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 9: The fundamental right of data protection

Mireille Hildebrandt


In the global context two conceptions of data protection vie for hegemony. The one defines data protection as a subset of or means to achieve privacy, usually speaking of informational privacy as equivalent with data protection. This seems the point of departure for the legal framework of, for instance, the USA. The other conception defines data protection as a fundamental right on its own account that must be distinguished from privacy, although there is overlap. This is the point of view within the EU jurisdiction, where privacy and data protection have been codified as distinct rights in the Charter of Fundamental Rights of the European Union (CFREU). Within Europe, the legal framework for privacy is based mainly on Art. 8 of the European Convention of Human Rights (ECHR), which speaks of the protection of home, family life, private life and correspondence. The ECHR is the human rights treaty of the Council of Europe, which has also issued a Convention on automatic processing of personal data (Convention 108, recently updated). All member states of the EU are party to the ECHR, which means that they are all obliged to adhere to its standards, while citizens have a right to complain about violation of their rights to the European Court of Human Rights (ECtHR) after exhausting national remedies. Art. 8 has generated a prolific case law, part of which regards issues of data protection.

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