Technology and Regulation https://techreg.org/ <p><strong>Technology and Regulation</strong> (TechReg) is a new interdisciplinary journal of law, technology and society. TechReg provides an <strong>open-access</strong> platform for disseminating original research on the <strong>legal and regulatory challenges</strong> posed by <strong>existing and emerging technologies</strong>.</p> <p>The Editor-in-Chief is Professor Ronald Leenes of the Tilburg Law School. Our <a href="https://techreg.org/index.php/techreg/about/editorialTeam"><strong>Editorial Board Committee</strong></a> comprises a distinguished panel of international experts in law, regulation, technology and society across different disciplines and domains.</p> <p>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.</p> Open Press TiU en-US Technology and Regulation 2666-139X <p>Submissions are published under a Creative Commons BY-NC-ND license.’</p> The Proposed EU Artificial Intelli- gence Liability Directive https://techreg.org/article/view/15772 <div class="page" title="Page 1"> <div class="layoutArea"> <div class="column"> <p>On 28 September 2022, the European Commission released its long-awaited proposal for an Artificial Intelligence Liability Directive (AILD). In contrast to the high expectations on providing a harmonised liability framework for the damage caused by AI systems, the proposed AILD only proposes minimum harmonised procedural rules to facilitate evidence disclosure and alleviate the burden of proof undertaken by claimants. This article provides a comprehensive analysis of the proposed AILD and points out the problems when implementing the proposed rules. This article argues that the AILD may never reach its full potential as its name indicates. The fragmentation among Member States regarding the substantive matters may preclude the AILD from moving a step further for harmonising substantial issues. While a comprehensive risk regulation (the EU AI Act) must be followed by an effective remedy mechanism, the proposed AILD will not fill this gap in the short run.</p> </div> </div> </div> <p> </p> Shu Li Béatrice Schütte Copyright (c) 2024 Shu Li, Béatrice Schütte https://creativecommons.org/licenses/by-nc-nd/4.0 2024-04-26 2024-04-26 2024 143 151 10.26116/techreg.2024.014 Disrupting violence while preserving encryption https://techreg.org/article/view/18062 <div class="page" title="Page 1"> <div class="layoutArea"> <div class="column"> <p>Business models adopted by online platforms have enabled the proliferation of online hate speech. Platforms providing end-to-end encrypted (E2EE) services have been under increased scrutiny for hosting hate mongers. Legislators struggle to conceptualise the responsibilities of E2EE services to not host hate speech without infringing the users’ rights to freedom of expression, association, privacy, or data protection. This interdisciplinary article proposes a new legal minimum standard expanding corporate human rights responsibilities of E2EE services to mitigate a category of criminal hate speech - incitement to violence. We explore the regulation and application of metadata, hashing, and homomorphic encryption to disrupt incitement to violence in large groups on E2EE services in compliance with human rights.</p> </div> </div> </div> Eva Nave Stephan Raaijmakers Thijs Veugen Copyright (c) 2024 Eva Nave, Stephan Raaijmakers, Thijs Veugen https://creativecommons.org/licenses/by-nc-nd/4.0 2024-04-26 2024-04-26 2024 115 131 10.26116/techreg.2024.012 General Principles of Code https://techreg.org/article/view/18136 <div class="page" title="Page 1"> <div class="layoutArea"> <div class="column"> <p>The General Data Protection Regulation has been seen as an omnibus law which potentially addresses all Internet-related problems. Yet, concerns have been raised about the broad scope of the GDPR that might be overreaching its capacity. Calls have been made to create a scalable and more targeted system of legal protection against digital wrongs. General principles governing the design and use of software should be at the foundation of such a scalable system. While automation via code is often an aspect of existing societal problems, software affordances amplify non-technology-specific problems in a unique way.