thing works. And so I guess I was interested in hearing the panel's view as to whether kind of lumping it that way, again, obscures what's really going on democratically, which I think Aziz was starting to pick up on.
- [67:27]
Joseph Cox
I agree that lumping them all together is not useful, and that's very, very easy to do. And I think journalists will do that, academics as well, and just colloquially in conversation as well. And that's sort of why I admittedly have such a more narrow perspective than the rest of the panelists who have this amazing historical and broad perspective, whereas I'm just like, literally what database is going into this ICE tool? Because I just want to know those specifics, right? And I think that's why a panel like this is so useful, that you can combine those. I think the specifics are just as important as sort of the broader perspective as well. So I agree, I think people should be definitely more particular and when they talk about this issue so they can actually be identified.
- [68:17]
Aziz Huq
I guess I would push back just a little bit in the sense that I think that to frame and to understand the world as you know, we need categories, and the categories are often simplifying and blur or miss things. And so I would be, I think, forgiving both of ourselves and of others if we use a category like tech. Perhaps the way to think about it, considering your critique, is as a portal that opens up on a suite of issues, maybe one way of productively working with what you've thought through is once one has that framing device, how does it cast light on our present moment? And I'll give you one example. So there's a line of political science that looks at what happens when states obtain new capabilities. And what's thought of as a capability is what's thought of at that moment as a technology. So the most important of these technologies historically is writing. We don't think of writing as a technology. This is, I think, your point. But when newly sedentary societies developed the tool of writing, what's writing useful? Well, it's used for the tracking of commercial transactions, but it's used by the state. It's used by the state to aggregate information, share information and transmit information over time, which had previously not been feasible. I think you can learn a lot by thinking about how writing changed the state and comparing it to how, let's say, generative AI tools change the state. I think you're really correct, Courtney, that there's a way in which that comparison is obscured or lost if we get this term technology, if it occludes our vision. But on the other hand, I think once you start to think flexibly with the word technology, perhaps it opens up that question and you can start to think about comparisons that otherwise wouldn't have come to mind.
- [70:38]
Orly Labelle
Well, I'll just thank you for that because I've been very, very worried about that kind of lumping. I think that it has this other effect that I want to make sure that I'm describing or kind of warning against because I see this all the time where when we have a panel like this, when we're talking about all these really horrific, scary collusions between Silicon Valley tech moguls, tech conglomerates, and an administration that we are very concerned about, I believe that we're creating a vicious cycle where we are really creating kind of these insiders and the outsiders, the critics, all of us that then especially kind of the next generation that are now going into the labor market and into the different industries will be just dissuaded from being part of it. And I think that it's really on all of us to also to have a very balanced conversation, to talk about all the benefits and potential and good and celebrate the really inventive and innovative things that are being developed right now that are life saving, that are creating welfare so that people will have skin in the game and want to be in there because otherwise we're just amplifying and we're really writing the result of continuation on a very dark path. Then One other distinction that I would add to all of this mix is that a lot of times, and I think it's to the benefit, I think it's purposeful for people like Sam Altman and others who are the leading conversations about this, we conflate between the technology that we have and the technology that we kind of think we may have in the future. And it's to the benefit of those that are like in power and profiting to talk about that unknown technology of artificial general AI, general intelligence or something that we'll lose control over, rather than talking about the sectoral automation algorithms that exist. And I've become more and more convinced from a legal perspective that we need to also from a regulatory path, we need to regulate sectorally and not have these EU AI act that talked so abstractly about risks where it really becomes meaningless, or legal scholarship that just says we need more transparency, we need more fairness, we need more accountability. And every article that's been published in the past five years calls for that. But if we're not talking about what do I actually, what is the technology, what is the sector, what does it do? Then we're not doing much.
