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Law and Autonomic Computing: Mutual Transformations PDF

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Free University Brussels FACULTY OF LAW Research group on Law, Science, Technology & Society (LSTS) GOA PROPOSAL Law and Autonomic Computing: Mutual Transformations Promotors : Post-Doc Researchers Prof. Dr. S. Gutwirth (spokesperson) Dr. M. Hildebrandt Prof. Dr. P. De Hert Drs. L. Desutter th May 2 2006 2 I Research Proposal General Framework: .....................................................................3 I.A Autonomic Computing: Three Scenarios for an Unknown Future......................3 I.B What law got to do with it....................................................................................5 I.C Mutual transformations: Legal Subjectivity and Ambient Law ..........................7 I.D. Pertinence of the research...................................................................................8 II Research Design.........................................................................................................9 II.1. Mutual transformations: Autonomic computing and legal subjectivity............9 II.1.A. The central position of the human subject in law, in a constitutional democracy ..............................................................................................................9 II.1.B Task 1: Exploration of the impact of autonomic computing on the central position of the human subject in law, in a constitutional democracy ..................10 II.1.C. Tasks 2 and 3: Privacy, Data Protection and Intellectual Rights..............12 II.1.D. Task 4: Legal subjectivity for transhumans and nonhuman consciousness? ..............................................................................................................................15 II.2. Mutual transformations: Autonomic computing and ambient law...................16 II.2.A. Task 5: Regulation of human behaviour in an AmI environment............17 II.2.B Task 6: Ambient law and the 'ecology of practices' ..................................18 II.4 Methodology of the research.............................................................................19 II.4.A Classical methodologies of the relevant disciplines..................................19 II.4.B Generic vocabulary and speculative thinking............................................19 III Work Distribution and Output ................................................................................20 IV Personnel.................................................................................................................23 V References................................................................................................................24 VI. Short description of LSTS and list of relevant running projects ...........................30 VI.A. Short description of LSTS .............................................................................30 VI.B. List of relevant running projects in LSTS......................................................30 VII Curriculum Vitae applicants & postdoctoral researchers......................................32 VII.1 Serge Gutwirth ...............................................................................................32 VII.2 Paul de Hert ....................................................................................................60 VII.3 Mireille Hildebrandt .......................................................................................86 VII.4 Laurent de Sutter ............................................................................................92 3 I Research Proposal General Framework: I.A Autonomic Computing: Three Scenarios for an Unknown Future Ambient Intelligence and Autonomic Computing 1 In the 2005 Report The Internet of Things (ITU 2005), we are confronted with a detailed description of a world in which all things are wirelessly connected. Any movement or change is registered, allowing a permanent real-time monitoring that should enable the environment to adapt itself automatically to our inferred preferences. We are invited to imagine a world in which ubiquitous computing is no longer restricted to a proliferation of desktops or visible microprocessors, but embedded in a way that takes the technology out of our sight while providing us with unubtrusive and user friendly human-machine interfaces (HMI’s). In fact, these 2 HMI’s may even be implanted into our bodies, like the RFID-tags now used for livestock supply chain management, or the human implants used in healthcare institutions in the US. If ubiquitous computing meant connectivity anytime, any place for anyone, it will now come to anything, thus turning our offline world online. The Internet of Things seems to describe in more detail the Vision of Ambient Intelligence, initiated by Philips (Aarts and Marzano 2003) and the European Commission (ISTAG 2001) in recent years. Ambient Intelligence means an environment in which human beings are surrounded by pervasive, ubiquitous and interconnected computing devices that anticipate their preferences in order to adapt the environment to their inferred wishes. Ambient Intelligence is directed to user friendly human machine interfaces to such an