What good (digital) policymaking should look like

_This article is written by Eline Chivot, Senior Adviser on Digital Policy, European People’s Party (EPP) _

• The problem: A lack of efficiency and innovation has been observed in the process of policymaking, in particular when policies are designed and delivered.
• Why it matters: (Taking the example of policies that impact the digital economy) Poorly designed policies are inefficient and can be counterproductive, negatively impacting businesses and public organisations, innovation, and enforcement by authorities.
• The solution: One way to tackle this issue is by incorporating more investigation and expertise in the policymaking process, from the outset, in particular through a greater involvement of technology experts.

While EU regulations for the digital economy have established global standards, such as for privacy laws, several stakeholders regularly report that their implementation and enforcement entail many challenges such as high compliance costs and the lack of legal clarity. This is especially true for Small and Medium Enterprises (SMEs) and startups, the driving force behind innovation. This is also true for public organisations who are responsible for enforcement, but also through their interactions with businesses, are key in supporting European countries' growth and power in the global technology race. If governments and lawmakers ignore the numerous practical problems posed by burdensome regulation and the lack of legal certainty, politics will continue to be confronted with the accusation of being disconnected from reality. Defining and delivering an overarching and balanced digital policy agenda, so as to support a buildable and viable digital economy, will notably require a stronger role for technical experts to be a part of any policy process or design.

In recent years, ambitious EU regulations for the digital economy have heavily improved various frameworks such as for data protection, and rights such as privacy. As is the case with many complex legislations, there have been several unintended consequences which lawmakers had not foreseen.

Take the General Data Protection Regulation (GDPR), the EU law on data protection and privacy enacted in 2018. It wasn’t meant to negatively impact SMEs or startups, and yet several assessments have shown that it is them who struggle under new complex expectations. Indeed, they cannot afford as many lawyers as larger firms can to guarantee compliance when processing data. In addition, the GDPR has been subject to the various or diverging interpretations of the national authorities and courts in charge of enforcement in EU member states, thereby leading to legal uncertainty. Those authorities often point to their own lack of resources, expertise, and cross-border harmonisation, which further adds to the issue.

As the EU continues to adopt new and similarly complex legislations, it becomes clear that efficient enforcement will require hiring many more people to monitor the internet, the digital economy, and competition on digital markets. But how this will happen or how it will be resourced remains often discussed and to some extent, clarified at the later stages. Furthermore, those new laws risk overlapping with existing frameworks, and worsening legal uncertainty for many businesses and authorities. Getting the right expertise on board is key to the proper implementation and enforcement of policies.

We need stronger, better, and well-informed public policies – policies that work, that are pragmatic, and pro-business – as well as swift implementation by companies, and efficient enforcement by the authorities.

But that should also happen well ahead of implementation and enforcement. That is, when designing these policies. As the terms of proposed regimes are debated, industry stakeholders typically get to present their views to policymakers and raise their concerns through meetings or public consultations, such as if they anticipate that technical compliance will be difficult to implement. These laws may include provisions that focus on data controls, data use, and data siloing for example. Data and how it's organised, used, and controlled within a company will vary very much. Dialogue with legislators is therefore primordial. But that is also not enough: in light of previous laws’ unintended consequences, it is clear that information gaps remain. Here again, regulations that require engaging actively with policymakers represent a cost that SMEs and startups cannot always afford. Besides, they often feel that those making policies do not understand the reality they’re facing.

Even more important for policymakers to realise is that when they pass a new law, all firms will have to translate it to their technology infrastructure. This isn’t always a walk in the park – impractical at best, impossible at worst. Front and centre in the mind of policymakers should be to ensure that policies impacting the digital economy will be viable, not just presumably, but through empirical, technical specifications. As policy traditions and technology demands must be reconciled, it is therefore essential to infuse the latter into the former as part of introducing and articulating legislation. In other words: We need stronger, better, and well-informed public policies – policies that work, that are pragmatic, and pro-business – as well as swift implementation by companies, and efficient enforcement by the authorities. Good policymaking requires the formal involvement of more technologists in the process, and earlier than is the case now. Those technical experts could be invited to advise on the feasibility of drafted rules and offer their interpretation to amend existing regimes, to adjust for the evolving dynamics of the digital economy and technologies, or to design a process to build or co-create new regulatory frameworks.

In turn, such close collaborations can help strengthen public support and trust, as they would provide solutions that work with results that would be perceived more quickly. Such policies would speed up change, support innovation, and foster governments’ legitimacy to intervene.

Other recommendations for good, pragmatic, and innovative policymaking, is for governments to provide guidance and support for all firms, to help them achieve compliance – tool boxes being the oft-cited example. In addition, existing approaches such as the codes of conducts of well-established technology firms shouldn’t be dismissed by policymakers as a good resource to start with. And in the case of Europe, policymaking should increasingly be based on the innovation principle, rather than the precautionary principle. This means that those drafting and adopting new laws should check whether existing regulations, market forces, or light-touch targeted intervention, could suffice to manage the risks of new technologies and the challenges of the digital economy. Too often do we hear that the EU regulates, but it is the US that innovates. Policy and rulemaking can be a competitive advantage, but to regulate an innovative economy and the technologies that come with it, Europe must become more of a welcoming haven for them. To be the referee of a game, you have to be experienced at playing it.

For policies to deliver efficiently and without unintended consequences for the digital economy, there are several layers of innovative actions policymakers can take. One is to involve technology builders earlier in the policymaking process.

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