- [73:53]
Benjamin Wittes
Paul Ohm from Georgetown. Thank you for this cheerful and uplifting conversation. So I'm going to ask this in a way to try and resist you just fighting the premise, although I think I'm going to lose. So I have long thought and recently written about part of the problem being the kind of the stories we tell about the word efficiency and how supposedly efficiency is this like one overarching goal that makes everything work, when in reality every time there's efficiency for someone, it's by applying friction somewhere else. And so I wonder if the kind of association with Elon Musk with that word, might finally give some space for a counter narrative about deciding where the efficiency goes and where the friction goes or the counter efficiency. I want you to focus group how I can sell this without fighting the premise about whether or not this is the solution. Although feel free to fight the premise. When you meet somebody who says but efficiency is good, then you can say, look, the Department of Government efficiency. That is what efficiency efficiency is actually like in the world. It is a very conscious trade off. It bears very little resemblance to this idealized abstract notion of efficiency that is good that you have in your head. Efficiency everywhere and all the time is like what Doge is delivering. We're actually fighting over the what and the how, not the weather.
- [75:24]
Joseph Cox
I would just point to Doge's catastrophic failure, even by its own Metrics, what were the saying they were going to save 2 trillion then 1,500,000,000 or something. I think it may have even gone down at some point now. But even by the way that they measure their own actions of being more efficient and cost saving, they're clowns essentially. So I would just point to the evidence of that.
- [75:51]
Aziz Huq
So Paul, I think you've got two different things going on in your question. So the first is I think that there's a trade that's happening on the word efficiency, which in most people's mind connotes the absence of unnecessary waste with a much more economic idea of efficiency. And I think that we have to be careful about when powerful people use words in ways that trade on such ambiguity. So I think that's one element of what you're identifying. The other element I think is your, I think pushing on an old debate about between the, I have to say Posenarium. I'm contractually obligated, I lose my job if I don't say Posenarium, sorry, such inside baseball, just ignore us. It's the debate between Postnarian efficiency and accounts of the social good that are redistributive in character. And my own view is that the Posner version of efficiency, which goes back to Bentham, is a really good critique. It's a really good way of pouring acid on bad ideas. But it doesn't actually tell you what's good about the world. It doesn't actually tell you anything about what you ought to strive for. And even a moment's reflection upon the technical inputs into any claim about efficiency understood in its welfare form tells you that because a claim of efficiency without some account of what human or non human goods are being pursued is utterly empty. So unless you have an account that tells you whether to count or not count, for example, the diminishing marginal utility of wealth, now I'm really in the weeds, right? It's just vacuous, right? So I'm sympathetic in part, but I wouldn't lose sight of the fact that there is this use of the word efficiency which goes back to Bentham, which is. It's a stick, it is a vial of acid. You pour on the nonsense that previous generations have encumbered you with. Remember that for example at Bentham uses the stick of efficiency against the English criminal justice system in very, very effective ways in that way. And I don't think we should lose track of that.
- [78:43]
Benjamin Wittes
Thanks.
- [78:44]
Quinta Jurecik
Katherine Powell Fordham Law School Part time Council Informal Relations Digital Cyber Program I think Orly's remarks about Sector specific regulations in part anticipates my question and whether we're talking about old technology like the vacuum cleaner which both freed women up even while it shackled us to housework, or Arab Spring asserting rights in Taqueria Square while government surveilled and censored, or today the leapfrog technology examples that Aziz gave around digital currency. I'm just curious about what are the bright spots in terms of whether it's countries or regions or even states within the United States that do a good job of highlighting, enhancing the positive face while restricting and regulating the downsides.
- [79:31]
Orly Labelle
Yeah, I think Asiz, you mentioned financial regulation. I think that there have been regulatory fields where we've had the introduction of algorithmic decision making automation for decades now. So like tax and the sec. I think this is a good time to actually respond that we just need more expertise in government to introduce those good systems. But there is a lot to. I mean I don't think of efficiency as a bad word for sure. And bureaucracy is always, always strapped for resources, always can do more, always has always historically been kind of in the race to catch up vis a vis the private market. So I think there are good examples. The FDA has been doing much more. I think it was really slow in approving AI based medical devices and diagnostics other systems. And just recently, just in the past like four, three, four years has accelerated that and developed more expertise in it. I truly believe that there are opportunities in every sector like looking at education. I've documented really good systems of social robots coming out of MIT that have been specifically deployed in difficult school or underfunded communities that have really proven to help level the playing field.
