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 10: The end of law or Legal Protection by Design

Mireille Hildebrandt


This book ends with Legal Protection by Design (LPbD) in a data-driven environment, weaving together some of the open endings of previous chapters. The argument is that without LPbD we face the end of law as we know it, though – paradoxically – engaging with LPbD will inevitably end the hegemony of modern law as we know it. There is no way back, we can only move forward. However, we have different options; either law turns into administration or techno-regulation, or it re-asserts its ‘regime of veridiction’ in novel ways. Moreover, I will briefly develop two types of design solutions that are not – yet – implementations of legal conditions; though I will argue that once they become operational they should be integrated into the legal framework. This would qualify them as instances of LPbD. That is how socio-technical innovation should drive legal protection and vice versa. In this chapter I will briefly discuss why technology neutral law is a necessity, while technologically neutral law is an impossibility. This paves the way for a demonstration of how the upcoming obligation of Data Protection by Design (DPbD) qualifies as a form of LPbD that validates the fundamental right to data protection. This will be followed by two ways of engaging with the architecture of the onlife world that go beyond data protection: counter-profiling as a general strategy to figure out how one is targeted; and morphological computation in robotics to diminish dependence on central control models of intelligence. I will argue that counter-profiling

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