Regulation governance in the digital era: A new research agenda.

Dutil, Patrice ; Williams, Julie

Introduction

Governments have long been confronted with the challenge of balancing the public good and private needs. The answer has been some sort of regulation--a mix of rules and policies that dictate the limits of commercial and industrial actions. The digital era presents governments with a triple regulatory challenge: monitoring new activities arising out of the digital revolution; adopting digital technologies to proactively detect and address risky behaviours; and responding to calls for a more agile regulation that abandons ineffective practices and standards and adopts new ones as circumstances change. Focusing on how the state has organized itself to govern regulation, either alone, through agencies, or through networks or partnerships, this article sets out a research agenda that may lead to a greater understanding of how government can respond to and leverage the digital era.

To map the research agenda on this rapidly changing reality and its challenges to governance, this article examines the state of the literature on regulatory governance rather than the tools of regulation. The focus here is thus a consideration of how the state has organized itself to carry out regulation, either alone or through various formal and informal institutions that have facilitated harmonization, co-regulation, co-management and, finally, networked regulation. Are the models currently in use likely to be relevant in the digital era? A recent treatment of regulation at the provincial level in Canada identified three broad issues. The first was the broad process of developing and managing regulations. The second was regulatory impact and the third was the interconnectivity of regulations (Atkinson et al. 2013).

Has regulation worked? Using data drawn from twenty-four advanced democracies from 1976 to 2003, a study of the policy outputs of various environmental measures concludes that the regulatory impact was minimal (Knill, Schulze, and Tosun 2012). To that core question, a number of subsidiary inquiries impose themselves: What are the essential ingredients of effective regulatory governance that can be transferred from the mechanical to the digital era? To what degree is the state in a position to continue regulation and under what obligations? How can it maintain its legitimacy when new industries can rapidly scale to national and international levels of activity, unencumbered by having to build three-dimensional infrastructures? Can established industries in primary, secondary and tertiary sectors benefit from the new digital technologies that can dramatically reduce the cost of detection and monitoring? Who should assume compliance costs? This article explores the scope of regulatory governance as it has been described in the literature since Cary Coglianese's call for study of the various implications of the digital era on government regulation in 2004 (Coglianese 2004). Our focus includes three broad concerns that seem to emerge. The first is capacity--the ability to monitor and enforce regulation but also to understand its impact in light of the changing nature of the industry. The second concern has been the conditions necessary for effective self-regulation and co-regulation. The third is the nature of public involvement and regulatory networks as a viable option to improve regulatory tasks.

Regulation prior to the digital era

The practice of entrusting a government department to conduct regulation has been eroded by the implementation of the New Public Management. There are sectors--labour and environmental inspection, for instance--where direct state involvement is maintained. In Canada, the task of regulation is carried out by a mix of actors. Most regulations, it is fair to say, have been passed on to various agencies, boards and commissions. Indeed, there has been an explosion of these organizations. They have been captured by a new moniker, delegated administrative authorities (DAAs), but the scholarly attention to them has been more descriptive than analytical. In Canada, Ontario's Technical Standards and Safety Authority (TSSA), created in 1996, is one of the largest of these DAAs and has been examined for its regulatory performance. Its governance brings together government and industry representatives and the Ontario government has, for all intents and purposes, increased its weight in this organization over the past decade, though it is still dominated by industry interests (Winfield 2015; Winfield, Whorley, and Kaufman 2002). Hanretty and Koop (2013), however, documented the link between the formal and actual independence of regulatory agencies by examining the appointment patterns for chief executives. They discovered that in Western Europe most appointments seem to indicate no formal ties to the political rulers in government. They nonetheless concluded that there were still reasons for concern in examining their independence in regulatory management.

Globally, the dominant trend has been to seek new governance arrangements that will outsource inspections, rule-making and enforcement to third parties. Regulators in different countries and domains experiment with regulatory tools that allow organizations to adapt regulation to their individual circumstances. Much regulation focusses on processes such as systems-based regulation, enforced self-regulation, management-based regulation, principles-based regulation, and meta-regulation. The gamut of regulatory practices is so broad that its governance is coming into question. Abbott (2009) asserts that the system of treaties and international organizations has grown so complicated that it is no longer capable of regulating international business. Most of the new structures, he points out, are private and operate through voluntary standards. Harking back to the "iron triangle" theory that regulation was a game played between the bureaucracy, industry and parliament, he updates it to a "Governance Triangle" and also grafts onto it the "New Governance" model to a "Transnational New Governance." He notes, however, that international regulation efforts suffer a "significant orchestration deficit."

The stress points in the transition to a hybrid form of regulatory governance can be seen in the food industry, where public concern about safety is placing increasing pressure on government agencies to be more prescriptive and proactive in their regulation and to involve more segments of the population in the governance. Given the scarcity of public sector resources, concerns about the impact of regulation on competitiveness and the scale of the task at hand, there is growing interest in co-regulation, with public and private sectors working hand-in-hand to deliver safer food at lower (regulatory) cost. A comparison of citizen involvement in the regulation of genetically modified foods in Canada and the United Kingdom showed a range of approaches. The UK process has proven to be more accountable and transparent than the Canadian, largely because of political factors (Hartley and Skogstad 2005). Community involvement in monitoring industry has shown some promise (Moyer et al. 2008). Arcuri (2015) examined the effects of the process of publicizing--the act of openly declaring if a product or process lived up to public standards. Using examples from the European community and the United States, this study found that it indeed had an important impact on regulators as well as on the quality of the regulations themselves.

