Both consumer and industry advocates argue that regulation should be “technology-neutral.”
Bert-Jaap Koops has carefully explored the demand for technology-neutral regulation. He begins the inquiry by asking why technology law in particular should be technology-neutral. Koops uses the example of traffic law, where there are no calls for uniform technical rules for bicycles, cars, and heavy trucks.
Koops goes on to explain that “technical neutrality” carries three possible meanings, and these meanings can result in conflict:
From the perspective of the goal of regulation, the statement stresses that, in principle, the effects of ICT should be regulated, but not technology itself; it may thus serve as a means to achieve equivalence between off-line and on-line regulation. From the perspective of technology development, the statement stresses that, in principle, regulation should not have a negative effect on the development of technology and should not unduly discriminate between technologies. From the perspective of legislative technique, [technology neutrality] stresses that legislation should abstract away from concrete technologies to the extent that it is sufficiently sustain- able and at the same provides sufficient legal certainty.
Koops argues that the last justification is the most meritorious to promote sustainable lawmaking.
Applied to US policy debates, these three meanings of technologically neutral regulation have very different outcomes. Consider Koops’ first and third categories. These would militate for broad, preventative, principles-based legislation.
Statutes such as the Fair Credit Reporting Act and the Video Privacy Protection Act, which define prohibited behaviors regardless of technology used, may qualify under this definition of technical neutrality. At the same time, laws such as the Communication Decency Act’s immunity for online platforms would be suspect, because it creates radically different outcomes for online and offline intermediary liability.
Much US regulation, and virtually all self-regulation, violates the principles of Koops’ second definition, which commands that technologies should not be discriminated against. In American parlance, this is often said as “regulation should not pick winners and losers.”
However, almost all anti-marketing regulation is technology-specific, in the sense of picking winners and losers, as are most self-regulatory regimes in privacy. This is because of First Amendment constraints, which require the government to tailor regulation to the affordances of specific technologies. As a result, regulation tends to be reactive, rather than proactive, and target specific technologies. But it is also because of power dynamics. Automatic dialers, for instance, greatly enhanced the ability of telemarketers to call individuals, resulting in millions of “dead-air” hang-up calls. Regulation targets this technology for its power transfer to telemarketers. It is asymmetric as it greatly increases telemarketer efficiency while giving the consumer no tools (or even disabling their tools) to counter the interruption. Prerecorded voice marketing presents a similar, asymmetric threat to individuals. With minimal investment, a caller can cause massive interruption in individuals’ daily lives.
Herbert Burkert argues that information communication technologies have fundamentally altered information handling. To maintain checks and balances in society, Burkert asserts that technology-specific “responses to such changes in the power structure is needed.”51 He points to the electronic data processing industry as one with practices more dangerous than paper file systems, and thus deserving of stronger regulation.
We might think about these lessons in coming decades, when marketing is likely to be delivered to us by robots or by automated systems that can recognize and confront us in real space. Such advertising is typically depicted in dystopian science fiction (the 2002 movie Minority Report, the 2011 series Black Mirror, and the 2013 work The Zero Theorem). We know that these technologies are coming, and we are likely to react to them in a non-neutral way, regulating each specifically as they arise, rather than prospectively, through principles- based neutral regulations.
Bert-Jaap Koops, Should ICT Regulation Be Technology-Neutral?, in STARTING POINTS FOR ICT REGULATION (Bert-Jaap Koops, Mariam Lips, Corien Prins, & Maurice Schellekens, eds., 2006).
Herbert Burkert, Four Myths about Regulating in the Information Society – A Comment, in STARTING POINTS FOR ICT REGULATION (Bert-Jaap Koops, Mariam Lips, Corien Prins, & Maurice Schellekens, eds., 2006).