Public Law Norms for "Governance-by-Design"

Since Congress first experimented with "surveillance by design" in the mid-1990s, requiring telecommunications networks to enable law enforcement to access certain user information, policymakers have increasingly acted on Larry Lessig's insight that "code is law" by seeking to use the design of technological systems for the advancement of public policy-to govern "by design." [...]leaving the design of technologies that play a role in public governance to private actors like regulated parties, standard setting organizations, or programmers- those with the greatest combination of incentives and technical expertise-risks privileging those stakeholders and their values. [...]if, in a contested context, the decision is made to enlist technology to regulate, efforts should be made to design systems that "enable" values-that is, systems with defaults that support alternate end states-rather than "baking them in" as part of the fundamental system architecture (i.e., forcing certain behaviors while making the choices invisible). [...]we prescribe the following institutional reforms to right-size authority and competence, and counteract regulatory tunnel vision: i. Change the Design of Legislative Efforts-ensure multiple committees review and shape a bill, serving as a check on the myopia resulting from the limited substantive agenda and technical expertise of a single committee. ii.