Literature on regulation in the digital era

In reviewing the issue of regulation in the digital era, three themes arise in the literature: the importance of capacity; regulation and public involvement; and the rise of regulatory networks.

The imperative of developing capacity

The idea of regulatory harmonization is that one jurisdiction will copy or recognize another's regulations in order to make the exchange of goods and services as friction-free as possible. The literature seems fairly consensual on the idea that certain conditions must be met in order to facilitate harmonization. The key is capacity: an ability to develop or learn to apply, monitor and enforce regulations. The literature has been concerned by the conditions that ensure capacity, namely, a learning culture, the sophistication of the industry and the degree of political support.

A study of "learning-oriented approaches" (Gilad 2010) made possible by a high regulatory capacity, a stable regulatory agenda, and a supportive political environment found them to have a positive, albeit varied, impact on organizations' performance. The factors that shape this inconsistent effect are analyzed. The author shows that in situations of regulatory uncertainty or where non-compliance is prevalent, this approach could be used to advantage. Waverman and Koutroupis (2011) found a direct link between regulatory capacity and rankings on an index. The one in question--the Telecommunications Regulatory Governance Index (TRGI)--ranks the 142 countries that belong to the International Telecommunications Union. They found that countries with better institutions have telecommunication regulators that consistently score higher in the TRGI. Perkins (2014) compared 131 telecommunications regulatory agencies in 80 countries and developed a comparative framework to capture the institutional variation in industrial regulation. The study found that the single largest source of cross-national variation was the level of regulatory institutional stability (accounting for 16 percent of the total variation in cross-national industry regulation), where a learning mode could be maintained. Perkins also concluded that government action still played a vital role in regulation, and that stronger states were much more likely to have effective regulatory machinery than weaker ones--showing also that a country's economic performance was likely directly linked to its ability to regulate.

The Brazilian Association of Regulatory Agencies was also identified as a successful example of the institutionalization of a regulatory policy network because it has facilitated capacity building and professionalization (Bianculli 2013). This non-governmental organization has become a focus of expertise and according to Bianculli has also strengthened the regulatory state in Brazil. Hill et al. (2008) reviewed water legislation and governance in Canadian provinces and territories to test concepts of harmonization and subsidiarity. They found that some water issues would benefit from greater harmonization--especially by involving the federal government because of its learning capacity. With regard to transboundary waters, however, they found subsidiarity might be more effective--with Ottawa playing the preponderant policy role. Looking at how HIV clinics managed "attention," Heimer (2008) argued that regulatory agencies could learn from these practices in order to keep up with changing economic conditions that challenge regulatory practices. Heimer analyzes forms, training and meetings, and delegation to new occupations as devices for conserving attention.

Capacity was also measured by the agency's ability to reason publicly. For instance, to what degree are Regulatory Impact Analysis statements (RIAs) founded on scientific evidence? One study of the US RIAs (Desmarais and Hird 2014) looked at the pattern of scientific citations in RIAs published over a four-year period. They found evidence that, while some agencies make extensive use of science in RIAs, most are drawn from highly cited scholarly journals. RIAs are exceptional tools in the learning arsenal, but according to Peci and Sobral (2011) their success depends entirely on the capacity to deliver on it. They note that Brazil, a large economy, does not practice RIAs and that relatively few people in civil society are aware of it, let alone government. Shapiro and Morrall (2012) documented the gaps in government learning. Looking at an American database of 109 economically significant regulations issued between 2000 and 2009, they find "that there is little correlation between the information provided by the analysis and the net benefits [of regulation]." They conclude that what really matters is whether the regulation has attracted political attention: "regulations that receive few public comments" and which are passed early in a mandate, "have the highest net benefits."

Baker (2013) emphasized political will as the essential facilitator in building a learning capacity, using as a case study the various stages of policy development that were experienced in the task of improving financial regulation after the 2008 crash. Baker found that a variety of countervailing political, institutional, and informational variables impeded the rapid development of the ideas that emerged. In part the fault is political in that "policy is being developed by cautious technocrats who rely on the gradual accumulation of data and evidence to justify policy." Combining both political forces and demands generated by data, Baker noted a distinctly incremental dynamic to policy development in financial matters. Porter (2014) examined the trade in financial derivatives and professional financial designations, both with different transnational business governance systems. He found that where technical systems are present (such as derivatives), transnational business governance schemes will be specialized and complementary, rather than competitive.

Researchers discovered that the nanotechnology industry has learned to adopt a code on its own. It developed a code of conduct (Bowman and Hodge 2009) as a private governance mechanism to manage potential risks. The industry's "nano-codes" have also worked as an informal form of regulation. A review of the governance mechanisms reveals real weaknesses (no clear standards, weak independent monitoring, and ineffective sanctions) but highlights the potential power of these governance mechanisms in situations where the future of an industry is uncertain and where coregulation with government might be possible. It is presented as a "first cut" of a new governance regime for nanotechnologies.

