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Regulating Software When Everything Has Software

Ohm, Paul and Reid, Blake Ellis, Regulating Software When Everything Has Software (November 16, 2016). George Washington Law Review, Vol. 84, No. 6, 2016. Available for download at SSRN:

“This Article identifies a profound, ongoing shift in the modern administrative state: from the regulation of things to the regulation of code. This shift has and will continue to place previously isolated agencies in an increasing state of overlap, raising the likelihood of inconsistent regulations and putting seemingly disparate policy goals, like privacy, safety, environmental protection, and copyright enforcement, in tension. This Article explores this problem through a series of case studies and articulates a taxonomy of code regulations to help place hardware-turned-code rules in context. The Article considers the likely turf wars, regulatory thickets, and related dynamics that are likely to arise, and closes by considering the benefits of creating a new agency with some degree of centralized authority over software regulation issues.”

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