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Casebook Credits History Find
Regulating Digital Technology (HLS 1L Reading Group, Fall 2020)
First published Sep 2020

The Internet has radically altered modes of interpersonal engagement, democratized access to tools of mass communication, and changed the role of gatekeepers that once controlled the creation and dissemination of content. Widescale availability of large datasets allows individuals and institutions to identify correlations among people and their behaviors at a scale never previously imagined; artificial intelligence and algorithmic technologies help find such correlations with high degrees of autonomy and low degrees of transparency. Platforms that enable workers to offer delivery, ridesharing, and other services have created the gig economy while upending an already fragile private employment ecosystem (tied closely, in the US, to the provision of health care and other aspects of a basic social safety net). Given the breadth of their impact, it is not surprising that these kinds of advancements in digital technology have pushed the bounds of the bodies of law that ostensibly act to constrain them. This includes laws that govern speech, privacy, discrimination, consumer protection, and the creation and exploitation of content. This 1L Reading Group will offer an overview of some of the most pressing issues at play in tech regulation today. During our four sessions, we will focus not just on substantive law but on process — looking at the who, the where, and the how of influencing tech developer and user conduct. Our in-class discussions will consider which actors are best positioned to influence those involved in the development and use of digital technologies, which nodes in the tech development and deployment architecture are most susceptible to positive influence, and what tools are at the disposal of those who wish to incentivize good conduct and disincentivize bad. We will approach these issues from a practical and strategic perspective, considering questions such as:

  • What means do companies, non-governmental organizations, and the public at large have to influence policymakers
  • When is legislation most effective and appropriate, and what issues are best addressed through local vs. state vs. federal statutes?
  • How do administrative agencies develop substantive expertise and ensure their regulatory activities are properly targeted and well-informed?
  • What role does litigation play, and what levers exist to influence the development of precedent in a common law judicial system?
  • Should private sector actors be encouraged to self-regulate, through multi-stakeholder initiatives or standard-setting processes?
  • Is there a role for independent or semi-independent corporate oversight boards?
  • How can tech users and tech company employees use their power in the consumer and labor markets to influence corporate conduct?