#1 Introduction: The Need for Smarter Institutions

Beth Simone Noveck in Analyse & Kritik (2018)

Read the abstract here.

In the United States in 2018, Amazon announced that twenty cities were in the running to host Amazon’s second headquarters (HQ2) (Day 2017). With the promise of 50,000 new jobs being dangled before these cities’ mayors and councils, public officials were competing to offer incentives to the Silicon Valley retailer (Michaels 2018). In a process that usually happens behind closed doors, the Amazon HQ2 bidding war has given the public a glimpse into the all-too-common process of using tax breaks to lure companies to town even without any clear evidence that the city will recoup the costs by other means (Oliver 2017). New Jersey, for example, offered Amazon $7 billion dollars in tax breaks if it were to have set up shop in Newark. Fresno, no longer in the running after finalists were chosen in January, went even further, offering to cede control over the city to the company (Holder 2018).

Offering such incentives to private companies is nothing new. In Wired Magazine, Susan Crawford questions whether Toronto’s agreement with Google spinoff Sidewalk Labs to develop and wire a 12-acre portion of the city called Quayside will yield real benefits for the city and its citizens. In this case, the incentive offered to the company is citizens’ data. “The idea is that Sidewalk will collect data about everything from water use to air quality to human movements. But city officials — and citizens — will get access to very little of what Google learns from their citizens… Meanwhile, Google will be gaining insights about urban life — including energy use, transit effectiveness, climate mitigation strategies, and social service delivery patterns — that it will then be able to resell to cities around the world. Including, perhaps, Toronto itself.” (Crawford 2018)

These examples are emblematic of a common problem. Communities are grappling with how to regulate new technologies but also how to stand up to the innovative yet powerful private companies that created them. Public officials are often ill-equipped to know how to negotiate these deals, especially when they involve complex and challenging scientific advances, such as autonomous vehicles, Artificial Intelligence (AI), CRISPR gene editing, or sensor networks, all of which raise myriad ethical, moral, political, legal, regulatory and social questions.

As we shall explore, the demand on government to legislate and regulate — made all the more difficult and urgent because of the still-evolving nature of new technologies — on a wide range of issues from driverless cars to immigration is precipitating the need for improving the quality of lawmaking by bringing greater collective intelligence to bear to enhance the lawmaking processes. Making use of more expertise and know-how from more diverse sources may also help to enhance the legitimacy of lawmaking.

Thus, in this Essay we examine ‘crowdlaw’, namely how city councils at the local level and parliaments at the regional and national level are turning to technology to engage with citizens at every stage of the law and policymaking process. Examples range from the Mi Senado (‘My Senate’) mobile app to “bring Colombian citizens closer to the legislature via increased information access, communication channels with senators, and real-time voting opportunities” to web-based citizen collaboration in drafting laws and regulations in Finland and France to citizen participation in constitution crafting in Iceland and South Africa (Oddsdottir 2017; Barnes/DeKlerk 2012).

As we hope to demonstrate, by bringing both more cognitive expertise as well as diverse ethical perspectives into the deliberation and decisionmaking around lawmaking, crowdlaw holds the promise of improving the quality and effectiveness of the outcomes (Rothstein 2011; Landemore 2017). Thus we are self-consciously arguing that more online citizen engagement does not simply enhance procedural legitimacy but, done right, enhances output-legitimacy. However, as we shall explore in this essay and in Marti and Alsina’s companion essay “The Birth of the Crowdlaw Movement”, current practices often do not succeed because they combine problem identification with problem solving, jumble drafting with commenting and confuse implementation with evaluation. The most successful projects in terms of enhancing the epistemic quality of lawmaking are those that are designed to meet the specific informational needs for that stage of problem solving. Thus, to catalyze smarter institutions and more active citizens, care must be taken to ensure that participation is well-tailored to achieve the desired ends. Even as collective intelligence can augment lawmaking by opening up previously closed processes, it may also represent a threat to traditional forms of representative process. The ultimate question is whether the resulting changes in process enhance or degrade the effectiveness of lawmaking, effectiveness understood as the ability of lawmaking to offer a solution to an articulated problem.

Read the next part- The Need for Collective Intelligence