Industry is willing to learn and adopt international practices and apply them in all sorts of national contexts. International pharmaceutical companies operating in East Africa, for instance, applied the regulated standards of countries because it was easier to follow the already learned, established practice. Cloatre and Dingwall (2013) called this reality an "embedded regulation" whereby complex networks of actors, rules, values, and practices were applied. The socio-technico-legal network developed in the West proved resilient. Bauer, Knill, and Pitschel (2007) examined the impact of EU regulatory governance patterns on Eastern European countries and found that standards for compliance, competition and communication did trigger domestic adjustments. Regulation was held as a legitimate condition to EU membership, and Eastern European countries invested in developing a learning capacity in order to live up to new regulatory standards.

Other studies have found regulatory understanding in the United States government wanting. Looking at the output of executive branch agencies from 2008 to 2010 (that is, in the transition between the Bush and Obama administrations), Ellig, McLaughlin, and Morrall (2013) judged the quality of regulatory analysis to be "generally low," but with variations. Budget regulations tended to be of higher quality, while end-of-term regulations were poorly documented. They concluded that the variance could be explained by politics. By their account, the agencies that managed policy priorities tended to produce less analysis in justifying their regulations.

Regulatory "threats" can be effective, as long as the threat is seen by regulatees as credible and informed. Verbruggen (2013) argued that state regulatory capacity is a necessary precondition for the effective enforcement of transnational private regulation. The study focused on advertising and food safety regulations and found that in those two fields, private sector actors were motivated to live up to transnational private regulations. The lesson here was that the state had to create the necessary preconditions to strengthen private regulatory enforcement. In doing so, however, it would have to build up its own regulatory capacity.

Bach and Newman (2014) identified key domestic drivers of transgovernmental regulatory cooperation. The first one was the quality of the membership. Looking at patterns of regulatory cooperation in securities and insurance regulation, they found that the preponderance of the industry in any given jurisdiction is likely to drive the level of interest. In other words, if the industry or firm is important, governments will be more actively involved in the regulatory network--and this becomes particularly important in sharing information. One thing is clear, the issue of building highly effective technology and data manipulations teams in the regulatory apparatus of the state is still waiting for its chroniclers and analysts.

Assuming capacity to regulate in industry: certification as a legitimizing tool

The failure of the worlds' governments to agree on a binding global forest convention at the 1992 Rio Earth Summit led many leading environmental groups to advance eco-labelling "forest certification" programs. It was hoped that this mechanism would achieve greater success in encouraging and implementing sustainable forest management. Supporters of this "non-State, market driven" approach hoped that customer recognition would create compliance mechanisms. Self-regulation in the forestry sector has been better documented. In Ontario, for instance, the Ministry of Natural Resources handed over field inspections to the industry. The self-inspection regime has led to concerns of conflict of interest with regard to regulatory enforcement as well as for the regulatory capacity of the Ministry itself (Winfield 2005).

Howlett and Rayner (2006) also examined National Forest management programs in light of the increased participation of private sector actors. In looking at "next generation" examples of regulatory governance, they concluded that international efforts had proven weak, and that the deciding factor seemed to be the capacities of private actors.

The Forest Stewardship Council is generally regarded as the prime example of certification as a global governance tool. One study of this path-breaking institution (Marx and Cuypers 2010) found that its efforts had done little in halting deforestation in developing countries and significant variation in certification uptake between countries. Political pressure to join the council, more prevalent in developed countries, seemed to be a key factor. Government has also passed off regulation to industry by declaring that the latter had to ensure every precaution before introducing a new product to market. A comparative study of chemical regulation in Canada and the European Union, in which industry is charged with ensuring and demonstrating that it is using the broadest precautionary principles concluded that the technique was successful. It denies the entry of new products unless industry could show that its use would have no nefarious effects on humans or the environment. The results were more safety and reduced cost to the state (Briand 2010). Black and Baldwin (2012) probed what strategic choices could be made in delegating the regulation of lowrisk processes and reviewing performance. They concluded that while it was possible, success depended entirely on the nature of the regulatee: some were more responsible than others. At the same time, other factors come into play, not least the nature of the risks themselves. For instance, an examination of flood management in Germany and England challenged the trust invested in risk-based governance (Krieger 2013). Krieger argued that the inventory of risks rapidly become institutionalized and, as a result, blinkered. In the case of flooding, he points out, the risks typically identified do not capture the changes brought about by climate change and the increasingly frequent flood disasters that have beset Europe recently.

Assuming capacity to regulate in industry: co-regulation

The literature is still uncertain as to the value of this practice, again because of a concern for capacity. Cafaggi and Pistor (2015) for instance, examined more closely the concept of "regulatory capabilities" in the context of transnational regulatory partnerships. They saw great merit in co-regulation, but asserted that individuals, groups, or entities should not be subjected to a regulatory regime without some freedom to determine its nature. However, in order to do so, such groups must indeed possess "regulatory capabilities" that will both contribute to the transnational dialogue while still being able to protect home interests.

