Table Of Content

LAW, TECHNOLOGY AND SOCIETY 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. Roger Brownsword has professorial appointments in the Dickson Poon School of Law at King’s College London and in the Department of Law at Bournemouth University, and he is an honorary Professor in Law at the University of Sheffield. Part of the Law, Science and Society series Series editors John Paterson University of Aberdeen, UK Julian Webb University of Melbourne, Australia For information about the series and details of previous and forthcoming titles, see https://www.routledge.com/law/series/CAV16 A GlassHouse Book LAW, TECHNOLOGY AND SOCIETY Re-imagining the Regulatory Environment Roger Brownsword First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 a GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Roger Brownsword The right of Roger Brownsword to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-8153-5645-5 (hbk) ISBN: 978-0-8153-5646-2 (pbk) ISBN: 978-1-351-12818-6 (ebk) Typeset in Galliard by Apex CoVantage, LLC CONTENTS Preface vii Prologue 1 1 In the year 2061: from law to technological management 3 PART ONE Re-imagining the regulatory environment 37 2 The regulatory environment: an extended field of inquiry 39 3 The ‘complexion’ of the regulatory environment 63 4 Three regulatory responsibilities: red lines, reasonableness, and technological management 89 PART TWO Re-imagining legal values 109 5 The ideal of legality and the Rule of Law 111 6 The ideal of coherence 134 7 The liberal critique of coercion: law, liberty and technology 160 vi Contents PART THREE Re-imagining legal rules 179 8 Legal rules, technological disruption, and legal/ regulatory mind-sets 181 9 Regulating crime: the future of the criminal law 205 10 Regulating interactions: the future of tort law 233 11 Regulating transactions: the future of contracts 265 12 Regulating the information society: the future of privacy, data protection law, and consent 300 Epilogue 335 13 In the year 2161 337 Index 342 PREFACE In Rights, Regulation and the Technological Revolution (2008) I identified and discussed the generic challenges involved in creating the right kind of regulatory environment at a time of rapid and disruptive technological development. While it was clear that new laws were required to authorise, to support, and to limit the development and application of a raft of novel technologies, it was not clear how regulators might accommodate the deep moral differences elicited by some of these technologies (particularly by biotech- nologies), how to put in place effective laws when online transactions and interactions crossed borders in the blink of an eye, and how to craft sustain- able and connected legal frameworks. However, there was much unfinished business in that book and, in particular, there was more to be said about the way in which technological instruments were themselves being deployed by regulators. While many technological applications assist regulators in monitoring compliance and in discouraging non-compliance, there is also the prospect of applying complete technological fixes—for example, replacing coin boxes with card payments, or using GPS to immobilise supermarket trolleys if someone tries to wheel them out of bounds, or automating processes so that both potential human offenders and potential human victims are taken out of the equation, thereby eliminating certain kinds of criminal activity. While technological management of crime might be effective, it changes the complexion of the regulatory environment in ways that might be corrosive of the prospects for a moral community. The fact that pervasive technological management ensures that it is impossible to act in ways that violate the personal or proprietary interests of others signifies, not a moral community, but the very antithesis of a community that strives freely to do the right thing for the right reason. viii Preface At the same time, technological management can be applied in less con- troversial ways, the regulatory intention being to promote human health and safety or to protect the environment. For example, while autonomous vehicles will be designed to observe road traffic laws—or, at any rate, I assume that this will be the case so long as they share highway space with driven vehicles—it would be a distortion to present the development of such vehicles as a regulatory response to road traffic violations; the purpose behind autonomous cars is not to control crime but, rather, to enhance human health and safety. Arguably, this kind of use of a technological fix is less problematic morally: it is not intended to impinge on the opportunities that regulatees have for doing the right thing; and, insofar as it reduces the opportunities for doing the wrong thing, it is regulatory crime rather than ‘real’ crime that is affected. However, even if the use of technological management for the general welfare is less problematic morally, it is potentially highly disruptive (impacting on the pattern of employment and the preferences