Editorial by Joseph Savirimuthu of a Special Issue of the International Review of Law, Computers & Technology: “The role and impact of algorithms has attracted considerable interest in the media. Its impact is already being reflected in adjustments made in a number of sectors – entertainment, travel, transport, cities and financial services. From an innovation point of view, algorithms enable new knowledge to be created and identify solutions to problems. The emergence of smart sensing technologies, 3D printing, automated systems and robotics is seamlessly being interwoven into discourses such as ‘the collaborative economy’, ‘governance by platforms’ and ‘empowerment’. Innovations such as body worn cameras, fitness trackers, 3D printing, smart meters, robotics and Big Data hold out the promise of a new algorithmic future. However, the shift in focus from natural and scarce resources towards information also makes individuals the objects and the mediated construction of access and knowledge infrastructures now provide the conditions for harnessing value from data. The increasing role of algorithms in environments mediated by technology also coincide with growing inter-disciplinary scholarship voicing concerns about the vulnerability of the values we associate with fundamental freedoms and how these are being algorithmically reconfigured or dismantled in a systematic manner. The themed issue, Justice in Algorithmic Robes, is intended to initiate a dialogue on both the challenges and opportunities as digitalization ushers in a period of transformation that has no immediate parallels in terms of scale, speed and reach. The articles provide different perspectives to the transformation taking place in the digital environment. The contributors offer an inter-disciplinary view of how the digital economy is being invigorated and evaluate the regulatory responses – in particular, how these transformations interact with law. The different spheres covered in Justice in Algorithmic Robes – the relations between the State and individuals, autonomous technology, designing human–computer interactions, infrastructures of trust, accountability in the age of Big Data, and health and wearables – not only reveal the problem of defining spheres of economic, political and social activity, but also highlight how these contexts evolve into structures for dominance, power and control. Re-imagining the role of law does not mean that technology is the problem but the central idea from the contributions is that how we critically interpret and construct Justice in Algorithmic Robes is probably the first step we must take, always mindful of the fact that law may actually reinforce power structures….(Full Issue)”.
The Prospects & Limits of Deliberative Democracy
Introduction by James S. Fishkin and Jane Mansbridge of Special Issue of Daedalus: “Democracy is under siege. Approval ratings for democratic institutions in most countries around the world are at near-record lows. The number of recognized democratic countries in the world is no longer expanding after the so-called Third Wave of democratic transitions. Indeed, there is something of a “democratic recession.” Further, some apparently democratic countries with competitive elections are undermining elements of liberal democracy: the rights and liberties that ensure freedom of thought and expression, protection of the rule of law, and all the protections for the substructure of civil society that may be as important for making democracy work as the electoral process itself. The model of party competition-based democracy – the principal model of democracy in the modern era – seems under threat.
That model also has competition. What might be called “meritocratic authoritarianism,” a model in which regimes with flawed democratic processes nevertheless provide good governance, is attracting attention and some support. Singapore is the only successful extant example, although some suggest China as another nation moving in this direction. Singapore is not a Western-style party- and competition-based democracy, but it is well-known for its competent civil servants schooled in making decisions on a cost-benefit basis to solve public problems, with the goals set by elite consultation with input from elections rather than by party competition.
Public discontent makes further difficulties for the competitive model. Democracies around the world struggle with the apparent gulf between political elites who are widely distrusted and mobilized citizens who fuel populism with the energy of angry voices. Disillusioned citizens turning against elites have produced unexpected election results, including the Brexit decision and the 2016 U.S. presidential election.
The competitive elections and referenda of most current democracies depend on mobilizing millions of voters within a context of advertising, social media, and efforts to manipulate as well as inform public opinion. Competing teams want to win and, in most cases, are interested in informing voters only when it is to their advantage. The rationale for competitive democracy, most influentially developed by the late economist Joseph Schumpeter, held that the same techniques of advertising used in the commercial sphere to get people to buy products can be expected in the political sphere. On this view, we should not expect a “genuine” public will, but rather “a manufactured will” that is just a by-product of political competition.