extent that the environment itself becomes the interface (cf. SWAMI Deliverable 1, 2005) The most promising and challenging aspect of Ambient Intelligence and the Internet of Things is the fact that it will run on the basis of autonomic computing. In 2001 Paul Horn, IBM’s senior vice president, introduced the idea of autonomic computing, a term that refers to our autonomic nervous system. He chose this term, because the autonomic nervous system ‘governs our heart rate and body temperature, thus freeing our conscious brain from the burden of dealing with these and many other low-level, yet vital, functions’ (Kephart and Chess 2003). The Ambient Intelligent environment – which should emerge if the Internet of Things catches on – will do the same for us: providing a technological infrastructure that permanently adjusts the environment to our needs without bothering us with the enormous amount of decisions that have to be taken to allow such continuous adaption. Autonomic computing implies the collection and storage of our personal and many other data, to be mined for expected and unexpected patterns. This will allow the environment to anticipate our needs, desires and preferences. Most importantly, it will enable real time profiling and autonomic decision making by the machines that will ‘run’ our networked environments for us. 1 ITU stands for International Telecommunications Union 2 In FIDIS we cooperate with Kevin Warwick, who has initiated experiments with human implants and evaluated some of the ethical implications, see Warwick 2003. 4 The technologies that will enable such autonomic adaptive environments are described as RFID-systems, biometric applications, sensors, miniaturization and nanotechnologies (ITU 2005). The wireless connections between them, online data bases and available processing power will see to it that these networked environments will start learning about us, anticipating our worries and possibly solving our problems before they have even occurred (to us). This is often referred to as machine intelligence, emerging not in separate machines, but out of the interconnections between things, sensors, online databases and processing power. Such networked, distributed intelligence may be based on algorithms, which means that in theory the autonomic decision making process is still predictable. However, in practice, the complexity of the software and the information to be processed, makes it virtually impossible to check what the system will come up with. On top of that, further development of neural networks and nanotechnologies will produce a type of intelligence that is no longer predictable, and therefore able to find solutions that human experts may not have discovered, yet (Kephart & Chess 2003). Ambient Intelligence, GRIN Technologies and Autonomic Computing: Three scenarios Ambient Intelligence is a vision on the role of emerging technologies, like the so- 3 called GRIN's (Genetics, Robotics, Information and Nanotechs), which have seen a drastic acceleration in the last two decades. Autonomic computing, which is a precondition for Ambient Intelligence, nourishes on these technologies. Without the exponential advances made in the field of GRIN technologies autonomic computing would not stand a chance and Ambient Intelligence would remain science fiction. All these interrelated developments have given birth to the parrallel development of a host of questionings around the meaning of the spectacular technological transformation of what Latour would call our common world (Latour 1999). These questionings have been articulated in three different scenarios (Garreau 2005). The first has been called the ‘Heaven Scenario’. Following this scenario, the development of GRIN technologies will give to human beings the possibility to fullfill their dreams way beyond their wildest expectations: immortality, collective intelligence, transcendance through machines, etc., will all become reality – a reality that will enable humanity to take a step further into its political and social unification (Kurzweill, 1990, 1999). The second scenario has been called the ‘Hell Scenario’. Following this second scenario, the development of GRIN technologies will, on the contrary, drive humanity straight into a nightmarish world. In this world, there will not be one humanity anymore – but a strict divide between those who can afford the benefits of GRIN technologies (‘Enhanced’), and those who cannot or will not employ them (‘Naturals’). This divide will multiply the tensions both inside and outside societies – leading to new forms of discrimination and war (Joy, 2000). The third scenario has been called the ‘Prevail Scenario’. Following this scenario, it is not the development of GRIN technologies that will drive humanity to new places (Heaven or Hell), but the interaction between humans and GRIN technologies. Other than the other two scenarios, the ‘Prevail Scenario’ does not consider the development of technology a stronger power than the power of human beings to discriminate 3 Other acronyms have been used, such as NBIC (nanotechnology, biological engineering, information technology, and cognitive engineering), GRAIN (genetics, robotics, artificial intelligence, and nanotechnology), GNR (genetics, nanotechnology, and robotics), etc. 5 