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This chapter is about the relationship between AI technology and society in fundamental rights theory. In fundamental rights doctrine, the relationship between technology and society is seldom reflected. Legal practitioners tend to view technology as a black box. For scholars of science and technology studies (STS), similarly, the law is a closed book. Such reductionist or compartmentalised thinking in the law and social sciences must be overcome if a conceptualisation of AI technology in fundamental rights theory is to be successful. The chapter offers a perspective on these issues that is based on a re-interpretation of affordance theory (as originally framed in STS). First, the question ‘how do affordances come into a technology?’ is answered from the viewpoint of Bryan Pfaffenberger’s ‘technological drama’. Accordingly, the affordances (the possibilities and constraints of a technology) are shaped in a dialogue between a ‘design constituency’ and an ‘impact constituency’ in which the technology’s materiality and sociality are co-determined. Second, this theory is applied to study the co-determination of AI technology. Finally affordance theory is combined with socio-legal theorising that understands fundamental rights as social institutions bundling normative expectations about individual and social autonomies. How do normative expectations about the affordances of AI technology emerge and how are they constitutionalised?

Political issues pertaining to data-driven agency and the use of ‘big data’ to make decisions about people’s lives are usually seen through the lens of liberalism. A conservative examination of data-driven agency requires a different lens. This chapter adopts the perspective of evolving modernity. It considers the philosophy of three major conservative thinkers, Edmund Burke, Alexis de Tocqueville and Michael Oakeshott, in the context of the problematisation of big data contained in Mireille Hildebrandt’s Smart Technologies and the End(s) of Law. Present-day conservatives need to rethink their traditional antipathy to the state, reverting to a Burkean understanding of the public-private distinction, and also to revise views of individual agency in the face of the facilitation of collective agency by networked digital technology.

If data-driven agency is a form of agency based on what machines have learned, it seems important to understand the nature and limit of the type of knowledge that can be mechanically obtained from digital data. After reviewing some of the popular claims made about big data this chapter explores some of the differences in the use of big data and machine science in the natural sciences and in the social domain. It insists in particular on the fact that in the natural sciences what constitutes data and how it should be interpreted are under the collective jurisdiction of specialists of the domain whose authority is recognized by governments, funding agencies and the general public, while in the social domain the data is often claimed to be simply ‘found’ though it is explicitly sought for a variety of reasons. It is not however ‘crafted’ in the sense of being validated and authenticated by the community of concerned researchers. In consequence, anyone who has the necessary technical competence gains the authority to interpret the data and declare what the data proves. Finally, the chapters analyzes some aspects of machine learning and science that tend to encourage the faulty interpretation that ‘data is enough’.

This chapter discusses the threat digital technologies might pose to democracy by shifting the focus to the question on which points, and why, democracy might be vulnerable to digital technologies. Two conceptions of democracy are considered: a minimalistic one, which defines democracy as the form of government in which the power resides in the people and is exercised by them either directly or by means of elected representatives; and a relationist one, defended by Montesquieu and Dewey, which defines democracy by the way power is exercised under the rule of law. Although digital technologies may put society in disarray, under the minimalistic definition, democracy is found to be not at risk. However, for disregarding the conditions under which democracy can continue to function properly, the minimal conception is found to suffer from ‘the fallacy of misplaced concreteness’. In contrast, the Montesquieu/Dewey conception allows to identify several vulnerabilities – both on the level of electoral law and the electoral system, and on the level of the way ‘public interest’ is organized – which, if not properly addressed, may annihilate the liberty achieved by the rule of law. Some policy-options for managing these vulnerabilities are suggested.

For several hundred years, political philosophers and legal theorists have conceptualized media technologies as ‘technologies of freedom’.  Some things about that equation have not changed; certainly, access to information, the capacity for reason, self-determination, and democratic self-government are inescapably interrelated. In other respects, however, the operation of contemporary platform-based media infrastructures has begun to mimic the operation of the collection of brain structures that mid-twentieth-century neurologists christened the limbic system and that play vital roles in a number of precognitive functions, including emotion, motivation, and habit-formation. Today’s networked information flows are gradually being optimized for subconscious, affective appeal, and those choices have proved powerful in ways their designers likely did not intend or expect.