Algorithmic regulation and the rule of law Hildebrandt, Mireille
Philosophical transactions of the Royal Society of London. Series A: Mathematical, physical, and engineering sciences,
09/2018, Letnik:
376, Številka:
2128
Journal Article
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In this brief contribution, I distinguish between code-driven and data-driven regulation as novel instantiations of legal regulation. Before moving deeper into data-driven regulation, I explain the ...difference between law and regulation, and the relevance of such a difference for the rule of law. I discuss artificial legal intelligence (ALI) as a means to enable quantified legal prediction and argumentation mining which are both based on machine learning. This raises the question of whether the implementation of such technologies should count as law or as regulation, and what this means for their further development. Finally, I propose the concept of 'agonistic machine learning' as a means to bring data-driven regulation under the rule of law. This entails obligating developers, lawyers and those subject to the decisions of ALI to re-introduce adversarial interrogation at the level of its computational architecture.
This article is part of a discussion meeting issue 'The growing ubiquity of algorithms in society: implications, impacts and innovations'.
The idea of artificial legal intelligence stems from a previous wave of artificial intelligence, then called jurimetrics. It was based on an algorithmic understanding of law, celebrating logic as the ...sole ingredient for proper legal argumentation. However, as Oliver Wendell Holmes has noted, the life of the law is experience rather than merely logic. Machine learning, which determines the current wave of artificial intelligence, is built on data-driven machine experience. The resulting artificial legal intelligence may be far more successful in terms of predicting the content of positive law. In this article, I discuss the assumptions of law and the Rule of Law and confront them with those of computational systems. As a twin article to my Chorley lecture on law as information, this should inform the extent to which artificial legal intelligence provides for responsible innovation in legal decision making.
Recommendations are meant to increase sales or ad revenue, as these are the first priority of those who pay for them. As recommender systems match their recommendations with inferred preferences, we ...should not be surprised if the algorithm optimizes for lucrative preferences and thus co-produces the preferences they mine. This relates to the well-known problems of feedback loops, filter bubbles, and echo chambers. In this article, I discuss the implications of the fact that computing systems necessarily work with proxies when inferring recommendations and raise a number of questions about whether recommender systems actually do what they are claimed to do, while also analysing the often-perverse economic incentive structures that have a major impact on relevant design decisions. Finally, I will explain how the choice architectures for data controllers and providers of AI systems as foreseen in the EU's General Data Protection Regulation (GDPR), the proposed EU Digital Services Act (DSA) and the proposed EU AI Act will help to break through various vicious circles, by constraining how people may be targeted (GDPR, DSA) and by requiring documented evidence of the robustness, resilience, reliability, and the responsible design and deployment of high-risk recommender systems (AI Act).
Moving beyond the conundrum of explanation, usually portrayed as a trade-off against accuracy, this article traces the recent emergence of explainable AI to the legal "right to an explanation", ...situating the need for an explanation in the underlying rule of law principle of contestability. Instead of going down the rabbit hole of causal or logical explanations, the article then revisits the Methodenstreit, whose outcome has resulted in the quantifiability of anything and everything, thus hiding the qualification that necessarily precedes any and all quantification. Finally, the paper proposes to use the quantification that is inherent in machine learning to identify individual decisions that resist quantification and require situated inquiry and qualitative research. For this, the paper explores Clifford Geertz's notion of explication as a conceptual tool focused on discernment and judgment rather than calculation and reckoning.
In this Article, I take my chance to briefly introduce the key ideas of two German philosophers whose work is highly relevant for the rule of law in the age of machine intelligence. The current ...predominance of Anglo-American moral and legal philosophy, with its emphasis on either utilitarian or a specific type of neo-Kantian moral philosophy calls for some countervailing thinking, and the German Law Journal seems the right place to dare such a thing. The recent launch of an English translation of biologist and philosopher Helmuth Plessner’s seminal Levels of Organic Life and the Human (1928) invites a fundamental reflection on the difference between human and machine intelligence, including a penetrating criticism of the kind of behaviorism that underpins personalized micro targeting. The core findings of Plessner, based on what he calls the ex-centric positionality of human beings, connect well with key insights of lawyer and legal philosopher Gustav Radbruch, taken from his Legal Philosophy (1932), notably the idea that law is defined by antinomian goals. AI usually stands for artificial intelligence, referring to a rather vague notion upon which no agreement exists, neither amongst experts nor amongst those affected by its supposedly disruptive character. Therefore, AI is better understood as referring to automated inferences and is better described as machine intelligence. Based on Plessner, I will argue that current machine intelligence is radically different from human intelligence. My point will be that it is precisely human intelligence that is deeply artificial, whereas machine intelligence is merely automated. This relates to the importance of recognizing, appreciating, and protecting the artificial nature of law and the specific intelligence it affords human society. Finally, I will argue that a proper understanding of the “mode of existence” of machinic agency will be one of the major challenges for the EU in the 2020s. If we get it right, we should be able to avoid the quest for certainty that informs both informational capitalism and state-centered surveillance. Both are premised on mistaken visions of total control. By avoiding the pitfalls of algorithmic overdetermination EU law should keep our future open in ways that empower us, instead of treating us as manipulatable pawns.
