Smart Technologies and the End(s) of Law
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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.
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Chapter 2: Smartness and agency

Mireille Hildebrandt


Before embarking on an analysis of the Rule of Law in the age of smart technologies we must look into what is meant with ‘smart’ here. Are we talking about a thermostat that automatically regulates temperature on the basis of a simple mechanical process? Or are we referring to applications that can generate heuristics (rules of thumb) by learning from their interactions with the environment, based on advanced types of pattern recognition (data mining)? Or, should we restrict the use of ‘smart’ to distributed multi-agent systems that generate so-called emergent behaviours that are to some extent unpredictable, because they come up with answers to questions we had not even thought of? Finally, we may want to go even further and limit the term ‘smart’ to a type of agency that can survive ‘real-world’ conditions. Whereas the first three types can be operational in the form of one or more electronic, digital agents, the latter would require an embodiment that enables grounded interaction outside computing systems. Instead of taking an all or nothing view on what counts as smart it makes sense to differentiate between various levels of smartness. The question of how the smartness of artefacts compares to human intelligence is left aside for the moment, though we will confront it later on. For now we will focus on artificial electronic agents and on networks of such agents, building up to embedded systems that may eventually evolve into what some have called ‘complete agents’.

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