The Promise and Limits of Lawfulness: Inequality, Law, and the Techlash

In response to widespread skepticism about the recent rise of “tech ethics”, many critics have called for legal reform instead. In contrast with the “ethics response”, critics consider the “lawfulness response” more capable of disciplining the excesses of the technology industry. In fact, both are simultaneously vulnerable to industry capture and capable of advancing a more democratic egalitarian agenda for the information economy. Both ethics and law offer a terrain of contestation, rather than a predetermined set of commitments by which to achieve more democratic and egalitarian technological production. In advancing this argument, the essay focuses on two misunderstandings common among proponents of the lawfulness response. First, they misdiagnose the harms of the techlash as arising from law's absence. In fact, law mediates the institutions that it enacts, the productive activities it encases, and the modes and myths of production it upholds and legitimates. Second, this distinction between law's absence and presence implies that once law's presence is secured, the problems of the techlash will be addressed. This concedes the legitimacy of the very regimes currently at issue in law's own legitimacy crisis, and those that have presided over the techlash. The twin moment of reckoning in tech and law thus poses a challenge to those looking to address discontent with technology with promises of future lawfulness.