New Technologies and Future of Work

State legislatures, local jurisdictions, and courts across the country have reacted in different manners to the rise of new technologies, artificial intelligence, and the sharing and gig economies in an effort to oversee or regulate new and, in some cases, disruptive technologies.  Any new legal or regulatory requirements should be tailored to the new product, directly tied to an identified harm, limited to gaps in existing coverage, focused on bad actors, and narrowly tailored to avoid conflicts or discrepancies in the law and unintended consequences.  In addition, corresponding rules and regulations that apply to legacy providers should be adjusted accordingly to allow for technological neutrality.  TechNet promotes policies that encourage the development of entrepreneurship, mobile commerce, and the next wave of innovation in the new economy.  Establishing an innovation-friendly policy framework is the key to the competitiveness of the technology industry.

The state program supports the following principles:

Reasonable Statutory and Regulatory Framework

New technologies bring new products and services to the market.  Occasionally, these new products and services generate significant policymaker interest because of transformative features with little precedent and high consumer interface.  Autonomous vehicles, peer-to-peer car sharing, unmanned aerial vehicles, blockchain, digital assets, and self-service healthcare, including telehealth and teledentistry, are examples.

While some lawmaking may be needed or helpful, TechNet will be vigilant against vague, overbroad, unnecessary, harmful, or hostile laws and regulations that stifle innovation.  Generally speaking, TechNet is supportive of efforts to modernize legal frameworks that aim to sensibly regulate novel products and services if they:

• Seek to encourage, enable, and advance American leadership in innovation.
• Support the underlying and future innovation inherent in the product or service.
• Focus on prohibiting negligent, reckless, or criminal conduct and on the actors rather than the technology.
• Avoid duplicating existing requirements and creating unclear overlap or conflicts with existing requirements.
• Encourage a deliberate exploration of regulatory and non-regulatory approaches with a preference towards non-regulatory approaches unless there are high-risk outcomes that warrant more direct government approaches.
• Support an expeditious regulatory process to align with the speed of developing technologies.
• Recognize the benefits of the new technology.
• Continue to provide safeguards against intermediary liability, including opposing the application of strict liability onto online marketplaces.
• Recognize the ability for internet platforms to keep their users safe online by moderating content without creating liability risks.

Patient Access to Health Care

Telehealth is fundamentally altering how patients experience care.  New telecommunications technologies allow health care professionals to provide patients with medical care and services in convenient, affordable, and accessible ways.

TechNet supports the following principles:

• Statutes should affirmatively enable the use of technology to treat patients remotely and ensure that the physician-patient relationship can be established using technology. Prescribing must also be allowed using technology.  States may allow for the prescription of controlled substances using technology in line with federal standards.
• Telehealth statutes should be technology-neutral and enable innovation, including allowing the use of both synchronous and asynchronous technologies.
• The use of “store and forward,” text messaging, remote patient monitoring, and other SMS technology should be allowed as clinically appropriate.
• Photography used to assist in the practice of telehealth should not require professional licensure.
• A physician may provide a professional second opinion to a patient as long as the physician is licensed and in good standing in their resident state, provided that the physician is not involved in the treatment of the patient in the state where he/she is not licensed.

 Access to Markets

 While policymakers must balance new innovations with consumer protection, TechNet opposes regulatory restrictions imposed to protect existing markets from competition, such as excessive insurance requirements, prohibitive licensing requirements, caps on the number of services a company can provide, limitations on where services can be provided, and unreasonable barriers to market entry.

TechNet supports legislation to protect consumers when it is based on an identifiable harm that has occurred or could occur.  TechNet opposes legislation that regulates specific technologies based on unknown impacts to a consumer.  In circumstances where policymakers have identified a significant threat or occurrence of harm that is not already prohibited or otherwise addressed by existing law or regulation, the cost, difficulty, and practicality of implementing new rules and regulations should be analyzed against the magnitude and probability of potential harm.  Further, policymakers should note the difficulties inherent in state or local regulation of companies and products that are multi-state or global in operations, including the interplay of other state or federal legal requirements.

TechNet supports efforts to increase access to capital, including intrastate crowdsourcing and other cutting-edge funding mechanisms.

Service Fee Regulations

TechNet opposes regulations that aim to cap or otherwise control technology companies’ ability to price their own goods and services in line with their business models and consistent with freedom of contract principles.  Technology companies’ fees enable them to provide essential services and may need to vary between trips and markets or different product offerings.  They cover a range of services that promote safety and reliability, including the cost of building and maintaining technology interfaces, insurance, payment facilitation fees, technical assistance, security, onboarding and background checks for gig economy workers, marketing, and customer support, among other things.  Specifically for the gig economy, regulating companies’ service fees does not protect gig economy worker earnings or consumer affordability, rather it does the opposite, creating pressure to move costs like insurance and credit card processing fees onto consumers, thereby decreasing sales volume and adversely affecting worker pay.  Further, regulating companies’ service fees risks negatively impacting the level, pricing, and quality of the services provided.

