Document Type
Article
Publication Date
2025
ISSN
0161-6587
Publisher
Boston College Law School
Language
en-US
Abstract
A large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government’s purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. Government-provided data is particularly powerful for data-driven technologies such as AI where it is sometimes more effective than traditional methods of regulation. But government-provided data is a policy tool beyond AI and can influence policy in any field. We illustrate why government-provided data is a compelling tool both for positive regulation and deregulation in contexts ranging from addressing healthcare discrimination, automating legal practice, smart power generation, and others. We then consider objections and limitations to the role of government-provided data as policy instrument, with substantial focus on privacy concerns and the possibility for autocratic abuse.
We build on the broad literature on regulation by introducing data as a regulatory tool. We also join—and diverge from—the growing literature on data by showing that while data can be privately produced purely for private gain, they do not need to be. Rather, government can be deeply involved in the generation and sharing of data, taking a much more publicly oriented view. Ultimately, while government-provided data are not a panacea for either regulatory or data problems, governments should view data provision as an understudied but useful tool in the innovation and governance toolbox.
Recommended Citation
Janet Freilich & W. N. Price II,
Data as Policy
,
66
Boston College Law Review
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4045
Comments
Forthcoming Boston College Law Review