Escaping a Governance-By-Design Dystopia: Four Rules of Engagement

The Tech/Law Colloquium speaker for Tuesday, November 14, will be Deirdre Mulligan, an associate professor in the School of Information at UC Berkeley, a faculty director of the Berkeley Center for Law & Technology, and an affiliated faculty on the new Berkeley Center for Long-Term Cybersecurity. Mulligan’s research explores legal and technical means of protecting values such as privacy, freedom of expression, and fairness in emerging technical systems.  Her book, Privacy on the Ground: Driving Corporate Behavior in the United States and Europe, a study of privacy practices in large corporations in five countries, conducted with UC Berkeley Law Prof. Kenneth Bamberger was recently published by MIT Press.

Talk: Escaping a Governance-By-Design Dystopia: Four Rules of Engagement

Watch this talk remotely here.

Abstract: Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship discusses individual skirmishes over the political impact of technical choices—from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that “design wars”—competing efforts to use technology to embed values—are on the verge of becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill equipped to prevent that phenomenon from subverting public governance.

Far from being a panacea, this trend has precipitated a governance dystopia that has chipped away at our voting, speech, privacy, equality, and property rights. In administrative agencies, courts, Congress, and international policy bodies, public discussions about embedding values in design arise in a one-off, haphazard way, if they happen at all. Constrained by their structural limitations, these traditional venues rarely explore the full range of other values that design might affect, and often advance a single value or occasionally pit value one against another. They seldom permit a meta-discussion about when, and whether, it is appropriate to enlist technology in the service of values. And their policy discussions almost never include designers, engineers, and those that study the impact of socio-technical systems on values. The technology choices produced through such processes often hide government and corporate aims, and obscures policy choices altogether.

Through five case studies, this talk examines a range of past battles over the values embedded in technology design, and makes the case that we are entering an era of policymaking by “Design War.” It identifies key problems with current governance-by-design processes and four new rules of engagement that construct a framework to help decision makers protect values and democratic processes as they consider regulating by technology.