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The By-Design Approach Revisited: Lessons from COVID-19 Contact Tracing Apps
Mickey Zar & Niva Elkin-Koren
Article

  The full text of this Article may be found here.

33 Fordham Intell. Prop. Media & Ent. L.J. 635 (2023).

Article by Mickey Zar* & Niva Elkin-Koren**

 

ABSTRACT

 

[T]

his paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed.13 This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other regulatory forces to generate a social outcome.

 

*Senior Research Fellow, Tel-Aviv University Faculty of Law.

** Professor, Tel-Aviv University Faculty of Law; Faculty Associate, Berkman Klein Center for Internet and Society at Harvard University. This Research was supported by the Volkswagen Foundation under the project “Developing the socio-technical architecture method to inform policy choices in the shaping of COVID-19 digital infrastructure.” We thank Michael Birnhack, Tilo Böhmann, Fabian Burmeister, Christian Kurtz, Helen Nissenbaum, Wolfgang Schulz, Eran Toch, and Assaf Yaakov for their helpful comments on earlier drafts. We further thank the participants of the Workshop on Interdisciplinary Research in Computer Science & Law: Emerging Challenges (March 2022), Cornell Tech Digital Life Seminar (2022), the participants of the TAU Law Workshop for Law & Technology (2022), and the participants of the Public Health & COVID-19 panel at the Surveillance and Society Conference 2022, ESHCC Rotterdam. We thank Shada Samara, Omer Ein-Habar, and Yuval Tuchman for excellent research assistance.