It turns out that tech companies don’t sit outside of government as just ordinary vendors. This week on The Geek in Review podcast, we welcome back Texas A&M University School of Law professor Hannah Bloch-Wehba to talk about accountability of Big Tech, AI regulations, government surveillance, and the intertwining of public authority and private tech infrastructure. Bloch-Wehba traced the dependency between the two powers all the way back to the 1930s in her article “How Tech Took Over,” in how the tech sector became a foundation for national security and economic growth.

Today’s hybrid form of governance, where Bloch-Wehba explains how a handful of private companies supply data and cloud systems, along with decision-making infrastructures across multiple governmental agencies. It is a struggle for traditional constitutional doctrines to adjust to the modern technology and the operations provided by contractors that are providing their core foundational operations.

The issues also enter into the criminal law enforcement areas and Bloch-Wehba’s “Rights, Knowledge, and Capture in the Datafied State,” discusses how trade-secret claims are throwing a barrier between proprietary data systems and criminal defendant’s ability to examine the systems that are being used to convict them in the courts. There is a strangeness in the judicial systems where corporate choices are shaping the legal process being followed, rather than corporate governance following established legal norms.

Bloch-Wehba’s “Information Law Pluralism” covers how privacy rules, audits, impact assessments, disclosure duties, researcher access, and independent review as parts of a broader system governing exactly how knowledge is shared, validated, and even produced. There seems to be no single device that transparently provides accountability. In addition, she lists how a political campaign program against states attempting to regulate AI companies and products is weakening state transparency even further.

Finally, we cover Bloch-Wehba’s “Rethinking Federal Support for Journalism” where she argues that platform payments give rise to the risk of replacing a governmental dependency gets switched for journalist and new organizations being financially tied to companies they must scrutinize. Ideas floated like an AI tax provide some alternative funding possibilities for supporting local and public-interest journalists.

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[Special Thanks to ⁠⁠Legal Technology Hub⁠⁠ for their sponsoring this episode.]

Email: geekinreviewpodcast@gmail.com

Music: Jerry David DeCicca

Transcript

Marlene Gebauer (00:01)
Hi, I’m Marlene Gebauer from The Geek in Review. I have Sam Moore here from Legal Technology Hub. He’s going to tell us about AI governance from the advisory side.

Sam Moore (00:10)
Thank you. Good to see you again. In the advisory team at Legal Technology Hub, we’ve been having a lot of conversations with clients about AI governance. Most law firms and law departments have at least an AI policy of some kind, and some broad standards are starting to emerge. A trend we’re seeing at the moment is a shift away from policies written in 2023 and 2024, which largely stated what you couldn’t do, and toward a more informative approach that defines different risk categories and makes distinctions between routine, low-risk uses of AI and other, more substantial use cases. I think that’s appropriate for where we are, and it’s also what clients are coming to expect from their advisors. One of the bigger challenges we’re seeing right now is how to express an AI use policy in such a way that any member of your legal team could explain it to a client. I think that’s still a big challenge for the industry.

I don’t think clients are all that happy if their attorney says, “I’ll have to get back to you about that,” because the attorney is using AI day to day, so they should be able to explain the policy themselves. How else do you know they’re complying with it? We’re doing some interesting work at the moment, helping law firms and law departments take those first-version AI use policies that are very much “thou shalt not” and turn them into more readable, appropriate governance positions that inform the conversation with clients. If anyone wants to find out more about our advisory services, they can find me or Cheryl Wilson Griffin on LinkedIn, or they can visit legaltechnologyhub.com.

Marlene Gebauer (01:50)
Thank you, Sam. It is important for AI policy to be in plain language so people understand it.

Sam Moore (01:58)
Absolutely.

Marlene Gebauer (02:07)
Welcome to The Geek in Review, the podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.

Greg Lambert (02:14)
And I’m Greg Lambert. Today we welcome back Hannah Bloch-Wehba, the law professor at Texas A&M and a leading scholar on law and technology. Hannah writes about how tech can be used to conceal power and evade accountability. Hannah, welcome back to The Geek in Review. We were just looking at the date. It’s only been seven years and two children.

Marlene Gebauer (02:34)
Ha ha.

Hannah Bloch-Wehba (02:37)
Thank you so much for having me back after seven years and two children.

Greg Lambert (02:42)
Ha ha ha.

Marlene Gebauer (02:44)
We are absolutely happy to have you, and you have been busy in your role at A&M. So we’re going to dive in.