Yet the ideal of democracy as the rule of “the people” is deeply undermined when the will of the people is in large part manufactured. The legitimacy of democracy depends on some real link between the public will and the public policies and office-holders who are selected. Although some have criticized this “folk theory of democracy” as empirically naive, its very status as a folk theory reflects how widespread this normative expectation is.5 To the extent that leaders manufacture the public will, the normative causal arrow goes in the wrong direction. If current democracies cannot produce meaningful processes of public will formation, the legitimacy claims of meritocratic autocracies or even more fully autocratic systems become comparatively stronger.
Over the last two decades, another approach to democracy has become increasingly prominent. Based on greater deliberation among the public and its representatives, deliberative democracy has the potential, at least in theory, to respond to today’s current challenges. If the many versions of a more deliberative democracy live up to their aspirations, they could help revive democratic legitimacy, provide for more authentic public will formation, provide a middle ground between widely mistrusted elites and the angry voices of populism, and help fulfill some of our common normative expectations about democracy.
Can this potential be realized? In what ways and to what extent? Deliberative democracy has created a rich literature in both theory and practice. This issue of Dædalus assesses both its prospects and limits. We include advocates as well as critics. As deliberative democrats, our aim is to stimulate public deliberation about deliberative democracy, weighing arguments for and against its application in different contexts and for different purposes.
How can deliberative democracy, if it were to work as envisaged by its supporters, respond to the challenges just sketched? First, if the more-deliberative institutions that many advocate can be applied to real decisions in actual ongoing democracies, arguably they could have a positive effect on legitimacy and lead to better governance. They could make a better connection between the public’s real concerns and how they are governed. Second, these institutions could help fill the gap between distrusted elites and angry populists. Elites are distrusted in part because they seem and often are unresponsive to the public’s concerns, hopes, and values. Perhaps, the suspicion arises, the elites are really out for themselves. On the other hand, populism stirs up angry, mostly nondeliberative voices that can be mobilized in plebescitary campaigns, whether for Brexit or for elected office. In their contributions to this issue, both Claus Offe and Hélène Landemore explore the crisis of legitimacy in representative government, including the clash between status quo – oriented elites and populism. Deliberative democratic methods open up the prospect of prescriptions that are both representative of the entire population and based on sober, evidence-based analysis of the merits of competing arguments. Popular deliberative institutions are grounded in the public’s values and concerns, so the voice they magnify is not the voice of the elites. But that voice is usually also, after deliberation, more evidence-based and reflective of the merits of the major policy arguments. Hence these institutions fill an important gap.
How might popular deliberative democracy, if it were to work as envisaged by its supporters, fulfill normative expectations of democracy, thought to be unrealistic by critics of the “folk theory”? The issue turns on the empirical possibility that the public can actually deliberate. Can the people weigh the trade-offs? Can they assess competing arguments? Can they connect their deliberations with their voting preferences or other expressions of preference about what should be done? Is the problem that the people are not competent, or that they are not in the right institutional context to be effectively motivated to participate? These are empirical questions, and the controversies about them are part of our dialogue.
This issue includes varying definitions, approaches, and contexts. The root notion is that deliberation requires “weighing” competing arguments for policies or candidates in a context of mutually civil and diverse discussion in which people can decide on the merits of arguments with good information. Is such a thing possible in an era of fake news, social media, and public discussions largely among the like-minded? These are some of the challenges facing those who might try to make deliberative democracy practical….(More)”
Four lessons NHS Trusts can learn from the Royal Free case
Blog by Elizabeth Denham, Information Commissioner in the UK: “Today my office has announced that the Royal Free London NHS Foundation Trust did not comply with the Data Protection Act when it turned over the sensitive medical data of around 1.6 million patients to Google DeepMind, a private sector firm, as part of a clinical safety initiative. As a result of our investigation, the Trust has been asked to sign an undertaking committing it to changes to ensure it is acting in accordance with the law, and we’ll be working with them to make sure that happens.
But what about the rest of the sector? As organisations increasingly look to unlock the huge potential that creative uses of data can have for patient care, what are the lessons to be learned from this case?
