Law, Technology and Society

Reimagining the Regulatory Environment

Roger Brownsword

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351128162
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book considers the implications of the regulatory burden being borne increasingly by technological management rather than by rules of law. If crime is controlled, if human health and safety are secured, if the environment is protected, not by rules but by measures of technological management—designed into products, processes, places and so on—what should we make of this transformation?

In an era of smart regulatory technologies, how should we understand the 'regulatory environment', and the 'complexion' of its regulatory signals? How does technological management sit with the Rule of Law and with the traditional ideals of legality, legal coherence, and respect for liberty, human rights and human dignity? What is the future for the rules of criminal law, torts and contract law—are they likely to be rendered redundant? How are human informational interests to be specified and protected? Can traditional rules of law survive not only the emergent use of technological management but also a risk management mentality that pervades the collective engagement with new technologies? Even if technological management is effective, is it acceptable? Are we ready for rule by technology?

Undertaking a radical examination of the disruptive effects of technology on the law and the legal mind-set, Roger Brownsword calls for a triple act of re-imagination: first, re-imagining legal rules as one element of a larger regulatory environment of which technological management is also a part; secondly, re-imagining the Rule of Law as a constraint on the arbitrary exercise of power (whether exercised through rules or through technological measures); and, thirdly, re-imagining the future of traditional rules of criminal law, tort law, and contract law.

Part One

Re-imagining the regulatory environment

2
The regulatory environment

An extended field of inquiry

I Introduction

If technologically managed environments are to be a significant part of our regulatory future, then the argument so far is that the domain of jurisprudence needs to be extended in a way that facilitates inquiry into both law as a normative regulatory strategy and the use of non-normative technological instruments. Law, that is to say, needs to be set in a broader signalling and steering context: first, in a context that takes full account of the variety of norms that impact on, and influence, human behaviour; and, secondly, in a context that recognises the channelling and constraining effect of technological management. In order to do this, the suggestion is that we should broaden the field for juristic inquiry by operating with a notion of the regulatory environment that accommodates both normative and non-normative approaches.

What would such a regulatory environment look like? Famously, Clifford Shearing and Phillip Stenning highlighted the way in which, at Disney World, the vehicles that carry visitors between locations act as barriers (restricting access).¹ However, theme parks are no longer a special case. We find similar regulatory environments in many everyday settings, where along with familiar laws, rules, and regulations, there are the signs of technological management—for example, we find mixed environments of this kind in homes and offices where air-conditioning and lighting operate automatically, in hotels where the accommodation levels can be reached only by using an elevator (and where the elevators cannot be used and the rooms cannot be accessed without the use of security key cards), and perhaps par excellence at airports. On arrival at a modern terminal building, while there are many airport rules to be observed—for example, regulations concerning parking vehicles, smoking in the building, or leaving bags unattended, and so on—there is also a distinctive architecture that creates a physical track leading from check-in to boarding. Along this track, there is nowadays an ‘immigration and security zone’, dense with identifying and surveillance technologies, through which passengers have little choice other than to pass. In this conjunction of architecture and surveillance technologies, we have the non-normative dimensions of the airport’s regulatory environment—the fact of the matter is that, if we wish to board our plane, we have no practical option other than to follow the technologically managed track.

If we treat the regulatory environment as essentially a signalling and steering environment, then each such environment operates with a distinctive set of regulatory signals that are designed to channel the conduct of regulatees within, so to speak, a regulated sphere of possibility. Of course, one of the benefits of technologies is that they can expand our possibilities; without aircraft, we could not fly. Characteristically, though, the kind of technological management that we are contemplating is one that restricts or reduces existing human possibilities (albeit, in some cases, by way of a trade-off for new possibilities). In other words, while normative regulation is directed at actions that are possible—and that remain possible—technological management engages with spheres of possibility but in ways that restructure those regulatory spaces and redefine what is and is not possible.

This brief introduction to an extended conception of the regulatory environment needs more detail. First, we need to make a few schematic remarks about technological management as a regulatory option. Then, to fill in some of the detail, we can start by mapping the salient features of regulatory environments that are purely normative before extending it to include environments that are technologically managed.

II Technological management as a regulatory option

In the previous chapter, the general idea of technological management was introduced and some examples were given. We said that technological management might employ a variety of measures, including the design of products (such as golf carts or computer hardware and software) and processes (such as the automated production and driving of vehicles, or the provision of consumer goods and services), or places (such as the Metro, or theme parks and airports) and people. Typically, such measures are employed with a view to managing certain kinds of risk by excluding (i) the possibility of certain actions which, in the absence of this strategy, might be subject only to rule regulation, or (ii) human agents who otherwise might be implicated (whether as rule-breakers or as the innocent victims of rule-breaking) in the regulated activities. Moreover, technological management might be employed by both public regulators or by private self-regulating agents (such as corporations protecting their IP rights or golf clubs protecting their property).

Schematically, where the use of technological management is available as a regulatory option, the process can be presented in the following terms:

• Let us suppose that a regulator, R, has a view about whether regulatees should be required to, permitted to, or prohibited from doing x (the underlying normative view),
• R’s view could be expressed in the form of a rule that requires, permits, or prohibits the doing of x (the underlying rule),
• but, R uses (or directs others to use) technological management rather than a rule,
• and R’s intention in doing so is to translate the underlying normative view into a practical design that ensures that regulatees do or do not do x (according to the underlying rule),
• the ensuing outcome being that regulatees find themselves in environments where the immediate signals relate to what can and cannot be done, to possibilities and impossibilities, rather than to the underlying normative pattern of what ought or ought not to be done.

