We live in the age of big data and algorithmic governance. Today, governments and private actors can collect, store, and continuously update vast troves of data. Yet we have barely begun to understand the impact on our democracy of large-scale data collection and the use of such data sets to make decisions that can dramatically impact individual lives and entire communities. Over the coming months, the Institute’s 2019-2020 Senior Visiting Research Scholar, Amy Kapczynski, will be leading a project to investigate how big data affects our system of self-government. We are soliciting papers from scholars and experts in multiple fields, and will host a major symposium, “Data and Democracy,” in the fall of 2020. The symposium will be co-sponsored by the Knight First Amendment Institute and the Law and Political Economy Project at Yale Law School.
The symposium will investigate what our changing capacities to capture, analyze, and manipulate data mean for self-government, and ask how the law must adapt to ensure the conditions for a robust democracy in this age of big data. In particular, we will look at three areas that we see as both central to democracy and as directly affected by recent technological changes, considering the following questions:
Public Opinion Formation and Access to Information
- Do the public, researchers, and journalists have the ability to access the data and information needed to hold government and companies to account, and if not, what reforms are needed?
- Are claims to trade secrecy and confidential commercial information today being used to advance or hinder democratic processes? In what settings? And how might laws, rules, or practices need to adapt to address these issues?
- Do laws that shape data-gathering, research, and processing need to be reformed to protect the conditions of public discourse or democratic power? For example, are changes needed to privacy law, FOIA law, the law of sealing in courts, trade secrecy law, the Computer Fraud and Abuse Act, the Communications Decency Act, or First Amendment doctrine?
The Formation and Exercise of Public Power
- Do algorithmic and machine learning techniques challenge the ability of the public, or people, to make decisions? How do they influence institutions of democracy such as political parties and elections? With what implications for democracy and law?
- Data-intensive governance and machine learning generate new challenges for values of due process and non-discrimination. What is distinctive about these problems, and how should courts, legislatures, and agencies react to them?
- Can fairness and due process challenges be addressed via procedural oversight by existing institutions, or are new institutions necessary to protect democratic prerogatives?
The Political Economy of Data
- How do changing technological means to manipulate data impact inequality and stratification, and how should the law respond?
- Are efforts to ensure transparency, fairness, and accountability sufficient to resolve tensions with democratic governance, or might more substantial shifts in the political economy of technology be needed – for example, changes in who shapes the collection of data, who controls its uses, who owns it, or in the governance of data-intensive platforms?
- How have the laws that underpin what some call “informational capitalism” or “surveillance capitalism” evolved, and to what effect for democracy? These might include, for example, First Amendment law, contract law, trade secret law, intermediary liability law, and privacy law, among others.
Watch this space for further information about the symposium, including announcements about the participants and their paper topics.