It’s not a choice between privacy or innovation
It’s welcome that the trial looks to have been positive. The Trust has reported successful outcomes. Some may reflect that data protection rights are a small price to pay for this.
But what stood out to me on looking through the results of the investigation is that the shortcomings we found were avoidable. The price of innovation didn’t need to be the erosion of legally ensured fundamental privacy rights….
Don’t dive in too quickly
Privacy impact assessments are a key data protection tool of our era, as evolving law and best practice around the world demonstrate. Privacy impact assessments play an increasingly prominent role in data protection, and they’re a crucial part of digital innovation. ….
New cloud processing technologies mean you can, not that you always should
Changes in technology mean that vast data sets can be made more readily available and can be processed faster and using greater data processing technologies. That’s a positive thing, but just because evolving technologies can allow you to do more doesn’t mean these tools should always be fully utilised, particularly during a trial initiative….
Know the law, and follow it
No-one suggests that red tape should get in the way of progress. But when you’re setting out to test the clinical safety of a new service, remember that the rules are there for a reason….(More)”
A distributed model for internet governance
Global Partners Digital: “Across the world, increased internet adoption has radically altered people’s lives – creating the need for new methods of internet governance that are more effective, flexible, inclusive, and legitimate. Conversations about reforming the internet governance ecosystem are already taking place at the CSTD Working Group on Enhanced Cooperation, and within the wider IGF community.
A new paper by GovLab co-founder and GPD Advisory Board member Stefaan Verhulst – A distributed model for internet governance – seeks to contribute to this evolving debate by proposing a distributed yet coordinated framework for internet governance – one which accommodates existing and emerging decision-making approaches, while also enabling broader participation by a wider range of institutions and actors….(More)”
The Right of Access to Public Information
Book by Hermann-Josef Blanke and Ricardo Perlingeiro: “This book presents a comparative study on access to public information in the context of the main legal orders worldwide. The international team of authors analyzes the Transparency- and Freedom-to-Information legislation with regard to the scope of the right to access, limitations of this right inherent in the respective national laws, the procedure, the relationship with domestic legislation on administrative procedure, as well as judicial protection. It particularly focuses on the Brazilian law of access to information, which is interpreted as a benchmark for regulations in other Latin-American states….(More)”
AI and the Law: Setting the Stage
Urs Gasser: “Lawmakers and regulators need to look at AI not as a homogenous technology, but a set of techniques and methods that will be deployed in specific and increasingly diversified applications. There is currently no generally agreed-upon definition of AI. What is important to understand from a technical perspective is that AI is not a single, homogenous technology, but a rich set of subdisciplines, methods, and tools that bring together areas such as speech recognition, computer vision, machine translation, reasoning, attention and memory, robotics and control, etc. ….
Given the breadth and scope of application, AI-based technologies are expected to trigger a myriad of legal and regulatory issues not only at the intersections of data and algorithms, but also of infrastructures and humans. …
When considering (or anticipating) possible responses by the law vis-à-vis AI innovation, it might be helpful to differentiate between application-specific and cross-cutting legal and regulatory issues. …
Information asymmetries and high degrees of uncertainty pose particular difficulty to the design of appropriate legal and regulatory responses to AI innovations — and require learning systems. AI-based applications — which are typically perceived as “black boxes” — affect a significant number of people, yet there are nonetheless relatively few people who develop and understand AI-based technologies. ….Approaches such as regulation 2.0, which relies on dynamic, real-time, and data-driven accountability models, might provide interesting starting points.
The responses to a variety of legal and regulatory issues across different areas of distributed applications will likely result in a complex set of sector-specific norms, which are likely to vary across jurisdictions….
Law and regulation may constrain behavior yet also act as enablers and levelers — and are powerful tools as we aim for the development of AI for social good. …
Law is one important approach to the governance of AI-based technologies. But lawmakers and regulators have to consider the full potential of available instruments in the governance toolbox. ….
In a world of advanced AI technologies and new governance approaches towards them, the law, the rule of law, and human rights remain critical bodies of norms. …
As AI applies to the legal system itself, however, the rule of law might have to be re-imagined and the law re-coded in the longer run….(More).