Greg Lambert (02:51)
Yeah, well A&M’s been busy.

Congrats. What are you guys, like 22nd now in U.S. News & World Report and all the good stuff?

Hannah Bloch-Wehba (03:00)
Something like that. We have a new building, a new campus coming up. It’s a pretty exciting time at A&M.

Marlene Gebauer (03:07)
Terrific. Well, I want to dig into some of the things you’ve been writing about. In “How Tech Took Over,” you argue that the government didn’t merely fail to regulate Silicon Valley; it affirmatively helped make technology companies essential to public governance. What legal and policy choices were most responsible for creating that dependence?

Hannah Bloch-Wehba (03:30)
So in law and tech circles, we often talk about deregulation and hands-off methods of regulation that started when the internet was commercialized in the mid-’90s. But in “How Tech Took Over,” I go way back to the 1930s and ’40s, and I look at choices that were made in science policy and innovation policy then. Essentially, the government knew that technology and innovation were going to be critical both to economic progress and to safeguarding national security. So they built institutions that promoted both scientific research and technological innovation. Once that ball started rolling, the government became a primary consumer of those innovations. From almost a century back at this point, the government has been making legal and policy choices around science policy and tech policy, like the National Science Foundation Act and military funding of basic research, which were intended to cultivate this industry for public benefit. I think that set the stage for tech’s expansion, but not in a predictable or linear way. So over time those policy choices have changed and we’ve had these different political moments where, for example, the balance between economic progress and national security needs has shifted somewhat. But overall, I think this is a really important sort of reservoir of federal support for the tech industry that tech law scholarship hasn’t really explored. And so that’s why I was interested in digging into this history and seeing why this happened and how.

Marlene Gebauer (05:25)
What was the response to the article?

Greg Lambert (05:28)
Everyone came out and said It’s all lies. It’s all lies, Hannah.

Hannah Bloch-Wehba (05:33)
You know, I think people have been interested in it in this moment when it’s clear that the relationship between the federal government and tech companies is not an arm’s-length regulatory relationship. We see CEOs at the inauguration lining up to support the president. We have press conferences about the urgent need for federal funding to help build data centers. The U.S. government is intervening in a permitting lawsuit in Mississippi against xAI. We are seeing a lot of weird dynamics in the last couple of years that we haven’t seen before. The conventional narrative that the federal government has deregulated doesn’t capture what’s going on. So I think people are aware and hungry for a better explanation of this relationship. The response has been interested and supportive. I will say, people are like, “This isn’t an article, this is a book,” which is true. It will eventually be a book, but right now it’s one article at a time.

Marlene Gebauer (06:44)
And we’ll have you back for the book.

Greg Lambert (06:45)
Yeah, definitely. It’s

Hannah Bloch-Wehba (06:47)
Well, that’ll help me finish it.

Greg Lambert (06:50)
Well,

Marlene Gebauer (06:50)
Ha ha ha.

Greg Lambert (06:51)
it’s definitely interesting times. You started talking about this almost commingling of tech and government. I think we’ve always assumed that the traditional assumptions of constitutional accountability attach to the government.

But we’re almost seeing this blending of authority between the private sector in Silicon Valley and the government. So how are you viewing that in your now article, but soon-to-be book, and explaining this blending between private and public accountability?

Hannah Bloch-Wehba (07:34)
So I think this, what I call the emergence of a hybrid form of governance, that intentionally takes advantage of relationships between private actors and public entities, is complicated for conventional approaches to constitutional law. We’ve always had this problem to some degree.

There have always been efforts to extend constitutional accountability to contractors, for example. We have a complicated body of doctrine about how and when that is and isn’t appropriate. We have state action doctrine that limits the application of the Constitution in general. Then we have little exceptions around the edges of the state action doctrine. The problem here, I think, is that the kinds of functions that many tech companies are performing don’t look that familiar. So one of the arguments I make in the paper is that tech companies are really enmeshed in providing the informational infrastructure for government decision making. So take an example like cloud infrastructure for federal government agencies.

A huge amount of that infrastructure is provided by a handful of tech companies. Is that a government function? It’s hard to analogize that kind of function to something that would have happened even 20 or 30 years ago. So we don’t have a lot of good comparisons to say, okay, well, this looks like this other form of public-private cooperation, so here’s how we should think about it.

