Policymakers often play a critical role in regulating the use and advancement
of technology. Their decisions can have significant positive impacts on the
development, adoption, and use of various technologies, but also negative ones
if they decide to limit or even block a certain technology. Italy’s temporary
banning of the Generative Artificial Intelligence (GenAI) platform ChatGPT,
much like New York City’s Department of Education, demonstrates
administrations’ and policymakers’ reliance on blacklisting and banning.
Blacklisting and banning are often used interchangeably. Nevertheless, in the
context of regulation, the terms are different and used for different purposes, and
it is key to understand why, how, and what consequences are associated with
each term, particularly when used in connection with innovative and disruptive
technologies, such as GenAI. This Article explores the use of blacklisting as a regulatory tool while
differentiating it from the practice of banning. In doing so, this Article examines
the impact of any related explicit and implicit sanctions, especially as such
sanctions include reputational damage, increased hardship in getting credit,
and the potential costs of “doing business.” Additionally, the Article makes the
important distinction between two rationales for blacklisting: (1) Blacklisting
for participating in or advancing an illegal activity or failing to comply with
binding legal requirements; and (2) blacklisting for moral or ethical reasons. It
also describes why sanctions do not always work. Finally, this Article makes
policy recommendations that would help increase the effectiveness of blacklisting
as a regulatory tool, while acknowledging the problematic nature of regulation
by enforcement.