Paper by Karen E. C. Levy: “…critiques blockchain-based “smart contracts,” which aim to automatically and securely execute obligations without reliance on a centralized enforcement authority. Though smart contracts do have some features that might serve the goals of social justice and fairness, I suggest that they are based on a thin conception of what law does, and how it does it. Smart contracts focus on the technical form of contract to the exclusion of the social contexts within which contracts operate, and the complex ways in which people use them. In the real world, contractual obligations are enforced through all kinds of social mechanisms other than formal adjudication—and contracts serve many functions that are not explicitly legal in nature, or even designed to be formally enforced. I describe three categories of contracting practices in which people engage (the inclusion of facially unenforceable terms, the inclusion of purposefully underspecified terms, and willful nonenforcement of enforceable terms) to illustrate how contracts actually “work.” The technology of smart contracts neglects the fact that people use contracts as social resources to manage their relations. The inflexibility that they introduce, by design, might short-circuit a number of social uses to which law is routinely put. Therefore, I suggest that attention to the social and relational contexts of contracting are essential considerations for the discussion, development, and deployment of smart contracts….(More)”
Entrepreneurial Administration
Research Paper by Phil Weiser: “A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.
Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a result. Consider, for example, that Energy Star, a successful program that has encouraged the manufacture and sale of energy efficient appliances, is developed and overseen by the Environmental Protection Agency (EPA). After the EPA established the program, Congress later codified it and, eventually, other countries followed suit. By contrast, the successful and complementary program encouraging the construction of energy efficient buildings, the well-respected LEED standard, is developed and overseen by a private organization. After it was developed, a number of governmental authorities endorsed it and have encouraged LEED-certified construction projects with both carrots and sticks. Significantly, while neither the Energy Star nor the LEED program were originally anticipated by any regulatory statute, both have had a tremendous impact.
The Energy Star and LEED case studies exemplify the sort of innovative regulatory strategies that are taking root in the modern administrative state. Despite the importance of entrepreneurial administration in practice, scholars have failed to examine the role of entrepreneurial leadership in spurring policy innovation and earning regulatory authority for an agency (or private entity). In short, administrative law needs a richer and more textured account of agency action, why entrepreneurial leadership matters in government, and how agencies should operate.
This Article explains that the conventional view of agency behavior — either following the specific direction of Congress or the President to use notice-and-comment rulemaking or adjudication processes — does not adequately portray how public agencies and private entities develop innovative regulatory strategies and earn regulatory authority as a result. In particular, this Article explains how governmental agencies like the EPA or private entities like the Green Building Council (which oversees the LEED standard) depend on entrepreneurial leadership to develop experimental regulatory strategies. It also explains how, in the wake of such experiments, legislative bodies have the opportunity to evaluate regulatory innovations in practice before deciding whether to embrace, revise, reject, or merely tolerate them.
This Article highlights the importance of entrepreneurial leadership in government, providing a number of examples of emerging regulatory experiments and suggesting how Congress should evaluate such experiments. This discussion explains how entrepreneurial leadership and a culture of experimentation and trial-and-error learning is necessary to develop innovative strategies and overcome the pressure to manage the status quo. In so doing, the Article underscores how policy entrepreneurship is integral to agency effectiveness, an important corrective to public choice theory, and a missing piece of modern administrative law scholarship….(More)”.
Ethics of the Health-Related Internet of Things: Mapping the Debate
Paper by Brent Mittelstadt: “The Internet of Things is increasingly spreading into the domain of medical and social care. Internet-enabled devices for monitoring and managing the health and well-being of users outside of traditional medical institutions have rapidly become common tools to support healthcare. Health-related Internet of Things (H-IoT) technologies increasingly play a key role in health management, for purposes including disease prevention, real-time tele-monitoring of patient’s functions, testing of treatments, fitness and well-being monitoring, medication dispensation, and health research data collection. H-IoT promises many benefits for health and healthcare. However, it also raises a host of ethical problems stemming from the inherent risks of Internet enabled devices, the sensitivity of health-related data, and their impact on the delivery of healthcare. This paper maps the main ethical problems that have been identified by the relevant literature and identifies key themes in the on-going debate on ethical problems concerning H-IoT….(More)”
Nudging people to make good choices can backfire
Bruce Bower in ScienceNews: “Nudges are a growth industry. Inspired by a popular line of psychological research and introduced in a best-selling book a decade ago, these inexpensive behavior changers are currently on a roll.
