What is policy in a tech company?

Director, Policy.

It’s amazing how little this job title really tells you about what this role or the team do.  If the role were head of legal, or marketing, or engineering, you’d be able to take a pretty good guess.  But in the tech sector, “policy” is one of those words that people don’t really know what it means (which is fair enough, because it usually means different things to different companies).  I recently asked a colleague who works in the policy team at one of the big tech companies about what “policy” actually means in their org chart.  Funny you ask that, she said, because we were just trying to work that out the other week.  This is a Silicon Valley company with one of the biggest policy teams in the tech sector and they’re still trying to work out what “policy” means to them.  So I started asking that same question of other policy people in tech companies and realized that when we each say “policy” we can mean vastly different things.  I happen to think that policy is incredibly important in the tech sector, so in the interests of having a conversation about it, I want to first talk about what “policy” actually means.

“Policy” is a framework for deciding what to do when there is more than one valid choice available.  Unless you have policies, you are just making decisions on the fly.  To me, good policy tells you how to navigate the gray areas between legal and illegal to do what is profitable and what is right.  Good policy is that sweet spot where your legal advice, business imperatives, and company values all align. 

So, what does this mean for what a policy team might do?  Each company arranges their teams very differently but I wanted to share one way to conceptualize the three different buckets.  It’s imperfect, but it’s as good a place as any to start.  The three policy buckets are:

1.     public policy;

2.     internal policy; and

3.     policy development.

“Public policy” means the work that tech companies do to engage with public institutions and influence government policy.  This part of “policy” is often done out of DC by folks who have strong political connections.  A public policy advisor is the kind of person who helps advocate and progress a company’s position on issues such as net neutrality, encryption, or immigration reform.  They help work out whether the company should be working in coalition with other tech companies on shared issues and whom they should be calling on the Hill.

“Internal policy” is a broad, catch-all term to try to encompass all the policy decisions that a company makes internally about its product development.  This could include policies on data sharing and privacy, online harassment, content removal, and fraud management.  Depending on the company, sometimes these roles can be called policy counsel, product counsel, or simply be rolled into the work of other roles such as legal counsel or product manager.

“Policy development” is probably the least descriptive term of the three, but it’s difficult to think of a better alternative.  This bucket of work is about how to develop a principled stance on the way a company and its products interact with outside stakeholders.  A role in this area will usually specialize in one aspect of the product and its interactions.  One example is policy on the way in which a company handles requests for user data from government agencies or censorship requests.  How can a company ensure that its users can trust a platform with their private information, but also assist law enforcement in preventing criminal activity?  Should the data be encrypted and who should hold the keys?  How should the company decide which requests to respond to?  Should the laws be changed? In this way, policy development bridges the divide between public policy and internal policy.  It works out how internal policy and public policy should be shaped to meet company objectives, usually on a specific issue.

I hesitated to write this post because I felt like I should wait until I had a better way to categorize different types of tech policy.  However, after having talked with policy professionals in several of the large tech companies, this really is the best conceptualization that I’ve heard.  It feels like we are at a very early stage of our discussions about the role of policy in a tech company but it’s an important discussion to have. 

A week without Google

So I really and truly meant to go for a whole week without interacting with a Google product.  But it’s kind of like announcing that you’re quitting sugar.  You mean it at the time, but then you realize that not only is it nearly impossible but it turns you into some kind of weird social outcast if you try.  So, this turned into more of a thought experiment because I just couldn’t face a whole week without Google.  I wouldn’t actually advocate either a sugar-free or a Google-free lifestyle, but it’s sobering to realize just how reliant we are on one big corporation.

I’m strong out of the blocks because I don’t have any Google hardware.  If I had an android phone or chromebook, I’d be dead in the water.  As a smart home laggard, I also don’t have a Nest thermostat or Google Home Assistant. Things are looking strong until I think about checking my email.  And this is one of the biggest problems for me: my main email accounts go through either Gmail or Google business.  I know there are alternatives, but weaning myself entirely off Google email is a big task.  It’s just so darn convenient to use it, and so much effort to close down existing email accounts.  I’m also always surprised at how many sizeable startups and individuals use Google for their email, which means that my day is punctuated with Google calendar events. This is where I start to realize that going Google-free has social consequences.

Using Firefox over Chrome is completely seamless, and skipping the Google search engine is tolerable, if a little janky.  In fact, it feels good not to be tracked all over the place and I get that smug, sugar-free feeling from Duck Duck Go.  Box, Dropbox and other cloud-based providers have me covered for document sharing, and it’s a simple switch-out from Google Hangouts to any of the other video chatting services (please don’t pretend like a week without Google+ is some kind of loss). As an old-school lawyer type, I use Office, so I’m also in the clear for document creation.  It’s Google Maps that’s going to create the withdrawal migraine for me.  It’s not just the road directions and public transport times that I have to forego; it’s also any of the ride-hailing apps (since Uber and Lyft both rely on Google Maps).  This is bad.  Apple Maps bad, Gavin.

