Abort, retry, fail: scoping techno-regulation and other techno-effects

Bibi van den Berg, Ronald Leenes (2012), Abort, retry, fail: scoping techno-regulation and other techno-effects, in Mireille Hildebrandt & Jaenne Gakeer (eds.) eds.), Human Law and Computer Law: Comparative Perspectives, Dordrecht, etc: Springer Ius Gentium: Comparative Perspectives on Law and Justice 25, DOI 10.1007/978-94-007-6314-2_4


Technology affects behaviour. Speed bumps, for instance, provide a rather effective way to enforce speed limits imposed by the legislator. In cases such as these, technology is instrumental to the enforcement of legal norms. Increasingly, norms are also embedded into technology by private parties. DVD players are equipped with region codes and other Digital Rights Management systems to regulate the market for digital content consumption. This kind of regulation by technology, techno-regulation, or ‘code as code’ is becoming 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 or rather inhibits them. What is less clear is what the boundaries of techno-regulation are. Technology is never neutral and hence all technology affords certain actions and inhibits others. Does this warrant all influences of technology on human behaviours to be designated techno-regulation? We think not.

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 anthropomorphisation. The paper draws from legal philosophy, STS, human computer interaction and regulation theory.

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