Suchergebnisse

AbstractInnovations in networked digital communications technologies, including the rise of "Big Data," ubiquitous computing, and cloud storage systems, may be giving rise to a new system of social ordering known as algorithmic regulation. Algorithmic regulation refers to decisionmaking systems that regulate a domain of activity in order to manage risk or alter behavior through continualcomputationalgeneration of knowledge by systematically collecting data (in real time on a continuous basis) emitted directly from numerous dynamic components pertaining to the regulated environment in order to identify and, if necessary, automatically refine (or prompt refinement of) the system's operations to attain a pre‐specified goal. This study provides a descriptive analysis of algorithmic regulation, classifying these decisionmaking systems as either reactive or pre‐emptive, and offers a taxonomy that identifies eight different forms of algorithmic regulation based on their configuration at each of the three stages of the cybernetic process: notably, at the level of standard setting (adaptive vs. fixed behavioral standards), information‐gathering and monitoring (historic data vs. predictions based on inferred data), and at the level of sanction and behavioral change (automatic execution vs. recommender systems). It maps the contours of several emerging debates surrounding algorithmic regulation, drawing upon insights from regulatory governance studies, legal critiques, surveillance studies, and critical data studies to highlight various concerns about the legitimacy of algorithmic regulation.

This paper draws on regulatory governance scholarship to argue that the analytic phenomenon currently known as 'Big Data' can be understood as a mode of 'design-based' regulation. Although Big Data decision-making technologies can take the form of automated decision-making systems, this paper focuses on algorithmic decision-guidance techniques. By highlighting correlations between data items that would not otherwise be observable, these techniques are being used to shape the informational choice context in which individual decision-making occurs, with the aim of channelling attention and decision-making in directions preferred by the 'choice architect'. By relying upon the use of 'nudge' – a particular form of choice architecture that alters people's behaviour in a predictable way without forbidding any options or significantly changing their economic incentives, these techniques constitute a 'soft' form of design-based control. But, unlike the static Nudges popularised by Thaler and Sunstein [(2008). Nudge. London: Penguin Books] such as placing the salad in front of the lasagne to encourage healthy eating, Big Data analytic nudges are extremely powerful and potent due to their networked, continuously updated, dynamic and pervasive nature (hence 'hypernudge'). I adopt a liberal, rights-based critique of these techniques, contrasting liberal theoretical accounts with selective insights from science and technology studies (STS) and surveillance studies on the other. I argue that concerns about the legitimacy of these techniques are not satisfactorily resolved through reliance on individual notice and consent, touching upon the troubling implications for democracy and human flourishing if Big Data analytic techniques driven by commercial self-interest continue their onward march unchecked by effective and legitimate constraints.

Although the use of design‐based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design‐based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim "your money or your life?" is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their use by date to stimulate sales. This article focuses on three forms of choice architecture—coercion, inducements, and nudge—employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as libertarian. Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.

Although the use of "design-based" control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it towards particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge (Thaler and Sunstein 2008), they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design-based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim "your money or your life?" is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their "use by" date to stimulate sales. This paper focuses on three forms of choice architecture - coercion, inducements and nudge, employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as "libertarian." Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.

Independent regulatory agencies, faced with multiple and often conflicting demands from regulatory stakeholders, yet operating at arm's length from government, may be under considerable pressure to demonstrate the legitimacy of their decisions and the regime they administer. This article considers how regulators employ presentational strategies to establish and maintain their legitimacy by documenting the findings of a comparative study of two independent agencies responsible for the regulation of trade practices in their respective jurisdictions: the UK Office of Fair Trading and the Australian Competition and Consumer Commission. Its findings demonstrate that presentational activities may be an important means by which regulators give concrete expression to their obligations of transparency, promote the effectiveness of the regime they administer, and publicly demonstrate how their work serves the community. The mass media is relied upon by both agencies as the primary vehicle through which they seek to communicate to their targeted audiences and the public at large, actively seeking to manage the ambivalence that infuses the regulatory enterprise.

In recent years, heated debate has arisen concerning the media practices of Australia's competition and consumer regulator ("the ACCC"), with a number of industry leaders asserting that the ACCC engages in "trial by media." The public disquiet surrounding the ACCC's use of the media was so significant that the Australian Parliament established an independent committee of inquiry ("the Dawson Inquiry") to investigate (amongst other things) whether Australian competition legislation "provides adequate protection for the commercial affairs and reputation of individuals and corporations." In its report, the Dawson Inquiry observed that widespread misgivings about the ACCC's media practices had emerged from the submissions that it had received. In its recommendations to the Australian Parliament, the Dawson Inquiry recommended that the ACCC should develop a media code of conduct to govern its use of the media, particularly in relation to enforcement proceedings. In making these recommendations, the Dawson Inquiry drew from a hitherto unpublished research study conducted in 2002 that sought to identify the extent to which the ACCC engages in "trial by media." This article documents the design, methodological bases, and findings of that study in order to facilitate broader dissemination of the research findings upon which the Dawson Inquiry's policy recommendations concerning the ACCC's use of the media were based.