Law, technology and broad socio-legal considerations -- re Schrepel (2022)

© Automatic Eyes / Flickr.

I have just read T Schrepel’s ‘Law + technology’, which main premise is that the ‘classical approach to “law & technology” focuses on harms created by technology … [whereas] another approach dubbed “law + technology” can better increase the common good … [because it can] consider both the issues and positive contributions technology brings to society’, with ultimately the ‘goal … to address the negative ramifications of technology while leveraging its positive regulatory power’ (at 1). This leads to the claim that ‘“law + technology” can further increase the common good than a classical “law & technology” approach because it better preserves technology that regulates society in ways legal rules and standards cannot’ (at 3).

This is a weird paper and another exercise in creative labelling (or click bait) by the author (see other notable examples, such as ‘Antitrust without Romance’). The creative labelling starts with the term ‘classical “law & technology”’ itself, as the author notes: ‘Not all scholars that use the label “law & technology” recognize themselves in the meaning I attribute to the label in this article. I, nonetheless, assign a specific meaning to the label “law & technology” to highlight the differences between the dominant legal approach to technology and the one … propose[d] in this article’ (fn 2). The creative labelling exercise is completed by the artificial use of “law + technology” as a distinguishing label. I wonder how one could appreciate the (non-visual) differences if the argument was made without written support (unless one is given the clue that it should be read as 'law plus technology’, see fn 87) …

More importantly, the distinction (and the paper in general) is both artificial and far overshoots the mark of making the much simpler points that the regulation of technology needs to be underpinned by proper impact assessments (at 15-16), allow for iteration or incrementalism in particular in relation to immature technologies (at 17), and follow a certain element of proportionality to constrain e.g. the application of the precautionary principle, where too stringent legal rules could deprive society from beneficial technological advances without materially impinging on superior socio-legal values—which is what I think the author actually says on substance in the paper.

The paper thus does not really deviate from the criticised ‘classical “law & technology”’ approach, as it also recognises the two main issues: that certain socio-legal values (should) weigh more than technological innovation, and that such weighing needs to pay attention to the different (positive and negative) impacts.

In fact, the clear superiority of legally-protected values or interests is seemingly acknowledged in the paper, as it submits that ‘When law and technology present irreconcilable interests, the law must prevail in a rule of law system’ (fn 13)—even if this is then muddied in the promotion of a ‘Darwinian take on regulating technology’ that should seek not to eliminate a technology’s distinguishing features even if they breach such higher level socio-legal values (such as eg the fundamental right to an effective remedy) (at 7), or the statement that ‘When legal rules reduce technology’s chances of survival, policymakers and regulators deny one of “law + technology” two pillars. The “law + technology” approach thus requires considering different methods’ (at 17-18). Therefore, the extent to which the paper either really upholds the superiority of certain socio-legal values or, conversely, takes a more technology-centric approach is ultimately unclear (but that lack of clarity is in itself evidence of the limited deviation from the criticised approach, if any).

Similarly, the main focus on (obscurely) advocating for a regulatory approach that ceteris paribus (and only ceteris paribus) allows for a higher level of socio-technological benefits is also tucked away, but present, in the statement that ‘Under a “law & technology” approach, regulators are not comparing the effect of different intervention methods on the positive ramification of technology. They are not in a position to balance the effectiveness of the rule and its effect on the technology. Regulators may choose a regulation with comparable efficiency to others but a more negative impact on the technology’ (fn 14). Here the paper seems to simply insist on a comprehensive impact assessment, which should capture any losses derived from restrictions or prohibitions concerning the use of a given technology. This is, however, obscured by the proposal of an ‘EM ratio’ as some sort of mathematical formalisation (see fn 81) of what is simply a proportionality assessment that will almost never be susceptible to quantitative reductionism), which obscures or glosses over the impossibility of directly comparing some of the potential positive and negative impacts as they affect different socio-legal values, some of them with specific (constitutional) protection.

Overall, creative labelling aside, the paper seems to make two relatively uncontroversial statements that are also not new. Technology can facilitate legal compliance, and law and regulation should not disproportionately stifle technological innovation. So far, so good.

The labelling is still highly problematic, though, especially as it carries the risk (or intent?) of sullying ‘law and technology’ scholarship as partial or unnecessarily biased in a pro-interventionist manner. So the labelling deserves some further scrutiny.

