Regulation Works

Cognitive Pollution

Engineers learn to reason about direct, traceable failures: a faulty valve leads to a boiler explosion or a bug crashes a program. This model frames harm as rare, dramatic, and attributable, but the most serious damage caused by industry hasn’t actually worked this way. Instead, it has been diffuse, cumulative, slow to emerge, and difficult to attribute to any single decision or actor.

When leaded gasoline lowered the IQs of an entire generation of children, no single tank of fuel caused a measurable injury. Similarly, no particular cigarette is responsible for any particular cancer death. The harm is real and massive, but it was distributed across millions of exposures, tens of millions of people, and decades, so those responsible didn’t meet the legal requirement of direct and proximate cause.

This pattern is no longer confined to physical toxins. Social media platforms optimized for engagement produce radicalization and depression as a byproduct. The harm is diffuse: no single recommendation causes a school shooting or an act of genocide. The long, probabilistic causal chain makes it difficult to assign fault and therefore difficult to regulate.

The term cognitive pollution is increasingly used to describe this. As with other forms of pollution, it is proving difficult to regulate, and tech companies have every incentive to maintain that difficulty. After all, as long as harm cannot be attributed to them, they can externalize its cost onto the people who absorb it.

The tobacco industry did not accidentally produce uncertainty about the link between smoking and cancer. It funded research specifically intended to produce uncertainty, identified scientists willing to dispute the consensus, and maintained that effort for decades after the science was settled. The same pattern appears in the history of leaded gasoline, asbestos, oxycontin, and now social media and AI [Oreskes2010,Michaels2008].

Civil and chemical engineers are now taught about pollution, not because the profession had a crisis of conscience, but because society decided over the course of many decades and through many court cases to hold polluters liable for harm. Noise pollution, and now light pollution, are retracing that history, and I think that if we take mental health as seriously as physical health, it’s inevitable that we will start to hold companies accountable for the mental suffering they cause.

If we frame harm as rare, dramatic, and attributable, responsible engineering means avoiding the specific decision that produces attributable failures. Under the pollution model, on the other hand, responsible engineers are accountable for long-term cumulative effects. A few recent court judgments in the United States may show that this shift is finally happening, but they will undoubtedly be contested, and as the overturn of Roe v. Wade shows, precedent isn’t enough of a guarantee. Legislation that holds tech companies responsible for the damage their products do to users’ mental health can come sooner, will be far more robust, and will have more impact than pious gestures like banning young people from using social media [Perrow1999,Singer2023].

How Tobacco Was Tamed

In 1950, Hill and Doll published a landmark paper in the British Medical Journal. They had interviewed hundreds of lung cancer patients and healthy controls in London hospitals and found that people with lung cancer smoked cigarettes at dramatically higher rates than people without it. The conclusion was not ambiguous; the tobacco industry’s response was a masterclass in how to make clear things seem murky.

Within four years, American cigarette manufacturers had formed the Tobacco Industry Research Committee, later renamed the Council for Tobacco Research. They hired scientists, funded studies, placed ad in newspapers, and issued press releases arguing that the evidence was inconclusive and that more research was needed. Iinternal documents that became public proved that they knew these were lies, and that tobacco company executives understood the health risks long before the public did. Their goal wasn’t to disprove the science: it was to create enough uncertainty that politicians felt they could not act and smokers felt they could not be sure.

This strategy was later used by leaded gasoline producers against evidence linking lead to cognitive damage in children, and by fossil fuel companies against climate change. It follows a template:

• Fund scientists willing to generate alternative hypotheses, however implausible.
• Insist that correlation is not causation.
• Describe any call for regulation as an attack on personal freedom or scientific integrity.
• Create front organizations with neutral-sounding names that can advocate on your behalf without obvious commercial interest.
• Delay, delay, delay—because delay is profit.

If this sounds familiar, it’s because tech companies that argue they are “just a platform” and not responsible for the content they amplify are doing exactly the same things [Oreskes2010].

Forty Years to an Agreement

The United States Surgeon General issued his landmark report in 1964, fourteen years after Doll and Hill’s paper. The report stated clearly that smoking caused lung cancer, and recommended action. The tobacco industry spent the next thirty-four years fighting a rear-guard action. What eventually forced a reckoning was a combination of factors: litigation by individual plaintiffs and then by state governments, pressure from public health advocates, investigative journalism, congressional hearings, and the slow accumulation of economic costs borne by state Medicaid programs that finally gave states both the motivation and the legal theory to sue.

