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 6: The other side of privacy: agency and privacy in Japan

Mireille Hildebrandt

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


The Japanese term for privacy, puraibashi, is of foreign origin. It has been imported from the English language and many authors suggest that the Japanese legislation on privacy and data protection has been enacted merely to comply with the demands of Western trade partners. This seems a bit over the top, considering that in Japanese case law a right to privacy has been recognized since 1964, and legislation regarding the processing of personal data by the administration has been in force since 1988, followed by a more comprehensive Act on the Protection of Personal Information in 2003. In some ways Japan seems ahead of the USA, as Japan has opted for general instead of sectorial regulation. Though we must admit that much is left to self-regulation and it is unclear to what extent the legislation is implemented, this has been a recurrent complaint about all regulation of informational privacy, also in Europe and the USA. This chapter is not focused on the current legal framework, which seems relatively up to date. Instead I want to explore privacy practices that have been part and parcel of Japanese culture, even before the notion of privacy entered the Japanese vocabulary. I contend that absence of a concept does not imply that the relevant practices were absent; as long as we are willing to concede that these differ substantially from our own.

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