A study of the potential for co-regulation of food safety in the UK and North America (Garcia Martinez et al. 2007), where there are distinct differences in the established regulatory processes, showed that opportunities did exist, but that strikingly uneven capacity, both public and private, made the idea of co-regulatory practices in the area of food safety something of a pipe-dream.

Hochstetler (2012) examined how regulations can be kept out of the political realm. Looking at countries in the global south in particular, he argued that success depended on whether civil society actors have special expertise, the stage of development of the regulatory state--new ones being far more vulnerable to political influence. He also found that much depended on the formal or informal state of regulation provided by civil society. Weimer (2010) found that stakeholder involvement can actually challenge regulators to justify their practices by ensuring and documenting that they are operating under the best evidence. He points to the field of organ transplantation, where regulatory governance involves stakeholders through advisory committees, and argues that this model could be replicated in other areas by creating more meaningful involvement. Weimer also pleads for independent funding, and circumscribed oversight by the legislature.

Gulbrandsen (2014) examined how states have responded to the emergence of forest and fisheries certification programs, and how they have, in turn, influenced the subsequent development of these programs. Noting various historical and structural differences, Gulbrandsen argued that public involvement strengthened non-state regulatory programs. The article drew upon these cases to inductively identify types of interaction between state policies and non-state certification programs, the causal mechanisms that shed light on interaction dynamics, and the conditions under which state involvement is likely to result in either strengthening or weakening of non-state programs

Focusing on the American Aviation Safety Action Program and the Voluntary Disclosure Reporting Program, Mills and Reiss (2014) found that voluntary disclosure programs that provide incentives such as immunity or reduced regulatory enforcement to those submitting reports, can provide regulatory agencies with valuable information on existing risks and areas of non-compliance. The authors also found that there is a capacity building dimension to this strategy in that they offer a higher degree of secondary learning on processes that may not always be visible to inspectors.

Prakash and Gugerty (2010) examined how voluntary regulation can fill knowledge gaps and help organizations. They looked at non-profit organizations who accepted to live up to regulations in order to distinguish themselves from competitors in certain fields. In this sense, regulation was an incentive to elevate a reputation, a form of seal of approval.

There is little recent research into the question of learning and capacity as it applies to co-regulatory mechanisms in the context of the digital era. Cannon and Chung (2015) propose a framework for designing co-regulatory approaches in which government and industry work together to define and enforce standards. This is not a new idea, but they advance the concept in the context of the sharing economy. They outline four areas in which the sharing economy creates new variations on old market shortcomings. The first is the risks that instantaneous, on-the-spot decisions bring to consumer protection and allocation of liability. Customers may underestimate the level of protection they need in a marketplace with low barriers to entry by service providers. The second is labour restrictions. There may be a role for government in ensuring for example that child labour is not permitted in the sharing economy (for example, online babysitter matching service). The third is addressing the reliability of online reviews and other trust-building mechanisms. The sharing economy relies on, and points to, customer reviews as a method of quality control. However, Cannon and Chung cite instances where reviews have been placed by biased reviewers, such as business partners of the establishment being reviewed, or situations where a chill has been placed on negative reviews by threats of libel. Fourth, participants in the sharing economy may have little incentive to consider externalities of their activities, particularly in traditional areas of taxation and local government planning. Therefore:

regulators (who have in mind the solvency of the government) must work together with platform developers (who have a long-term interest in building legitimacy for their activity, reassuring participants of the legality of their investment into the platform, and streamlining a process for handling inevitable government relations questions such as taxable activity) (p. 3).

Similarly, Posen (2015) calls for experimental regulations to be tried in the ride-sharing sector, rather than traditional regulatory approaches, which tend to stifle innovation. She argues that the solution is not to force businesses such as Uber to comply with outdated regulations such as entry controls and price-fixing. Rather, regulations allowing consumers to make their own choices about safety, through online reviews, and supporting steps that Uber has already taken, such as requiring that drivers have a specified minimum of insurance. At the heart of the implications of the digital era for regulation is that "innovation no longer focusses [sic] on creating new things; rather, it is focused on fostering participation and improving the consumer experience" (p. 426). Regulatory approaches need to acknowledge this shift and work with the innovation and competition the digital era brings. There is no doubt that as new technology instruments inform in real-time both regulators and regulatees about deviations from accepted practice, the issue of co-regulation will become all the more important.

Ensuring public monitoring: regulation and public involvement

Transparency--making decisions and data on regulatory activities as widely available as possible--is often hailed as a "must do" to ensure level playing fields and to fight corruption. Skelcher and Torfing (2010) argue that civic participation in institutional design can be a better way of ensuring that regulatory practices live up to expectations. Peisakhin and Pinto (2010) found that, at least in one case study, the availability of information cut down corruption considerably. Indeed, the freedom of information law was found "almost as effective as bribery in helping the poor to secure access to a basic public service." They concluded that greater transparency could have a considerable impact on corruption even in highly hierarchical and unequal societies.

