Who Should Regulate Disruptive Technology?

Abstract

The primary concern of the present paper is the cost of acquiring information by judges and legislators in the process of regulating new technologies. The paper distinguishes between risky and uncertain applications of technology. A risky technology poses an obvious risk, and the problem before the regulator is one of comparing cost and benefit. We argue that the judiciary, which acquires information gratis from litigants, is better suited to the regulation of risky technologies. Uncertain technologies, on the other hand, can be harmful in ways which cannot be foreseen at the time of the technological innovation. Cost and benefit are incalculable; regulation must instead be based on subjective preferences about the degree of uncertainty that society should tolerate. Legislative law-making is designed with a view to aggregating subjective preferences. Accordingly, uncertain technologies should be regulated through statute.

Emerging technologies and problem definition uncertainty: The case of cybersecurity

“…Theories of regulation help specify when legislatures should delegate to the bureaucracy and when they should delegate to the courts. For technology regulation, the decision may depend on the degree of uncertainty, typically defined as unforeseen harms (Kołacz et al 2019; see also Fiorina 1982). Expanding our conception of regulatory uncertainty to include uncertainty over who would regulate based on how the problem would be defined may in turn change our conceptions of how to regulate emerging technologies and the tradeoffs between flexibility and coordination.…”

“…Managing risk involves balancing known costs; how do the costs of regulation compare to the cost of any potential (foreseen) harm? (Lambright & Heckley 1985;Kołacz et al 2019) Regulatory uncertainty can be defined generally as "change in the regulatory process" (Cook et al 1983). Under that conception, uncertainty in technology regulation can take several forms.…”

“…Under that conception, uncertainty in technology regulation can take several forms. Policymakers may be uncertain about either the consequences of an unregulated technology, the consequences of any potential regulation on innovation, or both (Kołacz et al 2019). Risk itself may be uncertain as advocates produce competing evidence (Zerbe 2007).…”

“…(Lambright & Heckley 1985; Kołacz et al . 2019) Regulatory uncertainty can be defined generally as “change in the regulatory process” (Cook et al . 1983).…”

Adaptive governance for the Internet of Things: Coping with emerging security risks

“…Balancing the trade-offs intrinsic in fostering innovation and managing technological risk demands more timely characterizations of rapidly emerging sociotechnical risks, renewing discussions on the role and scope of technology regulation (Brownsword & Yeung 2008;Raab & De Hert 2008;Bennett Moses 2013;Butenko & Larouche 2015;Kołacz et al 2019). In particular, debates on the practice of risk regulation and regulatory policy highlight the interplay between the design of comprehensive regulatory mixes (Heldeweg & Kica 2011;Stokes & Bowman 2012) and the kinds of expertise necessary for these regulatory mixes to keep pace.…”