Thoughts on Techno-Social Engineering of Humans and the Freedom to Be Off (or Free from Such Engineering)

Abstract

This Article examines a constitutional problem that largely goes unnoticed and unexamined by legal scholars — the problem of techno-social engineering of humans. After defining terms and explaining the nature of the problem, I explain how techno-social engineering of humans is easily ignored, as we perform constrained cost-benefit analyses of incremental steps without contemplating the path we are on. I begin with two nonfiction stories, one involving techno-social engineering of human emotions and a second involving techno-social engineering of children’s preferences. The stories highlight incremental steps down a path. Then, through plausible fictional extensions, I explore steps further down the path. The Article ends with a fact pattern familiar to every reader. It explains how the electronic contracting environment we experience regularly online is an example of techno-social engineering of humans with the (un)intended consequence of nudging humans to behave like machines — perfectly rational, predictable, and ultimately programmable.