So an audit of my day proves that I can theoretically go without Google, but not without some pain.  Why does this even matter?  It matters because knowledge is power and we have unthinkingly given one company a huge amount of power.  Google indexes, interprets and stores vast amounts of data about our personal and professional lives, as well as information about our government and infrastructure, and our collective learning as a society.  What happens if they fail?  What happens if they make policies and decisions that we don’t agree with?  How bad would it have to be before we boycotted Google, and would we have any alternative provider? 

I don’t think we need to go Google-free.  As a company, they certainly make mistakes, but they also do great things.  The point is that we need to keep them honest.  We need to support competitors so that there is no complete concentration of power with any one company.  It is so tempting to go all-in with one tech ecosystem but we need to insist on cross-platform compatibility and genuine competition.

Legal tech: How do you innovate in a hyper-regulated space?

Improving the efficiency and accessibility of legal services is important not just for business but also for access to justice and the rule of law.  An ABA report last month highlighted the fact that the legal system is broken.  It recommended that lawyers should engage more with technology and be more innovative in their business practices. Innovation requires a willingness to push boundaries and experiment with bold new ideas.  However, the legal profession has long-standing and inflexible rules of conduct that favor the status quo over disruption.  At the moment, it seems as though the legal profession is struggling to innovate from within, and those who try to change it from outside are butting up against compliance issues with the ethical standards.  How should we try to innovate in such a tightly regulated industry?

One area where legal tech startups have been trying to innovate is by creating online platforms to connect people with a marketplace of attorneys.  Platforms such as LegalZoom, Rocket Lawyer, and UpCounsel each provide a marketplace for potential clients to connect with attorneys.  These models have the potential to make legal services more responsive and cost-competitive.  However, the challenges in expanding this model highlight some of the broader issues in legal tech.

Legal practice is primarily regulated by enforcing disciplinary codes of conduct against attorneys through state bar associations and state courts.  The ethical rules that are most relevant to online attorney marketplaces are:  unauthorized practice of law; restrictions on attorney referral services; and fee-splitting.  The general principle underlying these rules is that attorneys’ primary duties of loyalty and care are to their clients and the court.  In practice, this means that only attorneys should be involved in giving legal advice and no business arrangement should create a potential conflict with an attorney’s ethical duties.  

The current trend for online legal marketplaces pushes right up against all of these boundaries, and bar associations are looking closely at some of them.  Back in 2009, the Connecticut Disciplinary Counsel disciplined attorneys who were using the totalbankruptcy.com platform for participating in an unauthorized referral service.  As Carolyn Elefant pointed out at the time, this approach not only did a disservice to the public, it also put the blame solely on the participating attorneys.  If the platform really is reprehensible then the attorneys should be disciplined.  However, it seems unfair that the businesses profiting from creating the platforms are not subject to any sanction. 

Attempts to reform from within have not been terribly successful.  The American Bar Association had a very short dabble in legal tech collaboration when it partnered with Rocket Lawyer to provide an online referral service, ABA Law Connect, in California, Pennsylvania, and Illinois.  The pilot only lasted 3 months before it was unceremoniously killed on January 10, 2016 at the request of the Pennsylvania and Illinois bar associations. The Pennsylvania State Bar President, William Pugh, was quoted as saying that “It just flies in the face of what the ABA should be — promoting bread and butter mainstream lawyers across the country”.  Mark Cohen, Chief Executive Officer of Legalmosaic argues that the bottom line of Pennsylvania’s and Illinois’ position is that “it’s about lawyer protectionism, not public good”.  These bar associations are voluntary and Cohen argues that they therefore pander to their member base, rather than the greater public good in improving the accessibility of legal services.  The existing alternative to ABA Law Connect is formal attorney referral services through state bar associations.  These referral services are poorly publicized and do not have the smooth user interface offered by modern tech platforms.

So, if officially-sanctioned reforms struggle to get off the ground, and legal tech startups potentially put clients’ interests in jeopardy and attorneys at risk of disciplinary sanctions as they push the boundaries, how should we be innovating to improve access to justice?  A meaningful conversation needs to acknowledge the tension in order to be able to start developing practical steps.

Faraday vs. Faraday

In what sounds more like a showdown at a 6th grade science fair, two Bay Area companies are claiming naming rights to Faraday; a maker of electric bikes, and a maker of electric vehicles.  Who can blame them?  Apparently, Albert Einstein had a picture of Faraday on his wall. With the transport sector responsible for 27% of U.S. emissions, decarbonizing transport is critical to combating climate change.  So who is the more worthy bearer of the Faraday name?  Is our decarbonized future EVs or e-bikes?

Which is better for the individual?

I think we should first acknowledge that riding an electric bike no longer requires you to be seen on something like this:

 

Instead, you can have a rather beautiful piece of design, like this:

And you’re getting incidental exercise while you’re at it.  Also, in a bike-friendly city like San Francisco, it’s actually often faster to commute by bike or e-bike than commuting by car or bus.  When you arrive, you can usually park right out the front (although I would be little hesitant to park my $2,500 beauty on the street for too long).

