Governance Vacuums and How Code Is Becoming Law

Plank Two: From Civil Engineering to Software Engineering

As Lessig (2000) wrote, there is power that sits with the people who write software code, code that uses data and makes rule-based decisions. Historically, when individuals had awareness of their professional impact on public safety, they found ways to attach a site-of-care principle to their work. Well-known examples include the Hippocratic oath in medicine and the self-regulation of civil engineering. Given the implications of applying data and decision-making software to public service delivery, training in the humanities — ethics, anthropology and sociology, among others — should be required for individuals to work on certain types of software.

Rather than tend toward the historical norm of self-regulation in the engineering world, Ian Bogost (2015) writes in The Atlantic that: “software development has become institutionally hermetic. And that’s the opposite of what ‘engineering’ ought to mean: a collaboration with the world, rather than a separate domain bent on overtaking it.”

Plank Three: Procurement Reform — Buy versus Build and Other Considerations

The final plank of this proposed policy trifecta is procurement reform for government technology. As the workforce evolves and matures, there will be numerous digital natives joining the public service. Space should be protected for current and future public service technologists to design and develop the next generation of public sector tech, in particular in critical areas of government operations.

This will involve revisiting buy versus build conversations. Some solutions should be purchased, others should be built in-house and some cases will be a mix of the two options. Different licensing agreements and open source software should be explored to enable efficiencies of scale and shared code among governments.

There has been severe underinvestment in technical capacity within government over the past two decades. Government tech debt and the state of legacy information technology in government is troubling. Beyond the varied impacts of not building some tech solutions in-house, a lack of technology capacity is also impeding the government’s ability to properly manage technology procurement as a customer.

The new software products for sale in every public sector vertical market will increasingly leverage automated decision making, machine learning and AI. As such, this is the right time to put a moratorium on the purchase of non-critical software related to public service delivery.

Borrowing from context provided for those working in bioethics, consider the idea of primum non nocere (first, do no harm). This idea that sometimes doing nothing is better or safer than doing something is appropriate for our time. The stakes are too high to be making purchasing decisions without thoughtful guidance.

A related theme to be considered in this work is the growing and troubling unchecked global consensus around the merits of technocratic governance and data-driven decision making, an approach that informs the creation of government software.

This consensus threatens to normalize an efficiency obsession and entrench governance that dilutes and misunderstands the power of political decision making. Some processes and policies are inherently inefficient. Values-based leadership and decision making must be protected.

Regulating to Safeguard Democracy

The regulation of data and digital infrastructure will not stall economic development and growth. Conversely, it will enable it. By using regulation to manage social and democratic risk and inadvertent outcomes, the private sector can participate in the data and digital infrastructure economy in an organized and productive way. It saves businesses from being caught up in unintentional consumer protection disasters and allows the focus of research and development to occur in a targeted way, to bring the full power of innovation to bear upon a broad range of public sector needs.

End Game: Uphold Democracy and Its Institutions or Drift to Code as Law

The tone of late has been one of awakening — a cultural realization that technology may be going too far, too fast and that we are unclear on how to address it. It is critical to understand this current context and act fast to address the governance void. As Starks (2017) calls for, we need public debate about the social contract between residents and the state, between residents and companies, and between companies and the state.

Consultation among and between the government, the citizenry and the private sector is key. The government answers to its people through legal mechanisms in a way that corporations do not, making it the preferred steward of data. This is not to downplay the dangers of the state’s use of data and the need to safeguard against the many nefarious and abusive practices it can enable. This is also not to underestimate the power of lobbyists to exert market will on government, which is indeed the rule not the exception historically and currently.

Individual ownership and control of personal data is a space to watch. The mechanisms that this model can use to assert power are currently too underdeveloped to make individuals the lead actors in this policy work, in particular given the urgency of the situation. The mechanism is also limited in that it speaks primarily to personal data. It falls short of managing the much larger sets of data that are not personal, such as aggregate data, data about government assets, environmental data and more. Regardless, there is a growing movement to enable individuals’ control of their data. The influence of this movement in the policy space can also be expected to grow.

For now, so long as robust mechanisms exist for public input on policy and politics, government ownership of digital infrastructure and data, as well as strong guidance on related policy, is the most democratically informed approach possible. Now we must come together as a nation to discuss what we want to protect in our democracy given these new technological forces at play, how to best do so and how to enable our society and economy to thrive using technology and data, not despite them.