Big Data: A Twenty-First Century Arms Race
Report by Atlantic Council and Thomson Reuters: “We are living in a world awash in data. Accelerated interconnectivity, driven by the proliferation of internet-connected devices, has led to an explosion of data—big data. A race is now underway to develop new technologies and implement innovative methods that can handle the volume, variety, velocity, and veracity of big data and apply it smartly to provide decisive advantage and help solve major challenges facing companies and governments
For policy makers in government, big data and associated technologies like machine-learning and artificial Intelligence, have the potential to drastically improve their decision-making capabilities. How governments use big data may be a key factor in improved economic performance and national security. This publication looks at how big data can maximize the efficiency and effectiveness of government and business, while minimizing modern risks. Five authors explore big data across three cross-cutting issues: security, finance, and law.
Chapter 1, “The Conflict Between Protecting Privacy and Securing Nations,” Els de Busser
Chapter 2, “Big Data: Exposing the Risks from Within,” Erica Briscoe
Chapter 3, “Big Data: The Latest Tool in Fighting Crime,” Benjamin Dean, Fellow
Chapter 4, “Big Data: Tackling Illicit Financial Flows,” Tatiana Tropina
Chapter 5, “Big Data: Mitigating Financial Crime Risk,” Miren Aparicio….Read the Publication (PDF)“
Powerlessness and the Politics of Blame
The Jefferson Lecture in the Humanities by Martha C. Nussbaum: “… I believe the Greeks and Romans are right: anger is a poison to democratic politics, and it is all the worse when fueled by a lurking fear and a sense of helplessness. As a philosopher I have been working on these ideas for some time, first in a 2016 book called Anger and Forgiveness, and now in a book in progress called The Monarchy of Fear, investigating the relationship between anger and fear. In my work, I draw not only on the Greeks and Romans, but also on some recent figures, as I shall tonight. I conclude that we should resist anger in ourselves and inhibit its role in our political culture.
That idea, however, is radical and evokes strong opposition. For anger, with all its ugliness, is a popular emotion. Many people think that it is impossible to care for justice without anger at injustice, and that anger should be encouraged as part of a transformative process. Many also believe that it is impossible for individuals to stand up for their own self-respect without anger, that someone who reacts to wrongs and insults without anger is spineless and downtrodden. Nor are these ideas confined to the sphere of personal relations. The most popular position in the sphere of criminal justice today is retributivism, the view that the law ought to punish aggressors in a manner that embodies the spirit of justified anger. And it is also very widely believed that successful challenges against great injustice need anger to make progress.
Still, we may persist in our Aeschylean skepticism, remembering that recent years have seen three noble and successful freedom movements conducted in a spirit of non-anger: those of Mohandas Gandhi, Martin Luther King, Jr., and Nelson Mandela—surely people who stood up for their self-respect and that of others, and who did not acquiesce in injustice.
I’ll now argue that a philosophical analysis of anger can help us support these philosophies of non-anger, showing why anger is fatally flawed from a normative viewpoint—sometimes incoherent, sometimes based on bad values, and especially poisonous when people use it to deflect attention from real problems that they feel powerless to solve. Anger pollutes democratic politics and is of dubious value in both life and the law. I’ll present my general view, and then show its relevance to thinking well about the struggle for political justice, taking our own ongoing struggle for racial justice as my example. And I’ll end by showing why these arguments make it urgent for us to learn from literature and philosophy, keeping the humanities strong in our society….(More)”
Blockchains, personal data and the challenge of governance
Theo Bass at NESTA: “…There are a number of dominant internet platforms (Google, Facebook, Amazon, etc.) that hoard, analyse and sell information about their users in the name of a more personalised and efficient service. This has become a problem.
People feel they are losing control over how their data is used and reused on the web. 500 million adblocker downloads is a symptom of a market which isn’t working well for people. As Irene Ng mentions in a recent guest blog on the Nesta website, the secondary data market is thriving (online advertising is a major player), as companies benefit from the opacity and lack of transparency about where profit is made from personal data.
