This study of Kostina Prifti analyses the role of regulation by design in the context of Artificial Intelligence (AI) and European Union (EU) governance. The societal problems sprung by AI, manifested through the legal disruption it causes – among other effects – require the introduction of regulatory governance measures. These measures, which may be embedded in various governance levels and governance modes, should aim to steer the design and deployment of AI technologies in directions that benefit societal interests, preventing or (at least) mitigating the risks that AI poses. Regulation by design, a research field and a practice that is concerned with the regulative activity of design, has the potential to play an important functional role in this societal objective by virtue of the impact that the practice of designing has on the behaviour of the technological system.
This thesis explores and develops the field of regulation by design in the context of AI and EU governance. Concretely, this is performed by identifying and addressing the problems that hinder the potential of regulation by design, both as a research field and as a practice. Analytically, these problems may be categorised in four groups: conceptual, theoretical, practical, and governance-related problems.
Conceptually, regulation by design is characterised by a myriad of different approaches. Although they refer to the same, core idea, i.e., that design has a regulatory function, they diverge in terminology, approach, and the specific features of regulation by design in which they focus. This is not a problem in itself, but the development of the field has led to many competing theories and frameworks without any overarching conceptual framework. The thesis addresses these conceptual problems by developing a structured view of the concept of regulation by design, outlining its main features, namely the goal, the regulator, the regulatee, the method, and the technology.
Theoretically, design’s role in the regulatory governance scholarship has been peripheral. The interaction between regulation and design is either neglected or the role of design is conceptualised as a tool of regulation, overlooking the complexities that the practice of design bears. The thesis revisits this interaction from the viewpoint of design as a practice. This leads to a pragmatist conception of regulation by design as the regulative activity of design. The pragmatist account of regulation by design clarifies also the role of governance as a meta-regulative activity, that is, what practices do when they regulate how another practice should regulate. The thesis discusses the practical and governance-related implications of regulation by design firstly through a descriptive exercise, followed by an analysis of the shortcomings for each type of practice and each form of governance. Generally, regulation by design is practiced either as a formalist exercise, where the aim of the practice is to formalise (legal) knowledge into design processes, or as a pragmatist exercise, where the aim of the practice is to install specific solutions throughout the design practice. In terms of governance, regulation by design can be part of private, hybrid, or public governance structures. In the EU, hybrid governance structures, that contain both public and private actors, such as standardisation, are the main structure where regulation by design is governed.
To navigate the outlined practical and governance-related challenges, the thesis proposes an exploratory avenue: the introduction of experimentation methods and co-creation frameworks within the ambit of regulation by design. This suggests a proactive approach, acknowledging the evolving nature of AI technologies and the need for flexible, adaptive regulatory strategies. By incorporating experimentation and co-creation, regulation by design may be more useful and relevant for the aim of regulating AI.
Prifti defended her thesis November 28th, 2024 at the Erasmus School of Law. Promotores: prof. dr. Klaus Heine and prof. dr. Evert Stamhuis.
Kostina Prifti
Regulating artificial intelligence by design. Exploring the practice, developing the theory, and devising governance solutions.
available via open access