Most of us are not yet ready to go cold turkey on cars.  E-bikes have accelerated the growth in cargo bikes and it’s now quite possible to transport a couple of kids or a serious amount of cargo on the back of your bike without having thighs of steel.  Even so, there are times when having a car makes things so much easier: when it’s raining; if you’re not able-bodied or are unwell; you need to travel longer distances; or if you run out of laundry detergent, tinned tomatoes, milk, and all the heaviest grocery items all at once. For better or worse, we’re all still pretty hooked on cars.  In fact, the number of cars on the road is set to double by 2030, so it’s important to have a more responsible alternative to fossil fuel-powered combustion engines. 

Which is better for the community?

There is something undeniably sociable about riding a bike.  Without the metal barriers, people feel more willing to chat at traffic lights.  On my daily bike commute, I’ve experienced compliments and inquiries about my outfit, chatted with friends who I’ve run into, and even made a new friend I met in the bike lane.  It’s not always kumbaya on two wheels, but people are more likely to treat each other like humans.

A much-quoted study from 2012 showed that bike commuters are more likely to shop locally and spend time in their neighborhood.  It’s also a no-brainer that fewer cars on the roads eases traffic congestion and parking woes.  I’m pretty confident that bike-riders call their moms regularly and floss more often too.

Which is better for the environment?

Does the moral high ground belong to the EV driver or the e-bike rider?  On first glance, it might seem like the e-bike rider wins hands down here, but EV drivers can actually make a pretty good case that they’re driving systemic change to our energy supply.

Electrifying everything from scooters to trucks to boats to industry, is all well and good, but if the electricity is coming from a coal-fired power plant, it feels like a bit of a hollow victory.  And yet, this is where I think things get really exciting.  This year, the cost of EV batteries was lower than the IAEA’s 2013 prediction for battery costs in 2020.  With the opening of Tesla’s gigafactory planned for 2017, it’s estimated that this will cut battery costs by a further 30%

The plummeting cost of batteries not only helps to drive EV’s competitiveness, it also has flow-on effects for the cost of batteries for household and utility use.  Householders can use storage to maximize their usage of solar electricity by storing the energy from the middle of the day while they’re at work so that it’s available for use when they get home in the dark (and, you know, want to plug in their EVs).  Utilities use storage to even out the demand fluctuations so that they don’t need to build more power plants or use gas fired power plants to meet peak demand.  And all of this means that we’re able to use more and more solar and other renewables on the grid, rather than burning fossil fuels.  It really is an extraordinarily virtuous circle.

And the winner?

Is it too much of a cop-out to say we’re all winners?  They’re not quite jet packs or spaceships, but the vision of all these electric things whizzing around at least feels a little bit more like the future that the Jetsons promised us.  As far as I can see, the more Faraday namesakes we have, the better.

Tech and government; mission-driven organizations?

Tech companies and government are both mission-driven organizations.  

This statement didn’t create a ripple at last week’s Politico GenerationNext discussion on tech and government.  I actually think it’s very controversial.  As more people move between work in DC and work in Silicon Valley, it’s important to look really critically at what each world should learn from the other.

Tech companies are built on the idea of pushing boundaries, taking risks, moving fast and breaking things.  There is an intoxicating combination of the confidence that change is possible, and the organizational and financial backing to make it happen.  By contrast, change through government must be incremental, fiscally responsible, risk averse, and achieved in spite of red tape and short political terms.  Working in the public sector sometimes feels like attempting to change the world one footnote at a time. 

A public servant’s role is to implement the decisions of the democratically elected government.  Sometimes you will agree with the policies you have to implement, and sometimes you will not.  During my orientation to the public service, a senior manager implored us that if we ever found ourselves working on a subject matter about which we were very passionate, we should come and talk to her straight away.  She would reassign us to a different team.  So much for following your passion.  Coming from this background, it can feel incredibly liberating to work for a company where you’re encouraged to be wildly enthusiastic about your work area.

And yet, sometimes it can feel like tech companies are confusing consumer impact for social purpose.  HBO’s Goolybib’s pitch was painfully close to the truth: “… we're making the world a better place. Through constructing elegant hierarchies for maximum code reuse and extensibility”. Silicon Valley is often accused of solving problems that don’t exist.   Creating products that meet customers’ needs (whether those needs are real or imagined), sometimes aligns with social good, and sometimes does not. 

The potential for government to make meaningful change is huge.  But there is a common message from former government workers now working in tech companies; they feel that they can make a greater impact outside of the public sector.  How can government move more nimbly and keep these talented individuals as inspired bureaucrats within the system?  How can we ensure that tech companies’ missions include social good?  The challenge is in working out how to create a flow of information and learning between the startup world and government.  The current trend for DC and Silicon Valley to poach from each other’s personnel presents an incredible opportunity.