So I think we’re feeling around in the dark for the kinds of principles that we ought to apply. It’s much easier to apply the traditional state action doctrine when you have a traditional government contractor relationship than when the contractors are providing the thing that makes the government run, and that is, to a significant extent, what’s happening right now. So I think it’s getting much harder to pull them apart. At the same time, a lot of those infrastructural activities are hard for normal people to see and understand. An ordinary person doesn’t care whether the informational infrastructure for a federal agency is provided by Google or Oracle or the government itself. We don’t have a lot of insight into what’s going on. So it’s something that I think is important and yet overlooked in constitutional doctrine and in scholarship, frankly.

Greg Lambert (10:30)
One of the things this brings to mind as you’re talking is, typically, we have a transfer of power, different administrations, different Congresses, but the underlying structure is consistent. Do you see this as causing an inconsistency as we transfer power from one administration to another, or when a new Congress comes in, that we’re kind of the…

Marlene Gebauer (10:58)
We’re looking short-term. We’re looking in eight-year segments as opposed to long-term.

Hannah Bloch-Wehba (11:04)
I guess I see it as related, but a little bit different. It’s never been the case that when a president enters into a long-term contract with an outside party, you’re going to redo that contract every Congress, right? Or with the changeover of every presidential administration.

So the system of contracting has always been, in some way, vulnerable to the accusation that it’s not sufficiently politically accountable because the people who made the agreement long predated the current administration. I think this introduces an interesting wrinkle, right? This is not a Trump administration problem. This is a problem that has been occurring and building, as I argue, over decades, right? But if you enter into a long-duration contract with a tech company to provide something like cloud infrastructure for the Department of the Interior, I’m making this example up, but you enter into that contract with Google, you are not going to then cancel it and enter into a different contract with a different vendor for the next administration because everybody knows it’s too much trouble and cost to switch from one vendor to the other. It’s enough trouble to switch from Gmail to Outlook. Nobody does that in their personal lives. Now imagine the entire informational infrastructure of a federal government agency is locked into one provider. It’s hard to destabilize that relationship. Regardless of what elected officials might want to do, there are serious switching costs and serious anti-competitive effects.

Marlene Gebauer (13:08)
I’m curious if there’s another model out there that perhaps clarifies the relationship that we could consider.

Hannah Bloch-Wehba (13:18)
I’m curious if you have one in mind.

Marlene Gebauer (13:21)
I don’t have one in mind. I just…

Hannah Bloch-Wehba (13:23)
I can’t.

Marlene Gebauer (13:23)
I’m just, I mean, I realize this is all…

Greg Lambert (13:27)
Are you talking about another government, another country or state?

Marlene Gebauer (13:30)
Perhaps in another country or another government, or something that someone has surfaced as a potential model, if there’s any work being done in that space.

Hannah Bloch-Wehba (13:43)
So I’m not a comparativist, but I do think when I’ve talked about this issue in front of European audiences, they’ve been baffled. They’re like, “We don’t have this problem.” There are a couple of reasons why they don’t have that problem. One is that I think they do a lot more public provision than the United States tends to do. So one model is for the government to build it themselves or to recognize that government investments give rise to a certain degree of state control. Historically, the United States has not taken that approach, but I could see a parallel universe where we might take that approach of public provision. I also think that the U.S. constitutional doctrine of state action is not one that I’ve seen in robust form in most European constitutional democracies. So there’s no reason why you have to have that doctrine as the delineator of what’s subject to constitutional constraint and what’s not. You could wish away some of these features of our order, but in the real world where we live and work, these are the constraints we’re operating within.

Greg Lambert (15:17)
Yeah. Well, it’s kind of like Sean West, someone who’s been on the show before, said, Europe’s superpower is its regulation. I think part of the traditional American superpower has been its somewhat hands-off approach to regulation. I can see how everything we do baffles the Europeans, so that doesn’t surprise me.

Hannah Bloch-Wehba (15:41)
Yeah, but I think they also, the last time I gave this kind of paper, I gave an early version of this paper in Berlin in 2022. I think it was before the Europeans had turned away from American tech platforms as reliable partners. So I think now that the Ukraine war has been dragging on for so long, and we see that the Europeans are trying to make this pivot away from partnering too closely with U.S.-based tech companies, they’re more attuned to these kinds of problems of capture and enmeshment and the risks they might cause for Europe.

