Regulation by design is an increasingly common approach in the governance of digital technologies. Under this approach, the developers of digital systems must adopt technical measures that implement the specific requirements mandated by law in their software. Some jurisdictions, notably the European Union (EU), have turned to regulation by design as a mechanism to automatically enforce legal requirements. However, I argue in this presentation that such an approach can have important implications for long-term governance. Drawing from examples of regulation by design in EU law, I show that by-design provisions delegate rule-making power to software designers, whose interpretations of the law become entrenched in digital systems. This delegation process suffers from legitimacy deficits, which are compounded whenever digital systems continue to enforce the designer-made rules as they operate for years and, sometimes, decades. Yet, these legitimacy deficits are not unavoidable, as regulation by design can be used to force designers to adopt technical and organizational practices that mitigate the risks of rule entrenchment to future generations. Therefore, any assessment of regulation by design approaches must not stop at the evaluation of technical instruments but consider the short- and long-term implications of design choices for the effectiveness and legitimacy of regulation.

Marco Almada is a third-year researcher at the EUI Department of Law, working on the regulation of artificial intelligence technologies. Before that, he pursued bachelor’s and master’s degrees in both computer science and law, and worked as a data scientist in various industries. Email: Marco.Almada@EUI.eu. Twitter: @MarcoAlmada.