Dispelling the Digital Enchantment: how can we move beyond its destructive influence and reclaim our right to an open future?

Abstract

This paper outlines the content and contours of a fictional tale called the ‘Digital Enchantment’, based on the author’s observations and experience of high-level policy discussions concerning digital policy and regulation as an academic lawyer with expertise in the governance of emerging technology. Peddled primarily by technology industry representatives, the Digital Enchantment captured the imagination of many contemporary policy-makers from the early to mid-1990s onwards as the early internet emerged. It celebrates the remarkable powers of digital innovation, capable of solving intractable social problems with an accompanying moral message exhorting its audience to recognize the importance of leaving the market free and unfettered, enabling innovation to flourish freely. The Digital Enchantment rests on three core tenets: (1) digital solutionism, (2) the absence of ill-effects doctrine and (3) the extraordinary value of unfettered innovation. This paper outlines and critically evaluates each tenet, demonstrating that they are based on alluring simplifications and half-truths that purport to offer reassurance in the face of our growing unease and anxiety about the kind of future that the digital revolution might portend, while providing clear guideposts to policy-makers to refrain from legal intervention. It argues that we must work towards permanently dispelling the hold which Digital Enchantment still exerts over the mind of many policy-makers in favour of a richer, deeper and more clear-eyed, evidence-based understanding of the power and perils posed by digital innovation and its relationship to law, regulation and society in our networked digital age.