Abort, Retry, Fail: Scoping Techno-Regulation and Other Techno-Effects
Technology affects behaviour. Speed bumps, for instance, provide an effective way to enforce speed limits imposed by the legislator. In cases such as these, technology is instrumental to the enforcement of legal norms. This kind of regulation by technolog
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Abort, Retry, Fail: Scoping Techno-Regulation and Other Techno-Effects Bibi van den Berg and Ronald E. Leenes
Questions about the way that code regulates, and about its role within systems of social ordering more generally, are systematically overlooked. (Cohen 2012: 20)
Abstract Technology affects behaviour. Speed bumps, for instance, provide an effective way to enforce speed limits imposed by the legislator. In cases such as these, technology is instrumental to the enforcement of legal norms. This kind of regulation by technology, techno-regulation, or ‘code as code’ has become part of the contemporary regulator’s toolbox. The idea underlying this kind of influencing behaviour by means of technology is relatively straightforward. Norms can be transformed into computer code or architecture in a way that affords certain actions or functions and inhibits others. What is less clear is what the boundaries of technoregulation are. In this paper we analyse how technology affects human behaviour and we present a typology of techno-effects in order to provide a clear boundary of techno-regulation vis-à-vis other normative and functional aspects of technology. We survey topics such as nudging, affordance, scripts embedded in technological designs, and anthropomorphization. The paper draws from legal philosophy, STS, human computer interaction and regulation theory.
B. van den Berg (*) Leiden Law School, eLaw, Leiden University, Steenschuur 25, Leiden 2311 ES, The Netherlands e-mail: [email protected] R.E. Leenes Tilburg Institute for Law, Technology, and Society, Tilburg University, Tilburg, The Netherlands e-mail: [email protected] M. Hildebrandt and J. Gaakeer (eds.), Human Law and Computer Law: Comparative Perspectives, Ius Gentium: Comparative Perspectives on Law and Justice 25, DOI 10.1007/978-94-007-6314-2_4, © Springer Science+Business Media Dordrecht 2013
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B. van den Berg and R.E. Leenes
Introduction
Regulators and designers have long since realised that (technological) artefacts can be deployed in various ways to influence, steer and/or change human behaviour. Architects know that the design of a space directly affects the behaviour of individuals in that space. Using the placement of, for example, barriers, doors, passageways and staircases they can predict and affect the way individuals move through or use a space. Similarly, when designers create new technologies, their design choices have a bearing on the way in which these products are used: they can steer the behaviour of users by facilitating some forms of use, while inhibiting others (cf. Dommering 2006: 7; Norman 1988; Van den Berg 2010b). What is more, regulators sometimes use artefacts to directly influence the behaviour of citizens as well. For example, using speed bumps is a very effective way to ensure that drivers adhere to a speed limit set in a specific area – it leaves drivers much less room to drive too fast than, for example, the placement of traffic signs does (Brownsword 2008; Latour 1992; Leenes 2010, 2011;
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