</p> </div> </div> </div> Nadya Purtova Diletta Huyskes Copyright (c) 2024 Nadya Purtova, Diletta Huyskes https://creativecommons.org/licenses/by-nc-nd/4.0 2024-04-26 2024-04-26 2024 132 142 10.26116/techreg.2024.013 Decolonial Data Law and Governance https://techreg.org/article/view/18931 <div class="page" title="Page 1"> <div class="section"> <div class="layoutArea"> <div class="column"> <p>In the introduction to this special issue, we propose a decolonial take on data law and governance across three aspects through the dismantling of hegemonic structures, the embracing of pluriversality and finally the decentering of data and technology. The special issue covers papers that discuss a) what decolonisation means in relation to data law and governance for the digital economy, b) what kinds of methods should be employed to develop data governance frameworks that account for different infrastructural, social, and political contexts, and c) vocabularies and imaginations for how to regulate data, from the majority world. The papers are written from different disciplinary backgrounds of law, science, and technology studies, governance and policy, as well as media studies and present different points of view, and different entry points into the debate. In this piece, we explore ways to place them in dialogue as a plural whole.</p> </div> </div> </div> </div> Siddharth Peter de Souza Hellen Mukiri Smith Linnet Taylor Copyright (c) 2024 Siddharth Peter de Souza, Hellen Mukiri Smith, Linnet Taylor https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 1 11 10.26116/techreg.2024.001 Is the Brussels Effect Creating a New Legal Order in Africa and Latin America and the Caribbean? https://techreg.org/article/view/14317 <p>EU Regulation 2016/679 (GDPR), like the pied piper of Hamelin, has and continues to lure third countries into approximating the EU data protection framework.&nbsp; Some scholars believe the approximation of the EU framework, mostly done in a one-size-fits-all fashion, may not be appropriate in non-EU contexts mainly because (some) values advanced by the EU data protection framework may vary from or be incompatible with legal cultures and/or social norms of the recipient country/region. This paper looks into data protection in Africa and Latin America and the Caribbean (hereinafter LAC). The focus is on the evolution, influence and role of the EU in the development of data protection laws in Africa and LAC. The purpose is to ascertain whether and to what extent those laws are a result of the <em>Brussels effect</em></p> Patricia Boshe Carolina Goberna Caride Copyright (c) 2024 Patricia Boshe, Carolina Goberna Caride https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 12 18 10.26116/tecchreg.2024.002 Constitutionalism as a Way to Decolonize Global Data Law Development https://techreg.org/article/view/12854 <p>Data governance is being explored across all possible avenues, ranging from domestic laws, private standards to international treaties. Amidst this din, there are also constitutional contributions at different points of time with the potential to lay down the first principles for future adjudication and law making. This article analyses the legal histories of constitutions and landmark decisions related to public biometric use in India and South Africa to identify decolonial specificities. Global governance of data has the potential to spiral into international law making with states as the unit, without acknowledging the power differentials that exist within a state. It is time that the plurality of interests within nations are accommodated in the development of technology, as the architecture of the future. For the same, the article identifies global constitutionalism as the means through which any discussion of a global data law should be approached, taking into account the decolonial consensus in post-colonial states and its contemporary use in technological debates.</p> Anushka Mittal Copyright (c) 2024 Anushka Mittal https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 19 27 10.26116/techreg.2024.003 Towards a Human-Centred Approach to Data Extraction https://techreg.org/article/view/14245 <p>Ethical principles, such as privacy, autonomy, and human rights, have been published to govern ethical data extraction and mining. These principles aim to protect individuals from unlawful data extraction for research, development, and other purposes. While these principles are necessary to protect individuals against unlawful data extraction and mining, I argue that they do not, in practice, provide solid foundations for a human-centred approach to data extraction, given the exponential growth of surveillance capitalism and data colonialism. I contend that it is best to reorient data-driven corporations to approach data extraction from a human-centred perspective, guided by collectivist principles, such as care, human dignity, and beneficence, which I develop from Ubuntu-centred African relational moral theory. I show how these principles can contest current principles, such as respect for autonomy, privacy, and human rights, to guide a human-centred approach to data extraction.