- [81:19]
Benjamin Wittes
Hi, I'm Jane, I'm a student at Fordham Law. I have a question sort of regarding previous conversations about the optimism of the early 2000 and tens and social media back then where it sort of felt like it was a public forum and we were sort of less aware of surveillance of our commentary on those social media platforms, or at least I was back then and I think now we're acutely aware of not only the private ownership of all of our statements on those social media platforms as data that can be used and in fact given to the government. I'd like to use the example of student protesters, say, who have been deported or otherwise taken into custody and also the idea that these platforms are no longer necessarily places where free speech can take place so much as we can see by the re change of ownership with X and all of these things, we're sort of There are different rules for content moderation now than there were in the 2010s, I think. And I'm just curious if you all had thoughts about if that's one of the reasons why we see democratic backsliding today. If that's sort of the realization that this content is not necessarily ours and not necessarily just floating around in the Internet with no context. And whether or not that's a huge factor in this sort of backsliding and.
- [82:32]
Orly Labelle
Silencing of voices, I'll just say that. I mean, that's not like some natural state of existence that you know who owns the content. That's something that we have to continue to fight about. And the EU just introduced quite important regulations on content moderation and control on user control over what they see. How do you prioritize the content on your feed, how data is preserved? So there are legal reforms that can be done. So just not accepting that kind of story of the loss of control, the loss of ownership, is what we all need to be doing.
- [83:24]
Joseph Cox
I agree with what you say, and it almost works the other way around as well, where you have all these very rich, powerful people, Andreessen Horowitz and A16Z and all of the VC community, that sort of thing. And then there was an amazing piece in Semaphore recently from Ben Smith Smith about how a lot of these people have migrated to these massive group chats where they can talk basically without criticism, except among one another. So in the formulation of your question, yes, it's students on social media, and maybe they'll police their own speech, maybe they'll be surveilled, maybe they'll be detained or whatever. And then on the flip side, these powerful people don't feel comfortable expressing their own opinions in public now, for whatever reason, because they think they'll be canceled or whatever perceived enemy they seem to have. And they are building these ideologies and these theories inside these small echo chambers which are completely shut off to us. We can't see them either because they're not on social media now either. They're in these private groups.
- [84:23]
Aziz Huq
I just want to pick up Jane on one piece of your question, which was the empirical connection with democratic backsliding. There are a number of studies that look at vote share and swings in vote share in elections, where you've gone from a reasonably robust democracy to one that's palpably backsliding. Places like Venezuela, Hungary, Poland, I think, are the leading examples. There's arguably an example early on, about five years earlier in Turkey and the Evidence from those studies does not support the inference that it is people who are heavy social media users who are voting who are switching to authoritarian parties tends to be older people. It tends to be people who are not heavily online, not using social media. And so at least the large end evidence that's available through political science, usually studies does not support the proposition that, at least at those pivot moments, that social media is playing a role.
- [85:32]
Benjamin Wittes
Yeah, I think the two mechanisms you outlined are self censorship through high visibility and censorship through the platform deprioritizing voices. I tend to think that those are probably not the most significant ones that drive the way in which our political discourse plays out through social media. I suspect that a lot of the mechanisms look a lot more like what Joseph was describing, replicated across millions of WhatsApp groups. And so it's not just the billionaires. It is also the people in a neighborhood who are in some ways invisible to the rest of us and in a small social media little bubble that is walled off and they radicalize each other.
- [86:22]
Quinta Jurecik
All right, this is our last question. I'm Sam Adler, I'm a student at Fordham Law. Privatization seems to underlie a lot of the sort of panel discussion here and.
- [86:33]
Benjamin Wittes
Sort of the rise of privatized government.
- [86:35]
Quinta Jurecik
And so I'm curious, how do we sort of go about deciding what we.
- [86:40]
Benjamin Wittes
Want to sort of be delegating to private entities? Is this something from like a legal.
- [86:45]
Quinta Jurecik
Perspective that is done through like focusing on due process concerns on sort of some aspect of non delegation? Is it something that's more sort of normative, like the OMB circular A4 memo.
