The Limitations of Consent as a Legal Basis for Data Processing in the Digital Society

Curated on Posted on by Stefaan Verhulst

Paper by the Centre for Information Policy Leadership: “Contemporary everyday life is increasingly permeated by digital information, whether by creating, consuming or depending on it. Most of our professional and private lives now rely to a large degree on digital interactions. As a result, access to and the use of data, and in particular personal data, are key elements and drivers of the digital economy and society. This has brought us to a significant inflection point on the issue of legitimising the processing of personal data in the wide range of contexts that are essential to our data-driven, AI-enabled digital products and services. The time has come to seriously re-consider the status of consent as a privileged legal basis and to consider alternatives that are better suited for a wide range of essential data processing contexts. The most prominent among these alternatives are the “legitimate interest” and “contractual necessity” legal bases, which have found an equivalent in a number of jurisdictions. One example is Singapore, where revisions to their data protection framework include a legitimate interest exemption…(More)”.

Predictability, AI, And Judicial Futurism: Why Robots Will Run The Law And Textualists Will Like It

Curated on Posted on by Stefaan Verhulst

Paper by Jack Kieffaber: “The question isn’t whether machines are going to replace judges and lawyers—they are. The question is whether that’s a good thing. If you’re a textualist, you have to answer yes. But you won’t—which means you’re not a textualist. Sorry.

Hypothetical: The year is 2030.  AI has far eclipsed the median federal jurist as a textual interpreter. A new country is founded; it’s a democratic republic that uses human legislators to write laws and programs a state-sponsored Large Language Model called “Judge.AI” to apply those laws to facts. The model makes judicial decisions as to conduct on the back end, but can also provide advisory opinions on the front end; if a citizen types in his desired action and hits “enter,” Judge.AI will tell him, ex ante, exactly what it would decide ex post if the citizen were to perform the action and be prosecuted. The primary result is perfect predictability; secondary results include the abolition of case law, the death of common law, and the replacement of all judges—indeed, all lawyers—by a single machine. Don’t fight the hypothetical, assume it works. This article poses the question:  Is that a utopia or a dystopia?

If you answer dystopia, you cannot be a textualist. Part I of this article establishes why:  Because predictability is textualism’s only lodestar, and Judge.AI is substantially more predictable than any regime operating today. Part II-A dispatches rebuttals premised on positive nuances of the American system; such rebuttals forget that my hypothetical presumes a new nation and take for granted how much of our nation’s founding was premised on mitigating exactly the kinds of human error that Judge.AI would eliminate. And Part II-B dispatches normative rebuttals, which ultimately amount to moral arguments about objective good—which are none of the textualist’s business. 

When the dust clears, you have only two choices: You’re a moralist, or you’re a formalist. If you’re the former, you’ll need a complete account of the objective good—which has evaded man for his entire existence. If you’re the latter, you should relish the fast-approaching day when all laws and all lawyers are usurped by a tin box.  But you’re going to say you’re something in between. And you’re not…(More)”

Even laypeople use legalese

Curated on Posted on by Stefaan Verhulst

Paper by Eric Martínez, Francis Mollica and Edward Gibson: “Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n = 59) million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English. Next, two preregistered text generation experiments (n = 286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws wrote in a more convoluted manner than when tasked with writing unofficial legal texts of equivalent conceptual complexity. Contrary to the copy-and-edit hypothesis, we did not find evidence that people editing a legal document wrote in a more convoluted manner than when writing the same document from scratch. From a cognitive perspective, these results suggest law to be a rare exception to the general tendency in human language toward communicative efficiency. In particular, these findings indicate law’s complexity to be derived from its performativity, whereby low-frequency structures may be inserted to signal law’s authoritative, world-state-altering nature, at the cost of increased processing demands on readers. From a law and policy perspective, these results suggest that the tension between the ubiquity and impenetrability of the law is not an inherent one, and that laws can be simplified without a loss or distortion of communicative content…(More)”.

Generative AI: Navigating Intellectual Property

Curated on Posted on by Stefaan Verhulst

Factsheet by WIPO: “Generative artificial intelligence (AI) tools are rapidly being adopted by many businesses and organizations for the purpose of content generation. Such tools represent both a substantial opportunity to assist business operations and a significant legal risk due to current uncertainties, including intellectual property (IP) questions.

Many organizations are seeking to put guidance in place to help their employees mitigate these risks. While each business situation and legal context will be unique, the following Guiding Principles and Checklist are intended to assist organizations in understanding the IP risks, asking the right questions, and considering potential safeguards…(More)”.

