Smart Technologies and the End(s) of Law

Smart Technologies and the End(s) of Law

Novel Entanglements of Law and Technology

Mireille Hildebrandt

This timely book tells the story of the smart technologies that reconstruct our world, by provoking their most salient functionality: the prediction and preemption of our day-to-day activities, preferences, health and credit risks, criminal intent and spending capacity. Mireille Hildebrandt claims that we are in transit between an information society and a data-driven society, which has far reaching consequences for the world we depend on. She highlights how the pervasive employment of machine-learning technologies that inform so-called ‘data-driven agency’ threaten privacy, identity, autonomy, non-discrimination, due process and the presumption of innocence. The author argues how smart technologies undermine, reconfigure and overrule the ends of the law in a constitutional democracy, jeopardizing law as an instrument of justice, legal certainty and the public good. Finally, the book calls on lawyers, computer scientists and civil society not to reject smart technologies, explaining how further engaging these technologies may help to reinvent the effective protection of the rule of law.

Chapter 4: The digital unconscious: back to Diana

Mireille Hildebrandt

Subjects: law - academic, internet and technology law, legal philosophy


If we retrace Diana’s footsteps and those of her significant others, a number of issues come to mind that relate to privacy, identity and autonomy, though often entangled with vulnerabilities better qualified in terms of manipulability, digital sorting, the presumption of innocence and due process. We will assess some of these vulnerabilities by discussing the fact that diagnoses of Diana’s preferences, moods, health, stress levels, and professional or personal success are made by machines tapping into Big Data Space, taking into account that many subsequent decisions are taken without human intervention, while her emotional behaviours are expressly targeted. All based on the distributed, heterogeneous, digital unconscious that co-constitutes her onlife world. Most notably, we will chew on the fact that she develops an intimate relationship with her DPA and that the entire setting displays a novel configuration of transparency and opacity. This intermezzo is meant to raise issues and to sensitize the reader to what is at stake in an onlife world. What should concern us in the changing landscape of ‘agential’ environments? As an intermezzo, this chapter is not meant to be exhaustive or to resolve matters, as if that were at all possible. Rather, it should function as a prelude to the next chapter that hopes to investigate in a more systematic manner the potential threats of the onlife world. Diana is treated as a person who suffers from mild winter depressions and nervousness.

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