between - and act upon - what they consider desirable or not (Lanier, 2000, 2004). While the first two scenarios seem to imply some form of technological determinism, the third seeks to articulate the possibility for human freedom (and responsibility). These three scenarios, describing the consequences of the current development of GRIN technologies share certain features: - Firstly, they all assume that the key for the development of GRIN technologies lies in the I of GRIN: in Information. It is the development of information technologies that allows the parallel development of genetics, robotics and nanotechs. - Secondly, they all assume that the development of technologies is never only a scientific question: it is a question that implies political and societal consequences. What differentiates one scenario from another is precisely the fact that these consequences – and not the technologies by themselves - will lead humanity into one direction or another. - Thirdly, they all assume that, as scenarios, what they describe cannot be considered as what is commonly called ‘science-fiction’. Scenarios differ from science-fiction because of the fact that they use imagination within a framework of which the constraints are different: for science-fiction, imagination is a way to reach the possible, without being contrained by what is probable; for scenarios, it is a way to detect both the probable and the possible. This means that the researchers that have given birth to the Heaven, Hell and Prevail scenarios, are researchers who claim that the consequences they describe in part depend on very good present reasons (Garreau 2005). The fact that they are about probable and possible futures, ‘imaginative stories about what the future might be like (…) not predictions’(Garreau 2005: 78), does not mean we should not take them serious. On the contrary, they allow us the kind of speculation we need in a world that is predictable only to a limited extent. This 4 necessitates an imaginative anticipation of the foreseeable futures. - Fourthly, they all nourish autonomic computing and, at the same time, depend on its widespread implementation. Ambient, transhuman and nonhuman intelligence will depend on the further exponential development of GRIN technologies that enable autonomic computing on an unprecedented scale. At the same time ambient, transhuman and nonhuman intelligence will nourish autonomic computing with vast amounts of data and the ability to process them in real time. I.B What law got to do with it The Heaven, Hell and Prevail scenarios all assume that law will be transformed by the development of GRIN technologies. The described developments will not only lead to the creation of new legal fields, but they may also lead to an alteration of the foundations of law. If Roman law was based on family, Medieval law on religion and Modern law on property – what will a legal system that has to take into account the distinction between ‘Enhanced’ and ‘Natural’ be about? As the three scenarios are not science-fiction, this question is not juridic-fiction: from the point of view of both the Heaven and Hell scenarios, it will very practically be impossible to continue to maintain law as it is, to the extent that the legal objects as well as the legal subjects may be completely transformed. How to continue to elaborate general and abstract 4 In the Safeguards in a World of Ambient Intelligence (SWAMI)-project we have experienced that working with scenario’s, in that case ‘dark scenario’s’, is a very fruitful way of anticipating legal problems and solutions. See (SWAMI D1. & D.2., 2005). 6 norms when humanity is divided between ‘Enhanced’ and ‘Natural’? How to continue to use categories such as property or originality when there will be collective intelligence (Lévy 1994 & 1997a) ? How to continue to consider law as concerning humanity-only when the intelligence of the machines will make them more than human? But not only do the Heaven and Hell scenarios raise such questions: so does the Prevail scenario. Following the Prevail scenario, the type of control over technology that humans will begin to develop in order to choose between the probable and possible futures that are offered, may exceed substantively the type of control that is now offered for instance by intellectual property rights or by the fundamental rights attributed to the citizens of democratic constitutional states. In order to stop the investigating agents of a state department to exceed their competences, new legal means may for instance have to be invented. The Heaven and Hell scenarios both assume that the role of law regarding the consequences of the development of GRIN technologies will be passive. From the point of view of the Prevail scenario, however, law should play an active role in assessing these consequences. But whether active or passive, the role of law in the assessment of the consequences of GRIN technologies will necessarily lead to its transformation. Following the three scenarios, the current state of law and of legal concepts seems unable to meet the challenge represented by GRIN technologies for issues like legal subjectivity, agency, causality and liability. It is necessary already today, to imagine what kind of legal means and what kind of legal concepts