The key legal move was a shift in how states argued their cases. Rather than proving that smoking had harmed specific individuals, which the industry could defeat by arguing about individual risk tolerance, states sued to recover the cost of treating sick smokers. Mississippi was first in 1994, and by 1998 forty-six states had reached the Master Settlement Agreement with the four largest cigarette manufacturers. The companies agreed to pay $206 billion over twenty-five years, restrict marketing to minors, and disband the organizations they had used to manufacture doubt.

It was a victory, but it took 40 years to go from a clear scientific finding to a partial legal resolution, and even then the industry survived and moved into new markets. Other countries responded slowly, but they did respond. For example, consider what happened in Australia. The Labor government introduced legislation requiring plain packaging for all tobacco products: no logos, no distinctive colors, Just the brand name in a standardized font on a drab olive-brown background, surrounded by large graphic health warnings.

The Tobacco Plain Packaging Act passed in 2011 and took effect in December 2012. The industry’s response was immediate and coordinated. British American Tobacco, Philip Morris, and Imperial Tobacco challenged the law in Australia’s High Court, arguing it amounted to an unlawful acquisition of their intellectual property. The High Court rejected this unanimously in August 2012. Then Philip Morris International filed a challenge under an obscure investor protection treaty between Hong Kong and Australia, arguing that plain packaging violated the treaty’s provisions on the fair treatment of foreign investors. That proceeding dragged on for years before an arbitral tribunal dismissed it in 2015 on the grounds that Philip Morris had restructured its Australian operations specifically to gain access to the treaty—a move so transparently opportunistic that even the arbitrators were not impressed.

What eventually made the difference with tobacco was not better science but organized pressure operating through multiple channels simultaneously. Litigation created financial costs large enough to change corporate behavior. Public health campaigns shifted popular attitudes, which in turn changed what politicians felt they could support. Investigative journalism revealed that the industry had known what it denied knowing, which destroyed the credibility of its scientific spokespeople. International organizations like the World Health Organization created a Framework Convention on Tobacco Control that gave national health ministries political cover and legal tools they had previously lacked.

None of these were sufficient on their own: litigation alone produced settlements that left the industry intact, public health campaigns alone had failed for decades against the industry’s advertising budgets, and regulation alone was blocked by industry lobbying. It was the combination that worked, albeit slowly.

The question for anyone wanting to rein in tech companies is therefore how long it takes to build a combination of litigation, regulation, and public pressure strong enough to impose costs on an industry that is wealthy enough and politically connected enough to resist? The tobacco case suggests the answer is measured in decades, and that even then you get a settlement rather than a solution [Brandt2007,Epstein2007].

Unsafe at Any Speed

In the autumn of 1965, a thirty-one-year-old lawyer named Ralph Nader published a book arguing that General Motors was selling cars it knew to be dangerous. Nader focused on the Chevrolet Corvair, whose rear suspension design made it prone to rolling over.

GM’s response was not to fix the car; it was to hire private detectives to dig up dirt on Nader. Investigators followed him, questioned his acquaintances about his sex life and his political views, and arranged for women to approach him in public and try to entrap him. When Nader reported the surveillance, GM’s president was summoned to testify before the United States Senate and had to apologize on national television. The resulting publicity sold more copies of Nader’s book than any advertising campaign could have, and Congress passed the National Traffic and Motor Vehicle Safety Act later that same year [Nader1965].

If you want to understand how industries respond to safety regulation, stories like these are a good place to start. The playbook has not changed much in sixty years: deny the harm, attack the messenger, and insist that the market will handle everything. What history shows is that the market doesn’t handle it: regulation does.

Sweden mandated front seatbelts in new cars in 1959. The evidence for their effectiveness was already solid by then: Nils Bohlin, an engineer at Volvo, had developed the three-point belt the year before, and Volvo had made the patent freely available to every manufacturer in the world. This was not altruism—Volvo wanted to market its cars as safe—but the effect was the same.

The United States didn’t require seatbelts in new cars until 1968, and individual states did’t begin requiring drivers to wear them until the 1980s. (Australia’s Victoria became the first jurisdiction anywhere in the world to require seatbelt use in 1970—a decade before most American states got there.) Airbags, first demonstrated as viable technology in the 1950s, were not required in all new American passenger cars until 1998.

At every step, car makers argued that the requirement was premature, that consumers would choose safety features if they really wanted them, and that regulation would raise costs and kill innovation. At every step, the data showed substantial reductions in deaths after regulations changed. The argument that consumers would choose safety if they valued it was falsified by every study that examined it. When buyers compare cars, they mostly look at price, fuel economy, and styling. They do not systematically seek out crash-test ratings. This is not a character flaw; it is a predictable feature of how people make decisions under uncertainty about low-probability events [Mashaw1990].

