B---Tech downsides. Absent direct public ownership managed by an IP body, fixing technological harm will be reactive. The impact is 1AC Callaghan.

Indeed, governments and philanthropic foundations dispense funds primarily based on how peer reviewers evaluate the quality and feasibility of the researchers’ ideas and ability to accomplish project goals. Meanwhile, the private sector invests in technologies that seem most lucrative and uses intellectual property rights to protect information about their work to prevent competition. In both respects, there is little social discussion about whether we have settled on the right solution, how this solution might impact society, and whether there might be alternatives. And even when there is discussion about a controversial emerging technology, this rarely affects the technical endeavor itself. Implicit is the idea that technologists are able to identify the best solutions and should be free to create them, and that they will be able to identify and solve any problems that arise. If needed, regulators can step in to resolve any serious “market failures.”

The patent system reinforces this approach. In recent decades, courts and legislatures have expanded the inventor’s power by permitting intellectual property monopolies earlier on in the innovation process, such as allowing patents on DNA. As a result, universities—where much early-stage research is done—have established technology transfer offices to help their researchers file patent applications and then license patented inventions to companies who can develop them further. In addition to increasing the costs of the resulting technologies and enclosing the public domain, this system also encourages siloed research, where outsiders have little opportunity to observe, critique, or improve technologies as they are being built.

Consider the pulse oximeter, a ubiquitous medical device placed on the fingertip that is used to determine the amount of oxygen in the blood using light refraction. Oximeters played an especially important role in the COVID-19 pandemic: health care professionals used it to help determine disease severity and the need for supplemental oxygen. Japanese bioengineer Takuo Aoyagi developed the principle of pulse oximetry in the 1970s to improve on previous oximeters, which were invasive and sometimes inaccurate. From there, the pulse oximeter’s development proceeded along a familiar path. Building on Aoyagi’s work, U.S. companies developed and patented the device for the U.S. market in the 1980s and received FDA approval on the basis of its clinical efficacy. By the 1990s and 2000s, physicians published studies questioning the device’s accuracy among people with darker skin colors. However, they garnered little public attention and, on the whole, pulse oximeter companies did not respond. In essence, the system privileged the innovators and assumed that they would resolve any problems that arose.

At first glance, this may seem like a regulatory problem: the FDA did not evaluate the pulse oximeter properly. But it can be politically quite difficult to develop appropriate regulatory mechanisms for new technologies, particularly because innovation and regulation are often framed as conflicting. And even when clear regulations exist, oversight is minimal and does not address equity and justice considerations. In the United States in particular, the regulatory process is adversarial and values metrics that can withstand legal scrutiny. This was apparent in the case of pulse oximeters: the FDA evaluates only the safety and efficacy of medical devices, but it does not require they be tested in demographically diverse populations (which can be very difficult to recruit).

What if we addressed design flaws prospectively, by reimagining the stages of the innovation process prior to evaluation? Rather than waiting for regulators and testers to spot potential problems, a more collaborative innovation process can reveal them earlier. Imagine a system that allows for outside evaluation and encourages parallel avenues for development throughout the innovation process. Such evaluation could start shortly after a patent application becomes public. Patent offices and scholars already use these documents to understand the landscape of a particular industry. But at present, such assessments are neither systematic nor used to shape research and development priorities.

This is a missed opportunity. Both patent bureaucracies and technology transfer offices based at companies and universities could support equity assessments once patents are published. These assessments might consider whether a technology’s design might produce disparate impacts, whether its use might reinforce or amplify societal biases, and whether there are likely to be problems accessing it. In the case of the pulse oximeter, this might have triggered scrutiny of its use of light refraction and led to additional studies to evaluate whether the technology performed differently depending on skin color, and perhaps triggered an early caution to users that the device’s readings should not be the sole indicator of treatment recommendations.

Like the multidisciplinary institutional review boards that ensure the ethics of human subjects research, a combination of interdisciplinary experts and citizens could perform these assessments. While technical knowledge is crucial, so too are insights from the social sciences, humanities, and members of historically disadvantaged communities. The work of Amy Moran-Thomas, an anthropologist of science and medicine at MIT, is a case in point. In 2020 she published an essay in these pages detailing concerns about racial bias in the use of pulse oximeters, drawing on her extensive knowledge of the history of race and technology. Physicians at the University of Michigan took notice, publishing a study in the New England Journal of Medicine that found evidence of potentially serious clinical implications, which in turn led to national news coverage and prompted the FDA to issue a warning about the pulse oximeter in early 2021. (Further discussion of this issue took place before the FDA last fall.)

This case is just one small example of how much both technological development and the public interest have to gain from integrating more diverse forms of community and expert input into the traditional process of innovation. It demonstrates how the structure of the traditional process fails to maximize social benefit—and, along with institutions like Flint’s community-driven research centers, it points the way to more democratic innovation paths that do far more than aim to bring a concept to market. It is only by broadening our understanding of expertise, developing new ways to scrutinize technological design, and establishing new institutions and public policy to serve the public interest that innovation will truly work for the good of everyone.