- [86:58]
Benjamin Wittes
Says that government agencies shouldn't contract out.
- [87:03]
Quinta Jurecik
Sort of core governmental or inherently governmental.
- [87:06]
Benjamin Wittes
Functions, which is a little bit sort.
- [87:08]
Quinta Jurecik
Of a looser sort of guideline. How should we think about what we.
- [87:13]
Benjamin Wittes
Really want to be sort of sweeping into sort of like a privatized administrative state?
- [87:20]
Aziz Huq
I think Fordham gets immense kudos for having a student who mentions an OMB circular this time on a Friday afternoon. Well done. I think that I would in some measure resist the question in the following way. I think that as constitutional lawyers in the United States states, we tend to posit a strict and clear distinction between the state and private actors. Right. And I know that there's a plethora of tests for state action. Nobody knows which test to apply when, and the case law is a train wreck. I understand that. But in the back of our mind we have this clear and sharp distinction. When you read the political scientists, however, one of the points that comes out Very early on in studies of the state. And the way the state has developed over the 20th century is that the state has never developed in some sort of splendid isolation from society. The state has always emerged through building relationships, through the exercise of what the political scientist and sociologist Michael Mann calls infrastructural power. And to my mind, it is much more useful to ask the question of what's the relationship or what's the nexus and the particular form that state private interaction takes in a given context. And I would, as an example of how that is generative or at least opens the door to inquiry, suggest thinking, or do the thought experiment of thinking about. Well, bracketing Courtney's point about does the word tech mean anything? Think about the relationship between the private sector and the public sector with respect to technology in the United States, in Europe and in China. In each of those places, there is a very different relationship. But in each of those places, you can't understand either national policymaking or the way that technology shapes society without looking at both private and public actors. But those public and private actors are in very different relationships. If you're Jimmy Maher, you're at a very different place from Elon Musk. So to my mind, it's much more helpful to think about this embrace or entanglement between the public and the private and then to say, well, exactly what's the dynamic here? Who has the upper hand? Why do they have the upper hand? And how is that relationship going to unfold, given that, on the one hand, sometimes it's the party, sometimes it's the state, sometimes it's private actors. It's just going to vary. But thinking about those gestalts or complexes, I don't quite know what the right word would be, I think is more helpful than our traditional legal way of slicing the world into the public and the private.
- [90:25]
Orly Labelle
Yes, but sometimes it is straightforward. I mean, sometimes it's a question about whether we have private hospitals or public hospitals, private prisons or public prisons. And there I would just remind us that, again, what we need to be doing is debating these questions not as a thought experiment, but rather based on fact and empirical studies. And again, to inject some optimism, actually, AI is really generative now with helping us do empirical studies better more deeply and accurately.
- [91:09]
Benjamin Wittes
And I would slice through this in a slightly different way, which is, I think that if the choice is between a very large state institution doing something at huge scale or a very large private company doing the same thing in the same way, you may already have lost. And it's very important to have a diversity of institutions and places, not just one national communications network, but lots of ways to connect not just one company building something at many of them, not just one agency, but the whole huge variety of them with different expertises and sources of authority and the ability to address specific things with local knowledge. And that's a vibrant society that has all of these diversities of communities and sites of power.
- [91:59]
Quinta Jurecik
Thank you all for your excellent questions, and thank you to our panelists for such an invigorating discussion. The lawfair Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfair materials supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. And look out for our other podcasts, including Rational Security, Allies, the Aftermath, and Escalation, our latest lawfare Presents podcast series about the war in Ukraine, and check out our written work at Law Firm Media. The podcast is edited by Jen Patya. Our theme song is from Alibi Music. As always, thanks for listening. 1-800-flowers.com knows that a gift is never just a gift. A gift is an expression of everything you feel and helps build more meaningful relationships. 1-800-FLowers takes the pressure off by helping you navigate life's important moments by making it simple to find the perfect gift. From flowers and cookies to cake and chocolate, 1-800-flowers helps guide you in finding the right gift to say how you feel. To learn more, visit 1-800-flowers.com acast that's 1-800-Flowers.com acast.