Commission welcomes final agreement on EU Digital Identity Wallet

Curated on Posted on by Stefaan Verhulst

Press Release: “The Commission welcomes the final agreement reached today by the European Parliament and the Council of the EU at the final trilogue on the Regulation introducing European Digital Identity Wallets. This concludes the co-legislators’ work implementing the results of the provisional political agreement reached on 29 June 2023 on a legal framework for an EU Digital Identity, the first trusted and secure digital identity framework for all Europeans.

This marks an important step towards the Digital Decade 2030 targets on the digitalisation of public services. All EU citizens will be offered the possibility to have an EU Digital Identity Wallet to access public and private online services in full security and protection of personal data all over Europe.

In addition to public services, Very Large Online Platforms designated under the Digital Services Act (including services such as Amazon, Booking.com or Facebook) and private services that are legally required to authenticate their users will have to accept the EU Digital Identity Wallet for logging into their online services. In addition, the wallets’ features and common specifications will make it attractive for all private service providers to accept them for their services, thus creating new business opportunities. The Wallet will also facilitate service providers’ compliance with various regulatory requirements.

In addition to securely storing their digital identity, the Wallet will allow users to open bank accounts, make payments and hold digital documents, such as a mobile Driving Licence, a medical prescription, a professional certificate or a travel ticket. The Wallet will offer a user-friendly and practical alternative to online identification guaranteed by EU law. The Wallet will fully respect the user’s choice whether or not to share personal data, it will offer the highest degree of security certified independently to the same standards, and relevant parts of its code will be published open source to exclude any possibility of misuse, illegal tracking, tracing or government interception.

The legislative discussions have strengthened the ambition of the regulation in a number of areas important for citizens. The Wallet will contain a dashboard of all transactions accessible to its holder, offer the possibility to report alleged violations of data protection, and allow interaction between wallets. Moreover, citizens will be able to onboard the wallet with existing national eID schemes and benefit from free eSignatures for non-professional use…(More)”.

Future Law, Ethics, and Smart Technologies

Curated on Posted on by Stefaan Verhulst

Book edited by John-Stewart Gordon: “This interdisciplinary textbook serves as a solid introduction to the future of legal education against the background of the widespread use of AI written by colleagues from different disciplines, e.g. law, philosophy/ethics, economy, and computer science, whose common interest concerns AI and its impact on legal and ethical issues. The book provides, first, a general overview of the effects of AI on major disciplines such as ethics, law, economy, political science, and healthcare. Secondly, it offers a comprehensive analysis of major key issues concerning law: (a) AI decision-making, (b) rights, status, and responsibility, (c) regulation and standardisation, and (d) education…(More)”.

We need a much more sophisticated debate about AI

Curated on Posted on by Stefaan Verhulst

Article by Jamie Susskind: “Twentieth-century ways of thinking will not help us deal with the huge regulatory challenges the technology poses…The public debate around artificial intelligence sometimes seems to be playing out in two alternate realities.

In one, AI is regarded as a remarkable but potentially dangerous step forward in human affairs, necessitating new and careful forms of governance. This is the view of more than a thousand eminent individuals from academia, politics, and the tech industry who this week used an open letter to call for a six-month moratorium on the training of certain AI systems. AI labs, they claimed, are “locked in an out-of-control race to develop and deploy ever more powerful digital minds”. Such systems could “pose profound risks to society and humanity”. 

On the same day as the open letter, but in a parallel universe, the UK government decided that the country’s principal aim should be to turbocharge innovation. The white paper on AI governance had little to say about mitigating existential risk, but lots to say about economic growth. It proposed the lightest of regulatory touches and warned against “unnecessary burdens that could stifle innovation”. In short: you can’t spell “laissez-faire” without “AI”. 

The difference between these perspectives is profound. If the open letter is taken at face value, the UK government’s approach is not just wrong, but irresponsible. And yet both viewpoints are held by reasonable people who know their onions. They reflect an abiding political disagreement which is rising to the top of the agenda.

But despite this divergence there are four ways of thinking about AI that ought to be acceptable to both sides.

First, it is usually unhelpful to debate the merits of regulation by reference to a particular crisis (Cambridge Analytica), technology (GPT-4), person (Musk), or company (Meta). Each carries its own problems and passions. A sound regulatory system will be built on assumptions that are sufficiently general in scope that they will not immediately be superseded by the next big thing. Look at the signal, not the noise…(More)”.

The Socio-Legal Lab: An Experiential Approach to Research on Law in Action

Curated on Posted on by Stefaan Verhulst

Guide by Siddharth Peter de Souza and Lisa Hahn: “..interactive workbook for socio-legal research projects. It employs the idea of a “lab” as a space for interactive and experiential learning. As an introductory book, it addresses researchers of all levels who are beginning to explore interdisciplinary research on law and are looking for guidance on how to do so. Likewise, the book can be used by teachers and peer groups to experiment with teaching and thinking about law in action through lab-based learning…

The book covers themes and questions that may arise during a socio-legal research project. This starts with examining what research and interdisciplinarity mean and in which forms they can be practiced. After an overview of the research process, we will discuss how research in action is often unpredictable and messy. Thus, the practical and ethical challenges of doing research will be discussed along with processes of knowledge production and assumptions that we have as researchers. 

