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REAL: Regulation: Ethics, Acceptance and LegitimacyBeau van Leenders – 2020 - Semester 2
The course consists of 2 modules with 12 lectures in total.
1. Module I: Regulatory Theory and Concepts (lectures 1-7)
2. Module II: Principles and Practices of Regulation (lectures 8-12)
Modules I address the basic concepts regarding regulation and associated problems of regulation,
taking into account the various modes of regulation, stakeholders and their interests and core values
within society.
Module II consists of principles and practices of regulation as exemplified in different case studies.
Learning Goals:
After successfully completing this course the students will have knowledge of important trends in
technological developments to the extent that these developments are relevant for regulation and
legislation. The students will be able to:
- Discuss the four modalities of regulation, the different regulatory actors and regulatory fora,
as well as the prospects and difficulties of regulation of and by technology.
- Discuss the mutual shaping of technology and society, and the ways in which technologies
are implemented in, and changed through, different contexts and modalities of use.
- Explain the tension between fundamental values and new technologies (e.g. the rise of
smartphone applications that invade informational privacy).
- Understand the fundamentals of regulation theory and ethics regarding governance of
technology
- Provide an analysis of the trends and tendencies of regulation of new technologies and
formulate well-founded judgments in this regard.
,Lecture 1 – Introduction and the LMTS model of regulation
To Do
- Read: Lyria Bennett Moses (2013) How to Think about Law, Regulation and Technology:
Problems with ‘Technology’ as a Regulatory Target
- Ronald Leenes,Regulating New Technologies in Uncertain Times. Reins, L. (ed.)
- Watch: the video "course introduction" + the video titled "Ashley"
- Do: Reflect on the technology introduced in Ashley (online DNA tests).
Mandatory Literature
(1) Lyria Bennett Moses – How to think about Law, Regulation and Technology: problems with tech
as a regulatory target
This paper attempts to understand the connections between questions of law, regulation and
technology.
- It starts by discussing “technology regulation”
- Then: alternative vision revolving around concept of “the challenge of regulatory
connection”
- Which of these frames is most likely to bring about useful comments?
- Conclusion: focus on technology as a regulatory target is less likely to yield useful
connections between ideas compared to a framing that recognizes the complex
relationship between law-tech-society
It is hard to define the relationship between law and technology. There have been attempts in the
narrower areas, but it seems as if the connection between those topics is hard to find. The second
chapter speaks of “Technology Regulation”.
- Regulation as a term can be set out as pretty broad. It can mean the binding set of rules,
however it can also include the social and economic influences. It can be seen as centered or
decentered.
- Regulation can be both broader and narrower than law. It can encompass soft law or even
market influence. This might be a better fit when providing the tech framework.
- However, the term technology might be harder to set out. Sometimes older tech is sidelined:
e.g. product liability. It is more about the new undiscovered areas of tech. This then again is
a bit narrower.
o However, need tech always be new?
o Koops says: ‘the broad range of tools and crafts that people use to change or adapt
to their environment’
Mostly, in technology regulation, the problem is associated with the tech: e.g. environmental
consequences. This can be helped when you see tech as the “Regulatory Target”.
- Tech regulation can be seen as a means to eliminate the harms and risks that are associated
with the tech
- This can be done by treating Technology as the Regulatory Target – and prohibiting the use
or creation of certain artifacts
- However, can tech really be influenced by regulation? Or does regulation influence social
behavior? This is where the concept of socio-technical perspectives or complexities come in.
o Example: mandating courses in university or rewards for safety innovation
- Target of “Technology regulation” is thus complex – dependent on how you define both
regulation and technology
, - This is where the term “socio-technical” comes into play – this might the perspective to take
in order to look at regulating disconnects
Law or Regulation in an evolving Socio-Technical Landscape
- Tech regulation focuses on “the new”. Does then the regulatory target emerge from the
newness itself? Or is it technology?
o Do the issues that arise come from the newness itself?
o This then could require a study of newness – not just the technology
- Here the term ‘challenge of regulatory connection’ (continuous disconnection with former
legislation and new tech) comes in.
o This is one account for the dilemma of newness
o This means that the laws are made for the past, landscape no longer fits, constant
reconnection is required.
o An example might be: the downloading of illegal music. The legislation stands, but
the social norms and the markets change – making a regulatory disconnection.