Can the state turn to ordinary citizens through crowdsourcing methods to ensure proper regulation? Dutil (2015) pointed to a number of instances where data was crowdsourced in order to improve environmental protection and street safety. Lodge and Wegrich (2015) examine the "Red Tape Challenge," an experiment in the United Kingdom that has been recently applied in Ontario. Their verdict was that the method did not significantly affect results and that the consultation processes that have been used to bridge private and public sector interests should not be abandoned. Looking at the crowdsourced "comments," they find that "neither the tone of the crowdsourced comments, the direction of the majority views, nor specific comments were seen to matter. Instead, it was processes within the executive that shaped the overall governmental responses to this initiative. The findings, therefore, provoke wider debates about the use of social media in rulemaking and consultation exercises" Chng (2012) demonstrated that private actors like NGOs and local community groups occasionally undertake a "regulatory mobilization" to galvanize state action. Focusing on the water infrastructure of Manila (Philippines), he argues that real regulatory change emerged from direct action from local organizers.

A study of citizen oversight of police services in England and Wales and documented how the Independent Police Complaints Commission, created under the Police Reform Act 2002, proved to be an important driver of police reform (Smith 2009). This initiative was seen as an important milestone, not just in involving citizens in the regulatory process, but also as a lesson-learning opportunity that can be applied more widely.

There is also a danger that industries will use partnerships of this sort to remove themselves from the responsibility to live up to regulations. A study of a multi-stakeholder process of environmental regulation demonstrated this. In the UK, the Deposit Law on Beverage Containers, whose aim was to ensure that industry is held responsible for recycling, resulted in the creation of a non-profit organization to ensure compliance. As a result industry was able "to distance itself from the responsibility of recycling, and thereby frustrated the original objective of the legislation, which was to implement the principle of 'extended producer responsibility'" (Barkay 2009). The study cautioned against new processes of "governancing" whereby regulation implementation is too widely shared by a variety of interveners. Here again, the use of new technological instruments is likely to transform the role of public monitoring. This area will be of high interest for scholars of regulation.

The rise of regulatory networks

Black (2008) focused on what constitutes legitimacy in complex regulatory networks and identified three key factors: the nature of the institutions participating, the nature of their mutual accountability and how they communicate. Crawford (2006) underlined the importance of the state in networks and emphasized that it uses its place in the hierarchy to command reforms, particularly in terms of social policy. Building on Ayres and Braithwaite's "responsive regulation" approach (1992), Leviner (2008) considered tax policy in Australia going back to 1980 and pointed to a regulatory regime that is mostly triggered by revelations of wrongdoing. He posited that the state had to move ahead of issues in order to be effective. Looking at European Union regulatory networks, notably telecommunications and competition policies, Blauberger and Rittberger (2015) model networks more as an orchestra rather than as a principal-agent relationship. They see all participants as functional and deeply political.

McConkey and Dutil (2006) brought together a collection of essays on the search for a new consensus on regulation that emphasized inter-agency collaboration. Richardson (2009) analyzed the social network that existed to regulate the accounting industry on a global scale. Rose and Miller (1992) dissected the networks of accounting and auditing industry (dominated by the Canadian Institute of Chartered Accountants, the Canadian Securities Administrators, International Federation of Accountants and the IOSCO/ World Bank, but including sixty-one organizations and 131 "interlocks") into "centers of calculation" embedded in "networks of rule."

Casey and Lawless (2011) examined a particular Irish case that shed light on network governance. Irish pork had been contaminated with dioxins and the industry was shut down. The European Union regulated food safety through a complex network designed to exchange information. The authors considered that a number of problems plagued the network, including inadequate flexibility, insufficient efficiency and real concerns around the legitimacy of EU regulations in Ireland. What was key to these authors was that the communication was insufficiently open and transparent. Negoita (2014) argues that the role of the state is vital in networks and points particularly to the need in defining industrial policy. Looking at several networked industrial policies in seventeen countries from Western and Central Europe, Negoita finds a correlation between well-functioning regulatory networks and innovation performance and technology competitiveness. Sugarman (2009) applied regulatory policy to a goal of public health promotion, namely reducing salt consumption as a way of reducing high blood pressure and thereby saving lives. He argues that performance-based regulation might be more successful than current regulatory strategies.

Mills and Koliba (2015) focused on the challenge of accountability in complex regulatory networks through the lens of the Deepwater Horizon oil spill of 2011. They note that in some highly complex regulatory situations (such as Deep Ocean drilling) intricate and technical nature of operations necessitates risk-based regulatory networks based largely on voluntary compliance with mutually agreed upon standards. They document how regulation migrated towards a risk-based approach that places much of the responsibility on the private sector. The end result, they argue, was a private sector company willing to manage ever-more risks with little involvement or oversight from the state. Young (2013) documents how a network finds a new regulatory environment after a crisis. Using the financial industry in 2008 as a case study, he sees various groups shifting their presence to different stages of the policy cycle, moving slightly from policy formulation towards the agenda-setting stage and far more on timing than on the actual content of new regulations. In this reading, the various participants are not so much blocking reform as competing to make sure it reforms in manners that will serve their purposes.

Lall (2015) examined timing as a source of regulatory influence. Looking at the Basel Committee on Banking Supervision and the International Accounting Standards Board, two key deciders in global finance, Lall develops a "technical elite network" (TEN) theory. His argument is that those who act first are more likely to keep their poll positions and that their proposals are likely to dominate any reform agenda.

