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Technology and Regulation (TechReg), Volume 2021 so far contains 6 papers:
Keeping up with cryptocurrencies: How financial regulators used radical innovation to bolster agency reputation
Lauren Fahy, Scott Douglas, Judith van Erp, pp. 1-16 PDF
Invented in 2008 with Bitcoin, cryptocurrencies represent a radical technological innovation in finance and banking; one which threatened to disrupt the existing regulatory regimes governing those sectors. This article examines, from a reputation management perspective, how regulatory agencies framed their response. Through a content analysis, we compare communications from financial conduct regulators in the UK, US, and Australia. Despite the risks, challenges, and uncertainties involved in cryptocurrency supervision, we find regulators treat the technology as an opportunity to bolster their reputation in the immediate wake of the Global Financial Crisis. Regulators frame their response to cryptocurrencies in ways which reinforce the agency’s ingenuity and societal importance. We discuss differences in framing between agencies, illustrating how historical, political, and legal differences between regulators can shape their responses to radical innovations.
Not Hardcoding but Softcoding Data Protection
Aurelia Tamò-Larrieux, Simon Mayer, and Zaïra Zihlmann, pp. 17-34 PDF
The delegation of decisions to machines has revived the debate on whether and how technology should and can embed fundamental legal values within its design. While these debates have predominantly been occurring within the philosophical and legal communities, the computer science community has been eager to provide tools to overcome some challenges that arise from ‘hardwiring’ law into code. What emerged is the formation of different approaches to code that adapts to legal parameters. Within this article, we discuss the translational, system-related, and moral issues raised by implementing legal principles in software. While our findings focus on data protection law, they apply to the interlinking of code and law across legal domains. These issues point towards the need to rethink our current approach to design-oriented regulation and to prefer ‘soft’ implementations, where decision parameters are decoupled from program code and can be inspected and modified by users, over ‘hard’ approaches, where decisions are taken by opaque pieces of program code.
On the legal responsibility of artificially intelligent agents: Addressing three misconceptions
Antonia Waltermann, pp. 35-43 PDF
This paper tackles three misconceptions regarding discussions of the legal responsibility of artificially intelligent entities: these are that they (a) cannot be held legally responsible for their actions, because they do not have the prerequisite characteristics to be ‘real agents’ and therefore cannot ‘really’ act. (b) should not be held legally responsible for their actions, because they do not have the prerequisite characteristics to be ‘real agents’ and therefore cannot ‘really’ act. (c) should not be held legally responsible for their actions, because to do so would allow other (human or corporate) agents to ‘hide’ behind the AI and escape responsibility that way, while they are the ones who should be held responsible. (a) is a misconception not only because (positive) law is a social construct, but also because there is no such thing as ‘real’ agency. The latter is also the reason why (b) is misconceived. The arguments against misconceptions a and b imply that legal responsibility can be constructed in different ways, including those that hold both artificially intelligent and other (human or corporate) agents responsible (misconception c). Accordingly, this paper concludes that there is more flexibility in the construction of responsibility of artificially intelligent entities than is at times assumed.
Reviving Purpose Limitation and Data Minimisation in Data-Driven Systems
Asia J Biega & Michèle Finck, pp. 44-61 PDF
This paper determines whether the two core data protection principles of data minimi- sation and purpose limitation can be meaningfully implemented in data-driven systems. While contemporary data processing practices appear to stand at odds with these prin- ciples, we demonstrate that systems could technically use much less data than they currently do. This observation is a starting point for our detailed techno-legal analysis uncovering obstacles that stand in the way of meaningful implementation and compliance as well as exemplifying unexpected trade-offs which emerge where data protection law is applied in practice. Our analysis seeks to inform debates about the impact of data protection on the development of artificial intelligence in the European Union, offering practical action points for data controllers, regulators, and researchers.
The right of access to personal data: A genealogy
René Mahieu, pp. 62-75 PDF
In this paper, I analyze several traditions of data protection to uncover the theo- retical justification they provide for the right of access to personal data. I find little support for the claim that the right follows from the German tradition of “infor- mational self-determination” or Westin’s idea of “privacy as control”. Instead, two other less known theories of data protection appear to offer a direct justification for the right of access. First, Westin and Baker’s “due process” view, which access helps to expose error and bias in decision-making, thereby contributing to correct decisions and allowing affected people to be involved in the decision making. Sec- ond, Rodotà’s “power reversal” view of access which enables social control over the processing of personal data and serves as a counterbalance to the centers of power by placing them under the control of democratic accountability.
SPECIAL ISSUE: Should Data Drive Private Law
Introduction: part one
Vanessa Mak, Catalina Goanta, Monika Leszczynska
Fostering Consumer Protection in the Granular Market: the Role of Rules on Consent, Misrepresentation and Fraud in Regulating Personalized Practices
Antonio Davola, pp. 76-86 PDF
Companies increasingly employ data-driven technologies for the allocation and display of offers and advertising based on detailed consumer monitoring. Consumers may fail to recognize the manipulation of their choices if they are unaware of the exploitation of their habits, mental models, and biases. Companies may make use of consumers’ cognitive limitations and individual frailties to their disadvantage. Against this backdrop, private law rules could provide meaningful normative guidance in regulating personalized commercial practices. The article examines the role and characteristics of provisions regulating defective consent and misrepresentation to evaluate whether these rules could incorporate emerging find- ings on personalized practices and operate as viable instruments for the modernization of consumer protection.
Technology and Regulation (TechReg) is a new interdisciplinary journal of law, technology and society. TechReg provides an open-access platform for disseminating original research on the legal and regulatory challenges posed by existing and emerging technologies.
The Editor-in-Chief is Professor Ronald Leenes of the Tilburg Law School. Our Editorial Board Committee comprises a distinguished panel of international experts in law, regulation, technology and society across different disciplines and domains.
TechReg aspires to become the leading outlet for scholarly research on technology and regulation topics, and has been conceived to be as accessible as possible for both authors and readers.