Law and Design

This blog post supplements Tech Refactored episodes 4 and 5, titled "What is Law and Technology." Listen to the discussion here.

I have a confession to make to you, dear reader: I am an imposter. I know what you’re thinking.  “Oh, Woody. We all feel like an imposter sometimes. Like everyone around you is smarter than you.” I do have those feelings, of course. But it’s worse than that. I am an actual imposter. You see, I am a Professor of Law and Computer Science, with a joint appointment between my university’s law school and college of computer sciences. I am trained in the law. But I know precious little about the actual field of computer science. I don’t even know how to define it.

This symposium has given me the perfect opportunity to reflect on my predicament as one who teaches “law and technology” to both future lawyers and computer scientists, but doesn’t know his APIs from his SDKs. As this symposium highlights, it can be difficult to know what to make of the field of “law and technology.” Is it a sub-discipline? Method? Approach? For my part, I find the “technology” aspect of this area most interesting. Should this field be primarily concerned with just the law that regulates the creation and use of information technologies? Or, to put a finer point on it, is the field of “law and technology” essentially the study of “computer law?” Or should it be (or is it) something more?

I think my insecurity with my computer science identity actually reveals a path toward a more accurate and desirable conceptualization of law and technology as more than just “law and computers.” Because I think that “computer science” is more than just “Computer Science,” if you catch my meaning.

In my class on the law and ethics of information technologies at the Khoury College of Computer Sciences, we focus on how digital tools affect our world by making certain realities more or less likely, and how policymakers, industry, advocates and users help ensure we’ve got the right rules for the right realties. If we’re talking about what imbues technologies with the power to act upon people and groups, we’re talking about design—to create an artifact according to plan so that it may act upon the world. I think design is at the heart of “law and technology.”

When scholars refer to the field of “law and technology,” I argue that what they are really referring to is the field of “law and design.” Specifically, the design of technologies. Those things might seem similar, but by focusing on the process by which design decisions are made, the end product of those decisions, and the effect of those decisions on the world, we get a fuller sense of the relationship between policy and artifact, law and technology, statute and computer.

In my book Privacy’s Blueprint, I talked about the importance of lawmakers taking the design of technologies more seriously. I wrote, “Design decisions establish power and authority in a given setting. They influence societal norms and expectations. Each design decision reflects an intent as to how an information technology is to function or be used.” Design is everywhere. Design is power. Design is political. When confronted with a new digital tool, law and technology scholars intuitively, if not explicitly, look to see how the design of these tools affects people and changes our world.

Design changes the world in two ways. First, it sends signals to people. The communication can be a message from the designer, information from or about other users, or just some piece of information about how a technology functions. Design can send signals to users about what their options are, or simply be an aesthetic. Peoples’ mental maps about how tools work are shaped by the signals given off by design. Even subtle differences such as warm inviting colors or distracting images can send inviting or annoying signals to people can affect people in predictable ways regarding how they use tools.

Second, design enables (or hinders) tasks. It makes doing things easier or harder. When things are hard to do, people will do it less often. When things are made easier, they are more likely to do it more frequently. Transaction costs can be tweaked to predictably alter how tools are used. When we distill technologies down to these components, no matter how complex they are, and no matter whether you are actually a computer scientist or not, we can ask questions that affect their creation as well as what their creation will do. What are the signals given by this technology?  What does it make easier or harder? (These questions roughly map on to the concept of affordances, which Ryan Calo draws upon for his law and technology methodology). If the results of those questions present problems, then we now have the starting point to discuss rules.

If we think of law and technology as a question about the interplay between rules and design, it’s easy to see why so many different scholars in disciplines beyond computer science and the law have contributed to our understanding of how our rules for technology should work and what they should look like.  Many scholars drawing from fields like psychology, sociology, media studies, information science, philosophy, economics, anthropology, cultural studies, STS, and the list goes on, would either self-identify or be fairly interpreted as contributing to the field of “law and technology.” Within computer science itself, many world-class scholars intuitively approach their discipline with a broader view of the design of digital tools affects society and the role policy might play. Scholars like Lorrie Cranor, Annie Anton, Latanya Sweeney, Steve Bellovin, and my colleagues at the Khoury College of Computer Sciences at Northeastern University like Christo Wilson, Dave Choffnes, Alan Mislove, and Tina Eliassi-Rad, and my Ph.D. student Johanna Gunawan have all either implicitly or explicitly embraced holistic approaches to computer science that are concerned with how design shapes our reality.

I appreciate the opportunity to explore these issues and already feel slightly more at peace about my job title that includes “computer science.” Just like computer science is more than just figuring out how to maximize innovation and the efficiency of information systems, “law and technology” is about more than just the law of computers. It is about trying to understand how the law can and should act as guardrails for the design of tools that shape our world. It is also about how the design of tools shapes our laws. You don’t have to be a computer scientist or lawyer to be a law and technology scholar. Just someone dedicated to understanding how rules shape tools, and vice versa, with all of us in the middle.

Woodrow Hartzog is a Professor of Law and Computer Science at Northeastern University.

Tags: Guest and Fellow Post