Policy makers throughout the world, guided by behavioral scientists, are devising ways to steer people toward decisions deemed to be in their best interests. These simple interventions don’t force, teach or openly encourage anyone to do anything. Instead, they nudge, exploiting for good — at least from the policy makers’ perspective — mental tendencies that can sometimes lead us astray.
But new research suggests that low-cost nudges aimed at helping the masses have drawbacks. Even simple interventions that work at first can lead to unintended complications, creating headaches for nudgers and nudgees alike…
Promising results of dozens of nudge initiatives appear in two government reports issued last September. One came from the White House, which released the second annual report of its Social and Behavioral Sciences Team. The other came from the United Kingdom’s Behavioural Insights Team. Created by the British government in 2010, the U.K. group is often referred to as the Nudge Unit.
In a September 20, 2016, Bloomberg View column, Sunstein said the new reports show that nudges work, but often increase by only a few percentage points the number of people who, say, receive government benefits or comply with tax laws. He called on choice architects to tackle bigger challenges, such as finding ways to nudge people out of poverty or into higher education.
Missing from Sunstein’s comments and from the government reports, however, was any mention of a growing conviction among some researchers that well-intentioned nudges can have negative as well as positive effects. Accepting automatic enrollment in a company’s savings plan, for example, can later lead to regret among people who change jobs frequently or who realize too late that a default savings rate was set too low for their retirement needs. E-mail reminders to donate to a charity may work at first, but annoy recipients into unsubscribing from the donor list.
“I don’t want to get rid of nudges, but we’ve been a bit too optimistic in applying them to public policy,” says behavioral economist Mette Trier Damgaard of Aarhus University in Denmark.
Nudges, like medications for physical ailments, require careful evaluation of intended and unintended effects before being approved, she says. Policy makers need to know when and with whom an intervention works well enough to justify its side effects.
Default downer
That warning rings especially true for what is considered a shining star in the nudge universe — automatic enrollment of employees in retirement savings plans. The plans, called defaults, take effect unless workers decline to participate….
But little is known about whether automatic enrollees are better or worse off as time passes and their personal situations change, says Harvard behavioral economist Brigitte Madrian. She coauthored the 2001 paper on the power of default savings plans.
Although automatic plans increase savings for those who otherwise would have squirreled away little or nothing, others may lose money because they would have contributed more to a self-directed retirement account, Madrian says. In some cases, having an automatic savings account may encourage irresponsible spending or early withdrawals of retirement money (with penalties) to cover debts. Such possibilities are plausible but have gone unstudied.
In line with Madrian’s concerns, mathematical models developed by finance professor Bruce Carlin of the University of California, Los Angeles and colleagues suggest that people who default into retirement plans learn less about money matters, and share less financial information with family and friends, than those who join plans that require active investment choices.
Opt-out savings programs “have been oversimplified to the public and are being sold as a great way to change behavior without addressing their complexities,” Madrian says. Research needs to address how well these plans mesh with individuals’ personalities and decision-making styles, she recommends….
Researchers need to determine how defaults and other nudges instigate behavior changes before unleashing them on the public, says philosopher of science Till Grüne-Yanoff of the Royal Institute of Technology in Stockholm….
Sometimes well-intentioned, up-front attempts to get people to do what seems right come back to bite nudgers on the bottom line.
Consider e-mail prompts and reminders. ….A case in point is a study submitted for publication by Damgaard and behavioral economist Christina Gravert of the University of Gothenburg in Sweden. E-mailed donation reminders sent to people who had contributed to a Danish anti-poverty charity increased the number of donations in the short term, but also triggered an upturn in the number of people unsubscribing from the list.
People’s annoyance at receiving reminders perceived as too frequent or pushy cost the charity money over the long haul, Damgaard holds. Losses of list subscribers more than offset the financial gains from the temporary uptick in donations, she and Gravert conclude.
“Researchers have tended to overlook the hidden costs of nudging,” Damgaard says….(More)”
Regulating by Robot: Administrative Decision Making in the Machine-Learning Era
Paper by Cary Coglianese and David Lehr: “Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere.
A few administrative agencies have already begun to adopt this technology, while others have the clear potential in the near-term to use algorithms to shape official decisions over both rulemaking and adjudication. It is no longer fanciful to envision a future in which government agencies could effectively make law by robot, a prospect that understandably conjures up dystopian images of individuals surrendering their liberty to the control of computerized overlords. Should society be alarmed by governmental use of machine learning applications?