must be invented, amended or put aside, for a scenario to develop its plot. Does this mean that law has nothing to say in the choice of scenario? The first bet of the present project is, on the contrary, that the voice of law will be crucial in the realisation of a scenario. To define the relationship between law and GRIN technologies in terms of passivity (following the lead of technology) or activity (co-shaping our common world) is to commit ourselves, as lawyers, into a debate on the role of law. This debate is not free of constraints because a choice between activity and passivity has take into account the consequences of that choice. The second bet of the present project is that to choose for activity is the only choice that could be faithful to what law is made for, whatever its foundation is (Gutwirth, 1993 & 1999). This bet is a bet in favour of the Prevail scenario, because it is the only one that integrates this faithfulness into its own plot. This means that law is not at the passive end of the transformations that may occur regarding, for instance, our subjectivity. Lawyers need to anticipate these transformations and reconstruct the legal framework. Instead of passively adapting to the demands of technological progress, the law needs to responsively fit the demands of a changing environment, while remaining true to the obligations lawyers consider crucial, even if these obligations may have to be re-configured to face the challenges detected in the set of scenarios described above. At the same time, lawyers cannot assume that technology will be at the passive end of the transformations they invent. This project aims to prepare active and mutual reconfigurations between the practice of law and the practices of technologists in the broad sense (computer scientists, engineers, mathematicians, data base experts, etc.). As the LSTS has been involved in a variety of relevant research projects (see section VI.B), which have confronted their researchers with the necessity of such mutual transformations, it can provide its lawyers, legal theorists and legal philosphers with the active context in which the ambition of this project can be succesfully pursued. 7 I.C Mutual transformations: Legal Subjectivity and Ambient Law Autonomic computing is what all three scenario feed on and produce. However, the way autonomic computing is confronted differs. The first two scenarios embrace optimistic or pessimistic technological determinism, which means they will take autonomic computing as a given (for the better or the worse). The third scenario will have to face the challenges of ambient, transhuman and nonhuman intelligence, without taking them for granted. Obviously, the possible legal implications are manyfold. In this project we will focus on two sets of implications that demand close attention. These will structure the two parts of his research project. Firstly, we will assess the impact of autonomic computing on the kind of human subjectivity that is both presumed and protected by law, within the framework of constitutional democracy. To what extent does autonomic decision making on the part of machines or human-machine hybrids impact the freedom of a human person to act autonomously (Bohn, Coroama et al. 2004)? How will this impact our privacy (Solove 2004)? How will autonomic decisions taken by interconnected ‘intelligent’ machines impact the attribution of causality in cases of tort, breach of contract or criminal responsibility, how will it impact accountability and liability in private law, in administrative law and in criminal law? What happens if not only the critical infrastructure of the adaptive environment runs on autonomic decision-making, but if human persons use intelligent devices like personal digital assistents to delegate a host of decisions to them (Clarke 1994)? Secondly, after having assessed the possible impact, we turn to the issue of regulation. We will investigate to what extent the technological infrastructure of networked intelligent environments regulates the life of people, and how this compares to the way the legal infrastructure regulates life. The discussion on code as law, which has been initiated by Lessig (1999a) and Reidenberg (1998) and critically assessed by Tien (2004) Leenes & Koops (2005) and Brownsword (2005) will be mapped and its relevance for Ambient Intelligent environments will be assessed. After having identified shortcomings in current ways of understanding regulation by law on the one hand and technology on the other, an attempt will be made to develop a generic vocabulary that can adequately describe both technological and legal regulation of human interaction with the environment, after which the relevant differences between the two can be detected. Special attention will be given to the problems of data protection legislation to achieve adequate implementation. At the present moment the technological infrastructure does not empower end-users to effectively assess information on what happens to their data, let alone provide them with the instruments to regain some control over the knowledge built on the information that is recorded in their environments. Building on the generic vocabulary for the regulation of human interaction a concept of ambient law will be developed, which