From where I stand, it is almost impossible to assign specific meaning to “law and technology” as a field, as the interaction between law and technology can be and is being assessed from a wide-ranging and diverse set of perspectives (see e.g. the very interesting political economy approach by Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (OUP, 2019); or the explicit consideration of blockchain as a regulatory technology by Michèle Finck, Blockchain Regulation and Governance in Europe (CUP, 2018)). More importantly, the main hypothesis or postulate of the paper, i.e. that ‘technology and law can better increase the common good together than in a silo’ (at 4) ignores the fact that the mutual interdependence and interaction between technology and law is very much at the core of the political economy analysis of what the paper would term ‘classic “law and technology”’, as lucidly articulated by Cohen (above, 1-2).

It is also difficult to support a statement attributing to such (deemed) ‘classical’ approach to “law & technology” a one-way consideration of potential negative impacts of technologies only—unless one ignores all work on e.g. SupTech, or automated compliance; or one is blind to the fact that the balance of interests and potential impingement of rights that triggers regulatory and legislative intervention cannot result from a mere cost-benefit analysis that allows trade-offs that imply e.g. violations of fundamental rights or essential protections in consumer, labour or data privacy as key elements of the legal system. The author seems reluctantly aware of this, although the paper quickly discounts it in stressing that: ‘To be sure, the positive ramifications of technology are sometimes mentioned under “law & technology,” but they are excluded from the analytical scope when tackling the negative ramifications. In short, “law & technology” expresses at best an “on-the-one-hand-on-the-other-hand-ism,” but it fails to connect both positive and negative aspects’ (at 2-3).

Simply, then, the premises of the paper are highly questionable and generate a caricature of 'law and technology’ scholarship that is simply too far removed from reality.

Moreover, the use of unnecessarily flashy terms (e.g. Darwinian take on regulation, based on complexity theory, when what the author means is very close to systems thinking; or the formulation of an ‘EM ratio’ to refer to what is simply a proportionality assessment) is pervasive in the paper and cannot really mask the limited originality of thought underpinning the arguments.

Overall, I think this is not a helpful contribution to the debate and I hope not much time will be lost on labelling a field where the key regulatory challenges are otherwise well understood (if difficult to tackle).

The 'NHS Food Scanner' app as a springboard to explore the regulation of public sector recommender systems

In England, the Department of Health and Social Care (DHSC) offers an increasingly wide range of public health-related apps. One of the most recently launched is the ‘Food Scanner’, which aims to provide ‘swap suggestions, which means finding healthier choices for your family is easier than ever!’.

This is part of a broader public health effort to tackle, among other issues, child obesity, and is currently supported by a strong media push aimed primarily at parents. As the parent of two young children, this clearly caught my attention.

The background for this public health intervention is clear:

Without realising it, we are all eating too much sugar, saturated fat and salt. Over time this can lead to harmful changes on the inside and increases the risk of serious diseases in the future. Childhood obesity is a growing issue with figures showing that in England, more than 1 in 4 children aged 4-to 5-years-old and more than 1 in 3 children aged 10 and 11-years-old are overweight or obese.

The Be Food Smart campaign empowers families to take control of their diet by making healthier food and drink choices. The free app works by scanning the barcode of products, revealing the total sugar, saturated fat and salt inside and providing hints and tips adults plus fun food detectives activities for kids.

No issues with that. My family and myself could do with a few healthier choices. So I downloaded the app and started playing around.

As I scanned a couple of (unavoidably) branded products from the cupboard, I realised that the swaps were not for generic, alternative, healthier products, but also for branded products (often of a different brand). While this has the practical advantage of specifying the recommended healthier alternative in an ‘actionable’ manner for the consumer, this made my competition lawyer part of the brain uneasy.

The proposed swaps were (necessarily) ranked and limited, with a ‘top 3’ immediately on display, and with a possibility to explore further swaps not too easy to spot (unless you scrolled down to the bottom). The different offered swaps also had a ‘liked’ button with a counter (still in very low numbers, probably because the app is very new), but those ‘likes’ did not seem to establish ranking (or alter it?), as lower ranked items could have higher like counts (in my limited experiment).

I struggled to make sense of how products are chosen and presented. This picked my interest, so I looked at how the swaps ‘work’.

The in-app information explained that:

How do we do this?