We examine this question by considering whether the use of robotic decision tools by government agencies can pass muster under core, time-honored doctrines of administrative and constitutional law. At first glance, the idea of algorithmic regulation might appear to offend one or more traditional doctrines, such as the nondelegation doctrine, procedural due process, equal protection, or principles of reason-giving and transparency.
We conclude, however, that when machine-learning technology is properly understood, its use by government agencies can comfortably fit within these conventional legal parameters. We recognize, of course, that the legality of regulation by robot is only one criterion by which its use should be assessed. Obviously, agencies should not apply algorithms cavalierly, even if doing so might not run afoul of the law, and in some cases, safeguards may be needed for machine learning to satisfy broader, good-governance aspirations. Yet in contrast with the emerging alarmism, we resist any categorical dismissal of a future administrative state in which key decisions are guided by, and even at times made by, algorithmic automation. Instead, we urge that governmental reliance on machine learning should be approached with measured optimism over the potential benefits such technology can offer society by making government smarter and its decisions more efficient and just….(More)”
Data collaboratives as “bazaars”? A review of coordination problems and mechanisms to match demand for data with supply
Iryna Susha , Marijn Janssen , and Stefaan Verhulst in Transforming Government: People, Process and Policy: “In “data collaboratives” private and public organizations coordinate their activities to leverage data to address a societal challenge. This paper focuses on analyzing challenges and coordination mechanisms of data collaboratives….This study uses coordination theory to identify and discuss the coordination problems and coordination mechanisms associated with data collaboratives. We also use a taxonomy of data collaborative forms from a previous empirical study to discuss how different forms of data collaboratives may require different coordination mechanisms….
The study analyzed data collaboratives from the perspective of organizational and task levels. At the organizational level we argue that data collaboratives present an example of the bazaar form of coordination. At the task level we identified five coordination problems and discussed potential coordination mechanisms to address them, such as coordination by negotiation, by third party, by standardization, to name a few…This study is one of the first few to systematically analyze the phenomenon of “data collaboratives”.
…can help practitioners understand better the coordination challenges they may face when initiating a data collaborative and to develop successful data collaboratives by using coordination mechanisms to mitigate these challenges…(More)”
Does digital democracy improve democracy?
Thamy Pogrebinschi at Open Democracy: “The advancement of tools of information and communications technology (ICT) has the potential to impact democracy nearly as much as any other area, such as science or education. The effects of the digital world on politics and society are still difficult to measure, and the speed with which these new technological tools evolve is often faster than a scholar’s ability to assess them, or a policymaker’s capacity to make them fit into existing institutional designs.
Since their early inception, digital tools and widespread access to the internet have been changing the traditional means of participation in politics, making them more effective. Electoral processes have become more transparent and effective in several countries where the paper ballot has been substituted for electronic voting machines. Petition-signing became a widespread and powerful tool as individual citizens no longer needed to be bothered out in the streets to sign a sheet of paper, but could instead be simultaneously reached by the millions via e-mail and have their names added to virtual petition lists in seconds. Protests and demonstrations have also been immensely revitalized in the internet era. In the last few years, social networks like Facebook and WhatsApp have proved to be a driving-force behind democratic uprisings, by mobilizing the masses, invoking large gatherings, and raising awareness, as was the case of the Arab Spring.
While traditional means of political participation can become more effective by reducing the costs of participation with the use of ICT tools, one cannot yet assure that it would become less subject to distortion and manipulation. In the most recent United States’ elections, computer scientists claimed that electronic voting machines may have been hacked, altering the results in the counties that relied on them. E-petitions can also be easily manipulated, if safe identification procedures are not put in place. And in these times of post-facts and post-truths, protests and demonstrations can result from strategic partisan manipulation of social media, leading to democratic instability as has recently occurred in Brazil. Nevertheless, the distortion and manipulation of these traditional forms of participation were also present before the rise of ICT tools, and regardless, even if the latter do not solve these preceding problems, they may manage to make political processes more effective anyway.
