Tel Aviv University
The By-design Approach Revisited: Lessons from Covid-19 Contact Tracing App
The “by-design” approach, that is, the belief that pre-embedding values in technology itself will bring about the desired social outcome, has become a cornerstone of modern regulatory approach to technology. In recent years it has become a golden standard for laws and reform initiatives related to privacy, copyright and Artificial Intelligence. This paper challenges the by-design approach, by exploring the case study of Contact Tracing Apps used to tackle the spread of COVID-19. In the wake of the pandemic, a variety of design solutions were introduced around the world, each reflecting a distinct trade-off between the need to respect users’ privacy and the information needed for public health purposes. After a brief success, the quest for a panacea technological remedy to arrest the pandemic eventually failed. The case study discussed in this paper demonstrates a major flaw in the approach which focuses predominantly on by-design solutions. It describes how technological affordances were shaped by social institutions in ways that divert from their pre-designed functions. On the one hand, a privacy-preserving design has led to unintended consequences, shaped by social norms and market forces. On the other hand, the intrusion on privacy by mandatory mass surveillance was somewhat mitigated by legal restraints. The case study further highlights the key role of law in shaping the social outcome of technology, with some important lessons to policymakers.
Niva Elkin-Koren is a Professor of Law at Tel-Aviv University Faculty of Law and a Faculty Associate at the Berkman Klein Center for Internet & Society at Harvard University. She is a former Dean of University of Haifa Faculty of Law, and the founding director of the Center for Cyber, Law and Policy (CCLP) and of the Haifa Center for Law & Technology (HCLT).
Prof. Elkin-Koren has been a Visiting Professor of Law at Harvard University, Columbia Law School, UCLA, NYU, George Washington University and Villanova University School of Law. She is the Chair of the Scientific Advisory Council, of the Alexander von Humboldt Institute for Internet and Society in Berlin, a member of the Executive Committee of Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), and a board member of the MIPLC Scientific Advisory Board at the Munich IP Law Center, Max Planck Institute for Innovation and Competition. She is also a member of the editorial boards of the Journal of the Copyright Society (since 2009) the Journal of Information Policy (since 2010) and the Internet Policy Review (since 2016).
Prof. Elkin-Koren received her LL.B from TAU in 1989, her LL.M from Harvard Law School in 1991, and her S.J.D from Stanford Law School in 1995.