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Legal Protection by Design: A Novel Social Contract?

3.1 The Nature of the Social Contract

Having explained, in the first section, the challenges of an environment that comes Onlife due to a ubiquitous and pervasive layer of machine learning, I have put forward, in the second section, the question of what this means for the public, the social and the private. My conclusion was that we need to construct an infrastructure that allows for a plurality of publics, a choice of exposure and places to hide. Such an infrastructure cannot be taken for granted, it will not appear of itself, nor will it grow organically or 'naturally' from the computational layers we are currently putting in place.

The social contract that combined the idea of limited government with—ultimately—representative, deliberative and participative self-government was the result of a historic bargain (Nonet and Selznick 1978). This bargain sealed the autonomy of the law in relation to politics on the condition of non-interference; the independence of the courts thus combined with the monopoly of the legislator to enact the law. We can summarize this as the legislator writing and enacting the law, while the court speaks and interprets the law. Let's invoke Montesquieu's often mis- understood maxim: iudex—non rex—lex loqui. Not the king but the judge speaks the law (Schönfeld 2008). This was an attack on the medieval maxim that attributed all powers to the king: rex lex loqui. The division of tasks that follows from the historic bargain between enacting and speaking the law was based on the sociotechnical infrastructure of the printing press; the checks and balances of the Rule of Law depend on the sequential processing of written codes that can be debated, interpreted and contested by those under their rule. The fact that the courts have the final word in case of a conflict guarantees a measure of due process, which guarantees that fundamental rights are an effective part of the social contract. This is not to say that the printing press 'caused' the Rule of Law, but to suggest that it created a socio-technical infrastructure conducive to a specific division of tasks between the differentiated powers of the state. This division has specific temporal dimensions: the court speaks after the legislator enacts; courts are bound by the law enacted by the legislator, while in turn the legislator is bound by the interpretation of the courts—the circle is virtuous; it constitutes countervailing powers and creates room for both enforcement and contestation. All this is part of modernity. It depends on the internal division of sovereignty. Ultimately it depends on the institutionalization

of the monopoly of violence which is at the core of the operations of sovereignty; effective protection of fundamental rights is only possible if the state can enforce them even where enforcement is required against the state itself.

3.2 Protecting Modernity's Assets: Reconstructing the Social Contract

In his Die Aufklärung in the Age of Philosophical Engineering Stiegler (2013) accepts the challenge introduced by Tim Berners-Lee, who argued that 'we are not analysing a world, we are building it. We are not experimental philosophers; we are philosophical engineers' (Halpin 2008). Berners-Lee was not merely describing the activities of the architects of the World Wide Web he invented. He was calling them to account for the impact of their engineering on the constitution of mind and society. He was inviting them to build a new res publica. Stiegler is more careful. He suggests that digital technology is a pharmakon: 'it can lead either to the destruction of the mind, or to its rebirth (ib.).' Referring to Wolf (2008) he notes that the transition from the reading mind to the digitally extended mind entails substantive changes to the composition and behaviour of our brains. Though these changes may be cause for celebration, they also threaten the constitution of the self. In the course of his text Stiegler reiterates the crucial question of what we need to preserve as a valuable heritage of the era of the 'reading brain' (Wolf 2008). I want to connect this with the need to reconstruct the social contract, recognizing its modern roots and its contingency on the ICT infrastructure of the printing press. A new social contract would have to align with the novel technological landscape, co-opting current ICTs to incorporate checks & balances. In that sense we will need a hybrid social contract that testifies to the agency-characteristics of smart environments[1].

Though we might wish to declare 'Game over for modernity', this may require us to give up on the social contract that protects against immoderate government. Let us remind ourselves that the end of modernity would not necessarily be the end of totalitarian governance. The hidden complexity of computational layers in fact affords refined and invisible manipulations that may be closer to the totalitarian nightmares of Kafka's Trial (Solove 2004) and Forster Machine (Forster 2009) then to the dictatorial schemes of Big Brother watching you. Stiegler (2013) notes that The 'old-school' social contract will not necessarily survive when cut lose from the ICT infrastructure of the printing press. The idea of the social as a distinctive sphere is in fact typical for modernity's reliance on information and communication technologies that sustain a further distantiation and differentiation of societal spheres. Oral societies do not have written constitutions capable of keeping their economic and military leaders in check; they require a continuous calibration that entails a persistent threat of violence to keep the vicious circle of private revenge at bay (Hoebel 1971). Societies of the manuscript (the handwritten script) have no means to contest written laws for the majority that does not read or write, they thrive on the monopoly of the class of scribes that buffers between ruler and subjects, thus also protecting its own monopoly (Glenn 2007). Only the printing press provides the specific affordances conducive to the agonistic framework of representative, deliberative and participative democracies under the Rule of Law (Hildebrandt and Gutwirth 2007). To preserve the preconditions of constitutional democracy we need to acknowledge modernity's dependence on sequential thinking (Wolf's era of the reading brain) and its temporal structure that favours reflection over reflexes (Wolf's era of the reading brain). This entails an attempt to engage with the benefits of modernity. Though hierarchical and linear models of social life may have lost territory, we may have to reconstruct and reengineer them insofar as they protect us from chaos and contingent power games. Of course this entails keeping hierarchies in bounds in function of the purpose they should serve.

