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I have long been a proponent of ‘techno-legal’ governance—a hybrid system of laws and code where laws and regulations are embedded directly into the technology system. It has become increasingly possible for us to encode legal requirements directly into the ecosystems upon which we depend. Given that neither the laissez-faire approach to governance that the US pioneered nor the regulation-heavy approach taken by Europe has proven successful at regulating digital spaces, I am hopeful that this hybrid approach will offer us new ways in which we can extract the benefits of technology while safeguarding ourselves against its harms.
As I thought more about this approach, it struck me that technology systems are inherently precise. Which means that laws hard-coded into them will be strictly enforced. When laws are embedded in the code, there is no way that a transaction will be allowed to proceed if it is not legally permitted—even if every single participant indicates a willingness to go ahead with it. Why, one might ask, is this a problem? After all, laws are written to be obeyed and any system designed to ensure that they cannot be violated can only be good for society.
This, as we well know, is not how society functions today. Even though laws are carefully drafted to describe the boundaries of what is permissible, given the imprecision inherent in some of the words used to frame them, we have come to expect latitude in enforcement. We know we must stop at a red light, but if we have to drive through one in order to get to the hospital in a hurry, we know the policeman manning the intersection will likely forgive our transgression. And that in order to get pulled over for speeding, we will need to clock much more than just a few kilometres-per-hour over the speed limit. It is thanks to this flexibility that we stay within bounds of the law most of the time, aware that we will probably be forgiven if we cross the line under certain explainable circumstances.
It is already possible for us to encode legal limitations into the technologies we use. Take speed limits, for example. It is already feasible to design a car that never exceeds the legally permissible limit, no matter how hard the driver pushes the accelerator. Commercial fleet managers routinely use speed limiters in the long-distance transport vehicles they manage, so that they never exceed the speed limit no matter where they may be. I see no reason why this technology cannot be deployed more broadly across all vehicles if we really want to programmatically ensure compliance with the law.
Not only is no such manufacturing obligation legally imposed on cars, most of the vehicles you can buy are designed to move at speeds much faster than the limit. Even though car manufacturers know that it is illegal to drive cars at their top speed, and even though the technology exists to ensure strict compliance with the law, cars that are produced today are designed so they can operate in violation of the law.
Why is this the case? Why do we design technology that can break the law when it is relatively trivial for us to ensure that it does not? All technologies incorporate within them a zone of mischief—an area between what is legally permissible and what a given technology enables. While it is technically possible to operate within the zone of mischief, we know that doing so would be a violation of the law. While the technology we operate can function in the zone of mischief, we need to decide for ourselves whether we are willing to suffer the legal consequences we will likely be subject to if we are caught.
Why do regulators permit manufacturers to enable such a zone of mischief when they know full well that it is possible to embed regulations into code? If the intention is to ensure compliance with the law, why not impose strict obligations on manufacturers to ensure that the technology they sell operates strictly within the bounds of what is legally permitted? Not only would we no longer have to monitor vehicles to ensure they are operating within prescribed speed limits, we could programatically ensure compliance with other legally mandated behaviours as well—such as ensuring that all passengers are securely buckled in or that the driver is not operating a mobile phone while driving.
The reason we do not do this—or why we permit the existence of a zone of mischief— is that it serves an important role in the innovation economy. By making it possible for users to push the boundaries of what is possible, it is possible for us to continuously test the limits of existing legal restraints to see whether they are still relevant.
Speed limits were designed with safety in mind and if it can be demonstrated that other improvements in technology have made it possible for vehicles to safely function within the zone of mischief, this might serve as a reason for regulators to revisit the restrictions they had previously imposed.
This gives innovators a much-needed zone of operation within which they can experiment. It offers them a space within which ‘creative destruction,’ as described by Joseph Schumpeter, can take place—where they can play with new ways of working that could eventually be scaled up.
As we look to adopt techno-legal governance systems, it is important that we remain alive to the need for a zone of mischief. And as we design binary regulatory systems, we should make enough space in these for us to breathe.
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