Download Regulating Technologies

Rights, Regulation, and the
Technological Revolution
Roger Brownsword
Centre for Technology, Ethics, Law & Society (TELOS)
School of Law, King’s College London
Outline
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1. Work already done on law, regulation,
and emerging technologies: main ideas.
2. Work in progress.
3. The bearing of this work on the idea of
“tentative governance”
1. Work Done: Main
Sources
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Rights, Regulation and the Technological
Revolution (OUP, 2008)
Regulating Technologies (Hart, 2008)
(edited with Karen Yeung)
“Law, Innovation and Technology: Before
We Fast Forward—A Forum for Debate”
(2009) 1 Law, Innovation and
Technology 1 (with Han Somsen)
Three Key Objectives
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To frame and organise our generic thinking
about law, regulation, and emerging
technologies---a series of regulatory challenges
(concerning legitimacy, effectiveness,
connection, and cosmopolitanism)
To flag up a concern that the use of technology
and design as regulatory instruments might
corrode the conditions for moral community.
To defend and articulate a particular view of
moral community---a community of rights---and
its approach to emerging technologies.
2. Work in Progress
The nature of the regulatory environment
 Questions of prudence, precaution and
stewardship
 The prospects for, and limits of, the turn to
proceduralism in the face of pluralism.
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A. The Nature of the
Regulatory Environment
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A setting in which regulators signal to regulatees that
certain conduct is acceptable.
Type 1 (top down) and Type 2 (bottom up) regulatory
environments.
Three regulatory registers: moral, prudential, and
practicable/possible.
Three generations of regulatory environment: (i)
normative; (ii) normative plus designed products and
places; and (iii) normative plus designed products,
places, and persons.
Some of the Moves to Watch
From the moral register to the prudential
register.
 From the moral or prudential register to the
register of practicability or possibility.
 From transparent regulatory environments to
embedded regulation.
 From differentiated regulation to onedimensional risk regulation.
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B. Prudence, Precaution,
and Stewardship
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Prudential reasoning: purely self-interested
calculation; no regard for legitimate interests of
others.
Where decision is purely self-regarding, regulatory
responsibility is to facilitate informed decision-making.
Where decision impacts on others, how do regulators
determine level of “acceptable risk”?
Is there any reason for regulators to privilege the
preferences of those who are more risk-averse?
Precaution
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In context of uncertainty, how does
precautionary reasoning differ from more
complex risk reasoning (kind of harm,
likelihood of harm, kind of benefit, likelihood
of benefit)?
Suppose that pure precautionary reasoning
is engaged where we cannot rule out the
possibility of certain kinds of harm. In such
a case, the fact that we cannot specify the
likelihood of harm is irrelevant.
Stewardship
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Imagine a set of infrastructural conditions that are
essential for human social existence per se. We can
debate what these conditions are.
Imagine a set of infrastructural conditions that are
essential for a particular kind of human community.
Regulators have generic stewardship
responsibilities in relation to the first set of
conditions and contingent stewardship
responsibilities in relation to the second set of
conditions.
The Competence of
Regulatory Stewards
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Debates about the competence of regulators tend to
assume that the infra-structural conditions for
human existence are in place; the question is about
the reasons that might justify regulatory action in
relation to superstructural interactions and
transactions.
Lawyers look to constitutions for guidance; ethicists
look to social contracts, teleology and deontology.
But what reasons justify regulatory action in relation
to the infra-structural conditions? The basic
responsibility is to prevent a tragedy of the
commons.
Precaution and
Stewardship
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Precautionary reasoning takes the form:
where there is uncertainty that doing x is
causing y, and where y is valued, then we
should not do x.
Where x is not valued, this is easy: giving up
x is simply being safe rather than sorry.
Where x is valued, we get drawn into a
balancing exercise that we cannot resolve
because of the inherent uncertainty.
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But, suppose that y is a quite different order of value
to x, such that x would be worthless without y: then,
for precautionary reasons, we give up x (even though
x is valued) because it presupposes y.
Assuming that we are dealing with y (we believe that
there might be a risk to y), we no longer need worry
about trying to assess the probability of x causing y.
So, what is the test? Reasonable suspicion or
plausibility? In pure precautionary reasoning,
regulators can justify preventive action simply
because they cannot rule out the possibility that x is
causing infra-structural damage to y.
C. Pluralism and Procedural
Justification
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Amy Gutmann: synthetic biology and
deliberative democracy.
Prudential pluralism.
Ethical pluralism---the bioethical triangle.
Closed ethical pluralism: same baseline values,
different interpretations.
Open ethical pluralism: different baseline
values.
Convergence.
Non-convergent open ethical pluralism. How
can regulators justify their position?
The Final Appeal
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Where regulators face conditions of “open
ethical pluralism”, where baseline values are
contested, it is less clear that deliberative
democracy can work. In the most challenging
cases of open ethical pluralism, it is not
sufficient for regulators to appeal to the integrity
of the decision-making process; here, the final
regulatory appeal is to the shared aspiration of
regulatees to build a moral community.
3 Tentative Governance
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Dealing with uncertainty
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Dealing with moral pluralism
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Provisionality of regulatory position where
risk profile is uncertain
Treating regulatory position as provisional
and reviewable
Dealing with unintended regulatory effects
Dealing with rapidly changing technologies
and the challenge of connection.
Tentative reliance on design
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If regulators use technology to design
out (or in) certain conduct, this can
have:
Corrosive effects for moral
community; and
 It can reduce the scope for
autonomous action.
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Regulators need to be tentative before
using such instruments.
Conclusions
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We need to understand more about the
complexity of the regulatory environment.
About how one item of regulation interacts
with others
About the way in which regulatees respond
And about the way in which emerging
technologies affect the dynamics of
regulation and reaction.
If “tentative governance” implies a constant
process of learning, then it points in the
right direction.
Concluding remarks
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Moreover, where regulators have to take a controversial
position in conditions of moral plurality, “tentative
governance” sets the right tone.
At the same time, though, we need to construct a
stewardship paradigm with a precautionary competence
and retrieve the discourse of moral concern (both of
which are threatened by an all-consuming risk discourse).
Where we cannot rule out the possibility of infrastructural
threats, regulators should be decisive, not tentative
That is, regulators have a responsibility to check for
agency-compromising technologies; and, in moral
communities, regulators should be sensitive to the
corrosion of the conditions for moral agency---in relying
on design, regulators should indeed be tentative.