In this paper I further develop a philosophy of technology for law and the rule of law, more specifi cally for the role of territorial jurisdiction in the protection against crime and against ...arbitrary use of the ius puniendi. In the face of the code- and data-driven nature of cyberspace I will discuss modern positive law as based on a text-driven jurisdiction and the main argument of the paper is that we cannot take for granted that the kind of legal protection that is offered by a text-driven criminal jurisdiction will hold in the context of cyberspatial challenges. In the fi rst section, I investigate how modern positive law-as-we-know-it was triggered by the technologies of cartography and the printing press, arguing that both modern democracy and the rule of law are affordances of these technologies, as they enabled the rise of an exclusive, monopolistic territorial jurisdiction. In the second section, I explore the scope of written legal speech acts, integrating speech act theory and philosophy of technology, explaining how the substantive and procedural principles of criminal law legality depend on the performative effect of written legal speech acts, highlighting their connection with the rise of territorial jurisdiction and the creation of an artifi cial, modern demos. In the third section, I discuss the new challenges of competing territorial jurisdictions that claim legal powers outside their territory, coupled by the challenges posed by new types of ‘brute jurisdictions’ that are based on the force of technological infrastructures that may overrule the performative effect of written legal speech acts. In the conclusions I call for keen attention to which affordances of cartography and the printing press we need to preserve in cyberspace to uphold criminal law principles such as the presumption of innocence, the right to a fair trial and the legality principle, taking note that preservation will require reinvention and imagination rather than taking for granted the mode of existence of text-driven jurisdiction.
Speaking of "smart" technologies we may avoid the mysticism of terms like "artificial intelligence" (AI). To situate "smartness" I nevertheless explore the origins of smart technologies in the ...research domains of AI and cybernetics. Based in postphenomenological philosophy of technology and embodied cognition rather than media studies and science and technology studies (STS), the article entails a relational and ecological understanding of the constitutive relationship between humans and technologies, requiring us to take seriously their affordances as well as the research domain of computer science. To this end I distinguish three levels of smartness, depending on the extent to which they can respond to their environment without human intervention: logic-based, grounded in machine learning or in multi-agent systems. I discuss these levels of smartness in terms of machine agency to distinguish the nature of their behaviour from both human agency and from technologies considered dumb. Finally, I discuss the political economy of smart technologies in light of the manipulation they enable when those targeted cannot foresee how they are being profiled.
This contribution introduces the mathematical theory of information that 'informs' computer systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers to ...reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the face of the alternative grammar and alphabet of a data-driven society. Instead of either embracing or rejecting the technological transitions that reconfigure the operations of the law, this article argues that lawyers should collaborate with the computer scientists that engineer and design the affordances of our new onlife world. This is crucial if we want to sustain democratic participation in law-making, contestability of legal effect and transparency of how citizens may be manipulated by the invisible computational backbone of our rapidly and radically changing world.
If architecture is politics, then the rise of data-driven computing systems will transform the course, if not the conditions of possibility for the political. Provoked by the work of artists Ruti ...Sela and Maayan Amir, this contribution explores the connections between terror and safety, borders and jurisdictions, and those between individual and collective subjects. I argue that we are moving into a world constituted by networked, mobile and polymorphous borders that will require hard work to sustain our capability to reconfigure multitudes as collective subjects, offering protection against untenable uncertainty in the face of a volatile jurisdictional instability.
What is at stake if justice authorities decide to hack a computer system that is physically located on a server outside the territory of the state they represent – for instance, because a malicious ...attack was operated from foreign territory, causing serious harm to a variety of computing systems? The article explores potential answers to this question, starting with a discussion of the makings of territorial jurisdiction. My starting point is an inquiry into the territorial spatiality of modern jurisdiction that traces the history of the idea of mutually exclusive jurisdiction that informs international law. I will argue that such territorial spatiality has been generated by the technologies of cartography and discuss how this connects with the notion of terror, with Bodin's absolute sovereignty, and with Schmitt's understanding of occupatio as central to territorial sovereign jurisdiction. Next, I investigate the powers of extraterritorial jurisdiction in the light of Grotius's Mare Liberum. His natural law theory entails that the high seas be seen 'as a passage' and 'a global commons' that enable free trade and the common good of mutual collaboration between independent states. The eschatological overtones of Grotius's belief in the moral and economic benefits of free trade have been coined 'economic theology' by Agamben, paraphrasing Schmitt's 'political theology.' We can detect a similar 'economic theology' in early descriptions of the benefits of cyberspace. This, finally, raises the question of the feasibility and the desirability of a 'cyberspace liberum,' taking into account various attempts to gain control over parts of cyberspace for instance, by means of a so-called indirect extraterritorial effect. I conclude with the question of whether we can sustain cyberspace as a passage and as a global commons, considering its non-modern spatiality and keeping in mind how it engages with the landscape of territorial jurisdiction while often evading that jurisdiction's core of mutually exclusive boundaries.
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