Roberts and Laurian (2005) brought to light how multilateral governance structures resolved trade disputes in food safety regulation and found that industrialized countries used farm-to-table approaches focused on risk. To find a new balance, the 1995 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), negotiated by World Trade Organization (WTO) members, established a framework to reduce their trade distorting aspects. Three of the principles under the SPS Agreement--science-based risk assessment, equivalence, and harmonization--directly address aspects of food safety regulation that create the potential for trade disputes. They found that it was not a panacea. Too many practices in risk management are inconsistent with each other and national practices continue to hold their sway. Scholars in the field of regulation will have to pay particular attention to the increasing use of new monitoring technologies and their impact on regulatory networks.

A research agenda

In 2004, Coglianese outlined an itemized research agenda to consider the implications of the digital era on regulation. Taking up this long-standing challenge to comprehensively research this area, an updated agenda to monitor and assess the implications of the digital era to regulations in Canada might include research on the following questions:

Learning capacity

* What changes does the digital era bring to the relationship between government and agencies, regulated parties, and citizens? Does it improve communication? Improve information sharing? Improve cooperation?

* What effects does digital technology have on agencies' ability to gather more or better information required for writing rules/laws? Does it improve quality? Does it facilitate public input?

* Has public awareness of the law-making process improved in the digital era? Are different types of people engaged? Are there implications for inclusiveness?

* How has the digital era affected communication of regulatory requirements? Compliance? Evaluations of regulations?

* Do governments not modernizing regulatory models hamper improvements and innovation that could be of public benefit?

* Is there a correlation between the information provided by the analysis and the net benefits of regulation, as suggested by Shapiro and Morrall (2012)?

* What changes does the digital era bring to the ability to base regulatory impact analyses on scientific evidence?

* What is the importance of informational forces in policy development, as opposed to other forces such as political will and institutional influences?

* What is the role of government in complementing, as opposed to supplanting, industrial codes of conduct given increased availability of public information?

Public involvement in monitoring

* How effective are reviews in achieving some level of public safety?

* How much do people rely on them?

* How could customer reviews and regulations supplement each other in particular sectors?

* What is the role for government, if any, in protecting the consumer in regimes that rely on online reviews of businesses, particularly given that reviews may not be trustworthy or provided without influence?

* Is increased access to data leading to better informed citizen choices? Does it lead to changes in business behaviour? If so, is it positive?

* What are the particular market externalities of the sharing economy and what do they suggest for co-regulation models?

Regulatory networks

* Has the digital era changed the role of information brokers in rulemaking? (for example, lawyers, media, professional regulators, trade associations)?

* How can rulemaking systems be designed to be clear and easy to use for a variety of users?

* What structures and system designs will best facilitate clear and effective communication of the complex policy and procedural issues that characterize rulemaking?

Conclusion

The literature on regulatory governance ranges broadly and scarcely takes into consideration the advantages and disadvantages of the advent of the digital era. It seems as though the promise of digital tools--especially as new monitoring instruments and practices take full advantage of the Internet-of-Things and generate a useful steady flow of high quality data for regulators, regulatees and the wider public--is still in the distant future, or not yet ripe for scholarly assessment. There are, however, some broad observations that can be articulated. First, capacity building is essential, whether government works alone or regulates in a networked arrangement. With learning being a key ingredient, the government needs to retain and attract employees who can understand complex data analytical processes and learn to discern private sector practices. Only then will regulatory agencies be able to monitor and respond to issues as they arrive. Better still, they might be better able to anticipate accidents. The mechanisms that make this happen need to be explored and documented.

In the digital era, the state needs to improve its technological resources and capabilities. This points to the need to network, to trade data and to participate in international efforts to set regulations, devise ways to monitor and enforce them. The state has been shown in the literature to be critical, even in networks. It sets an example and a standard that is essential. The reverse is also true--networks have an influence on government in making it raise its standards both in terms of intellectual rigour and in its monitoring and legislative ability. With the advances in technology brought on by the rise of the Internet and of the interconnectivity of monitoring devices and procedures, the rich field of regulation has again opened itself to rigorous enquiry.

References

Abbott, Kenneth W. 2009. "Strengthening international regulation through transnational new governance." Vanderbilt Journal of Transnational Law 42 (2): 501-32.

Arcuri, A. 2015. "The transformation of organic regulation: The ambiguous effects of publicization." Regulation & Governance 9 (2): 144-59.

Atkinson, M., D. Beland, G. P. Marchildon, K. McNutt, P. W. B. Phillips, and K. Rasmussen. 2013.Governance and Public Policy in Canada: A View from the Provinces. Toronto: University of Toronto Press.

Ayres, Ian, and John Braithwaite. 1992. Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University Press.

Bach, D., and A. Newman. 2014. "Domestic drivers of transgovernmental regulatory cooperation." Regulation & Governance 8: 395-417.

Baker, A. 2013. "The gradual transformation? The incremental dynamics of macroprudential regulation." Regulation & Governance 7 (4): 417-34.

Barkay, T. 2009. "Regulation and voluntarism: A case study of governance in the making." Regulation & Governance 3 (4): 360-75.