explores the way autonomic computing can be put to use for the implementation of mandatory data protection legislation. As such, ambient law is a technologically embodied law that empowers citizens to regain control over the information and knowledge that will impact decisions taken about them. 8 The idea of a technologically embodied law may be countered by those that fear a rule by technology. To prevent such undesired integration of law and technology the contraints of constitutional democracy need to be translated into such an ambient law. This raises the question how the practices of law and technology could be involved in such a project. This question will be researched from the perspective of the 'ecology of practices' (Stengers 1977 & 2006), in which the possibility and desirabiliy of mutual transformations of both legal and technological practices will be investigated. I.D. Pertinence of the research Why should lawyers get involved in the way their legal instruments affect human behaviour in comparison to the way technological instruments affect human interaction? The reason why this involvement is pertinent is the fact that technologies today affect human interaction to an extent that was previously unthinkable. At the same time this may interfere with the capacity of legal norms to have any effective impact on human behaviour. Turning a blind eye to this, with the excuse that as lawyers we would outstep our expertise by getting involved with technological regulation, may seem a return to a safe haven, but may in fact erode the safety this haven can deliver. If an Internet of Things appears, if we start living in a networked environment that forms the interface between human subjects and the technologies that monitor and profile their behaviours, we must come to terms with the way these technologies actually regulate our life (inducing certain actions and inhibiting others). Instead, however, of viewing technological regulation as a threat to legal regulation, we should identify the point at which effective legal regulation needs technological embodiement. For instance, it may be the case that Data Protection legislation cannot achieve its ends without a technological infrastructure that enforces the mandatory legal rules while also providing access to the information that will allow us informed negotiations with service providers. Such informed negotiations will have to be performed between autonomic machines on our side and those on the side of the AmI environment. The amount of trivial – but still crucial - decisions that will have to be taken in the framework of an Internet of Things, is simply too massive to allow continuous human intervention (like consent). The proposed research is unique. The EC has been funding several large projects on “ambient intelligence”. In FP5 (eHealth) and FP6 (IST Audiovisual, IST Embedded Systems) approximately 36 projects have been funded in the area of “ambient intelligence” involving more than 242 organisations, for a total budget 95.5 M€. Only a few had a specific workpackage devoted to ethical, legal, social and psychological implications. SWAMI (Safeguards in a World of Ambient Inteligence, http://swami.jrc.es/pages/index.htm) is a project which focuses on a possible future in an Information Society where all ICT capacities are interconnected. The objective of SWAMI has mainly been to identify and explore the future social, economic, legal, technological and ethical issues and the policy options related to safeguards for privacy, security, trust, identity and digital divide. In this project LSTS took care of the legal aspects : LSTS made an overview of the law relevant for Ambient Intelligence and exploringly applied this body of law to the ‘dark scenarios’ in order to identify strengths and weaknesses of the existing law. In the (current) final phase LSTS consequently tries to formulate relevant legal policy options. 9 FIDIS (Future of Identity in Information Society, www.fidis.net) is a project which focuses on advanced identification technologies and its impact on the identity of the European citizen. LSTS is workpackage leader of Profiling, which is the enabling technique for autonomic computing. This project explicitly takes a multidisciplinary perspective and would provide an excellent context for the researchers of the project on autonomic computing to exchange their findings with excellent researchers from technological and social sciences throughout the EU. The proposed research ‘Law and Autonomic Computing: a Process of Mutual Reconfiguration’ will complement and further develop the research efforts initiated by SWAMI (completed in late 2006) and FIDIS (running until spring 2009). While SWAMI addresses the general issue of AmI and FIDIS adresses profiling from a multidisciplinary perspective, the proposed research specifically focuses on an assessment of the impact of autonomic computing on fundamental notions of law, specifically the notion of the legal person and the legal norm. It will thus face the regulatory challenges seeking the development of benchmarks beyond administrative law, in order to prepare the making of effective and legitimate regulation in the framework of the democratic constitutional state. The research we propose now is thus mainly conceptual and