Beyond Instrumentalism: A Substantivist Perspective on Law, Technology, and the Digital Persona

Abstract

Law and technology matters have traditionally been researched in discrete categories such as intellectual property (e.g., copyright, patent, or trademark) or intermediary liability and responsibility (e.g., secondary liability and telecommunications regulation). In the last two decades, however, academics have studied the broader interaction between law and technology across legal fields. This Article examines progress to date and discusses two distinct perspectives on law and technology.

The dominant approach has been an instrumentalist one that treats technology as a tool for individuals to use while downplaying its broader social implications. However, the fields of philosophy of technology, science and technology studies, and social studies of science are now mature enough to support a rival approach grounded in a deep understanding of the nature—rather than the results—of technological change. This substantivist approach suggests analytical principles to refine and improve technology law and policy in ways that rival, instrumentalist approaches have neglected. For instance, substantivist commitments support a law and technology construct called a “digital persona” to emphasize the need for laws and policies to promote autonomy within the online world. By contrasting instrumentalist and substantivist approaches, we demonstrate new ways to integrate ethics, policy, and law in the digital age.

Keywords: online intermediaries, privacy, black box, legaltech, cyberlaw, law and technology