"Emerging technologies” is not so much a term of art as it is a term of arts—as emerging technologies have applications and implications for virtually every field of human ingenuity and concern, the term “emerging technologies” has taken on vastly different meanings depending on the art in question. The term is used to describe a diverse range of innovation areas including nanotechnology, biotechnology, information technology, cognitive science, robotics, climate engineering, smart grid technology, and autonomous vehicles to name just a few. In the following excerpt, I describe how I’ve come to define the term “emerging technologies” after more than a decade of working on their legal, ethical, social, and policy dimensions within and across a range of disciplines, industries, and contexts.
By way of a quick summary, I define emerging technologies on the basis of 4 attributes that trigger the need for new governance and oversight approaches:
Emerging technologies trigger the so-called pacing problem in which they “emerge into legal environments that lack the necessary knowledge and information to govern their development and use and have the effect of changing the very social principles on which new laws and regulations are based by the time they are implemented.”
Emerging technologies offer great opportunities for addressing long-felt social needs while, concurrently, presenting significant risks of negative disruptions to moral, ethical, social, and economic systems.
Emerging technologies have such broadly prolific impacts across industries and sectors that their benefits and risks that are particularly difficult to identify and predict. A policy or regulatory decision made in one sector may have diffuse impacts in many other markets and industries.
Because of their breadth applications and implications, emerging technologies implicate the jurisdictions of multiple regulatory agencies and authorities at the international, national, regional, state, and local levels, creating many capacity and coordination challenges.
The complexity and uncertainty endemic to emerging technologies requires policy planning that uses a systems approach and that is anticipatory in nature.
[I]t is perhaps best to distinguish the emerging technologies with which we are interested on the basis of their relevant attributes that contribute to concerns about their governance and oversight—stated otherwise, by identifying common scientific and technological issues that trigger calls for new governance and oversight approaches.
One of the most immediate factors triggering governance and oversight concerns is the so-called “pacing problem.” Laws and regulations often (if not almost always) fail to keep pace with scientific and technological change such that efforts to control the impacts of a technology often become quickly outdated and ineffectual. As such, new technologies often emerge into legal environments that lack the necessary knowledge and information to govern their development and use and have the effect of changing the very social principles on which news laws and regulations are based by the time they are implemented. For example, by the time new laws are developed to address the privacy impacts of new information technologies, consumers have already adopted these technologies, changed their expectations of privacy, and moved on to the next set of newer technologies. This pacing problem may be particularly challenging in areas of emerging science and technology for which there is a lack of data about hazards, exposures, or toxicities and even uncertainty as to whether the existing models for ascertaining such data are sufficiently complete, error-free, and predictive of real-world conditions. These challenges are further exacerbated by the inter- and multidisciplinary nature of emerging technologies-many of which span across or integrate aspects of virtually all scientific and engineering disciplines. Identifying and embedding the necessary expertise to evaluate these technologies can itself be a significant hurdle for oversight authorities.
Second, the emerging technologies that most trigger governance concerns are often those that bring great hope in terms of their potential to benefit society and to provide solutions for long-felt social needs (e.g., affordable and effective treatments for disease, clean and sustainable energy and production, safe and abundant food and water), but which also present great societal risks especially when there are concerns about the fair distribution of those benefits and risks, when those risks are particularly contentious morally or ethically (e.g., as with genetically engineered foods or stem-cell research), or when the technology presents great risks of disruption to existing markets, jobs, or social systems.
A third attribute of emerging technologies that triggers governance and oversight concerns is a broad range of potential uses, especially across multiple industries or sectors. As with nanotechnology and biotechnology, many emerging technologies can be characterized as platform or enabling technologies that create a multitude of tools, processes, and products that can be used for a variety of applications. As such, the potential impacts and implications of these technologies for society, in terms of both potential risks and potential benefits, may be particularly difficult to identify or predict and public perception and opinion may vary greatly depending on the nature of the technology's use (e.g., the public may be more concerned about finished consumer products than production inputs or processes). Furthermore, these technologies may have particularly diffuse impacts on how markets and industries are organized such that regulatory decisions in one area may have unpredictable implications for how the technology is deployed elsewhere or may be insufficient to protect against a particular risk if that risk is not also regulated in other application areas. These concerns have reignited debate over whether the U.S. approach to generally regulating products rather than processes is effective for emerging technologies or whether a more holistic approach would be more appropriate.
Finally, because of these technologies' breadth of potential different uses and their range of potential benefits and risks, responsibility for their oversight will often stretch across multiple regulatory agencies and authorities, testing the limits of each agency's institutional and jurisdictional capacity and creating a host of cross-agency coordination challenges.
Excerpt from Fatehi, L and RF Hall. “Synthetic Biology in the FDA Realm: Toward Productive Oversight Assessment.” Food and Drug Law Journal. 70(2): 339-369 (2015).