</p> Edmund Terem Ugar Copyright (c) 2024 Edmund Terem Ugar https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 28 36 10.26116/techreg.2024.004 Critical Data Governance https://techreg.org/article/view/12880 <p>Much of the conversations and practices of data governance emanate from technocratic and/or managerial lenses. This suggests a <em>double bias </em>towards (a) a linear teleological model of progress, (b) propelled by claims of objectivity and pristine scientific rationality inherent to Data. This paper seeks to move away from such approaches, to draw on the offerings of Critical Theory, to develop Critical Data Governance (CDG) as an approach that eschews objectivist, instrumentalist, and universalising tendencies. This, it does, by bringing to conversation the bodies of work on Critical Policy Studies and Critical Data Studies, in order to bring to the fore a multiplicity of policy actors, norms and values, interests and interactions, venues and deliberative sites, to the study of data governance and policymaking. Towards this, the paper showcases some examples from the South(s), and then moves on to present a provocation for CDG as a Southern Standpoint for Data, overcoming the inadequacies of Critical Theory and catering to anti-/de-colonial and anti-caste aspirations of peoples.</p> Preeti Raghunath Copyright (c) 2024 Preeti Raghunath https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 37 46 10.26116/techreg.2024.005 Tactics of Earthy Data https://techreg.org/article/view/13299 <div class="page" title="Page 1"> <div class="section"> <div class="layoutArea"> <div class="column"> <p>This article presents that decolonizing cannot happen without acknowledging the role of land relations in constituting data and radically reconstituting what we are governing when we claim to govern ‘data.’ To this end, it reflects upon how the juxtaposition of the ‘data colonialism’ and the ‘Anthropocene’ discourses can be productive by highlighting their common settler colonial impulses in understanding the categories of the ‘material’ and the ‘epistemological’ as distinctive. Next, the article draws upon the Place-Thought framework proposed by Anishinaabe-Haudenosaunee scholar Vanessa Watts and others to argue that in addition to being a demand for giving land titles to Indigenous peoples, #LandBack movements should be understood as a decolonizing call for realizing the seamless coherence of the material-epistemological, both outside and within Europe. The last section proposes earthy data as decolonizing tactics against the settler understandings of data.</p> </div> </div> </div> </div> diane U+16DE Copyright (c) 2024 diane U+16DE https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-22 2024-03-22 2024 47 62 10.26116/techreg.2024.006 Ngugi and Mazrui in Digitalization Policy https://techreg.org/article/view/13965 <p>Digitalisation of public service provision has been and remains a pillar of the Kenyan government’s approach to development. Kenya has explicitly linked digitalisation to its ambitions for development – an approach that is echoed in the political campaign materials produced and distributed by all major political parties in the country. Yet the country’s digital policy continues to be developed primarily in English, as the countries continues to build and also receive digital technologies built elsewhere, primarily in English. This paper argues that in the context of postcolonial societies like Kenya and Tanzania, this has a distinct impact of deepening power differentials within the society that are rooted in ‘coloniality’ as defined by Grosfoguel. The use of colonial languages in the creation and dissemination of digital policy is an obstacle to decolonising the internet in postcolonial societies.<br />Building from Ngugi’s work on indigenous languages in public life, the paper argues that to properly map the terrain of decolonial praxis in technology, we must engage with the power differentials embedded in how languages are perceived and experienced in postcolonial societies. Languages, the paper argues, are not only a key component of colonial violence as Ngugi argued, but they also perpetuate the power disparities of incomplete decolonisation, including for example the perception of those who speak indigenous languages as their index language as being lower class and therefore more abstract to power. The paper then summarises a project developed by the author to create a lexicon for digital rights in Kiswahili as an example of some of the decolonial praxis that is necessary to addressing these power disparities in countries like Kenya and Tanzania. In this way, the paper not only proposes a theoretical argument for decolonisation but also offers a practical example of what meaningful decolonial praxis of digital technologies can look like. Overall, the paper argues that decolonisation of digital technologies is imperative to addressing the coloniality embedded in digitalisation policy in Kenya.