Bauer, Michael W., C. Knill, and D. Pitschel. 2007. "Differential Europeanization in Eastern Europe: The impact of diverse EU regulatory governance patterns." Journal of European Integration 29 (4): 405-23.

Bianculli, A. C. 2013. "The Brazilian Association of Regulatory Agencies: Integrating levels, consolidating identities in the regulatory state in the south." Regulation & Governance 7 (4): 547-59.

Black, J. 2008. "Constructing and contesting legitimacy and accountability in polycentric regulatory regimes." Regulation & Governance 2 (2): 137-64.

Black, J., and R. Baldwin. 2012., "When risk-based regulation aims low: A strategic framework." Regulation & Governance 6 (2): 131-48.

Blauberger, M., and B. Rittberger. 2015. "Conceptualizing and theorizing EU regulatory networks." Regulation & Governance 9 (4): 367-76.

Bowman, D. M., and G. A. Hodge. 2009. "Counting on codes: An examination of transnational codes as a regulatory governance mechanism for nanotechnologies." Regulation & Governance 3 (2): 145-64.

Briand, A. 2010. "Reverse onus: An effective and efficient risk management strategy for chemical regulation." Canadian Public Administration 53 (4): 489-508.

Cafaggi, F., and K. Pistor. 2015. "Regulatory capabilities: A normative framework for assessing the distributional effects of regulation." Regulation & Governance 9 (2): 95-107.

Cannon, Bryant, and Hanna Chung. 2015. "A framework for designing co-regulation models well-adapted to technology-facilitated sharing economies." Santa Clara Computer and High Technology Law journal 31 (1): 23.

Casey, D. K., and Lawless, J. S. 2011. "The parable of the poisoned pork: Network governance and the 2008 Irish pork dioxin contamination." Regulation & Governance 5 (3): 333-49.

Chng, N. R. 2012, "Regulatory mobilization and service delivery at the edge of the regulatory state." Regulation & Governance 6 (3): 344-61.

Cloatre, E., and K. Dingwall. 2013. "Embedded regulation: The migration of objects, scripts, and governance." Regulation & Governance 7 (3): 365-86.

Coglianese, Cary. 2004. "Information technology and regulatory policy: New directions for digital government research." Social Science Computer Review 22 (1): 85-91.

Crawford, A. 2006. "Networked governance and the post-regulatory state?" Theoretical Criminology 10 (4): 449-79.

Desmarais, B. A., and J. A. Hird. 2014. "Public policy's bibliography: The use of research in US regulatory impact analyses." Regulation & Governance 8 (4): 497-510.

Dutil, Patrice. 2015. "Crowdsourcing as a new instrument in the government's arsenal: Explorations and considerations." Canadian Public Administration 58 (3): 363-83.

Ellig, J., P. A. McLaughlin, and J. F. Morrall III. 2013. "Continuity, change, and priorities: The quality and use of regulatory analysis across US administrations." Regulation & Governance 7 (2): 153-73.

Garcia Martinez, Marian, A. Fearne, J. A. Caswell, and S. Henson. 2007. "Co-regulation as a possible model for food safety governance: Opportunities for public-private partnerships." Food Policy 32 (3): 299-314.

Gilad, S. 2010. "It runs in the family: Meta-regulation and its siblings." Regulation & Governance 4 (4): 485-506.

Gulbrandsen, L. H. 2014. "Dynamic governance interactions: Evolutionary effects of state responses to non-state certification programs." Regulation & Governance 8 (1): 74-92.

Hanretty, C, and C. Koop. 2013, "Shall the law set them free? The formal and actual independence of regulatory agencies." Regulation & Governance 7 (2): 195-214.

Hartley, S., and G. Skogstad. 2005. "Regulating genetically modified crops and foods in Canada and the United Kingdom: Democratizing risk regulation." Canadian Public Administration 48 (3): 305-27.

Heimer, C. A. 2008. "Thinking about how to avoid thought: Deep norms, shallow rules, and the structure of attention." Regulation and Governance 2 (1): 30-42.

Hill, Carrey, Kathryn Furlong, Karen Bakker, and Alice Cohen. 2008. "Harmonization versus subsidiarity in water governance: A review of water governance and legislation in the Canadian provinces and territories" Canadian Water Resources Journal 33 (4): 315-32.

Hochstetler, K. 2012. "Civil society and the regulatory state of the South: A commentary." Regulation 6" Governance 6 (3): 362-70.

Howlett, M., and J. Rayner. 2006. "Globalization and governance capacity: Explaining divergence in National Forest Programs as instances of 'Next-Generation' regulation in Canada and Europe." Governance 19 (2): 251-75.

Knill, C., K. Schulze, and J. Tosun. 2012. "Regulatory policy outputs and impacts: Exploring a complex relationship." Regulation & Governance 6 (4): 42-14.

Krieger, K. 2013. "The limits and variety of risk-based governance: The case of flood management in Germany and England." Regulation & Governance 7 (2): 236-57.

Lall, R. 2015. "Timing as a source of regulatory influence: A technical elite network analysis of global finance." Regulation & Governance 9 (2) 125-43.