- Another definition, namely the ‘pacing problem’ means touches upon the constant race to
catch up with technology.
- Finally, the ‘Collingridge Dilemma’ talks about the beginning where you lack information to
effectively regulate, whereas in the end the technology is entrenched so deeply that it
makes altering the framework way more difficult.
o Tech gets more and more resistant to regulatory interference. This leads to people
acting in the uncertainty paradox, without proper information.
Moreover, there is a need to look through a lens that takes into account more than just the rigid
technological tools. As can be seen with “illegal downloading” the socio-technical aspects, it is very
important to get a full and broad view of the issue at hand.
Summing up, this second approach to the study of law, regulation and technology would look at how
law and regulation make explicit and implicit assumptions about the socio-technical environment in
which they will operate.
- New technological options, when taken up in a significant way, require lawmakers and
regulators to rethink their approach.
- At the same time, regulators are reminded of their own ability to influence the path of socio-
technical development as it evolves.
Choosing a lens All in all, regulation and tech can be viewed through
1) Technology regulation and;
2) The problems for law and regulation in an evolving landscape.
- Depending on the framed problem question the answers might differ
- Moses states: The first is not the best option, considering the issues that are raised by
technology. Regulatory connection is a more ongoing issue, we need mechanisms to make a
good adaptation.
(2) Ronald Leenes, Regulating New Technologies in Uncertain Times.
This chapter is about regulation of technology in a time of change. First thing that arose when the
internet came around the corner was: “how will the law adapt?” It was about “We need new rules”.
- However, maybe the traditional legal system is flexible enough to cope with these kinds of
challenges and novelties.
o Why is e-commerce different from distance selling: as an example
o Or tort? Or Contracts?
, Many people seem to suffer from the “Flawed Law syndrome”
- This is the urge to call the law flawed/outdated/inadequate and the desire to fix problems
by addressing the law, rather than using other ways to fill the gaps (legal solutionism)
o Knee-jerk reaction
- Especially the industry: wants regulation in their favor
Easterbrook:
- He is of the idea that (Lessig’s idea of) Cyberlaw is nonsense.
- He explains there is no law of the horse and we should not strive to create one
o Law of the horse: comprehensive regulation around all things horses – so when we
need an answer to something concerning a horse – that is where we look
o Pros: convenient to look through
o Cons: hard to identify if we are purely looking at a horse issue (e.g. mule)
- Easterbrook’s view: general legal concepts and mechanisms are flexible and can cope with
new phenomena.
o Example: manslaughter provisions do not differ for knives, guns, bats etc.
- “Good law is a law which is possible to obey”
o Legal compliance is likely easier to achieve with limited general rules – rather than a
larger set of specific rules
Regulating technology:
We should be careful with intervening in technical development.
- Not only because of Collingridge dilemma – also because of “if it ain’t broke don’t fix it”
- Example: domains like big data or robots and private islands
o They say they want this because current law is hampering innovation, but is it
though?
- Sometimes the law might really be outdated, however we still need to see it from the proper
perspective and balancing act
There is link between: technology/innovation – regulation – normative outlooks (privacy/autonomy)
- If one changes, the others do as well
- Regulation can change because of tech but also because of privacy views
o Mutual shaping is happening here
o It is open-ended and an ongoing process
However, many fear that regulation is the impediment to technology/innovation
- E.g. GDPR – might kill someone
- This brings us to the example of self-driving cars
o Geneva convention on Road Traffic
Every car shall have a driver – but what is a driver? Huma?
For tesla this can be managed, however what about the future?
o Options: we ban Tesla’s or we change the regulation removing the requirement of a
driver
Connecting the dots
Is there a regulatory disconnect? – e.g. driver less cars. Or is there a gap in the regulation?
- However, even if this is hard we need to think about it. We cannot just change laws without
an eye on the existing situation.
- This can be illustrated with the LTS model
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