Katja de Vries

Identity, profiling algorithms and a world of ambient intelligence

The tendency towards an increasing integration of the informational web into our daily physical world (in particular in so-called Ambient Intelligent technologies which combine ideas derived from the field of Ubiquitous Computing, Intelligent User Interfaces and Ubiquitous Communication) is likely to make the development of successful profiling and personalization algorithms, like the ones currently used by internet companies such as Amazon, even more important than it is today. I argue that the way in which we experience ourselves necessarily goes through a moment of technical mediation. Because of this algorithmic profiling that thrives on continuous reconfiguration of identification should not be understood as a supplementary process which maps a pre-established identity that exists independently from the profiling practice. In order to clarify how the experience of one’s identity can become affected by such machine-profiling a theoretical exploration of identity is made (including Agamben’s understanding of an apparatus, Ricoeur’s distinction between idem- and ipse-identity, and Stiegler’s notion of a conjunctive–disjunctive relationship towards retentional apparatuses). Although it is clear that no specific predictions about the impact of Ambient Intelligent technologies can be made without taking more particulars into account, the theoretical concepts are used to describe three general scenarios about the way wherein the experience of identity might become affected. To conclude, I argue that the experience of one’s identity may affect whether the cases of unwarranted discrimination resulting from ubiquitous differentiations and identifications within an Ambient Intelligent environment, will become a matter of societal concern.

The German Constitutional Court Judgment on Data Retention: Proportionality Overrides Unlimited Surveillance (Doesn’t It?)

On 15 March 2006, the Data Retention Directive, demanding the retention of telecommunications data for a period of 6 months up to 2 years, was adopted. Since then, this seemingly straightforward directive has “generated” quite an impressive number of court judgments. They range from the European Court of Justice to the administrative (e.g. Germany and Bulgaria) and constitutional courts (e.g. Romania) of some Member-States. In particular, the judgment of the German Federal Constitutional Court, delivered on 2 March 2010, has already caught the attention of several commentators, from civil society, lawyers, journalists and politicians. In the judgment, the Court annuls the German implementation laws of the Data Retention Directive. This paper has two main goals. On the one side, it aims at offering a first critical overview of this important judgment, highlighting some of the key features of the ruling and its main similarities and divergences with other similar judgments. On the other side, given the relevance of the issues at stake, it aims at contextualizing the judgment in the wider framework of European data processing and protection debates, assuming a critical posture on the increasing emphasis on proportionality as the “golden criterion” to assess and limit surveillance practices.

A Bump in the Road. Ruling Out Law from Technology

This article discusses the challenge posed by the upcoming field of technoregulation to the study of law and its relation to new technologies. Technoregulation is often hailed as a new legislative tool for the intentional regulation of human behavior by means of technology. Instead of making law redundant, technoregulation could give a new impetus to classical debates in legal theory about the nature of law, by adding questions about the medium of law investigated in the light of the practice turn. If one understands law as a practice, what does this mean for the distinction between medium and content, which seems to underlie much of the debate on technoregulation? Both Hartian practice theory that frames law as a system of ‘incorporeal’ rules and more material approaches that explain law in terms of its mediality are analyzed. These will be discussed in the light of Latour’s studies of the specificities of legal practices and technological practices, which seem to supersede the extremes assumed by both.

A Comparative Analysis of Anti-Discrimination and Data Protection Legislations

Departing from the ECJ’s Huber case where Germany was condemned for discriminatory processing of personal data and which suggests that there is a strong kin between data protection and discrimination issues, this chapter is an attempt to further compare the two fundamental rights - non-discrimination, and data protection.

Avatars Out of Control: Gazira Babeli, Pose Balls and “Rape” in Second Life

That bodily, social, geographical or financial constraints play a less important role in virtual worlds like Second Life (SL) than in real life (RL) does not imply, as many of SL’s inhabitants seem to assume implicitly, that it is a place much like RL only without any burdening constraints whatsoever. The simple transposition of everyday objects (car, house, etc.) and actions (driving a car, making love, etc.) from an RL to an SL context ignores the fact that every digital world has its own “affordances” and “constraints” (cf. Norman, Latour). I argue that acting upon the specific affordances and constraints which govern one’s environment, whether it is in RL or SL, allows for a more mature and enlightened way of living. As an inspiring example of such an enlightened way of relating to one’s digitally simulated environment the work of code-performer Gazira Babeli is presented. Moreover I argue that a heightened awareness of the affordances and constraints could also be useful from a legal perspective for two reasons. Firstly, because this heightened awareness allows one to go beyond the idea of simple transposition and move towards more accurate and productive ways of legally qualifying those behaviors within digital worlds which are perceived (at least by some) as being unethical or obnoxious (so-called “virtual” theft or murder, consensual role-play rape in SL, etc.). Secondly, a law which is created in order to regulate the life of enlightened inhabitants, that is inhabitants who are aware of the affordances and constraints of their digital environment, will differ from a law that is aimed at users who merely live their digital lives based on the surface level.