Searching for technology neutrality

Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! My original plan for this issue was to discuss an ever-present topic in the life of most academics: rejections and failure. However, this weekend has led me to change path a bit: after a pretty depressing first-round of elections, Brazil has delivered a solid rejection to Flavio Bolsonaro, who has already fled the country. Even though some of the nastiest aspects of his political agenda remain on the table — and my objections to Lula notwithstanding — that is a milestone in the preservation of Brazil's democracy, currently undergoing something of a midlife crisis.

While I do not plan to spend more time with Brazilian politics today, I am still in the mood to write something more uplifting. So, the personal reflection about failues will have to wait a bit. In the meantime, I want to share some thoughts about another of my usual topics - technology-neutral regulation. After that, you'll find the usual contents: some reading recommendations, some events, and a cute otter by the end. Hope you enjoy!

More than words

For somebody who likes to think a lot about method, I am quite a boring scholar. Much of my work can be described (if you are generous) as "this concept makes no sense, let's try and clean things up a bit", "this technological peculiarity kinda matters for how we interpret the law", or "this boring provision is actually load-bearing". As one might be expected, the same can be said of my work on technology-neutral regulation, which has elements of these three prototypes. Today, I want to focus on the third aspect: the relevance of technology neutrality in regulation.

Having arrived at my PhD topic quite late in the process (thanks, Deirdre, for putting up with that!), I arrived at technology neutrality as something that unifies various discussions about regulation: how can policymakers deal with the pesky technicalities that characterize emerging technologies? How to ensure the timeliness of regulatory interventions? How to avoid political blame for the likely frictions that will emerge in the process? These and other questions led me to see technology neutrality as an ubiquitous strategy for delegating regulatory powers.

One obvious problem of that hypothesis is that the term 'technology neutrality' does not appear that frequently in legal texts. It gets some explicit mentions in EU policy documents, such as the Commission's Better Regulation Toolbox, and in non-binding clauses of legal instruments (see, e.g., Recital 15 GDPR). Yet, the term appears way more in discourse about the law than it does in legal texts themselves. In the EU, one can see that in the AI Act: even though that regulation is frequently described as being technology-neutral, the only mention to neutrality in the finalized texts actually refers to its overlap with the Digital Services Act. The same pattern can be seen elsewhere, for example in the discussion about the role of technology neutrality in the current system of international trade law.

Further complicating things, technology neutrality can often be described through alternative locutions and through similar concepts. Coming back to international trade, the well-established notion of technical barriers to trade bears a considerable affinity to what tech law scholars discuss under the umbrella of technology neutrality (see, e.g., Soprana on the AI Act and international trade agreements). Neutrality is often mentioned, or even equated with, the idea of futureproofing regulation (for a critical assessment, see Ojanen). As a result, attempts to map the field of technology neutrality (such as the scoping review by Puhakainen and Väyrynen) have often been restricted to particular domains and/or left out examples that other scholars have seen as paradigmatic.

How do we get a sense of technology neutrality under these circumstances? Being a concept plumber at heart, I designed my PhD (and the forthcoming book) around a reflexive approach, in which I iteratively refined my working model of technology neutrality as a form of delegation by evaluating how well it captured the features of core cases of technology-neutral regulation as identfied by the literature. To follow up on that, I am now playing around with a more empirical bent: using that renewed definition of technology neutrality to look for its appearances in case law and definition.

I will bother you with more details about that study as I advance in it. Still, my preliminary searches suggest that past Marco might be on to something. Once we look past the question of whether particular formulations of the legal text match specific technical arrangements and start to see the law allocates technical decisions, we can find common trends between how domains such as public procurement, digital regulation, and environmental law have dealt with problems of technical complexity. We can also distinguish them from legal approaches to the related (but, in my view, ultimately different) problem of handling scientific uncertainty in legal practices. With any look, I will have some nice tidbits to share soon. In the meantime, I will stop this rant here before I feel tempted to work more on this instead of dealing with more urgent matters.

Recommendations

J Ignacio Criado and Carlos Jiménez-Cid, ‘Unveiling the Dynamics of Chatbot Utilization in the Public Sector: A Framework of Users, Types, Conditions and Effects’ [2026] Information Polity 15701255261481616.

James K Feibleman, ‘Technology as Skills’ (1966) 7 Technology and Culture 318.

Alejandro Flores Moleón and Alvaro Oleart, ‘When AI-First Becomes Democracy-Last: The European Commission’s Digital Omnibus and Its Technosolutionism on Steroids’ [2026] European Journal of Risk Regulation.

Alan Garfinkel and Yina Guo, Understanding Data: A 21st Century Approach to Statistics and Data Science (Springer Nature Switzerland 2026).

Jennifer Karns Alexander, ‘Thinking Again about Science in Technology’ (2012) 103 Isis 518.

Joana Mendes, ‘Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU’ (2017) 80 The Modern Law Review 443.

Opportunities

Disclaimer: as usual, I am gathering these links purely for convenience and because I think they might be of interest to readers of this newsletter. Unless I explicitly say otherwise, I am not involved with any of the selection processes indicated below.

This Friday (30 October), I will be in Lisbon for a conference on AI and administrative decision-making hosted by the Lisbon Public Law group. Join us!

Next week (3 and 4 November), the ERA - Academy of European Law will host a webinar on Enhancing Data Protection through Technology. I will speak on the 4th, at 9am, about cybersecurity and AI.

My former boss, Niovi Vavoula, is still looking for a doctoral researcher in law for the SAFEHACK project on a legal framework for ethical hacking. Applications will be assessed on a rolling basis.

Utrecht University is organising the conference Can Public Procurement Law Do it All? Coherence and Trade-offs in a Fragmented Landscape of EU Law, on 17 June 2027, in Utrecht. Abstracts are accepted until 15 January 2027.

Also in Utrecht, the biennial Interdisciplinary Public Procurement PhD Forum will take place on 16 April 2027. Submissions are due by 29 January 2027.

And now, the otters

Thanks for your attention! Do not hesitate to hit “reply” to this email or contact me elsewhere to discuss some topic I raise in the newsletter. Likewise, let me know if there is a job opening, event, or publication that might be of interest to me or to the readers of this newsletter. Hope to see you next time!