We look into 3 aspects of the product that you have scanned:
1) Product name; so we can try and find similar products based on the words used within the name.
2) Ingredients list; so we can try and find similar products based on the ingredients of the product you have scanned.
3) Pack size; finally we look into the size of the product you have scanned so that, if have scanned a 330ml can, we can try and show you another can-sized product rather than a 1 litre bottle.

How are they ordered?

We have a few rules as to what we show within the top 3. We reserve spaces for:
1) The same manufacturer; if you have scanned a particular brand we will do our best to try and find a healthier version of that same brand which qualifies for a good choice badge.
2) The same supermarket; if you have scanned a supermarket product we will again do our best to show you an alternative from the same store.
3) Partner products; there are certain products which team up with Change4life that we will try and show if they match the requirements of the products you have scanned.

I could see that convenience and a certain element of ‘competition neutrality’ were clearly at play, but a few issues bothered me, especially as the interaction between manufacturer/supermarket is not too clear and there is a primary but nebulous element of preferencing that I was not expecting in an app meant to provide product-based information. I could see myself spending the night awake, trying to find out how that ‘partnership’ is structured, what are the conditions for participating, if there are any financial flows to the Department and/or to partner organisations, etc.

I also realised some quirks or errors in the way information is processed and presented by the Food Scanner app, such as the exact same product (in different format) being assigned different ‘red light’ classifications (see the Kellogg’s Corn Flakes example on the side bar). At a guess, it could be that these divergences come from the fact that there is no single source for the relevant information (it would seem that ‘The nutrient data provided in the app is supplied by Brandbank and FoodSwitch’) and that there is not an entity overseeing the process and curating the data as necessary. In fact, DHSC’s terms and conditions for the Food Scanner app (at 6.10) explicitly state that ‘We do not warrant that any such information is true or accurate and we exclude all liability in respect of the accuracy, completeness, fitness for purpose or legality of that information’ . Interesting…

It is also difficult to see how different elements of the red light system (ie sugar vs saturated fat vs salt) are subject to trade-offs as eg, sometimes, a red/green/yellow product is recommended swapping with a yellow/yellow/yellow product. Working out the scoring system behind such recommendations seems difficult, as there will necessarily be a trade off between limiting (very) high levels of one of the elements against recommending products that are ‘not very healthy’ on all counts. There has to be a system behind this — in the end, there has to be an algorithm underpinning the app. But how does it work and what science informs it?

These are all questions I am definitely interested in exploring. However, I called it a night and planned to look for some help to investigate this properly (a small research project is in the making and I have recruited a fantastic research associate — keep an eye on the blog for more details). For now, I can only jot down a few thoughts on things that will be interesting to explore, to which I really have no direct answers.

The Food Scanner is clearly a publicly endorsed (and owned? developed?) recommender system. However, using a moderate research effort, it is very difficult to access useful details on how it works. There is no published algorithmic transparency template (that I could find). The in-app explanations of how the recommender system works raise more questions than they answer.

There is also no commitment by the DHSC to the information provided being ‘true or accurate’, not to mention complete. This displaces the potential liability and all the accountability for the information on display to (a) Brandbank, a commercial entity within the multinational Nielsen conglomerate, and to (b) Foodswitch, a data-technology platform developed by The George Institute for Global Health. The role of these two institutions, in particular concerning the ‘partnership’ between manufacturers and Change4life (now ‘Better Health’ and, effectively, the Office for Health Improvement & Disparities in the DHSC?), is unclear. It is also unclear whether the combination of the datasets operated by both entities is capable of providing a sufficiently comprehensive representation of the products effectively available in England and, in any case, it seems clear to me that there is a high risk (or certainty) that non mass production/consumption ‘healthy products’ are out of the equation. How this relates to broader aspects of competition, but also of public health policy, can only raise questions.

Additionally, all of this raises quite a few issues from the perspective of the trustworthiness that this type of app can command, as well as the broader competition law implications resulting from the operation of the Food Scanner.

And I am sure that more and more questions will come to mind as I spend more time obsessing about it.

Beyond the specificities of the case, it seems to me that the NHS Food Scanner app is a good springboard to explore the regulation of public sector recommender systems more generally — or, rather, some of the risks implicit in the absence of specific regulation and the difficulties in applying standard regulatory mechanisms (and, perhaps, especially competition law) in this context. Hopefully, there will be some interesting research findings to report by the summer. Stay tuned, and keep healthy!

