The False Choice Between Digital Regulation and Innovation - Northwestern University Law Review
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This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution of the tech economy toward European values around digital rights and fairness. According to the EU’s critics, this far-reaching tech regulation has come at the cost of innovation, explaining the EU’s inability to nurture tech companies and compete with the United States and China in the tech race. However, this Article argues that the association between digital regulation and technological progress is considerably more complex than what the public conversation, U.S. lawmakers, tech companies, and several scholars have suggested to date. For this reason, the existing technological gap between the United States and the EU should not be attributed to the laxity of American laws and the stringency of European digital regulation. Instead, this Article shows there are more foundational features of the American legal and technological ecosystem that have paved the way for U.S. tech companies’ rise to global prominence—features that the EU has not been able to replicate to date. By severing tech regulation from its allegedly adverse effect on innovation, this Article seeks to advance a more productive scholarly conversation on the costs and benefits of digital regulation. It also directs governments deliberating tech policy away from a false choice between regulation and innovation while drawing their attention to a broader set of legal and institutional reforms that are necessary for tech companies to innovate and for digital economies and societies to thrive.

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution of the tech economy toward European values around digital rights and fairness. According to the EU’s critics, this far-reaching tech regulation has come at the cost of innovation, explaining the EU’s inability to nurture tech companies and compete with the United States and China in the tech race. However, this Article argues that the association between digital regulation and technological progress is considerably more complex than what the public conversation, U.S. lawmakers, tech companies, and several scholars have suggested to date. For this reason, the existing technological gap between the United States and the EU should not be attributed to the laxity of American laws and the stringency of European digital regulation. Instead, this Article shows there are more foundational features of the American legal and technological ecosystem that have paved the way for U.S. tech companies’ rise to global prominence—features that the EU has not been able to replicate to date. By severing tech regulation from its allegedly adverse effect on innovation, this Article seeks to advance a more productive scholarly conversation on the costs and benefits of digital regulation. It also directs governments deliberating tech policy away from a false choice between regulation and innovation while drawing their attention to a broader set of legal and institutional reforms that are necessary for tech companies to innovate and for digital economies and societies to thrive.