Design in Law: Rhetoric, Rationale Reach and Realities

Professor Lee A. Bygrave (University of Oslo) discusses the growing use of 'by design' approaches in law and public policy, including data protection and security. The seminar examines the trend, its challenges and whether it's here to stay.

The concept of design is increasingly salient in law and public policy. This development is particularly pronounced in European legislation which flags various 'by design' mantras, including 'data protection by design', 'open by design' and 'security by design'. In Australia, we see regulatory agencies flagging similar mantras, such as 'safety by design'. What is causing this turn to design in law? What is its rationale? Is it simply a fashionable trend soon to disappear or is it here to stay? These are some of the questions that the seminar seeks to answer. The central message it advances is that, although the design turn is an intuitively attractive strategy for embedding legal values in technology development, it is not a fail-safe solution to the pacing problem that frequently afflicts law. Design processes are in practice complicated and often stymied by tension and poor communication between the involved actors. These realities ought to be kept in mind by law makers and others who invoke design-focused norms.

Bio:

Lee A. Bygrave is Full Professor at the Department of Private Law, University of Oslo, where he is Director of the Norwegian Research Center for Computers and Law. He is additionally an Academic Affiliate of the Centre for Health, Law and Emerging Technologies at the University of Oxford, a Fellow of the European Law Institute, and Senior Research Affiliate of the Centre for Digital Law at Singapore Management University. Lee has carried out pioneering research and development of regulatory policy for information and communication technology for over three decades. He has world-class expertise on legal aspects of data privacy, cybersecurity, robotics, artificial intelligence, and governance of internet infrastructure. Lee has functioned as expert advisor on technology regulation for numerous organisations, including the Nordic Council of Ministers, the European Commission, the Internet Corporation for Assigned Names and Numbers, and the Norwegian government. His most recent expert advisory appointment was to a legislative committee established by the Norwegian Government to reform Norway’s legislative framework for re-use of public sector data by non-government actors. Lee’s work on data privacy law has been cited multiple times with approval by Advocates General of the Court of Justice of the European Union.