Challenging Technology Expertise

Abstract

This Article challenges a defining feature of law and technology scholarship and policy—namely, the assumption that technology expertise is necessary for technology policymaking.

The assumption that making law about advanced, data-driven technologies like automated, algorithmically driven processes often described as artificial intelligence (AI) requires knowledge of and experience with how underlying technologies work is repeated so often that many take it for granted. But in adopting this assumption, many scholars and policymakers have failed to sufficiently think through the underlying rationales. In doing so, they have failed to see the pathologies of what is, at its core, a political decision to value some voices and policy approaches over others.

This Article surfaces the three implicit rationales for integrating tech expertise into tech policymaking (a fourth if we include no rationale at all!): the unique nature of digital technologies, the capability of technology expertise to enable governance of those technologies, and the affinities between certain technology and legal values. And it demonstrates that these rationales are based on faulty premises, contain fatal logical flaws, and lead to policies that privilege deregulatory agendas and put vulnerable populations at risk. The case for policy deference to technology expertise is weak.

The Article then proposes an alternative. It argues that the conventional wisdom has it exactly backwards. While the standard account implies that expertise must precede good policy, ex ante policy choices should instead define the role of tech expertise. The Article therefore turns the tech policy debate on its head. In some cases, that may mean that technology expertise plays no role; in other cases, it may mean tech expertise helps enforce the law. In all cases, the role of technology expertise should serve policy goals.

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