Elettra Bietti (Northeastern University School of Law) and Anne Bellon (Ecole Polytechnique) have posted Technological Capture (Wisconsin Law Review, forthcoming) on SSRN. Here is the abstract:
Public institutions, regulatory agencies, and government officials are increasingly captured by and dependent on tech platforms and AI companies. These companies’ asymmetric control over information and digital infrastructures gives them a privileged and novel ability to shape law and regulation, which is currently poorly understood.
Classic accounts of corporate influence and regulatory capture have painted a reductive picture of corporate power and influence in liberal democracies. While some of these accounts’ original goals were to limit corporate influence on government, they have broadly promoted corrosive approaches to tech regulation that allowed Big Tech to grow in size and influence. Our approach consists of turning dominant theories of corporate capture on their head to make better sense of tech power in the information age.
We define technological capture as the loose assemblage of techno-informational modes of influence that tech platform companies rely on to shape laws and regulatory proceedings. After describing technological capture and its plural and overlapping manifestations in tech law and policy, we lay out three strategies that governments and institutions can put in place to counter tech influence. These are (a) to strengthen regulators’ technical capacity, (b) to design enforcement mechanisms more responsive to dynamic innovation markets, and (c) to diffuse platforms’ power by tapping into their networked structures.
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