Government procurement law and hacking technology: The role of public contracting in regulating an invisible market

This article considers the purchasing of hacking technology by governments and the role of government procurement processes in regulating the hacking market and reducing risks to the buyer. While the proliferation of hacking technology for government actors has led to various proposed solutions for accountability, little consideration has been given to public purchasing of this technology. This article explores whether public contracting processes could be used to help minimize the risks that arise from the use of government hacking technology, and, if so, the types of contractual clauses and institutional supports that might be useful to achieve that goal. In exploring this issue, this article considers theories of government by contract and the publicization of the private sector. These theories posit that public contracting can be used as a vehicle to impose public considerations—for example, certain policy goals—on the private sector. It argues that requirements of transparency and accountability that inhere on the public sector could be transferred in part to the private sector through the vehicle of a public contract and explores how public contracts for government hacking technology could be structured in order to reduce risks posed by the use of this technology.