This document provides a summary of the weekly materials (most of the readings + KC´s). It can be used for exam preparations as well as weekly preparations. I cover the following topics:
LTS Model Why do we regulate? Public interest theory of regulation Private interest theories Theories of Regu...
KC
Aims of the course/ What is the course about?
- Relationship between technology and society and the broader concept of law
- Jurisprudential course (why we choose to regulate technology and how we should
regulate)
- How regulation goes beyond the law in relation to technology
Learning goals:
#1 - be able to discuss:
- modalities of regulation
- Regulatory factors
- Regulatory Fora
- Regulation of and by Technology
#2 - discuss
- The mutual shaping of law and technology
#3 - explain
- The tension between fundamental values (privacy, autonomy) and new technologies (AI
facial recognition)
#4 - provide analysis of
- Legal and/or ethical issues in one of the domains covered in the course (IA facial
recognition, climate change, digital rights & community mobilization) & argue how
regulation has influenced/ is influenced by technology
#5 - provide analysis of
- Trends and tendencies of regulation of new technologies in different regions of the world
#6 - illustrate & compare
- The similarities and differences among different regional tech regulations
Structure of the course:
- Module 1 (foundation of the course) & Module 2 (analysis) + lectures
Syllabus
Group presentation:
, - The presentation should provide an analysis of the trends and tendencies of regulation of new
technologies in a chosen nation or region of the world. The aim of the presentations is to enable the
discussion and comparison of similarities and differences amongst different regions of the world of
regulation of new technologies
- Presentations should tackle the following issues: ▪ A brief overview of the legal culture of
the jurisdiction (eg. common law, the federal system, etc) ▪ A description of the
technology. ▪ A description of the societal and legal issues associated with the
technology ▪ Regulatory framework of technology and regulatory gaps ▪ The “W” s of
regulation: Why, what, who, when, how?
Reading 1 - How to Think about Law, Regulation and Technology:
Problems with ‘Technology’ as a Regulatory Target
- many legal and regulatory problems arise on the technological frontier (1)
- The hot topics of one era cease to be fascinating. Questions of law and regulation remain, of
course, but the technology that is ‘regulated’ fades into the background (1)
- technological or doctrinal context → the different fields do not really speak to
each other (2)
- a focus on ‘technology’ as a regulatory target is less likely to yield useful
connections between ideas than a framing that recognizes the complex
relationship between law, regulation, technology, and society (2)
II. WHAT IS ‘TECHNOLOGY REGULATION’?
- The relationship between society and technology is complex
- the consciousness of choice has led to efforts to enhance democratic
involvement in technological decision making. (⅔)
- technologies that are used as a means of regulating (such as CCTV) (3)
- Technologies that dealt with regulation of technologies (to manage risks and
perceived harms) (3)
- Some focus on regulation by government and its agencies and others on a
‘decentred’ approach that looks more broadly at (intentional, and sometimes
unintentional) influences on action (3)
The term “Regulation”
➔ the promulgation of a binding set of rules
➔ it can refer to any deliberate state influence,
➔ or it can include all forms of social or economic influence.
➔ Can capture soft law
, Technology regulation “definition”:
➔ Koops: ‘the intentional influencing of someone’s or something’s behavior’, (3)
➔ Brownswood & Goodwin: ‘the sustained and focussed attempt to alter the
behavior of others according to standards or goals with the intention of
producing a broadly identified outcome or outcomes, which may involve
mechanisms of standard-setting, information-gathering, and behavior
modification’. (3)
- Authors are less likely to be explicit about their definition of technology than
about their definition of regulation (4)
- ‘technology regulation’ is most concerned with how regulators ought to deal with
new technological fields (4)
The term “technology”
➔ Koops: ‘the broad range of tools and crafts that people use to change or adapt to
their environment (4)
➔ Klang: ‘both the purposeful activity and results of the transformation or
manipulation of natural resources and environments in order to satisfy human
needs or goals’ (4)
- Treating technology as a regulatory target → In most contexts the problem is
associated with technology, and in particular with real or potential environmental,
health or social harms that result from technological artifacts and processes.
‘Technology regulation’ could thus be the means employed (sometimes by
government, sometimes more broadly) to reduce or eliminate such harms (5)
- But given the fact that regulation is a broad concept and that regulation targets
the special conduct rather than the regulation itself → regulating may be done
through more subtle influences on designers and users, for instance by
mandating particular courses in university engineering degrees or providing
professional rewards for safety innovation (6)
⇒ Instead of regulating the technology in itself, the more subtle influence on
people has the aim is to influence people in ways that will (hopefully) influence
the shape of technological artifacts and processes.
III. LAW OR REGULATION IN AN EVOLVING SOCIO-TECHNICAL
LANDSCAPE
- technology regulation scholarship focuses on new regulation (6)
, Challenge of regulatory connection
- current laws and regulatory approaches which are designed for the technological
landscape of the past, requiring constant ‘reconnection’ (7)
- The “pacing problem” → types of legal and regulatory problems that arise as a
result of technological change (7)
Collingridge dilemma
- regulators responding to a new technology faced twin hurdles → 1) At an early
stage in a technology’s development, regulation was problematic due to the lack
of information about the technology’s likely impact. 2) At a later stage,
regulation was problematic as the technology would become more
entrenched, making any changes demanded by regulators expensive to
implement. (8)
- ‘uncertainty paradox’, where regulators are forced to make decisions in the
absence of reliable risk information or foreknowledge of technological
developments (8)
IV. CHOOSING A LENS
- (1) technology regulation and
(2) the challenges for law and regulation in an evolving socio-technical
landscape.
- A lens must:
1) a framework must offer a useful lens for considering a particular problem
(10)
2) a lense must avoid framing the problem in a way that introduces arbitrary
biases (10)
3) a lens must allow its stories to be told from an appropriate starting point
(10)
What constitutes a useful lens?
- “Law of the horse” being a law in which problems are being looked at through
the lens of a horse. Easterbrook argues that this is not useful and problems
should rather be looked at through contract, tort and property law which then may
be applied to horses
- The law of the horse is a metaphor for comprehensive regulation around all
things horses. Whenever there is an issue involving a horse, the law of the horse
is where to look for answers (second reading of this week 7)
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