fundamental. II Research Design We propose a research design along the lines of the two identified interrelated subjects: ‘Autonomic Computing and Legal Subjectivity’ and ‘Autonomic Computing and Ambient Law’. While describing these parts of the research we systematically identify the different research tasks we propose to undertake. II.1. Mutual transformations: Autonomic computing and legal subjectivity II.1.A. The central position of the human subject in law, in a constitutional democracy Constitutional democracy builds on the central position of the human subject. Firstly, democracy in the modern sense means self-rule for the citizens of a polity, whether this self-rule is understood in a deliberative, participatory or representative way. Only human beings qualify for citizenship and – other than in Greek times – citizenship is not restricted on the basis of class, race or gender. The legitimacy of democratic government depends on the fact that human beings are free to choose alternative courses of action, to deliberate on the best public policies, to participate in political decision making processes and to seek adequate representation for their public interests. It has been argued that this freedom, which is presumed by political theories of democracy, is not a given, but needs to be created by the framework that supports a viable democracy. In line with that, secondly, constitutional democracy depends on the rule of law that attributes a set of fundamental rights to its citizens. These fundamental rights confer legal subjectivity to each human being within the jurisdiction of the polity, providing the individual with a position from which she can 10 exercise her freedom to participate in public and private life and her freedom from illegitimate intrusions by private and public actors. To actually provide such freedom the legal persona must not be conflated with the person of flesh and blood. The legal persona is an artifical legal construction that aims to protect and empower the human person, whose nature is fundamentally underdetemined. This indeterminacy is one of the essential tenets of constitutional democracy. It means that a person can never be entirely defined by others (Foqué & ‘t Hart 1990, Gutwirth 1993 & 2002, Hildebrandt 2002, De Hert & Gutwirth, 2006). The challenges of autonomic computing are directly connected with possible transformations of the human subject, raising the question what this should mean for the concept of the legal subject. Research into these issues will be the first task of the researchers. The findings of this research implicate a second research task, namely an investigation of the legal regulation of privacy and intellectual property, to assess to what extent the present legal framework offers adequate protection against possible risks, identified in the first task. The third task relating to the central position of the human subject in constitutional democracy, refers to the question to what extent legal subjectivity should be attributed to transhuman and nonhuman entities. II.1.B Task 1: Exploration of the impact of autonomic computing on the central position of the human subject in law, in a constitutional democracy To demonstrate the pertinence of this research we will describe some of the possible consequences of autonomic computing, discussed in the literature. All the tasks will feed on the issues raised in the research of this first task. Normalisation, customisation and filtering The potential effects of GRIN technologies, networked AmI environments and the Internet of Things may impact the human subject as it is presumed in and constituted by a constitutional democracy. One of the aims of this project is to investigate what this impact could be. Authors like Lessig (1999a), Solove (2004) and Sunstein (2001) have described how the profiling technologies that are at the core autonomated computing may engender processes of normalisation and customisation as well as filtering (see also Deleuze 1990 & Gutwirth 2002) . Customisation and normalisation seem to change the balance of power between large organisations and individual citizens. These large organisations – whether public or private – will control an enormous amount of data and have access to detailed and dynamic profiles of categories of citizens. They can use the knowledge thus available to make decisions regarding individual persons, even without identifying them. In 5 fact, as Lessig writes , autonomic computing implies that these decisions are taken by machines, which are continuously profiling us, in order to provide adequate services. The point may be that we are not necessarily facing a Big Brother, taking over our lives, but rather that we find ourselves in a labyrinth of ‘digital dossiers’, as Solove 5 'When the system seems to know what you want better and earlier than you do, how can you know where these desires really come from? (…) profiles will begin to normalize the population from which the norm is drawn. The observing will affect the observed. The system watches what you do; it fits you into a pattern; the pattern is then fed back to you in the form of options set by the pattern; the options reinforce the patterns; the cycle begins again' (Lessig 1999: 154).

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