Right. It’s one set of risks when it’s U.S. companies within the U.S. government. It’s a totally different situation when we’re talking about U.S. companies providing the infrastructure for a foreign government, right? I think that illustrates what the structural problems might be, even though the risks themselves look different.

Marlene Gebauer (16:56)
All right, I’m going to pivot a little bit in terms of our questions. I mean…

Greg Lambert (17:01)
We could stay on this topic all hour.

Marlene Gebauer (17:03)
We really could. I am fascinated.

Hannah Bloch-Wehba (17:05)
Yeah.

Marlene Gebauer (17:08)
But when the book comes out, Hannah Bloch-Wehba (17:11)
No.

Marlene Gebauer (17:11)
we’re going to talk all about it. So in “Rights, Knowledge, and Capture in the Datafied State,” you examine government use of privately developed data and algorithmic tools, particularly in criminal law enforcement. What happens to due process when someone can’t examine or challenge a system because a vendor claims trade secret protection?

Hannah Bloch-Wehba (17:33)
Yeah, I mean, this is an emerging problem for criminal law enforcement, and it’s been emerging for several years now. I’m definitely not the first person to write about it, but it’s not going away. The problem is that when a vendor claims trade secrecy to conceal information about how a product works, a product that was used to produce evidence used to arrest or convict somebody, then the defense has a right to challenge, to confront the evidence against them. They can’t do that because the trade secrecy claim stands in their way. So I think it undermines people’s ability to access sufficient information to exercise their rights.

It undermines their ability to challenge the evidence against them, but it also creates a bigger, more systemic problem, which is that a lot of these tools aren’t tested or validated in a meaningful way before they get used. The process of confrontation between the defense and the prosecution is the way the public gets information about whether this tool works or not.

If you can’t confront it, then you can’t produce that information. Then we don’t know whether it works or not. That seems to me a problem that has social effects beyond the individual defendant in an individual case. We’re using technologies that haven’t been tested or validated, and then, in the course of these individual confrontations, undermining the ability to produce evidence about their validity.

Marlene Gebauer (19:25)
Your Tech Policy Press article shows Google effectively determining whether and how police could conduct geofence investigations. What does that example reveal about capture when a company controls the relevant data, the investigative possibilities available to police, and the information available to the courts?

Hannah Bloch-Wehba (19:49)
Yeah, so this is an example of the broader dynamic, which is that these companies wield control over the government’s ability to engage in certain courses of action, and that control isn’t always visible or checkable. Google is a great example. For many years, they kept individuals’ location information by default in something they called the Sensorvault, which is kind of creepy and not what

Marlene Gebauer (20:25)
Yikes.

Greg Lambert (20:26)
Yeah.

Hannah Bloch-Wehba (20:29)
I would have called it if I had known that name would have gotten into the public domain.

Marlene Gebauer (20:31)
They needed a PR person on that one. They did not have one.

Hannah Bloch-Wehba (20:35)
They didn’t anticipate that becoming public, but they kept everybody’s location information by default in the Sensorvault. That made it possible for law enforcement to go to Google and say, “Hey, we want to know everybody who was in this location at this particular time.” Only because Google had made that choice was it possible for government to do. So, starting several years ago, once law enforcement figured out they could make this kind of request, they started doing it again and again. This is a geofence warrant, and it quickly became the most frequent form of judicial warrant Google was receiving. It became an appealing tool for law enforcement. Strikingly, Google was the only company that would comply with these warrants.

So it’s not that other companies didn’t have the data, but Google was the one that would give the data to law enforcement. To their credit, they said, “Well, we’re not going to give it to you willy-nilly. Our corporate policy is that you need to get a warrant rather than a subpoena or a court order. If you get a warrant based on probable cause, we will work with you.” Then they created this elaborate process by which they worked with law enforcement to deliver this information. It’s a striking example of the law of Google. This is not the law that was developed by

Greg Lambert (22:04)
Yeah.

Hannah Bloch-Wehba (22:05)
a legislature or a court. This is not Google trying to apply a ruling that was already made. It’s Google saying, “This is what we want you to do.” Law enforcement is so eager to get this data that they do what Google wants them to do.

And I think Google was right that a warrant is required, but that’s not the point. The point is that it’s not their job to decide. Right.

Marlene Gebauer (22:32)
They’re making the call.

Greg Lambert (22:34)
Mm-hmm.

