Framing Techno-Regulation: An Exploration of State and Non-State Regulation by Technology

Legisprudence, Vol. 5, No. 2, pp. 143-169, October 2011

Tilburg Law School Research Paper No. 10/2012

28 Pages Posted: 29 Nov 2013

See all articles by Ronald E. Leenes

Ronald E. Leenes

Tilburg Institute for Law, Technology, and Society; Tilburg Law School; Tilburg University

Date Written: October 10, 2011

Abstract

Artifacts are generally constructed on purpose and have intended and unintended effects on the conduct of people. As such, architecture can be used in regulating society, as speed ramps convincingly show. But is this de facto regulating behavior by means of technology, regulating society in a legal sense, or is it merely disciplining society? Individuals can decide not to comply with legislation but are generally forced to observe the norms imposed upon them by techno-regulation. Many prominent examples of techno-regulation can be found in the context of ICT, for instance DRM, content filtering, privacy enhancing technologies. Users in these contexts are typically bound by the norms embedded in the technology, without these norms being very transparent. Furthermore, techno-regulation in the ICT context is most prominently driven by industry, not government. The combination of the obscurity of the norms embedded in the technology, the strict enforcement of these norms and the process of their enactment raise many questions regarding the legal status and legal effects of techno-regulation. This paper explores the different forms of techno-regulation instituted by both public and private regulators in more detail and tries to answer the question how techno-regulation by public and private regulators should be understood from a legal point of view. The paper argues that state authored techno-regulation has to be seen as supplemental to regular regulation because legitimacy requires the norms to be transparent and the regulator to be accountable for the norms. With regards to non-state authored techno- regulation, the image is more diffuse. Some instances of techno-regulation have a clear legal status and the legal effects of transgressing the techno-norms are clear as well. In other cases, the legal status of the norms is unclear, yet their regulative effect real.

Keywords: techno-regulation, regulation by technology, code

JEL Classification: K10, K39, K42, I28, D63, D72, D78

Suggested Citation

Leenes, Ronald E., Framing Techno-Regulation: An Exploration of State and Non-State Regulation by Technology (October 10, 2011). Legisprudence, Vol. 5, No. 2, pp. 143-169, October 2011; Tilburg Law School Research Paper No. 10/2012. Available at SSRN: https://ssrn.com/abstract=2182439 or http://dx.doi.org/10.2139/ssrn.2182439

Ronald E. Leenes (Contact Author)

Tilburg Institute for Law, Technology, and Society

NL-5000 LE Tilburg
Netherlands

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE
Netherlands

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