Five years before Nader published his book, a pharmacologist at the United States Food and Drug Administration named Frances Kelsey was assigned to review an application for a new drug called thalidomide. The drug had already been approved in West Germany in 1957, where it was prescribed to pregnant women for morning sickness. By 1960, it was being sold in forty-six countries.

Kelsey was troubled by the application’s safety data. The drug affected peripheral nerves in adults, and she wanted to know more about how it crossed the placenta. The manufacturer pressured her repeatedly to approve it. She declined, asking for more data each time.

By 1961, German pediatrician Widukind Lenz and Australian obstetrician William McBride had independently linked thalidomide to severe birth defects. Children born to women who had taken the drug during early pregnancy were born without limbs, or with drastically shortened ones, as well as damage to their eyes, ears, and internal organs. 10,000 children or more were affected in countries where the drug had been approved, but thanks to Kelsey’s skepticism, the United States was spared.

The scandal prompted Congress to pass the Kefauver-Harris Amendment in 1962. Before that amendment, a pharmaceutical company needed to show only that a drug was not demonstrably harmful before selling it. After it, companies had to demonstrate that a drug actually worked, and required that patients give informed consent to experimental treatments.

It is worth thinking about that for a moment. Before 1962, you could sell a drug in the United States without proving it did anything. You just needed to avoid proving that it was immediately lethal. The thalidomide disaster changed that, but only because the disaster had been so catastrophic and so visible that the political cost of inaction became higher than the political cost of regulation.

As noted several times, there’s a pattern here. First comes denial: the evidence is contested, the studies are flawed, the sample sizes are too small. This phase can last for years or decades, especially when the industry funds its own research

Then comes the argument from uncertainty. Even if there is a problem, we do not know enough yet to regulate. More study is needed. Any regulation now would be premature and might target the wrong thing entirely.

Next is the market argument. Consumers will demand safe products if they want them. Competition will drive manufacturers to provide safety. Regulation is unnecessary because market forces will take care of it. This argument fails empirically in case after case because consumers cannot evaluate risks they cannot observe. They cannot detect a placental crossing rate for a sedative. They cannot assess the probability that a suspension design will cause a rollover or compare the structural integrity of crumple zones. Markets aggregate preferences for things people can evaluate; they do not reliably handle latent hazards that require technical expertise and longitudinal data to detect.

Finally, after regulation is imposed, comes acceptance [Hilts2003,Savedoff2012]. The industry discovers that compliance is cheaper than predicted, that safety features are selling points, and that the regulation did not, in fact, destroy the sector. The American auto industry survived seatbelts. The pharmaceutical industry survived the Kefauver-Harris Amendment. If you ask them now, they will tell you that of course they support safety. Ask them about the next proposed regulation, though, and you will hear the same arguments they made about the last one.

When the tech industry tells you that privacy regulation will destroy innovation, or that algorithmic transparency requirements will make AI unworkable, or that holding platforms liable for content will end the internet, you are hearing a very old argument. It has been wrong before. The burden of proof runs in the other direction now: those who claim the market will handle it should be required to explain why this time is different from every other time.

How the Rivers Ran Again

In December 1952, cold air trapped a layer of warm, smoky air close to the ground in London. For four days, a yellow-brown fog of coal soot blanketed the capital, so thick that people could not see their own feet. Buses stopped running because drivers could not see the road. Cattle at the Smithfield show were killed before they could suffer further. People died in their homes, in hospitals, and on the streets.

The British government’s initial response was to deny that the fog had killed anyone; a spokesman suggested that the excess deaths were caused by influenza. At least 4,000 people died in those four days, and researchers later estimated the total at closer to 12,000 once the delayed effects on the elderly and the already-sick were counted. The government finally acknowledged the connection in 1953, under sustained pressure from Members of Parliament whose constituents had died. The Clean Air Act followed in 1956, restricting the burning of coal in domestic hearths and requiring industrial smokestacks to be tall enough to disperse their emissions. Air quality in London improved measurably within years. The great smogs did not return.

The Thames had been in trouble for much longer. By the mid-nineteenth century, the river was an open sewer. The summer of 1858 was so bad that Members of Parliament abandoned their riverside building because the smell made work impossible. Victorian engineers built a sewer system, and things improved somewhat, but a century later the Thames through London was still functionally dead. Oxygen levels in the water were so low that fish could not survive; a survey in the 1950s found none at all in a long stretch of the river.