Conducting a socio-legal research project further requires an overview of the theoretical landscape. We will introduce general debates about the nature, functions, and effects of law in society. Further, common dichotomies in socio-legal research such as “law” and “the social” or “qualitative” and “quantitative” research will be explored, along with suggested ways on how to bridge them. 

Turning to the application side of socio-legal research, the book delves deeper into questions of data on law and society, where to collect it and how to deal with it in a reflexive manner. It discusses different methods of qualitative socio-legal research and offers ways in which they can be experienced through exercises and simulations. In the research process, generating research results is followed by publishing and communicating them. We will explore different ways to ensure the outreach and impact of one’s research by communicating results through journals, blogs or social media. Finally, the book also discusses academia as a social space and the value of creating and using networks and peer groups for mutual support.

Overall, the workbook is designed to accompany and inspire researchers on their way through a socio-legal research project and to empower the reader into thinking more creatively about their methods, while at the same time demystifying them…(More)”.

Legal Dynamism

Curated on Posted on by Stefaan Verhulst

Paper by Sandy Pentland and Robert Mahari: “Shortly after the start of the French Revolution, Thomas Jefferson wrote a now famous letter to James Madison. He argued that no society could make a perpetual constitution, or indeed a perpetual law, that binds future generations. Every law ought to expire after nineteen years. Jefferson’s argument rested on the view that it is fundamentally unjust for people in the present to create laws for those in the future, but his argument is also appealing from a purely pragmatic perspective. As the state of the world changes, laws become outdated, and forcing future generations to abide by outdated laws is unjust and inefficient.

Today, the law appears to be at the cusp of its own revolution. Longer than most other disciplines, it has resisted technical transformation. Increasingly, however, computational approaches are finding their way into the creation and implementation of law and the field of computational law is rapidly expanding. One of the most exciting promises of computational law is the idea of legal dynamism: the concept that a law, by means of computational tools, can be expressed not as a static rule statement but rather as a dynamic object that includes system performance goals, metrics for success, and the ability to adapt the law in response to its performance…

The image of laws as algorithms goes back to at least the 1980s when the application of expert systems to legal reasoning was first explored. Whether applied by a machine learning system or a human, legal algorithms rely on inputs from society and produce outputs that affect social behavior and that are intended to produce social outcomes. As such, it appears that legal algorithms are akin to other human-machine systems and so the law may benefit from insights from the general study of these systems. Various design frameworks for human-machine systems have been proposed, many of which focus on the importance of measuring system performance and iterative redesign. In our view, these frameworks can also be applied to the design of legal systems.

A basic design framework consists of five components..(More)”.

Towards an international data governance framework

Curated on Posted on by Stefaan Verhulst

Paper by Steve MacFeely et al: “The CCSA argued that a Global Data Compact (GDC) could provide a framework to ensure that data are safeguarded as a global public good and as a resource to achieve equitable and sustainable development. This compact, by promoting common objectives, would help avoid fragmentation where each country or region adopts their own approach to data collection, storage, and use. A coordinated approach would give individuals and enterprises confidence that data relevant to them carries protections and obligations no matter where they are collected or used…

The universal principles and standards should set out the elements of responsible and ethical handling and sharing of data and data products. The compact should also move beyond simply establishing ethical principles and create a global architecture that includes standards and incentives for compliance. Such an architecture could be the foundation for rethinking the data economy, promoting open data, encouraging data exchange, fostering innovation and facilitating international trade. It should build upon the existing canon of international human rights and other conventions, laws and treaties that set out useful principles and compliance mechanisms.

Such a compact will require a new type of global architecture. Modern data ecosystems are not controlled by states alone, so any Compact, Geneva Convention, Commons, or Bretton Woods type agreement will require a multitude of stakeholders and signatories – states, civil society, and the private sector at the very least. This would be very different to any international agreement that currently exists. Therefore, to support a GDC, a new global institution or platform may be needed to bring together the many data communities and ecosystems, that comprise not only national governments, private sector and civil society but also participants in specific fields, such as artificial intelligence, digital and IT services. Participants would maintain and update data standards, oversee accountability frameworks, and support mechanisms to facilitate the exchange and responsible use of data. The proposed Global Digital Compact which has been proposed as part of Our Common Agenda will also need to address the challenges of bringing many different constituencies together and may point the way…(More)”