Privacy, Due Process And The Computational Turn: The Philosophy Of Law Meets The Philosophy Of Technology

271 Pages·2013·5.651 MB·English

by  Mireille Hildebrandt, Katja de Vries

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Privacy, Due Process and the
Computational Turn
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m Privacy, Due Process and the Computational Turn: The philosophy of law meets the
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c philosophy of technology engages with the rapidly developing computational
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D aspects of our world, including data mining, behavioural advertising, govern-
1 ment, profi ling for intelligence, customer relationship management, smart
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9 search engines, personalised news feeds and soon,in order to consider their
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: implications for the assumptions on which our legal framework has been
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0 built. The contributions to this volume focus on the issue of privacy, which is
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a often equated with data privacy and data security, location privacy, anonymity,
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l pseudonymity, unobservability and unlinkability. Here, however, the extent
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o to which predictive and other types of data analytics operate in ways that may
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er or may not violate privacy is rigorously taken up, both technologically and
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i legally, in order to open up new possibilities for considering, and contesting,
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f how we are increasingly being correlated and categorised.
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it Mireille Hildebrandt holds the Chair of Smart Environments, Data
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er Protection and the Rule of Law at the Institute for Computer and Information
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i Sciences (ICIS) at Radboud University Nijmegen, and is Associate Professor
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U of Jurisprudence at the Erasmus School of Law, Erasmus University Rotterdam.
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y She is a senior researcher at the Centre for Law, Science, Technology and
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d Society (LSTS), Vrije Universiteit Brussel.
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a Katja de Vries is based in the interdisciplinary Center for Law, Science,
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nl Technology and Society (LSTS) at the Vrije Universiteit Brussel (VUB).
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Privacy, Due Process and
the Computational Turn
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e The philosophy of law meets the
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] Edited by
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Li Katja de Vries
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First published 2013
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
A Glasshouse Book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2013 Mireille Hildebrandt and Katja de Vries
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1 The right of Mireille Hildebrandt and Katja de Vries
0 as authors of this work, and the individual chapter contributors for their
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r chapters, has been asserted by them in accordance with sections 77 and
e 78 of the Copyright, Designs and Patents Act 1988.
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m All rights reserved. No part of this book may be reprinted or reproduced
e or utilised in any form or by any electronic, mechanical, or other means,
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e now known or hereafter invented, including photocopying and recording,
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or in any information storage or retrieval system, without permission in
1 writing from the publishers.
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9 Trademark notice: Product or corporate names may be trademarks or
3 registered trademarks, and are used only for identifi cation and
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2 explanation without intent to infringe.
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at British Library Cataloguing in Publication Data
] A catalogue record for this book is available from the British Library
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o Library of Congress Cataloging in Publication Data
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r A catalog record for this book has been requested
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Li ISBN 978-0-415-64481-5 (hbk)
f ISBN 978-0-203-42764-4 (ebk)
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y Typeset in Garamond by
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Contents
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m Acknowledgements vii
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c N otes on Contributors ix
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D Preface xiii
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3 Introduction Privacy, due process and the computational
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0 turn at a glance: pointers for the hurried reader 1
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] a KATJA DE VRIES AND MIREILLE HILDEBRANDT
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p 1 Privacy, due process and the computational turn:
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e a parable and a fifirst analysis 9
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si PART 1
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e Data science 39
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[ 2 A machine learning view on profifi ling 41
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b MARTIJN VAN OTTERLO
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n Anticipating machines 65
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3 Abducing personal data, destroying privacy: diagnosing
profifiles through artefactual mediators 67
LORENZO MAGNANI
4 Prediction, pre-emption, presumption: the path of law
after the computational turn 91
IAN KERR
vi Contents
5 Digital prophecies and web intelligence 121
ELENA ESPOSITO
6 The end(s) of critique: data behaviourism versus
due process 143
ANTOINETTE ROUVROY
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0 Resistance & solutions 169
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b 7 Political and ethical perspectives on data obfuscation 171
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e FINN BRUNTON AND HELEN NISSENBAUM
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1 8 On decision transparency, or how to enhance
2 data protection after the computational turn 196
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: BERT-JAAP KOOPS
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at 9 Profifi le transparency by design? Re-enabling
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l double contingency 221
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f Index 247
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Acknowledgements
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m This volume developed from the Philosophers’ Reading Panel on Privacy and
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c Due Process after the Computational Turn, organised by the present editors,
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D together with Solon Barocas from New York University. The Reading Panel –
1 a real treat for those keen on trenchant but careful and responsive reflflection –
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9 took place on 26 January 2011. It was the second of its kind: the fi rst took