A hierarchy that organizes countervailing powers may save us from the totalitarian rule of transnational computational decision-systems. Nevertheless, we should acknowledge that the dreams of early cyberspace utopists have not come through; the nation state has not lost its bearing and territorial jurisdiction has not become meaningless (Goldsmith and Wu 2008). This requires vigilance in the face of potential attempts to turn cyberspace into a set of Walled Gardens that might reinforce not merely totalitarianism but also tyranny (Mueller 2010). We must investigate how the novel affordances of cyberspace can be engineered in a way that sets us free as well as constraining those in charge, while fostering a fair distribution of capabilities (Cohen 2012). This urges us to take into account that whereas cyberspace may change the game for modernity's incentive structure, it still nourishes on the system of legal-political checks and balances that was generated by modernity's socio-technical infrastructure.

3.3 Technology Neutrality and Legal Protection by Design

One way of dealing with the implications of cyberspace as a game changer is to integrate legal protection into its socio-technical backbone: its hardware, software and the numerous protocols and standards that enable and constrain its affordances. I have coined this 'legal protection by design', connecting the concept to research communities working on value-sensitive design (Flanagan et al. 2007), constructive technology assessment (Rip et al. 1995), upstream engagement with scientific research (Wynne 1995), privacy impact assessment (Wright and de Hert 2012) and privacy by design and default (Cavoukian 2009; Langheinrich 2001).

Legal protection by design is not about technical enforcement of legal compliance; legal problems cannot be solved by technical solutions. The concept of legal protection by design refers to novel articulations of fundamental legal rights into ICT infrastructures other than the printing press. Both lawyers and policy makers tend to display the Pavlov reflex of writing and enacting new laws when legal problems occur, whereas cyberspace easily turns written law into a paper dragon. Modern law is articulated by means of the technology of the printing press and in cyberspace its monopoly seems hard to enforce. Moreover, public administration has developed techniques to automatically enforce written administrative rules by translating them into automated decision systems. Social security, taxation and numerous permits are now granted or imposed on the basis of such decisions (Citron 2007). Legal protection by design should, however, not be confused with such techno-regulation or technological enforcement of legal compliance. Law is not administration, politics or policy. Legal protection by design instead implies that written legal rules and their underlying unwritten legal principles develop a new type of technology-neutrality. Other than some authors suggest, technology neutrality requires a keen eye on the normative implications of technological developments (Reed 2007; Hildebrandt 2008; Hildebrandt and Tielemans 2013). Wherever a technology changes the substance or the effectiveness of a right, its articulation must be reconsidered to take into account how we wish to reconceptualise and/or reframe the right within the network of related rights and principles. The socio-technical infrastructure of cyberspace often affects the network and the context of sets of rights; for instance, rights to compensation based on tort or breach of contract, as well as rights to privacy, due process and non-discrimination. Technology neutrality therefor requires a lively debate amongst lawyers, but should also generate a similar debate amongst the architects of cyberspace on how to reinvent, to reengineer and to redesign democracy and the Rule of Law in the Onlife environment.

3.4 The Proposed Data Protection Regulation

Let's now be practical. Though some inhabitants of the ONLIFE may claim that data protection is boring and concerns an outdated attempt to revive 'old-school' privacy, I would argue that the legal framework of Data Protection is particularly well tuned to the data-driven environment of cyberspace. Whereas the value of privacy may indeed have been an affordance of the era of the printing press (Stalder 2002), we should not sit back to sing its requiem, instead, we need to assess how to re-invent privacy as a dimension of the Onlife habitat. The Fair Information Principles that inform the legal framework of data protection seem particularly apt to cope with the flux of deand re-contextualization that drives cyberspatial innovation (Kallinikos 2006). So far, however, these principles were articulated as paper dragons, trailing an irritating bureaucracy while at the same time enforcement seemed an illusion due to the lack of penal competence, budget and personnel on the side of data protection supervisors. Compliance has long been a matter of (minor) costs, to be taken into account after new business models were set in place.

The proposed Regulation could be a game changer. It establishes a new incentive structure and is based on a salient understanding of law's need for effective [not theoretical] technology neutrality. The Regulation presents the combined force of a mandatory data protection impact assessment, data protection by default (data minimisation at the level of applications), data portability (enabling an effective right to withdraw consent without losing the value of self-generated profiles), the right to forget (requiring effective mechanisms to achieve a reasonable measure of erasure of one's personal data if no legal ground applies for their processing), rights against measures based on profiling (a right to object to being subjected to automated decisions and transparency rights as to the existence of such measures and their envisaged effects) and finally data protection by design (which imposes the duty of adequate mechanisms for compliance on commercial and governmental data controllers). All this would have no effect if the proposal had not ensured efficient mechanisms to incentivize the industry to actually develop data protection by design: the liability regime is inspired by competition law (fines of maximum 2 % of global turnover) while the burden of proof per default rests with the data controllers. If the proposed Regulation survives the legislative process, it may finally create the level playing field that challenges companies and governments to develop intuitive and auditable transparency tools. ONLIFE inhabitants will then have the chance to play around with the system, exploring and inventing their identities in the interstices of the hybrid social contexts that shape their capabilities. This should empower them—us—to establish a new hybrid social contract that enables a plurality of publics, a choice of exposure and places to hide. Writing did not erase speech, but it changed the nature of speech (Ong 1982); computational layers will not erase writing, but it will change the nature of the reading mind. This may be a good thing, but that will depend on how we invent the infrastructure that will invent us.

  • [1] The 'old'—modern—social contract was itself a hybrid affair, due to its contingency upon the technologies of the printing press. In using the term 'hybrid' I highlight the awareness that a new hybridity is necessary, tuned to the new ICT infrastructure.
 
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