Information Law Pluralism

Information-intensive activities are reshaping political, social, and economic institutions. As they respond to these shifts, legislators and regulators are embracing information as a regulatory device for tech. Far from limiting themselves to public disclosure, consumer notice, and other traditional mechanisms of fostering transparency and information flows, however, legislators are using other, more nuanced tools to incentivize regulated entities to obtain, generate, and share information. This Article maps the landscape of the emerging information-based regimes for regulating tech and assesses their conceptual and practical implications.

It canvasses an extensive set of recently enacted laws regulating the information economy and shows that, at their core, many of these new legal mechanisms are primarily focused on information. But that does not mean that legislatures’ tool of choice is the blunt weapon of public disclosure. Instead, I argue, emerging legal interventions exhibit a striking, surprising degree of diversity. The emerging laws encourage actors to generate, share, and validate information in cross-cutting and unexpected ways.

The new body of tech laws defies easy categorization either in substantive terms or in the conventional lingo of transparency and information law. Drawing on philosophical work in information privacy, I develop a pluralist framework for analyzing, understanding, and differentiating among information law obligations. The pluralist framework includes four ways of shaping information flows—through information attributes, actors, transmission principles, and discretion—that collectively characterize the features, factors, and choices that go into information-based regulation. Finally, I argue for an alternative framing of information law as concerned with knowledge and power.

Information law should be understood as governing the conditions under which knowledge is produced, generated, and validated, not simply disclosed. In an informationally intensive economy, informational control is a key source of power. This Article argues that information law has a significant role to play in fostering countervailing power to balance the growing influence of the tech industry. Beyond its ability to deliver on discrete, legal goals, information law has the potential to reshape the terrain of knowledge production in more equitable ways.