Access to Talent

The modern workforce requires a flexible employment environment that allows workers to find opportunities that match their skills, interests, and availability.  TechNet opposes efforts to eliminate or restrict this flexibility, including restrictions on remote and hybrid work, restrictions on the use of independent contractor and consultant classifications, inflexible overtime rules, and indiscriminate expansion of collective bargaining rules.  TechNet supports efforts to develop new avenues and “safe-harbors” that empower companies to voluntarily provide new protections and benefits to workers where appropriate without impacting classification outcomes.

Sharing Economy

The sharing economy is creating new jobs and income opportunities in every corner of the country, allowing people to work independently and on discretionary schedules, use their personal property and skills to generate income, help them expand their businesses, and provide for themselves and their families.  Policymakers should ensure that efforts to regulate the sharing economy protect innovation and individual empowerment, are not overly burdensome, and recognize the unique nature of the sharing economy when compared to traditional providers.

Portable Benefits

The composition of the U.S. workforce is changing as new technologies have provided low-barrier access to flexible, independent work.  This type of work allows individuals and families in need of supplemental income, including during periods of unemployment or underemployment, to access work on demand.  Over time, in large part due to the availability of the gig and sharing economies, the independent workforce has grown to serve as an important source of earnings for millions of Americans.

Many in the modern, independent workforce find they get better financial returns on their skills than similar groups in the traditional workforce.  Perhaps the biggest benefit to this new workforce is the flexibility that self-employment, independent contracting, and freelancing provide, which allows the independent workforce to balance work, family, and leisure activities differently than in a traditional employment relationship.

But, the flexibility of independent work may come with challenges regarding access to the kinds of benefits that different employers may provide to traditional employees at varying levels but that technology platforms face limits in providing.

To address these challenges, state and federal policymakers are introducing policies to make it easier for independent workers to obtain and fund benefits.  Policy solutions need to maintain the flexibility that workers who favor both online and offline independent work need and want, and they should weigh improving access to benefits for independent workers and their families.  Because any such benefits must travel with the worker so they can continue to work independently for a variety of companies or individuals, the benefits must be portable.

Any portable benefits program should be guided by the following principles:

• Minimum requirements for participation should be established to ensure benefit(s) coverage for workers who work across multiple platforms, and the program should maintain the flexibility these workers seek while allowing technology companies to continue to grow and provide earning opportunities for more workers. However, competitive ingenuity should not be deterred, and policy solutions should not limit technology companies’ abilities to expand the benefits they offer to attract and retain independent workers.
• The program should incentivize companies to provide portable benefits to workers by establishing a safe harbor with respect to the independent contractor status of workers.
• The program should avoid duplicating existing requirements or creating unclear or confusing overlaps or conflicts with existing requirements.
• States should engage multiple stakeholders to establish a mechanism to manage portable benefits utilized by employers and independent contractors.

Artificial Intelligence, Machine Learning, and Algorithmic Transparency

Artificial intelligence, machine learning, and the algorithms that often support artificial intelligence and machine learning have generated policymaker interest.  We acknowledge that as technological advances emerge, policymakers’ understanding of how these technologies work is vital for responsible policymaking.  TechNet therefore supports the following principles:

• Avoid blanket prohibitions on artificial intelligence, machine learning, or other forms of automated decision-making.
• Do not force companies to share proprietary or protected information.
• Ensure safety and security of information by ensuring data retention requirements are appropriately scoped by need.
• Do not duplicate existing protections under state and federal law that already protect people from impacts from the operation of artificial intelligence, machine learning, and similar technologies.
• Ensure any requirements on automated decisions focus on high-risk uses and those decisions based solely on automated decisions.
• Avoid overly broad designations that lead to uncertainty of who and what is affected.
• Limit enforcement to the relevant state agencies and avoid private rights of action.
• Ensure sensitive data can be used to conduct self-testing and model training to ensure algorithms work inclusively and as intended.
• Ensure any requirements are clearly allocated to specific roles in the artificial intelligence value chain.
• Avoid a one-size-fits-all policy approach and instead allow covered entities to implement any requirements based on their technology and business.
• Do not mandate external or third-party audits of impact assessments or risk assessments.
• Rely on established national and international standards and frameworks, including the NIST AI Risk Management Framework and ISO standards, to ensure interoperability and avoid a patchwork.