Leviner, S. 2008. "An overview: A new era of tax enforcement--from "big stick" to responsive regulation." Regulation & Governance 2 (3): 360-80.

Lodge M., and Wegrich, K. 2015. "Crowdsourcing and regulatory reviews: A new way of challenging red tape in British government?" Regulation & Governance 9 (21): 30-46.

Marx, A., and D. Cuypers. 2010. "Forest certification as a global environmental governance tool: What is the macro-effectiveness of the Forest Stewardship Council?" Regulation & Governance 4 (4): 408-34.

McConkey, Michael, and Patrice Dutil, eds. 2006. Dreaming of the Regulatory Village; Speaking of the Regulatory State. Toronto: Institute of Public Administration of Canada.

Mills, R. W., and C. J. Koliba. 2015. "The challenge of accountability in complex regulatory networks: The case of the Deepwater Horizon oil spill." Regulation & Governance 9 (1): 77-91.

Mills, R. W., and D. R. Reiss. 2014. "Secondary learning and the unintended benefits of collaborative mechanisms: The Federal Aviation Administration's voluntary disclosure programs." Regulation & Governance 8 (4): 437-54.

Moyer, J., P. Fitzpatrick, A. Diduck, and B. Froese. 2008. "Towards community-based monitoring in Manitoba's hog industry." Canadian Public Administration 51 (4): 637-58.

Negoita, M. 2014. "Globalization, state, and innovation: An appraisal of networked industrial policy." Regulation 6" Governance 8 (3): 371-93.

Peci, A., and F. Sobral. 2011. "Regulatory impact assessment: How political and organizational forces influence its diffusion in a developing country." Regulation & Governance 5 (2): 204-20.

Peisakhin, L., and P. Pinto. 2010. "Is transparency an effective anti-corruption strategy? Evidence from a field experiment in India." Regulation & Governance 4 (3): 261-80.

Perkins, S. 2014. "Cross-national variations in industry regulation: A factor analytic approach with an application to telecommunications." Regulation 6" Governance 8 (1): 149-63.

Porter, T. 2014. "Technical systems and the architecture of transnational business governance interactions." Regulation & Governance 8 (1): 110-25.

Posen, H. 2015. "Ridesharing in the sharing economy: Should regulators impose Uber regulations on Uber?" Iowa Law Review 101: 405.

Prakash, A., and M. K. Gugerty. 2010. "Trust but verify? Voluntary regulation programs in the nonprofit sector." Regulation & Governance 4 (1): 22-47.

Richardson, Alan J. 2009. "Regulatory networks for accounting and auditing standards: A social network analysis of Canadian and international standard-setting." Accounting, Organizations and Society 34 (5): 571-88.

Roberts, Donna, and Unneverh Laurian. 2005. "Resolving trade disputes arising from trends in food safety regulation: The role of the multilateral governance framework." World Trade Review 4 (3): 469.

Rose, N., and P. Miller. 1992. "Political power beyond the state: Problematics of government." British Journal of Sociology 43 (2): 173-205.

Shapiro, S., and J. F. Morrall III. 2012. "The triumph of regulatory politics: Benefit-cost analysis and political salience." Regulation & Governance 6 (2): 189-206.

Skelcher, C., and J. Torfing. 2010. "Improving democratic governance through institutional design: Civic participation and democratic ownership in Europe." Regulation & Governance 4 (1): 71-91.

Smith, G. 2009. "Citizen oversight of independent police services: Bifurcated accountability, regulation creep, and lesson learning." Regulation & Governance 3 (4): 421-41.

Sugarman, S. D. 2009. "Salt, high blood pressure, and performance-based regulation." Regulation & Governance 3 (1): 84-102.

Verbruggen, P. 2013. "Gorillas in the closet? Public and private actors in the enforcement of transnational private regulation." Regulation b Governance 7 (4): 512-32.

Waverman, Leonard, and P. Koutroupis. 2011. "Benchmarking telecoms regulation: The Telecommunications Regulatory Governance Index (TRGI)." Telecommunications Policy 35 (5): 450-68.

Weimer, D. L. 2010. "Stakeholder governance of organ transplantation: A desirable model for inducing evidence-based medicine?" Regulation & Governance 4 (3): 281-302.

Winfield, M. S. 2005. "Alternative service delivery in the natural resources sector: An examination of Ontario's forestry compliance Self-Inspection System." Canadian Public Administration 48 (4): 552-74.

--2015. "Public safety in private hands revisited: The case of Ontario's Technical Standards and Safety Authority." Canadian Public Administration 58 (3): 444-67.

Winfield, M. S., D. Whorley, and S. Kaufman. 2002. "Public safety in private hands: A study of Ontario's Technical Standards and Safety Authority." Canadian Public Administration 45 (1): 34-51.

Young, K. 2013. "Financial industry groups' adaptation to the post-crisis regulatory environment: Changing approaches to the policy cycle." Regulation & Governance 7 (4): 460-80.

Patrice Dutil is Professor in the Department of Politics and Public Administration, Ryerson University, Toronto (http://patricedutil.com). Julie Williams is a lawyer in the Ministry of the Attorney General of the Government of British Columbia. The views expressed here are her own and should not be construed as government policy.