Technology neutrality in European Union digital regulation

Technology-neutral regulation is a popular slogan in European digital lawmaking. Present in the European Commission’s Better Regulation Guidelines and name-checked in instruments such as the Digital Services Act and the General Data Protection Regulation, technology neutrality is touted as a way to regulate innovative technologies while fostering innovation. However, the operationalization of this concepts suffers from various challenges, not least a lack of consensus about what neutrality means in the first place. In this paper, I argue that it can be fruitful to understand those differences as variations on a theme. What unifies disparate concepts of technology neutrality is delegation: regardless of its aims, technology-neutral regulation always entails that policymakers leave to somebody else the task of determining whether and how the technical aspects of a given technology matter for its regulation. Drawing from a review of the current theoretical accounts of technology neutrality, as well as EU legal instruments and policy documents in which it is invoked, I show that this procedural account—neutrality as delegation—captures various usages of the term, while suggesting new avenues for research. To illustrate them, I apply this conceptual framework to the analysis of a high-profile regulatory instrument: the EU Artificial Intelligence Act. By doing so, I show how viewing neutrality as delegation calls attention to questions about who gets to exercise the delegated powers, which safeguards (if any) apply to that exercise, and whether the particular arrangements used for delegation succeed in furthering the aims of regulators. Finally, I explore how this procedural account of technology neutrality can be used to inform legal analysis of EU digital regulation with insights from broader political studies.