Hannah Bloch-Wehba (22:35)
So I think this is a clear way in which it’s corporate policy that law enforcement has to get a warrant. It’s also the data infrastructure or the data governance choices Google is making internally, the collection by default, the indefinite storage, right? Those are the things that make it possible for law enforcement to get this information. So I think, in a clear way, it was Google that shaped the geofence warrant.

Then, in 2023, Google decided, “You know what? We aren’t going to do this anymore. It’s incredibly burdensome for us.” They turned off default storage of location information in the Sensorvault. That’s another example of Google determining whether this is okay or not.

Marlene Gebauer (23:32)
Their choice, yeah.

Hannah Bloch-Wehba (23:33)
Like, okay, after several years of complying, now we’re going to change our data governance practices, and this isn’t going to be possible anymore. Again, I think that was a win for privacy. I don’t think it’s a win for democratic control to have individual tech companies determining, based on what’s convenient for them, whether they’re going to comply with a warrant, what legal standards should apply, and whether the government should be able to get this data. That makes me uncomfortable.

Greg Lambert (24:12)
Well, we talked recently about the OpenAI and Hugging Face situation, and one of the comments we made was, if this were an individual, this would be a crime.

Hannah Bloch-Wehba (24:24)
Absolutely.

Greg Lambert (24:25)
So this situation where Google decided, “Okay, I’m going to turn this off.” There was a situation, and it’s a little apples and oranges here, but where someone, I think, was coming back into the country and tricked the government official into wiping the data from his phone.

Hannah Bloch-Wehba (24:43)
Yeah.

Greg Lambert (24:44)
Now he’s charged with a felony for doing this. So, individual crime. If the company did that, it would be a policy change, a change in internal policy.

Hannah Bloch-Wehba (24:57)
Right.

Greg Lambert (24:58)
So, yeah, it seems like we’re almost a little upside down.

Hannah Bloch-Wehba (25:04)
Yeah, I mean, to be clear, I don’t think that should be a crime. I don’t think it should be a crime to decide you’re going to delete your information. But I definitely don’t think we should have one set of rules that apply to big tech companies and a different set of rules entirely that apply to individuals. That seems bad to me, and I don’t think we’ve appreciated the extent to which that’s the case.

But it is true that these companies are making decisions about, you know, how to test their products that may end up violating the law and they’re not being held to account the way that an individual might be. And I think we should conceive of that as a potential problem, right? That the law might not be applied evenly.

Marlene Gebauer (25:56)
Then it’s about the data they collect and how they choose to use it, and there’s no oversight on that.

Hannah Bloch-Wehba (26:03)
Well, I think that, to the extent oversight exists, for a long time we’ve assumed that we’ve opted to comply with the terms of service as they’re delivered to us, right? So if the

Marlene Gebauer (26:16)
Yes, our click agreements. Yeah, because everybody reads those.

Hannah Bloch-Wehba (26:22)
thing that makes the difference is whether I’m an individual or a company that produced 40-page terms of service. That seems obviously laughable, but I think that is part of what’s going on.

Greg Lambert (26:37)
Well, again, another one we could have a complete show on. As if you haven’t done enough writing, one of the other papers you wrote was…

Marlene Gebauer (26:46)
There’s more. There’s a couple more.

Greg Lambert (26:50)
information. Okay. Yeah.

Hannah Bloch-Wehba (26:50)
To be fair, it’s been seven years since you had me on the podcast.

Marlene Gebauer (26:54)
Yeah.

Greg Lambert (26:55)
So one of the other papers you wrote was “Information Law Pluralism.” First, do you mind defining what you mean by information law here?

Hannah Bloch-Wehba (27:06)
Yeah, so by information law, I mean the body of legal structures that governs how knowledge is produced, validated, and disseminated. A lot of the time when we talk about information law, people mean one part of it, like privacy law or public disclosure law. I’m trying to bring that all together and say these are all ways in which we govern flows of knowledge.

Greg Lambert (27:38)
Well, in that, you talk about emerging tools, audits, impact assessments, document requirements, and independent assessment. Which of these has the greatest potential for producing meaningful accountability at the end of the day?

Hannah Bloch-Wehba (28:02)
Yeah, so part of the impetus for writing this paper was that I took a step back. I decided to do a project where I looked at every piece of proposed and enacted state legislation about AI. This was a stupid project. It was a couple of years ago.

Greg Lambert (28:18)
So small, just a little weekend project.

Marlene Gebauer (28:21)
Well, a fun little thing to do, yeah.