</p> Nanjala Nyabola Copyright (c) 2024 Nanjala Nyabola https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 63 72 10.26116/techreg.2024.007 Regulating Artificial Intelligence in Brazil https://techreg.org/article/view/13251 <div class="page" title="Page 1"> <div class="section"> <div class="layoutArea"> <div class="column"> <p>This essay discusses how critical social theory in Brazil can contribute to a revision of dominant approaches to AI regulation and a regulatory strategy focused on innovation, legal certainty, and economic development in Brazil. We explain the origins of the Brazilian Draft Bill on Artificial Intelligence Regulation and the main critiques during the discussions at the legislative houses in 2022. We argue that critical social theory can enlarge the discussion about which should be the regulatory goals of such legislation. Critical theory helps envision new principles that are connected to the structural problems of post-colonial societies. We intend to advance the project of enlarging the epistemologies of the South and expanding the view of Global Data Justice that relates to the social theory developed in the South.</p> </div> </div> </div> </div> Hana Mesquita Marina Gonçalves Garrote Rafael Augusto Zanatta Copyright (c) 2024 Hana Mesquita, Marina Garrote , Rafael Zanatta https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-22 2024-03-22 2024 73 83 10.26116/techreg.2024.008 The Double Helix of Data Extraction https://techreg.org/article/view/12927 <p>The increasing value of data is rendering data extraction ubiquitous. Looking at recent research, I argue that work critical of extractive dynamics can give rise to a ‘double-helix of data extraction’ that exacerbates existing asymmetries by appropriating the means of critique of affected populations. I show how this dynamic might play out in practice by turning to my research on astronomy data in Chile, which adopted a decolonial lens and involved Indigenous activists. Finally, a radical embracement of reflexivity attentive to both positionality and political economy is advocated as a condition for conducting properly <em>critical</em> data studies (CDS), especially in the case of research relying on decolonial approaches. Although reflexivity cannot solve the double helix, it can expose the conditions underpinning research and acknowledge the limitations of research on its own.</p> Sebastián Lehuedé Copyright (c) 2024 Sebastián Lehuedé https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-22 2024-03-22 2024 84 92 10.26116/techreg.2024.009 Data as a national asset https://techreg.org/article/view/11458 <p>The Indian state has tried to project an image of data sovereignty, seeing data in terms of a national asset that needs to be protected against the data colonialism of Western Big Tech through various policy documents and rhetoric. In this paper, I have tried to analyse this claim and tried to unravel how it sees data and defines data colonialism, unravelling the role which the Indian private sector plays in supporting that vision. I have then compared it with the work of decolonial scholars who have critically examined the impact of Big Data from the lens of data colonialism to argue how it fails to challenge the epistemological basis of data colonialism even as it projects to fight it.</p> Kushang Mishra Copyright (c) 2024 Kushang Mishra https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-18 2024-03-18 2024 93 102 10.26116/techreg.2024..010 The Chilean constitutional-making process https://techreg.org/article/view/13528 <p>The Chilean constitution making-process appears to be one of the most interesting democratic exercises of recent times within the context of a connected society and the increased interest in constitutionalism as a way of shaping and countering digital colonialism and digital constitutionalism, respectively.</p> <p>Consequently, this paper explores how the Chilean constitution-making experience contributes to framing and re-imaging the rise of digital constitutionalism by addressing the challenges of digital colonialism within a constitutional framework.</p> <p>The primary goal of this article is to analyse the path and the digital regulatory provisions of the Chilean Constitutional Convention to explore how both processes seek to offer a new approach to defining digital space through a constitutional lens. The included fundamental rights and principles should at least open the debate on the urgency to rethink how we respond to digital colonialism through a constitutional approach.</p> <p>&nbsp;</p> Verónica Mery Copyright (c) 2024 Verónica Mery https://creativecommons.org/licenses/by-nc-nd/4.0 2024-03-22 2024-03-22 2024 103 114 10.26116/techreg.2024.011