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: place in January 2009 and resulted in the fi rst volume in the series of the
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0 Philosophy of Law Meets the Philosophy of Technology, entitled L aw, Human
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a Agency and Autonomic Computing , also published by Routledge, in 2011. We
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l especially thank Antoinette Rouvroy, who co-edited the fi rst volume and con-
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o tributed with a captivating chapter in the present volume. We would like to
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er extend our gratitude and appreciation for all who participated in the Reading
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i Panel, providing a fi rst draft of their papers well in advance to enable a high
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f level of discussion, and for working with us on the chapters of this volume:
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y Finn Brunton, Elena Esposito, Ian Kerr, Lorenzo Magnani, Helen Nissenbaum,
it Martijn van Otterlo and Antoinette Rouvroy. We are indebted to Bert-Jaap
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e Koops, whose cutting-edge questions during the discussion prompted our
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i invitation to contribute to the volume, though he is neither a philosopher nor
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U a data scientist.
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y W e would like to credit Solon Barocas for his enthusiastic initiatives and
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d interventions in the process of organising the Reading Panel. He proposed to
e invite a data scientist to keep us, the philosophers of law and technology,
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oa down to earth – or, in this case – close to the intricate operations of machine
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n learning. His acuity in understanding the inner workings and unprecedented
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o implications of profi ling technologies has been of enormous value for this
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project. His contributions have been awesome, to use one of his own favourite
phrases.
The Philosophers’ Reading Panel formed a part of the larger annual inter-
national Conference on Computing, Privacy and Data Protection 2011
(CPDP11) in Brussels. We thank the organisers of the larger Conference,
LSTS, CRID, TILT, INRA and Fraunhofer Institute,1 and express our special
thanks to Paul de Hert, Serge Gutwirth, Rocco Bellanova and Rosamunde
van Brakel of LSTS for enabling the synergy of a reading panel that practises
viii Acknowledgements
‘slow thinking’, with the main programme of the larger Conference, which
entails a hectic succession of highly informative presentations on the intersec-
tion of law and computer science with regard to privacy and data protection.
Grietje Gorus and Katrijn de Marez provided professional logistical support
for all participants.
The Reading Panel was also part and parcel of the fi ve-year research project
on ‘Law and Autonomic Computing: Mutual Transformations’ that was
funded by the Vrije Universiteit Brussel, of which Mireille Hildebrandt was
6 co-author and co-ordinator, together with Serge Gutwirth (director of LSTS),
1 Paul de Hert (initiator of the CPDP Conferences) and Laurent de Sutter
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2 (researcher at LSTS).
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e We admire the professional patience and stamina of Routledge’s editorial
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m assistant, Melanie Fortmann-Brown, who helped us through the editing
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c process from its very beginning and, last but not least, we are once again
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D immensely grateful to Colin Perrin for his trust, enthusiasm and support in
1 getting this second volume published by Routledge.
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a 1 The Center for Law, Science, Technology and Society (LSTS), Vrije Universiteit
l] Brussels. Centre de Recherche d’Informatique et Droit (CRID), Université de
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o Namur. The Tilburg Institute for Law, Technology and Society (TILT), University
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r of Tilburg. Institut national de recherche en informatique et en automatique
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v (INRIA), Paris. Fraunhofer Gesellschaft.
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Notes on Contributors
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m Finn Brunton is an Assistant Professor of Information at the School of
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c Information at the University of Michigan. He was trained in the history
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D of science, receiving a PhD from the Centre for Modern Thought at the
1 University of Aberdeen. Subsequently he worked extensively on issues of
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9 privacy and security online as a postdoctoral researcher with Helen
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: Nissenbaum at NYU. He now focuses on technological adaptation and
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0 misuse, writing on topics including digital anonymity and currency, the his-
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a tory of experimental and obsolete media, and Wikileaks; his fifirst book, Spam:
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l A Shadow History of the Internet (MIT Press) will be out in March 2013.
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p Katja de Vries is a PhD student at the Centre for Law, Science, Technology,
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v and Society (Vrije Universiteit Brussel). Her PhD research is focused on the
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L collisions and interactions between legal and technological modes of think-
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o ing. More in particular she studies probablistic understandings of rational-
y ity and equality, and the differences and continuities between their
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rs functioning within advanced data technologies and within the legal seman-
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v tics of privacy, data protection and antidiscrimination law. De vries pub-
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n lishes on a wide range of topics such as technology-mediated identity
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[ construction; Foucault’s technologies of the self; Ambient Intelligence; the
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b continuity between cybernetics and current algorithmic personalization
d technologies; the case law, practices and political debates with regard to
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d online searches and data retention; the role of proportionality in privacy
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l law; enlightened ways of relating to digital spaces like Second Life; legal
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w semiotics and Latour’s empirical-philosophical way of studying the mode
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D of enunciation of law. She is a member of the European “Living in
Surveillance Societies”-network. De Varies studied at Sciences Po in Paris,
obtained three masters degrees with distinction at Leiden University (Civil
Law, Cognitive Psychology and Philosophy) and graduated at Oxford
University (Magister Juris).
Elena Esposito teaches Sociology of Communication at the University
of Modena-Reggio Emilia in the Facoltà di Scienze della Comunicazione
e dell’Economia. She graduated in Philosophy in Italy with Umberto Eco