Hannah Bloch-Wehba (28:24)
It was a couple of years ago. It wasn’t quite as crazy as it would be to try that project now. But I thought, what are they trying to do? My sense was that there were some broad-stroke similarities and some important differences, and I wanted to capture those. As I looked at these laws, I realized they’re all trying to do the same thing, which is, in different ways and for different audiences, force the AI providers, right? Whether that’s a company, an individual, or a system is often unclear in the legislation, but force these providers to generate and share certain kinds of information about their products. It might be shared with individuals who are affected by those products, like when you apply for a job and have to use an AI interviewing system.

It might be shared with the public, lawmakers, or regulators. We have all these different audiences for all these different kinds of information. So what are they trying to do? That’s the thing I think lawmakers were genuinely uncertain about. I wrote the paper to explain that these different ways of producing information serve different purposes and should be used in complementary ways. So I’m going to avoid your question entirely and say, I don’t think there

Greg Lambert (29:49)
Well done.

Hannah Bloch-Wehba (29:50)
is one tool that will be the silver bullet for accountability. Luckily, I didn’t think until pretty recently that we had to choose one tool because I thought it would be up to the states to regulate AI as they saw fit, so we were going to have federalist experimentation. Little did I know.

Greg Lambert (30:13)
I think I found the flaw in your logic.

Marlene Gebauer (30:15)
Yeah.

Hannah Bloch-Wehba (30:19)
I might still be right about that. I think the claim to state capacity to regulate AI is strong, and that, but for threats to preempt that experimentation through litigation and threats of cutting off different kinds of aid to the states, we would be seeing a lot of that experimentation in action. The last couple of years have tried to deter it from happening. I don’t think you have to choose one of these tools. They all need to work together. I think the public needs a certain degree of information about how these systems operate in practice.

We need expert insight into how they’re working. That’s researcher access to the under-the-hood data a lot of the time. I think it’s important for these companies to produce information directly to the regulators charged with overseeing their operations. Unfortunately, I also believe there’s a successful political campaign against these laws, and that’s going to stymie the development of legislation in this area. So this is a paper that got…

Greg Lambert (31:44)
Is that argument about national security? Because we’re hearing, well, if we regulate our AI companies, China and Russia are not going to regulate, and we’re going to lose the advantage. Is that the sole argument, or is there something more nuanced in that?

Hannah Bloch-Wehba (32:04)
I think there are two related arguments, and they’re familiar instances of this debate. One, AI is essential to national security. We shouldn’t do anything that’s bad for national security. Therefore, we shouldn’t do anything that might be bad for AI development because we need to win the arms race.

Greg Lambert (32:26)
Seems super logical.

Hannah Bloch-Wehba (32:27)
It’s super logical at a high level. The problem is that, first, China does regulate AI, so the whole idea that they have hands-off development and we need it too doesn’t work. Second, it’s this assumption that you need a totally deregulatory environment to safeguard national security, but we would never have said that about nuclear weapons, for example. So it seems like a strange leap. I’m also not sure you can win an arms race, but that’s neither here nor there. The other part is about the federal role. Having failed to pass AI legislation in the U.S. Congress that would preempt state legislation, we’ve instead had a series of threats by the president to convene a litigation task force to sue states that regulate AI in an overly burdensome way. We haven’t seen that happen yet, but many states recognize that the threat is real. We also have a litigation campaign dedicated to undermining these laws. So xAI has been suing in California and Colorado to undermine AI transparency rules, and they’ve been pretty successful. Colorado revisited and substantially weakened its laws partly in response to these threats. I think they all hang together as one ball of wax. Whether you call it national security or something else, it’s a successful campaign to get states to change their positions.

Marlene Gebauer (34:16)
Okay. One last pivot.

Greg Lambert (34:19)
Yeah, and you said it’s been seven years, but I looked at the dates. All of these are 2026 articles, so…

Marlene Gebauer (34:25)
Well, we’re trying…

Hannah Bloch-Wehba (34:25)
I had a good year.

Marlene Gebauer (34:27)
We’re trying to keep it fresh. You have definitely been busy. So in “Rethinking Federal Support for Journalism,” you argue that requiring platforms to compensate news organizations might deepen journalism’s dependence on tech companies. And you propose a national journalism foundation. How would you design something like that to support knowledge production while protecting editorial independence, resisting political interference, and ensuring that funding reaches public-interest and local journalism rather than primarily benefiting established media owners? This is an important question in my mind. I Hannah Bloch-Wehba (35:09)
Yeah.