This description, however, is highly schematic and what such a process actually amounts to in practice—in particular, how transparent the process is, how much debate there is about the underlying normative view and then about the use of technological measures—will vary from one context to another, from public to private regulators, between one public regulator and another, and between one private regulator and another.

It also should be emphasised that the ambition of technological management is to replace the rules by controlling the practical options that are open to regulatees. In other words, technological management goes beyond technological assistance in support of the rules. Of course, regulators might first turn to technological instruments that operate in support of the rules. For example, in an attempt to discourage shoplifting, regulators might require or encourage retailers to install surveillance and identification technologies, or technologies that sound an alarm should a person carry goods that have not been paid for through the exit gates. However, this is not yet full-scale technological management. Once technological management is in operation shoppers will find that it is simply not possible to take away goods without having paid for them. For example, they will find that there are technologies operating at both the entrance and the exit points of retail outlets to ensure that those who have poor profiles for ability to pay or honesty do not enter and that those who have not paid are not able to exit (instead of sensors triggering alarms, they control the opening of the otherwise closed exit doors).

III Law in context: normative regulatory environments

Conceiving of a regulatory environment as a kind of signalling environment, much in the way that we think about the setting for road traffic or for the railways, then regulators may signal (normatively) that certain conduct is prohibited, or permitted, or required. These signals may be legal or ethical, formal or informal; and, in the world that Hart and others contemplated, these signals were normative in character, speaking to regulatees in terms of what ought or ought not to be done.

In modern regulatory settings, the legal signals might be supported by various kinds of advisory or assistive technologies. For example, on the roads, technologies might be employed to advise drivers that they are either non-compliant or at risk of non-compliance—as when roadside signs might flash a warning that the vehicle is exceeding the speed limit, or an overhead motorway gantry might advise that it is time to take a break; or a vehicle equipped with the appropriate sensors might caution the driver against proceeding when affected by drink or drugs; and various kinds of roadside or on-board surveillance technologies might signal that non-compliance will be detected. In all these cases, although technological instruments are used, the technological signals are normative (various acts ought or ought not to be done) and, of course, they complement or supplement normative legal signals.

There is much more to be said, however, about this relatively straightforward picture of a normative signalling environment (whether with or without technological support). In particular, there are questions about the identity of the regulators, about what counts as regulation, about the extent of the regulatory repertoire, about the identity of the regulatees, about conflicting signals, and about the boundaries of any particular regulatory environment. However, before we respond to each of these questions, we need to note a broad distinction between two types of normative regulatory environment.

(i) Two types of regulatory environment

On the roads, motorists are notorious for developing their own unofficial rules, the drivers of each country being caricatured for respecting the official traffic signals more than the lives of fellow humans or vice versa, as well as employing their own local signalling systems based on hand gestures or the use of their car headlights. The co-existence of these unofficial codes with the official traffic laws can be a source of confusion as well as, potentially, an accident waiting to happen. In some cases, motorists go one step further, taking the law into their own hands. For example, Jonathan Zittrain reminds his readers about the experiment in the Dutch city of Drachten when traffic signs, parking meters, and parking spaces were removed.² The sign-free (‘verkeersbordvrij’) environment, far from inducing dangerous and disorderly driving, generated responsible and communicative conduct on the part of motorists, cyclists, and pedestrians. As Zittrain reflects, the Drachten experience suggests that when ‘people can come to take the welfare of one another seriously and possess the tools to readily assist and limit each other, even the most precise and well-enforced rule from a traditional public source may be less effective than that uncompelled goodwill’.³ In Drachten, as in Shasta County,⁴ there can be order without law.

These remarks invite the drawing of a crude distinction between ‘top-down regulator-initiated’ and ‘bottom-up’ (Drachten or Shasta County-type) regulation. Whereas, in top-down regulatory environments, there is likely to be a significant formal legal presence, along with a clear distinction between regulators who initiate the norms and regulatees to whom the norms are addressed, in bottom-up self-regulatory environments, on both scores, this is less likely to be the case—there will be a much less clear-cut distinction between regulators and regulatees as well as a certain amount of informality. For convenience, we can mark this distinction by referring to ‘Type 1’ (top-down with significant hard law elements) and ‘Type 2’ (bottom-up with fewer hard law elements) regulatory environments.

It should be emphasised, however, that this is not only a crude distinction, it is also far from exhaustive. For example, top-down government regulators might enlist the aid of non-governmental intermediaries (such as Internet service providers or platform providers) or they might adopt a co-regulatory approach setting general targets or objectives for regulatees but leaving them to determine how best to comply.⁵ With new technologies occupying and disrupting regulatory spaces, regulators need to re-imagine how best to regulate. As Albert Lin says, in his analysis of new distributed innovative technologies (such as DIYbio, 3D printing, and the platforms of the share economy) these new forms of dynamic activity ‘confound conventional regulation’.⁶ In response, Lin argues, it turns out that ‘[g]overnance of distributed innovation … must be both distributed and innovative’.⁷ There is no one size fits all; and the regulatory environment that is most acceptable and effective is likely to have elements of both Type 1 and Type 2 approaches together with elements that fit neither of these types.

(ii) Who counts as a ‘regulator’?

In principle, who counts as a ‘regulator’? How broad is this concept? Is the class of regulators restricted to public functionaries—or might we also find private ‘regulators’ contributing to the normative signals of the regulatory environment?

To some extent, the distinction between public and private initiators of regulation correlates with the distinction between the two types of regulatory environment. In ‘Type 1’ environments, the sources of top-down regulation will often be governments or other public agencies; by contrast, in ‘Type 2’ environments—for example, in the Drachten case or at the Warwickshire G...