The game-changer for democracy, however, is not the revitalization of the traditional means of political participation like elections, petition-signing and protests through digital tools. Rather, the real change on how democracy works, governments rule, and representation is delivered comes from entirely new means of e-participation, or the so-called digital democratic innovations. While the internet may boost traditional forms of political participation by increasing the quantity of citizens engaged, democratic innovations that rely on ICT tools may change the very quality of participation, thus in the long-run changing the nature of democracy and its institutions….(More)”
UK’s Digital Strategy
Executive Summary: “This government’s Plan for Britain is a plan to build a stronger, fairer country that works for everyone, not just the privileged few. …Our digital strategy now develops this further, applying the principles outlined in the Industrial Strategy green paper to the digital economy. The UK has a proud history of digital innovation: from the earliest days of computing to the development of the World Wide Web, the UK has been a cradle for inventions which have changed the world. And from Ada Lovelace – widely recognised as the first computer programmer – to the pioneers of today’s revolution in artificial intelligence, the UK has always been at the forefront of invention. …
Maintaining the UK government as a world leader in serving its citizens online
From personalised services in health, to safer care for the elderly at home, to tailored learning in education and access to culture – digital tools, techniques and technologies give us more opportunities than ever before to improve the vital public services on which we all rely.
The UK is already a world leader in digital government,7 but we want to go further and faster. The new Government Transformation Strategy published on 9 February 2017 sets out our intention to serve the citizens and businesses of the UK with a better, more coherent experience when using government services online – one that meets the raised expectations set by the many other digital services and tools they use every day. So, we will continue to develop single cross-government platform services, including by working towards 25 million GOV.UK Verify users by 2020 and adopting new services onto the government’s GOV.UK Pay and GOV.UK Notify platforms.
We will build on the ‘Government as a Platform’ concept, ensuring we make greater reuse of platforms and components across government. We will also continue to move towards common technology, ensuring that where it is right we are consuming commodity hardware or cloud-based software instead of building something that is needlessly government specific.
We will also continue to work, across government and the public sector, to harness the potential of digital to radically improve the efficiency of our public services – enabling us to provide a better service to citizens and service users at a lower cost. In education, for example, we will address the barriers faced by schools in regions not connected to appropriate digital infrastructure and we will invest in the Network of Teaching Excellence in Computer Science to help teachers and school leaders build their knowledge and understanding of technology. In transport, we will make our infrastructure smarter, more accessible and more convenient for passengers. At Autumn Statement 2016 we announced that the National Productivity Investment Fund would allocate £450 million from 2018-19 to 2020-21 to trial digital signalling technology on the rail network. And in policing, we will enable police officers to use biometric applications to match fingerprint and DNA from scenes of crime and return results including records and alerts to officers over mobile devices at the crime scene.
Read more about digital government.
Unlocking the power of data in the UK economy and improving public confidence in its use
As part of creating the conditions for sustainable growth, we will take the actions needed to make the UK a world-leading data-driven economy, where data fuels economic and social opportunities for everyone, and where people can trust that their data is being used appropriately.
Data is a global commodity and we need to ensure that our businesses can continue to compete and communicate effectively around the world. To maintain our position at the forefront of the data revolution, we will implement the General Data Protection Regulation by May 2018. This will ensure a shared and higher standard of protection for consumers and their data.
AI, machine learning and personal data
Jo Pedder at the Information Commissioner’s Office Blog: “Today sees the publication of the ICO’s updated paper on big data and data protection.
But why now? What’s changed in the two and a half years since we first visited this topic? Well, quite a lot actually:
- big data is becoming the norm for many organisations, using it to profile people and inform their decision-making processes, whether that’s to determine your car insurance premium or to accept/reject your job application;
- artificial intelligence (AI) is stepping out of the world of science-fiction and into real life, providing the ‘thinking’ power behind virtual personal assistants and smart cars; and
- machine learning algorithms are discovering patterns in data that traditional data analysis couldn’t hope to find, helping to detect fraud and diagnose diseases.
The complexity and opacity of these types of processing operations mean that it’s often hard to know what’s going on behind the scenes. This can be problematic when personal data is involved, especially when decisions are made that have significant effects on people’s lives. The combination of these factors has led some to call for new regulation of big data, AI and machine learning, to increase transparency and ensure accountability.
In our view though, whilst the means by which the processing of personal data are changing, the underlying issues remain the same. Are people being treated fairly? Are decisions accurate and free from bias? Is there a legal basis for the processing? These are issues that the ICO has been addressing for many years, through oversight of existing European data protection legislation….(More)”