Marlene Gebauer (35:10)
think our whole information and news dissemination platforms are struggling right now.

Hannah Bloch-Wehba (35:18)
Yes, and I think they’re going to struggle even more in the year to come. I came up as a press freedom lawyer. I spent four years litigating on behalf of journalists and media organizations, so this is an issue that’s important to me. I think a lot of news organizations are intuitively worried about taking money from the federal government, understandably, because they feel like it might compromise their independence. These proposals are floating around to enable news organizations to bargain with platforms for a share of the money they’ve been losing based on platform competition with their products.

I don’t think that solves the independence problem. I think you’re no more independent

Marlene Gebauer (36:14)
Just trading.

Hannah Bloch-Wehba (36:15)
if you take your money from Google than if you take your money from the government. Google is an extremely influential company, and we should want independent news organizations to report on influential actors, whether they are private or public. Right? So I think this is a bad structure, and I think it’s better to have a structure that’s public but independent in a meaningful way. What I’m thinking about is modeled on the National Science Foundation, which tried to thread some of these conflicts when it began funding university research and basic science.

Similarly, researchers were worried that if they took federal money, they would be captured by a federal policy agenda. The National Science Foundation dealt with that through institutions of independent peer review, essentially. Now, all of that is contested. I don’t mean to say it’s easy, make a National Science Foundation and call it the National Journalism Foundation.

But I think it speaks to the fact that these are issues we’ve dealt with before, conflicts between independence and federal support that we’ve been dealing with since 1952, when the NSF was first stood up. We’re revisiting them today with contemporary debates about science policy and research funding. I don’t think it’s impossible to manage. I think it’s important to direct federal funding and support to the kinds of news organizations producing news of genuine civic value, particularly in underserved areas. We have a lot of news deserts in this country. It’s hard for many Americans to access high-quality news. My first order of business would be geographically underserved communities.

Greg Lambert (38:29)
Yeah, that got me thinking, and this might be a little far-fetched, but you have the National Science Foundation that you talked about. Then there are other, not agencies, but other ways of distributing licensing, like ASCAP for the music industry.

Hannah Bloch-Wehba (38:49)
Yeah.

Greg Lambert (38:50)
Do you see there being some type of underlying control over how information gets distributed and then reimbursed?

Hannah Bloch-Wehba (39:04)
Yeah, I mean, I haven’t thought about that end of it. ASCAP is an interesting corollary that I hadn’t considered. The two poles I have thought about are the NSF on one side and the Corporation for Public Broadcasting, which no longer exists, on the other.

Greg Lambert (39:23)
Yeah.

Hannah Bloch-Wehba (39:25)
One of the things they have in common is that both have turned into significant political footballs because their budgets are appropriated by Congress. At the beginning of debates about the Corporation for Public Broadcasting, they considered an alternative, which was to fund CPB through an excise tax on television sets instead of through the appropriations process.

And that would

Greg Lambert (39:57)
Mm.

Hannah Bloch-Wehba (39:57)
have been the funding. I think about this because there are so many proposals to tax AI or take a golden share of AI, and then what do you do with that money? The conversation about supporting an ecosystem that includes journalism should be part of the question of how you tax AI and what you do with that fund. I could see a revenue source that comes from some kind of AI tax and removes at least some of the levers political actors have to bully these agencies or force them to adopt a political agenda that would compromise the integrity and independence of journalistic institutions.

So I think that’s one big question I have. Where do you get the money to support such an institution, and how do you make sure it’s not captured by political interests trying to strong-arm news coverage? I think that’s an important question.

Greg Lambert (41:12)
Whew. Well, on that happy note, let’s wind this down. We’ve started asking a new question before we jump into the crystal ball question. Hannah, you get to be one of the first people we ask this. What’s something that’s true for you today that wasn’t true one year ago?

Hannah Bloch-Wehba (41:39)
Well, I was going to say that a year ago we weren’t at war with Iran, and that’s true, but I don’t think it’s that interesting. I do think it’s important for the overall

Greg Lambert (41:50)
Right.

Hannah Bloch-Wehba (41:51)
question of how the relationship between tech companies and national security is changing based on the nation’s foreign policy. The thing that I think is interesting and emerging quite quickly is that there is a popular movement mobilizing around two things. One is data centers. Opposition to data centers is becoming a high-profile grassroots issue that I didn’t expect or see a year ago today, although I think the ball was rolling. The other thing is Flock surveillance cameras, which

Greg Lambert (42:33)
yeah.

