A Procedural Model of Technology-Neutral Regulation

‘Technology-neutral regulation’ is a popular buzzword in technology regulation. This concept appears in many national and international legal instruments, such as the World Trade Organization’s framework for international trade, copyright laws in the United States and many other jurisdictions, and the European Union’s (EU) recent legislation on matters of data protection and platform regulation. Yet, for all its popularity, there is little certainty among scholars and policy-makers about what such neutrality would entail in practice, an uncertainty that becomes more troublesome when emerging technologies, such as artificial intelligence (AI), are simultaneously governed by regulation designed under different conceptions of technology neutrality. To address this issue, I propose in this paper a procedural model of technology-neutral regulation, which represents that phenomenon as a form of delegation. Whenever regulation is designed for technology neutrality, it necessarily involves the delegation of the power to determine how the general terms of regulation are to be applied to specific technologies. My claim in the paper is that such a model is descriptively valid and analytically useful. I make the descriptive case through a thematic review of the literature on technology-neutral regulation, supported by the legal analysis of regulatory instruments usually described as technology-neutral, which shows that the definition of technology neutrality as delegation encompasses the established uses of the term in policy literature. Once descriptive validity is established, I argue that the procedural model’s main contribution comes from suggesting directions for analysing the development of regulatory frameworks for emerging technologies. By applying the procedural model to the nascent EU legal framework for AI, I show how the EU policymaker’s decision to pursue technology neutrality leads to certain trade-offs that are well-known in the broader policy studies literature, and that it provides a common umbrella for questions that are nowadays debated separately. Therefore, the procedural model has the potential to allow technology regulation scholars not to reinvent the wheel, and I finish the presentation by considering how that model can be refined and applied to technologies beyond its origins in the digital domain.