What changed was not public disgust—Londoners had been disgusted by the Thames for two hundred years. What changed was enforceable law. The overhaul of sewage treatment in the 1960s, driven by statutory requirements, reduced the organic load entering the river. Oxygen levels climbed, and by the early 1970s, fish were beginning to return to parts of the river that had been lifeless within living memory. In 1983, a salmon was caught in the Thames for the first time since the 1820s. That gap—one hundred and sixty years—tells you something about how long environmental damage persists and how long it takes to undo.

On June 22, 1969, the Cuyahoga River in Cleveland, Ohio, caught fire. This sounds dramatic, but it was also the thirteenth time the river had caught fire since 1868. Oil, chemicals, and other industrial waste had been flowing into the Cuyahoga for decades, and fires were not unusual.

What made 1969 different was a photograph. Time magazine published images of the burning river, and the story reached an audience that had never heard of it before. Public outrage followed. That, combined with pressure from environmental advocates who had been working for years without much political traction, contributed directly to the passage of the US Clean Water Act in 1972 and the establishment of the Environmental Protection Agency.

The Cuyahoga itself is now a recreational river—people kayak on it. This is not because Cleveland’s industries suddenly became virtuous; it is because the Clean Water Act made pollution costly in a way that the previous century of moral condemnation had not.

On November 1, 1986, a fire broke out in a Sandoz chemical warehouse in Schweizerhalle, near Basel, Switzerland. Firefighters used water to fight the blaze, and the runoff entered the Rhine, carrying roughly thirty tonnes of pesticides, fungicides, and mercury compounds. The chemical plume moved downstream through Germany and into the Netherlands, killing eels and fish for hundreds of kilometers. In some stretches the river smelled of insecticide. The eel population, already stressed, was devastated. Drinking water intakes along the river had to be shut down.

The catastrophe made the politicians of every country along the Rhine’s banks understand, in a way that years of incrementally worsening data had not, that the river’s problems were shared problems and could only be solved by shared commitments. The Rhine Action Programme, signed by Germany, France, the Netherlands, Luxembourg, and Switzerland, set binding targets for the reduction of pollutants. By the early 1990s, salmon had returned to the Rhine for the first time in decades. The river is now among the most intensively monitored and regulated waterways in the world [Nixon2011].

The Great Smog, the Thames, the Cuyahoga, the Rhine, and Minamata are not stories about environmental virtue. No sudden wave of ecological consciousness swept through London in 1955 or Basel in 1987. What changed in each case was the legal and economic cost of pollution.

Industries and municipalities that had treated rivers and air as free dumps for a century changed their behavior when they faced fines, required upgrades, and liability for damages. The mechanisms differed: criminal penalties in some jurisdictions, civil liability in others, international treaty obligations in others. The result was the same. When it became costly enough, the behavior changed.

Markets do not price externalities without compulsion [Singer2023]. The reasons are simple; what is complicated is the politics of making industries pay for costs they have been externalizing for free. Every major environmental regulation in the twentieth century was fought by the industries it affected, using arguments about economic harm that turned out to be exaggerated and predictions of technological impossibility that turned out to be wrong. The same thing is happening now with attempts to regulate the harm caused by social media, AI, and large tech platforms’ surveillance of everyday life.

Two structural interventions have produced results. The European Union’s Digital Markets Act, which took effect in 2024, requires platforms designated as “gatekeepers” (those with market capitalizations above €75 billion or monthly user bases above 45 million in Europe) to allow interoperability with competing services, to refrain from self-preferencing their own products in search results, and to allow users to uninstall pre-installed software. Fines for non-compliance reach 20% of global revenue. The act is the first regulatory framework designed specifically around the leverage that platform dominance creates, rather than around the consumer prices those platforms charge.

India’s Unified Payments Interface uses a different model: intervene before dominance rather than after. Instead of regulating private platforms that have already achieved lock-in, India built public payment infrastructure that any platform can connect to on equal terms. Google Pay, PhonePe, and Paytm compete on the same rails; none owns the customer relationship—that belongs to the user’s bank account. No single platform can raise fees on the underlying infrastructure because the infrastructure is public. Brazil’s Pix system follows similar principles, as do comparable approaches adopted by central banks in Ghana and Sri Lanka. The question today is not whether enshittification can be stopped, but why regulators in Canada, the US, and elsewhere choose not to stop it [Shapiro1999,Sapp2026].

When the Diagnosis Is Wrong

The case studies above share a pattern: industry denial, manufactured uncertainty, and eventual regulation. Another kind of regulatory failure is equally instructive: one in which the pressure for regulation is genuine and well-intentioned but aimed at the wrong target.