Brexit, the limits of law and legal scholarship

Brexit has created a very troubling and destabilising environment for legal researchers in the UK and beyond. This is particularly true for those directly concerned with EU and international law, as well as constitutional and public law, but it is quickly expanding to all other areas of legal scholarship, such as human rights law or jurisprudence. Brexit has created shock waves that will continue to hit legal academia at least for the coming 5 to 10 years, and not only in terms of its focus as a discipline.

This not only jeopardises the development of previous research plans and the completion of on-going research projects, but also exposes the limits of law and legal scholarship in a way that I considered unimaginable before 23 June 2016. But then, most of what Brexit has brought had never crossed my mind or seemed outlandish. The following are just a few thoughts of what really worries me at the moment, not only as an EU lawyer, but more generally as a legal scholar. Of course, I am also an EU citizen living in the UK, which adds one layer of implications for me personally. However, I hope I can disentangle both dimensions.

Hard Brexit as a coup against the rule of law

We have been waiting all summer for the dust of the referendum to settle and to see what the UK Government and the UK Parliament made of the result and how they formulated their strategy going forward. What is starting to emerge, particularly from the Government's approach and its toying with the idea of a hard Brexit, is worryingly taking the shape of a coup against the rule of law. It is also starting to encapsulate xenophobic and racist elements of the Brexit campaign that are now presented as reasonable policy choices within mainstream movements, rather than being denounced as extreme and contrary to the very basic values of British society--unless they are now made to represent what they seemed to stand against until very recently.

There is an absolute disregard for the acquired rights of millions of people and the rhetoric that no basic protection is guaranteed and all individual and collective rights are on the table and prone to be used as bargaining chips simply goes against basic principles of legal certainty, prohibition of retroactive effects of rules that significantly impinge on individual rights, good faith and sincere cooperation duties under EU and international law. And the troubling part is that the mechanisms that would ordinarily protect those rights and these principles--mainly, cases brought before the Court of Justice of the European Union and the European Court of Human Rights--would not only be too slow off the Brexit mark, but also unlikely to provide effective protection against the actions of what is emerging as a bully State (or at least a bully Government) willing to disregard any legal consequences of its ill-thought policies.

Some of this is not strictly speaking a Brexit byproduct, but a result of the added or twin process of departure from European human rights instruments and standards. It is also compounded by the complexities of UK (unwritten) constitutional law and the absence of a domestic constitutional court strictly speaking, which starts to paint a scenario where the UK Government seems to believe that it can shape the future system of protection (or less) of human rights in the UK without any constraint or respect for the status quo. For a country that promoted human rights internationally in the past, this is such a return to the cave that it is hard to believe that this is actually happening. And the UK highest courts seem to be the only ones (potentially) able to bring a torch to the cave and force the Government out of it. Whether they will do it, or at least pass the issue on to Parliament, is everybody's guess.

"The first thing we do, let's kill all the lawyers" ~ William Shakespeare's Henry VI. 

As lawyers and legal scholars, we are now under the double attack and accusation of being both experts and agitators of the public space. What I would have thought were two of the most precious treasures legal academia and legal practice can protect (knowledge and independence of action) seem to have turned against us. We had to endure the Lord Chancellor and Secretary of State for Justice spit in our faces that “people in this country have had enough of experts”. The Prime Minister now also wants to protect the British Army (and Government, ultimately) from "activist left wing human rights lawyers"--but, not necessarily because of their ideology, but because they "harangue and harass" Britain's armed forces.

It is obvious that having a dissenting voice (particularly if it is informed and shouts evidence-based arguments), or contributing to the proper functioning of the system of checks and balances that a State based on the rule of law depends upon, now make you a public enemy. This really worries me because legal academia (and legal practice, but maybe to a lesser extent) will now be pushed towards a dangerous path to potentially becoming a place of fear and suppression of ideas and arguments that run contrary to what is now accepted as the official discourse or the policy of the day. We need to react against this and do it quickly, firmly and with all our intellectual might. If we fail to do this, there should be no need to kill all the lawyers, because we will (or should have) committed intellectual suicide already.

