Rights, Regulation, and the Technological Revolution Roger Brownsword Centre for Technology, Ethics, Law & Society (TELOS) School of Law, King’s College London

Outline 1. Work already done on law, regulation, and emerging technologies: main ideas. 2. Work in progress. 3. The bearing of this work on the idea of “tentative governance”

1. Work Done: Main Sources Rights, Regulation and the Technological Revolution (OUP, 2008) Regulating Technologies (Hart, 2008) (edited with Karen Yeung) “Law, Innovation and Technology: Before We Fast Forward—A Forum for Debate” (2009) 1 Law, Innovation and Technology 1 (with Han Somsen)

Three Key Objectives To frame and organise our generic thinking about law, regulation, and emerging technologies---a series of regulatory challenges (concerning legitimacy, effectiveness, connection, and cosmopolitanism) To flag up a concern that the use of technology and design as regulatory instruments might corrode the conditions for moral community. To defend and articulate a particular view of moral community---a community of rights---and its approach to emerging technologies.

2. Work in Progress The nature of the regulatory environment Questions of prudence, precaution and stewardship The prospects for, and limits of, the turn to proceduralism in the face of pluralism.

A. The Nature of the Regulatory Environment A setting in which regulators signal to regulatees that certain conduct is acceptable. Type 1 (top down) and Type 2 (bottom up) regulatory environments. Three regulatory registers: moral, prudential, and practicable/possible. Three generations of regulatory environment: (i) normative; (ii) normative plus designed products and places; and (iii) normative plus designed products, places, and persons.

Some of the Moves to Watch From the moral register to the prudential register. From the moral or prudential register to the register of practicability or possibility. From transparent regulatory environments to embedded regulation. From differentiated regulation to one- dimensional risk regulation.

B. Prudence, Precaution, and Stewardship Prudential reasoning: purely self-interested calculation; no regard for legitimate interests of others. Where decision is purely self-regarding, regulatory responsibility is to facilitate informed decision-making. Where decision impacts on others, how do regulators determine level of “acceptable risk”? Is there any reason for regulators to privilege the preferences of those who are more risk-averse?

Precaution In context of uncertainty, how does precautionary reasoning differ from more complex risk reasoning (kind of harm, likelihood of harm, kind of benefit, likelihood of benefit)? Suppose that pure precautionary reasoning is engaged where we cannot rule out the possibility of certain kinds of harm. In such a case, the fact that we cannot specify the likelihood of harm is irrelevant.

Stewardship Imagine a set of infrastructural conditions that are essential for human social existence per se. We can debate what these conditions are. Imagine a set of infrastructural conditions that are essential for a particular kind of human community. Regulators have generic stewardship responsibilities in relation to the first set of conditions and contingent stewardship responsibilities in relation to the second set of conditions.

The Competence of Regulatory Stewards Debates about the competence of regulators tend to assume that the infra-structural conditions for human existence are in place; the question is about the reasons that might justify regulatory action in relation to superstructural interactions and transactions. Lawyers look to constitutions for guidance; ethicists look to social contracts, teleology and deontology. But what reasons justify regulatory action in relation to the infra-structural conditions? The basic responsibility is to prevent a tragedy of the commons.

Precaution and Stewardship Precautionary reasoning takes the form: where there is uncertainty that doing x is causing y, and where y is valued, then we should not do x. Where x is not valued, this is easy: giving up x is simply being safe rather than sorry. Where x is valued, we get drawn into a balancing exercise that we cannot resolve because of the inherent uncertainty.

But, suppose that y is a quite different order of value to x, such that x would be worthless without y: then, for precautionary reasons, we give up x (even though x is valued) because it presupposes y. Assuming that we are dealing with y (we believe that there might be a risk to y), we no longer need worry about trying to assess the probability of x causing y. So, what is the test? Reasonable suspicion or plausibility? In pure precautionary reasoning, regulators can justify preventive action simply because they cannot rule out the possibility that x is causing infra-structural damage to y.

C. Pluralism and Procedural Justification Amy Gutmann: synthetic biology and deliberative democracy. Prudential pluralism. Ethical pluralism---the bioethical triangle. Closed ethical pluralism: same baseline values, different interpretations. Open ethical pluralism: different baseline values. Convergence. Non-convergent open ethical pluralism. How can regulators justify their position?

The Final Appeal Where regulators face conditions of “open ethical pluralism”, where baseline values are contested, it is less clear that deliberative democracy can work. In the most challenging cases of open ethical pluralism, it is not sufficient for regulators to appeal to the integrity of the decision-making process; here, the final regulatory appeal is to the shared aspiration of regulatees to build a moral community.

3 Tentative Governance Dealing with uncertainty Provisionality of regulatory position where risk profile is uncertain Dealing with moral pluralism Treating regulatory position as provisional and reviewable Dealing with unintended regulatory effects Dealing with rapidly changing technologies and the challenge of connection.

Tentative reliance on design If regulators use technology to design out (or in) certain conduct, this can have: Corrosive effects for moral community; and It can reduce the scope for autonomous action. Regulators need to be tentative before using such instruments.

Conclusions We need to understand more about the complexity of the regulatory environment. About how one item of regulation interacts with others About the way in which regulatees respond And about the way in which emerging technologies affect the dynamics of regulation and reaction. If “tentative governance” implies a constant process of learning, then it points in the right direction.

Concluding remarks Moreover, where regulators have to take a controversial position in conditions of moral plurality, “tentative governance” sets the right tone. At the same time, though, we need to construct a stewardship paradigm with a precautionary competence and retrieve the discourse of moral concern (both of which are threatened by an all-consuming risk discourse). Where we cannot rule out the possibility of infrastructural threats, regulators should be decisive, not tentative That is, regulators have a responsibility to check for agency-compromising technologies; and, in moral communities, regulators should be sensitive to the corrosion of the conditions for moral agency---in relying on design, regulators should indeed be tentative.