of agents). This book looks ahead to a time when technological management is a significant part of the regulatory environment, seeking to assess the implications of this kind of regulatory strategy not only in the area of criminal justice but also in the area of health and safety and environmental protection. When regulators use technological management to define what is possible and what is impossible, rather than prescribing what regulatees ought or ought not to do, what does this mean for the Rule of Law, for the ideals of legality and coherence? What does it mean for those bodies of criminal law and the law of torts that are superseded by the technological fix? And, does the law of contract have a future when the infrastructure for ‘smart’ transactions is technologically managed, when transactions are automated, and when ‘trans- actors’ are not human? When we put these ideas together, we see that technological innovation impacts on the landscape of the law in three interesting ways. First, the development of new technologies means that some new laws are required but, at the same time, the use of technological management (in place of legal rules) means that some older laws are rendered redundant. In other words, technological innovation in the present century signifies a need for both more and less law. Secondly, although technological management replaces a con- siderable number of older duty-imposing rules, the background laws that authorise legal interventions become more important than ever in setting the social licence for the use of technological management. Thirdly, the ‘risk management’ and ‘instrumentalist’ mentality that accompanies technological management reinforces a thoroughly ‘regulatory’ approach to legal doctrine, an approach that jars with a traditional approach that sees law as a formalisa- tion of some simple moral principles and that, concomitantly, understands legal reasoning as an exercise in maintaining and applying a ‘coherent’ body of doctrine. Preface ix If there was unfinished business in 2008, I am sure that the same is true today. In recent years, the emergence of AI, machine learning and robotics has provoked fresh concerns about the future of humanity. That future will be shaped not only by the particular tools that are developed and the ways in which they are applied but also by the way in which humans respond to and embrace new technological options. The role of lawyers in helping communi- ties to engage in a critical and reflective way with a cascade of emerging tools is, I suggest, central to our technological futures. The central questions and the agenda for the book, together with my developing thoughts on the concepts of the ‘regulatory environment’, the ‘complexion’ of the regulatory environment, the notion of ‘regulatory coherence’, the key regulatory responsibilities, and the technological disruption of the legal mind-set have been prefigured in a number of my publications, notably: ‘Lost in Translation: Legality, Regulatory Margins, and Techno- logical Management’ (2011) 26 Berkeley Technology Law Journal 1321– 1365; ‘Regulatory Coherence—A European Challenge’ in Kai Purnhagen and Peter Rott (eds), Varieties of European Economic Law and Regulation: Essays in Honour of Hans Micklitz (New York: Springer, 2014) 235–258; ‘Comparatively Speaking: “Law in its Regulatory Environment” ’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law (Festschrift for Mark van Hoecke) (Oxford: Hart, 2014) 189–205; ‘In the Year 2061: From Law to Technological Management’ (2015) 7 Law, Innovation and Technology 1–51; ‘Field, Frame and Focus: Methodologi- cal Issues in the New Legal World’ in Rob van Gestel, Hans Micklitz, and Ed Rubin (eds), Rethinking Legal Scholarship (Cambridge: Cambridge Uni- versity Press, 2016) 112–172; ‘Law as a Moral Judgment, the Domain of Jurisprudence, and Technological Management’ in Patrick Capps and Shaun D. Pattinson (eds), Ethical Rationalism and the Law (Oxford: Hart, 2016) 109–130; ‘Law, Liberty and Technology’, in R. Brownsword, E. Scotford, and K.Yeung (eds), The Oxford Handbook of Law, Regulation and Technol- ogy (Oxford: Oxford University Press, 2016 [e-publication]; 2017) 41–68; ‘Technological Management and the Rule of Law’ (2016) 8 Law, Innovation and Technology 100–140; ‘New Genetic Tests, New Research Findings: Do Patients and Participants Have a Right to Know—and Do They Have a Right Not to Know?’ (2016) 8 Law, Innovation and Technology 247–267; ‘From Erewhon to Alpha Go: For the Sake of Human Dignity Should We Destroy the Machines?’ (2017) 9 Law, Innovation and Technology 117–153; ‘The E-Commerce Directive, Consumer Transactions, and the Digital Single Mar- ket: Questions of Regulatory Fitness, Regulatory Disconnection and Rule Redirection’ in Stefan Grundmann (ed) European Contract Law in the Digi- tal Age (Cambridge: Intersentia, 2017) 165–204; ‘After Brexit: Regulatory- Instrumentalism, Coherentism, and the English Law of Contract’ (2018) 35 Journal of Contract Law 139–164; and, ‘Law and Technology: Two Modes