The Adoption of New Policy Instruments and Regulatory Strategies into the Regulation of Information and Communication Technologies

By: Rotem Medzini

By restructuring governmental architectures and reshaping control mechanisms, the “modern” regulatory state has transformed how the different actors within the regulatory space structure accountability and transparency into policy instruments used to pursue public goals (Levi-Faur, 2010, 2013; Lodge, 2004; May, 2007; Salamon, 2000; Scott, 2000). Simultaneously, within the information ecosystem, while information technology companies express their informational advantage within the regulatory space algorithmically (Pasquale, 2015) and resist ‘external’ state regulation, the regulatory state manages to maintain its influence and adapts to new circumstances affected by Information and Communication Technologies (ICTs) (Braman, 2006; Castells, 2009; Keohane & Nye, 1998). In doing so, the state manages to evolve to an “informational state” where it learns to master informational power to the level of non-state actors, it learns to use the private sector to reach social goals, and it learns to support multiple state and non-state actors (Braman, 2006).

Therefore, the recent adoption of new policy instruments within the information ecosystem raises the question of what explains the adoption of this new regulatory strategy? Specifically, in recent years, the principle of Privacy-by-Design have been incorporated into information protection regimes ranging from the Internet and telecommunication sectors to the police and air-transportation sectors. The inclusion of this principle by both national and transnational institutions in the U.S. and the EU and the centralization of Data Protection Authorities signifies most of all a change in the trajectory of the regulatory strategy from prescriptive-based regime to a process-based regime. This research follows the rise of the information regulatory state through the inquiry into the adoption of information protection regimes and the new policy instruments used to handle the global information market. As such, the proposed PhD project offers to center on three case-studies. In parallel to the two leading information regulation regimes, this first paper offers to center on the broad European regime, while the second paper will deal with the much technology stronger American regime. The third paper offers to center on the multinational corporations and the transatlantic regulation of information.

The main goal of this proposed project is to explain the new strategies used to regulate ICTs, the causes for their adoption, and the effects of regulating through implementing policy instruments on cyberspace. Additionally, the proposed project adds three specific contributionsto previous research. First, the regulation of ICTs sheds light on how a regime is slowly becoming a process-based regime through the interactions amongst actors and adopting new policy instruments. Second, the proposed project contributes to the research into ICTs and algorithm-based decision making in the context of how state and non-state actors use policy instruments to regulate cyberspace. Lastly, the differences between the EU and U.S. information protection regimes provide a broader comparative perspective rarely adopted by previous investigations.

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