Brexit as Moby Dick

The final aspect that really worries me is that we will now probably be obsessed with Brexit. And to some extent we will have to if we are to discharge our moral and social duty of resisting the coup against the rule of law and against legal academia and practice as their stewards--against legal scholars and jurists as a collective that must contribute to keeping the Government in check under the rule of law. But this is very likely to also become our white whale, a permanent chase in a run with a moving finish line, something that is so much bigger than us and our capacities that eventually exhausts us and makes us drown (or feel we are drowning).

This obsession will also impoverish our legal scholarship beyond Brexit and drain our energy and absorb our time in ways that will make us stop pushing the boundaries of knowledge we were exploring before 23 June 2016. This is, in itself, one of the Brexit tragedies. By creating this black hole of legal problems and this immense pressure on the structures for the creation and dissemination of legal knowledge, Brexit has already put a heavy burden on law and legal scholarship. Like the value of the currency, which has been on free fall and already moved back the equivalent of almost the entire span of my lifetime, this will take very many years to recover, and I worry that it may never reach the level it had before the Great Repeal Bill was announced.

A final thought

I wish I got all of this wrong. If I have, then ignore it. Treat it as the dark thoughts of someone too personally affected by Brexit. But if I haven't, then please see this as a call for action. Join the conversation, so we can collectively think about ways of getting out of this.

Pervasive Legal Instrumentalism and Scholarly Herd Behaviour in Law: A Short Reflection on van Gestel & Micklitz (2014)

In their interesting paper "Why Methods Matter in European Legal Scholarship" (2014) European Law Journal 20(3): 292-316, which I read following Steven Vaughan's recommendation on twitter (@lawvaughan), Rob van Gestel and Hans-Wolfgang Micklitz write a compelling criticism against the instrumentalisation of law and legal research (ie the excessively policy-driven approach to legal research that mixes up normative and empirical questions), not least because:

"[it] decreases the attention for methodology, for theory building, and for keeping enough professional distance to one’s object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications".

 

Indeed, the part of their paper that I find really interesting (and brave) is the discussion on the risk of herd behaviour in legal research, where they warn about the risks of uncritically focussing legal research on 'hot topics' and the items in the agenda of policymakers/regulators (such as the European Commission) or financing/sponsoring bodies, instead of pursuing an independent ranking of relevant topics with intrinsic research/doctrinal value (pp. 305-307)--and which I remain convinced definitely supports their argument in favour of raising the methodological awareness in European doctrinal legal research.

 

In short, they submit that "the best response to growing heterogeneity of legal sources should be matched with a strengthening of theoretical and methodological components, where possible drawn from the common European heritage in legal theory and spurred by transnational scholarly legal communities" (p. 312). Moreover, they formulate some broad implications of their proposal and launch some open questions, which they intend to focus future debates about (the specifics of legal methods), particularly in view of the Europeanisation of legal education (see some related comments here).

 

I agree with them in that methodological discussions about legal research are becoming of paramount importance and that it is fundamental to base any piece of legal research on a methodology that is not limited to the very narrow confines of (classical) black-letter legal analysis. This is particularly important if one is to embark into any sort of normative recommendation, which requires a benchmark of underlying values and evidence that law cannot provide.

 

Personally, I find the interaction between law and economics particularly important and I have some specific views as to what sort of methodology should be used in the study of European economic law [see A Sánchez Graells, "A Short Note on Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law" (2011)]. Ultimately, I praise and share the words of O Wendell Holmes in "The Path of the Law" (1897) 10 Harvard Law Review 457:

"I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics".

This is not to say that economics should drive, control or even dictate the objectives of legal research, nor that efficiency must necessarily be accepted as the ultimate normative value. However, legal research that disregards economic theory and its insights and (willingly or inadvertently) runs against them will have a very limited (if any) value. Moreover, the same is equally applicable to other social sciences and, as van Gestel & Micklitz stress

"this should not imply that we want to turn law students [or law scholars, for that matter] into amateur social or political scientists or economists, but they should at least be able to understand (some of) the language and methods that other (social) sciences apply in order to learn more about the value, validity and reliability of non-doctrinal research methods and techniques" (p. 315).

In any case, beyond the specifics of the methodology employed and the field of (other) science considered more relevant in order to achieve informed and sound outcomes-- which surely needs to be tailored to the specific research question that one attempts to answer--I could not stress enough the importance of having A sound  methodology when one undertakes legal research. In that regard, I fully share and welcome van Gestel & Micklitz's call for further discussion. As they say in their paper, to be continued...