Moral panics about new media are old. Dime novels corrupted working-class youth in the 1880s. Comic books produced juvenile delinquents in the 1950s, according to psychiatrist Fredric Wertham’s Seduction of the Innocent [Wertham1954]. His testimony brought comic books before a Senate subcommittee in 1954 and led directly to the Comics Code Authority, a self-regulatory body that banned dark content so comprehensively that it effectively gutted the medium for a generation. Rock music followed, then Dungeons and Dragons; in each case the new medium was identified as uniquely dangerous to children, its effects described as direct and irreversible, and the evidence offered was a mixture of anecdote, dubious laboratory studies, and credentialed testimony.

Video games arrived in force in 1993, when a Senate subcommittee held hearings focused on two games: Mortal Kombat, which allowed players to rip an opponent’s spine out as a finishing move, and Night Trap, which featured vampires draining blood from actresses in a B-movie setting. The hearings generated excellent television and led directly to the creation of the Entertainment Software Rating Board, the voluntary age-based rating system still in use today. The legislators’ alarm was understandable, but the content that generates maximum outrage is chosen for its visceral impact, not because it represents what most people actually play. The average video game in 1993, like the average video game today, involved puzzles, sports, or platform navigation.

Then in April 1999, two students at Columbine High School in Colorado killed twelve classmates and a teacher before taking their own lives. Both had played Doom. Senators introduced legislation, retailers pulled games from shelves, and the attorney Jack Thompson spent years filing lawsuits claiming games were murder simulators and that the industry bore direct responsibility for the shootings, winning settlements before being permanently disbarred for misconduct.

Dave Grossman offered a more careful version of the alarm [Grossman1995,Grossman1999]. His claim rested on military training research: fewer than a quarter of soldiers in World War II actually fired their weapons in combat, so the Army redesigned its training using operant conditioning with human-silhouette targets to raise that rate in Korea and Vietnam. Violent video games applied the same conditioning to children without consent or any ethical framework. Unlike the public panic, his argument was internally coherent.

Unfortunately, the scientific literature did not validate it. The core methodological problem is that laboratory measures of aggression bear little relationship to real-world violence. Such measures typically involve things like how loud a noise blast a participant gives an opponent, or how much hot sauce they pour for someone who dislikes spicy food. Studies that find effects measure immediate post-game behavior in artificial settings, and the effect sizes are small. Large longitudinal studies, which are better positioned to detect real-world outcomes, consistently find no meaningful relationship between video game consumption and violent behavior. Meta-analyses that account for publication bias—the tendency of journals to publish positive findings—find that the field systematically overestimated effects because studies finding no relationship were less likely to be published [Ferguson2015,Markey2017].

The simplest check on the strong version of the argument is cross-national. Japan and South Korea are among the highest per-capita consumers of video games in the world, and South Korea built a multi-billion-dollar professional esports industry. Both countries have dramatically lower rates of violent crime than the United States. The Netherlands and other Northern European countries show the same pattern. Gun availability, income inequality, and the specific history of racially organized social violence are better explanations for American rates of violence than video game consumption, but are also much harder for the public and public figures to face.

In 2011 the Supreme Court settled the legal question, if not the empirical one. California had enacted a law restricting the sale of violent video games to minors. The Court struck it down in Brown v. Entertainment Merchants Association, applying the same First Amendment analysis it would apply to books or films. The majority noted that the research California presented did not establish a causal link between violent games and harm to minors, and that the burden of proof for restricting expression falls on those who seek restriction. That burden had not been met.

By then the panic was already fading, displaced by fresh anxieties about social media and smartphones. What had not faded were the harms the panic had never addressed. While legislators debated spine-ripping finishing moves, the games industry had been building something that warranted far more scrutiny: loot boxes. A loot box is a randomized reward purchased with real money; you pay to receive an item of unknown value, which may be common or rare. Children’s games marketed this mechanic aggressively to young players. Several European regulators eventually concluded that loot boxes constitute gambling. Belgium banned them in 2018. The United Kingdom’s Gambling Commission produced guidance treating certain loot box mechanics as gambling products requiring the same protections applied to casinos. The United States, whose legislators had spent years fighting over Mortal Kombat, moved slowly.

The lesson is not that moral panics are always wrong, or that industries accused of harm should be left alone. It is that effective regulation requires an accurate diagnosis of the actual harm, not the harm that generates the most compelling congressional testimony. The video game violence campaign failed because the evidence never supported the hypothesis; the energy expended on it left the real harm—addictive design and gambling mechanics in games marketed to children—largely unaddressed. When a proposed regulation is described as protecting children, the right question is not only whether children need protecting, but from exactly what, by what mechanism, and whether the remedy addresses that mechanism.

We don’t have to wait for disaster to start the process. The world dealt with the hole in the ozone layer before it cost lives, and we could choose to act now on social media and AI.