The By-Design Approach Revisited: Lessons From COVID-19 Contact Tracing Apps

Abstract

The by-design approach, namely, the belief that pre-embedding values in the design level of technology will bring about the desired social consequences, has become a cornerstone of the modern regulatory approach to technology. It generally assumes that norms could be embedded in technological design, and therefore technology could effectively govern users’ behavior, surpassing governance by legal norms.

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Technologies (CTTs(, which were deployed during the Covid-19 pandemic to interrupt the chains of infection by tracing contact with confirmed patients.

The CTT case study demonstrates a major flaw of the exclusive focus on technological solutions while overlooking the critical role of other social regulatory forces. It offers a rare opportunity to compare two extreme examples of technological affordances, reflecting contradictory strategies of contact tracing. One approach deployed a voluntary, privacy-friendly, transparent, and open-source civilian technology, while the other repurposed a mandatory state surveillance system, originally designed to gather intelligence concerning homeland security. Obviously, each approach raised different expectations and almost contrary sentiments. While in the case of the civilian app, HaMagen (“The Shield”), it was expected that users would flock to the app store, the use of the Israeli General Security Service’s (GSS) surveillance capabilities (known as “the TOOL”) over a civilian population was perceived as a possible harbinger of “the end of democracy.” However, neither the high hopes pinned on HaMagen nor the grave fears of the TOOL have materialized: while the civil app’s qualities have not mobilized the bulk of users to adopt, the TOOL was gradually disarmed of its unbounded intrusive powers through a mixture of institutional efforts, including extensive judicial and parliamentary review, until it was finally banned.

Keywords: by-design, privacy, surveillance, human rights, Covid-19, Contact Tracing, solutionism