Challenging Technical Expertise

Abstract

This Article explores an underlying assumption of much law and technology scholarship and policy—namely, that technical expertise is necessary for technology policymaking. This assumption is so embedded in tech policy and scholarship that many scholars and policymakers take it for granted. This Article changes that. It surfaces the three implicit rationales for integrating technical expertise into tech policymaking (and a fourth if we include no rationale at all!): the unique nature of digital technologies, the capability of technical expertise to enable governance of those technologies, and the affinities between certain technical and legal values. Although these arguments are repeated often, only a few withstand scrutiny. This does not mean that there is no role for technical know-how in this space. Nor does it mean that the opposites of expertise—namely, willful ignorance or raw power—are the only other or best options. The goals of this Article are to bring nuance and precision where there have been only generalities. It seeks to identify the conditions in which technical expertise can actually make better policy and regulations in the public interest. To that end, I identify three such conditions: where technical complexity both impedes regulation and is scrutable to experts, where government regulators need to evaluate scrutable technical claims for legal compliance, and where the interests of experts align with the public interest.

Keywords: Law and technology, Expertise, Artificial intelligence, AI, Privacy, Oligarchy, Technical expertise, theory, Policymaking, Lawmaking, Regulation