It’s said that blockchain’s key characteristics could provide a foundational protocol for a fairer digital identity system on the web. Beyond its application as digital currency, blockchain could provide a new set of technical standards for transparency, openness, and user consent, on top of which a whole new generation of services might be built.
While the aim is ambitious, a handful of projects are rising to the challenge.
Blockstack is creating a global system of digital IDs, which are written into the bitcoin blockchain. Nobody can touch them other than the owner of that ID. Blockstack are building a new generation of applications on top of this infrastructure which promises to provide “a new decentralized internet where users own their data and apps run locally”.
Sovrin attempts to provide users with “self-sovereign identity”. The argument is that “centralized” systems for storing personal data make it a “treasure chest for attackers”. Sovrin argues that users should more easily be able to have “ownership” over their data, and the exchange of data should be made possible through a decentralised, tamper-proof ledger of transactions between users.
Our own DECODE project is piloting a set of collaboratively owned, local sharing economy platforms in Barcelona and Amsterdam. The blockchain aims to provide a public record of entitlements over where people’s data is stored, who can access it and for what purpose (with some additional help from new techniques in zero-knowledge cryptography to preserve people’s privacy).
There’s no doubt this is an exciting field of innovation. But the debate is characterised by a lot of hype. The following sections therefore discuss some of the challenges thrown up when we start thinking about implementations beyond bitcoin.
Blockchains and the challenge of governance
As mentioned above, bitcoin is a “bearer asset”. This is a necessary feature of decentralisation — all users maintain sole ownership over the digital money they hold on the network. If users get hacked (digital wallets sometimes do), or if a password gets lost, the money is irretrievable.
While the example of losing a password might seem trivial, it highlights some difficult questions for proponents of blockchain’s wider uses. What happens if there’s a dispute over an online transaction, but no intermediary to settle it? What happens if a someone’s digital assets or their digital identity is breached and sensitive data falls into the wrong hands? It might be necessary to assign responsibility to a governing actor to help resolve the issue, but of course this would require the introduction of a trusted middleman.
Bitcoin doesn’t try to answer these questions; its anonymous creators deliberately tried to avoid implementing a clear model of governance over the network, probably because they knew that bitcoin would be used by people as a method for subverting the law. Bitcoin still sees a lot of use in gray economies, including for the sale of drugs and gambling.
But if blockchains are set to enter the mainstream, providing for businesses, governments and nonprofits, then they won’t be able to function irrespective of the law. They will need to find use-cases that can operate alongside legal frameworks and jurisdictional boundaries. They will need to demonstrate regulatory compliance, create systems of rules and provide accountability when things go awry. This cannot just be solved through increasingly sophisticated coding.
All of this raises a potential paradox recently elaborated in a post by Vili Lehdonvirta of the Oxford Internet Institute: is it possible to successfully govern blockchains without undermining their entire purpose?….
If blockchain advocates only work towards purely technical solutions and ignore real-world challenges of trying to implement decentralisation, then we’ll only ever see flawed implementations of the technology. This is already happening in the form of centrally administered, proprietary or ‘half-baked’ blockchains, which don’t offer much more value than traditional databases….(More)”.
Regulation of Big Data: Perspectives on Strategy, Policy, Law and Privacy
Paper by Pompeu Casanovas, Louis de Koker, Danuta Mendelson and David Watts: “…presents four complementary perspectives stemming from governance, law, ethics, and computer science. Big, Linked, and Open Data constitute complex phenomena whose economic and political dimensions require a plurality of instruments to enhance and protect citizens’ rights. Some conclusions are offered in the end to foster a more general discussion.
This article contends that the effective regulation of Big Data requires a combination of legal tools and other instruments of a semantic and algorithmic nature. It commences with a brief discussion of the concept of Big Data and views expressed by Australian and UK participants in a study of Big Data use in a law enforcement and national security perspective. The second part of the article highlights the UN’s Special Rapporteur on the Right to Privacy interest in the themes and the focus of their new program on Big Data. UK law reforms regarding authorisation of warrants for the exercise of bulk data powers is discussed in the third part. Reflecting on these developments, the paper closes with an exploration of the complex relationship between law and Big Data and the implications for regulation and governance of Big Data….(More)”.