Hannah Bloch-Wehba (42:35)
are everywhere and have been for several years, and are also galvanizing a wave of popular opposition. So the thing I would say, which is a positive spin on it, is that issues related to tech accountability and tech’s enmeshment in the state are much more visible to people than they were a year ago. That means the political conversation about these things is changing quite quickly, especially because it’s an election year.

Greg Lambert (43:08)
Yeah. I saw a story this morning where this guy sat underneath one of the Flock cameras and had his computer set up. The police kept coming by and checking on him because they thought he was trying to hack into the Flock camera. He’s like, “So I’m the problem, right? Not this?”

Marlene Gebauer (43:26)
Yeah.

Hannah Bloch-Wehba (43:28)
Yeah. I mean, I do think Greg Lambert (43:30)
Yeah.

Hannah Bloch-Wehba (43:31)
it can be a huge diversion of resources. Do you want the police going by to check on that guy again and again? Don’t they have something better they could be doing? That’s the question I ask about Flock.

Greg Lambert (43:43)
Apparently not.

Hannah Bloch-Wehba (43:45)
Yeah.

Marlene Gebauer (43:48)
Well, Hannah, it’s time for the crystal ball question. I like this new combo because Greg’s question is looking back to the present, and now we’re looking forward. What is the single biggest change you see coming that you think we need to prepare for in the next few years?

Hannah Bloch-Wehba (44:07)
Ugh, I am so bad at predicting the future, you guys.

Greg Lambert (44:11)
Everybody is.

Marlene Gebauer (44:12)
Everybody is.

Hannah Bloch-Wehba (44:15)
I hate being on record.

Marlene Gebauer (44:18)
The good thing is, if we wait another seven years, we don’t have to hold you accountable for it. But hopefully

Greg Lambert (44:24)
Ha.

Marlene Gebauer (44:25)
it won’t be another

Hannah Bloch-Wehba (44:24)
True.

Marlene Gebauer (44:25)
seven years.

Hannah Bloch-Wehba (44:26)
I mean, I think that from where I sit in higher ed, there are significant changes coming to higher education. I don’t know what they are. If you talk to my husband, he thinks our kids aren’t going to go to college because higher ed will have changed that dramatically in the next 20 years. I’m not sure whether he’s right or wrong because I hate to predict the future. I do think we have certain core assumptions about the kinds of things higher ed does that are going to be different. That’s partly because of technological change in AI. I think there are going to be questions about the role of higher education as the workforce changes, which I think is going to happen fast. I also think a lot of higher education institutions are changing from within. I do wonder what universities and research are going to look like in the next few years. For people who have kids in college, going to college in the future, or going to graduate school or law school, these are going to be different places than they are right now.

Marlene Gebauer (45:53)
Yeah, I agree with that. I saw something not too long ago. My alma mater dropped a number of degree programs and is narrowing its focus to certain ones. That could be a problem. We’re training people for their professions as opposed to broadening their education.

Hannah Bloch-Wehba (46:20)
Right. We’re doing that at the same time as, as you said, journalism is starting to collapse. Book publishing is collapsing. Search engines don’t serve the functions they used to serve. So the whole information ecosystem, how people learn, is changing quickly.

Greg Lambert (46:40)
Yeah. Well, again, on that happy note,

Marlene Gebauer (46:45)
Yeah.

Greg Lambert (46:47)
Hannah, I want to thank you for coming in and talking with us. This has been fascinating. If I had predicted how well Texas A&M Law School would do in its first 15 years, it’s skyrocketed, and I’m sure you have contributed to that as well. So thank you for coming in.

Marlene Gebauer (47:09)
Definitely.

Hannah Bloch-Wehba (47:10)
Thank you so much for having me. It’s been a pleasure.

Marlene Gebauer (47:14)
Thanks to all of you for listening, and don’t forget to like and subscribe.

Greg Lambert (47:18)
Yeah. Hannah, what’s the best place for people to find more of your content and learn more about your work?

Hannah Bloch-Wehba (47:30)
You can find my content on my website, hannahbw.com, or the Texas A&M website, and on SSRN, the Social Science Research Network.

Marlene Gebauer (47:43)
As always, the music you hear is from Jerry David DeCicca. Thank you so much, Jerry, and bye, everybody.