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Saving Governance-By-Design Saving Governance-By-Design Deirdre K. Mulligan* & Kenneth A. Bamberger** Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship has discussed individual skirmishes over the political impact of technical choices—from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that “governance-by-design”—the purposeful effort to use technology to embed values—is becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill-equipped to prevent that phenomenon from subverting public governance. DOI: https://doi.org/10.15779/Z38QN5ZB5H Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Associate Professor, School of Information, University of California, Berkeley; Faculty Director, Berkeley Center for Law and Technology. ** The Rosalinde and Arthur Gilbert Foundation Professor of Law, University of California, Berkeley; Faculty Director, Berkeley Center for Law and Technology. We owe a deep debt of gratitude to Kerry Tremain, and to Amit Elazari, for their heroic editing and research contributions to this Article, and to the Berkeley Center for Law and Technology for its generous support. Our appreciation goes as well to Michael J. Berger for research assistance; to Elaine Sedenberg, Leslie Harris, Nicholas Doty, Richmond Wong, and Joseph Lorenzo Hall for collaborations on other work that contributed significantly to background knowledge essential to this project; and to Michael Birnhack, Tal Zarsky, and commentators at the April 2017 conference on Privacy by Design held at the University of Haifa, and co-organized with Tel Aviv University. 697 698 CALIFORNIA LAW REVIEW [Vol. 106:697 Far from being a panacea, governance-by-design has undermined important governance norms and chipped away at our voting, speech, privacy, and equality rights. In administrative agencies, courts, Congress, and international policy bodies, public discussions about embedding values in design arise in a one-off, haphazard way, if at all. Constrained by their structural limitations, these traditional venues rarely explore the full range of other values that design might affect, and often advance, a single value or occasionally pit one value against another. They seldom permit a meta-discussion about when and whether it is appropriate to enlist technology in the service of values at all. And their policy discussions almost never include designers, engineers, and those that study the impact of socio-technical systems on values. When technology is designed to regulate without such discussions—as it often is—the effects can be even more insidious. The resulting technology often hides government and corporate aims and the fundamental political decisions that have been made. In this way, governance-by-design obscures policy choices altogether. Such choices recede from the political as they become what “is” rather than what politics has determined ought to be. This Article proposes a detailed framework for saving governance-by-design. Through four case studies, the Article examines a range of recent battles over the values embedded in technology design and makes the case that we are entering an era of policymaking by “design war.” These four battles, in turn, highlight four recurring dysfunctions of governance-by-design: First, governance-by-design overreaches by using overbroad technological fixes that lack the flexibility to balance equities and adapt to changing circumstances. Errors and unintended consequences result. Second, governance-by-design often privileges one or a few values while excluding other important ones, particularly broad human rights. Third, regulators lack the proper tools for governance-by-design. Administrative agencies, legislatures, and courts often lack technical expertise and have traditional structures and accountability mechanisms that poorly fit the job of regulating technology. Fourth, governance-by-design decisions that broadly affect the public are often made in private venues or in processes that make technological choices appear inevitable and apolitical. 2018] SAVING GOVERNANCE-BY-DESIGN 699 If we fail to develop new rules of engagement for governance- by-design, substantial and consequential policy choices will be made without effective public participation, purposeful debate, and relevant expertise. Important values will be sacrificed—sometimes inadvertently, because of bad decisions, and sometimes willfully, because decisions will be captured by powerful stakeholders. To address these critical issues, this Article proposes four rules of engagement. It constructs a framework to help decision makers protect values and democratic processes as they consider regulating by technology. Informed by the examination of skirmishes across the battlefields, as well as relevant Science and Technology Studies (STS), legal, design, and engineering literatures, this framework embraces four overarching imperatives: 1. Design with Modesty and Restraint to Preserve Flexibility 2. Privilege Human and Public Rights 3. Ensure Regulators Possess the Right Tools: Broad Authority and Competence, and Technical Expertise 4. Maintain the Publicness of Policymaking These rules of engagement offer a way toward surfacing and resolving value disputes in technological design, while preserving rather than subverting public governance and public values. Introduction ............................................................................................. 701 I. The Governance-by-Design Era .......................................................... 705 A. Values in Technology Design: Lessons From Science and Technology Studies .............................................................. 708 1. The Social Construction of Values in Design ................ 708 2. The Move Toward Embedding Values in Design ......... 714 B. The Fragmented Legal Literature on Regulating Through Technology .......................................................................... 716 II. Case Studies: Governance Dysfunction in Four Technology Design Battles .......................................................................................... 722 A. Case 1: Apple v. FBI and the Ongoing Cryptowars ............. 722 B. Case 2: The Wholesale Regulatory Embrace of “Privacy-by- Design” ................................................................................ 726 C. Case 3: The SOPA Battle ..................................................... 729 1. Institutional Shortcomings in Decisionmaking: The Lack of Congressional Committee Input ................................ 731 2. Skewed Stakeholder Involvement: Corporate Dominance ..................................................................... 732 D. Case 4: The Electronic Voting Debacle ............................... 735 E. Learning From the Cases: The Threat of Governance-by- Design Dystopia ................................................................... 738 700 CALIFORNIA LAW REVIEW [Vol. 106:697 1. Governance-by-design overreaches by using overbroad technological fixes that lack the flexibility to balance equities and adapt to changing circumstances—with unintended, irrational, and long-term consequences ..... 739 2. Governance-by-design privileges singular values at the expense of all others, especially human rights .............. 739 3. Regulators engaged in governance-by-design lack the proper tools .................................................................... 740 4. Governance-by-design decisions are often made in private venues or in processes that make technological choices appear inevitable and apolitical. ................ 741 III. Saving “Governance-by-Design”: Rules of Engagement for Preventing Governance Dystopia ................................................ 742 A. First Rule of Engagement: Design with Modesty and Restraint to Preserve Flexibility .......................................................... 743 B. Second Rule of Engagement: Privilege Human and Public Rights ................................................................................... 750 1. What to Prioritize: A Consensus Hierarchy of Individual Rights, Public Goods, and Economic Rights ................. 750 2. How to Prioritize: Exploiting Flexibility in Design ...... 757 C. Third Rule of Engagement: Ensure regulators possess the right tools— broad authority and competence, and technical expertise ............................................................................... 759 1. Addressing Limits of Authority and Competence ......... 760 a. Change the Design of Legislative Efforts ............... 760 b. Expand the Scope of the Regulatory Charge .......... 760 c. Change Internal Decisionmaking: Require Human Rights Impact Assessments (HRIAs) ...................... 764 d. Leverage Coordination and Input from a Range of Government Actors ................................................. 766 e. Condition Governance-by-Design on Multi- Stakeholder Involvement ........................................ 767 2. Addressing Deficits in Expertise
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