Massimo Durante

Special Issue on the Man and the Machine ∙ The Pros and Cons of Legal Automation and its Governance

The article examines the field of legal automation, its advantages and drawbacks, the ways in which legal constraints and safeguards can be embedded into technology and how the law may govern human behaviour through codes, IT architectures, and design. By stressing both benefits and shortcomings of legal automation, the article does not suggest that the latter is something “neutral”. Rather, making legal reasoning and enforcement automatic, so that even a machine can process and understand this information, should be conceived as a set of constraints and affordances that transform, or reshape, the environment of people’s interaction and moreover, the interplay of human and artificial agents, thereby affecting basic pillars of the (rule of) law. The overall aim is to flesh out goals and values that are at stake with choices of technological dependence, delegation and trust, so as to determine the good mix between legal automation and public deliberation.

Legal Memories and the Right to Be Forgotten

The paper examines the current debate on the right to be forgotten in connection with three different issues that revolve around: (i) the construction of individual identities; (ii) how individual and collective memories are intertwined; and, (iii) different forms of oblivion vis-a-vis the idea of forgiveness. The aim is to offer a normative stance in terms of “fair memory” and “difficult forgiveness.” From a philosophical viewpoint, attention is drawn to the dual status of the past, i.e., that which is not any longer and what Paul Ricoeur used to call the “existent state.” From a legal perspective, focus is on how to strike a balance between the subjective claim to be forgotten and further rights of the legal system. From a political outlook, what is at stake concerns the mediation between the relational structure of the law and the inter-subjective nature of forgiveness. Today’s debate has to match up with all these aspects of the right to be forgotten.

The Morality of Artificial Agents

The informational approach has powerful practical and theoretical consequences on the notions of agency and responsibility. This chapter discusses one of the most crucial questions facing our networked information society today: who is the “who” that performs an action and may be held accountable for the (moral or legal) consequences of that action? It is increasingly likely that the agent is an artificial one, whose autonomous performance of tasks poses the risk of unexpected and potentially harmful effects. How are we to deal with consequences that cannot be traced back directly to a human being? Here we explore insights that IE might offer into the questions at hand. Investigation of the notions of agency and autonomy from an informational point of view is useful in shedding light on the moral experience of accountability and responsibility. As with patients of the moral experience, by extending the class of moral agents in the direction of non-human agents, we can better grasp the role of humans in moral (as well as in legal) responsibility, and are better equipped to deal with the novel theoretical and practical problems arising from our interaction with artificial autonomous agents.

What Is New with the Internet of Things in Privacy and Data Protection? Four Legal Challenges on Sharing and Control in IoT

The Internet of Things (IoT) creates an intelligent, invisible network fabric that can be sensed, controlled and programmed, in ways that enable artefacts to communicate, directly or indirectly, with each other and the internet. This network is rapidly and increasingly evolving into the networked connection of people, processes, data and things (i.e., the web of “everything”). While the latter promises to improve our lives, by anticipating our preferences, optimizing our choices and taking care of many daily habits, the evolution of IoT is likely to raise new legal and technological challenges. This paper examines four challenges in the fields of privacy and data protection. Drawing on today’s debate on the architecture, standards, and design of IoT, these challenges concern: (i) the realignment of traditional matters of privacy and data protection brought on by structural data sharing and new levels and layers of connectivity and communication; (ii) collective, rather than individual, data protection; (iii) technological convergence, e.g. robotics and other forms of artificial agency, that may impact some further pillars of the field, such as data controllers; and, (iv) the relation between technological standards and legal standards. Since, properly speaking, we still do not have a universal IoT, current debate represents an opportunity to take these legal challenges seriously, and envisage what new environment we may wish.

Ontic Trust and the Foundation of the Information Society

Throughout the history of political modernity, the process of legitimation of Western society has been portrayed through the lens of human conflict. This, however, is not the only possible way of telling the story. The hypothesis set forth here is that reframing the narrative is possible and, at present, even necessary, as the impact of computing and the spread of information and communication technologies invite us to reconsider the foundations of the information society. We are being called on to revisit the nature of modern conflict and the statute of their participants, breaking away from a traditional anthropocentric view of society to embrace a new perspective that challenges human narcissism. From this perspective, we are forced to envisage a new social or natural contract for the globalized, networked information society, one that acknowledges a relevant ‘third’ perspective: namely, that of nature (Serres) or the infosphere (Floridi).

The Informational Construction of the Self

The information revolution engendered by the evolution of digital ICTs in our current information societies confronts us with a specific and peculiar problem: how to conceive of our personal identity as it is constructed in the information age. First and foremost, this presupposes that personal identity is constructed. The self (or personal identity) is not a fixed, built-in entity to which one can gain immediate access with no regard to context or purpose. Access to the self (or self-knowledge) is constantly mediated, context-dependent and goal-oriented. In this perspective, the self is constructed through the progressive encapsulation of data and their transformation into meaningful information. Personal identity may therefore be described as the sum of information experienced by an epistemic agent at a given level of abstraction. This implies that the informational construction of the self has to do with the human faculty of imbuing with meaning a reality fashioned from the constraining affordances of data that concern us. This process of the semanticization of reality is not merely idealistic; it is already part of our adaptation to the informational environment.

An Informational Approach to Politics

The information revolution engendered by the evolution of ICTs has a strong impact on our conception of politics, since it affects two fundamental notions on which politics has been constructed throughout modernity: regulation (notably, the relation between the rulers and the ruled) and space (notably, the idea of a territory controlled by a sovereign power). Politics is no longer merely understood, in descriptive terms, as a form of control over a territory and, in normative terms, as the art of making collective decisions. In the information age, politics is beginning to be understood as the efficient and effective management and control of the information life cycle, which almost always exceeds the spatial constraints of nation state territories. The main concern of politics is thus no longer that of the dichotomy or dialectics between the rulers and the ruled, as is typical with traditional notions of government. It is rather that of the dichotomy or dialectics between what is governable and what is ungovernable, characteristic of current notions of governance, understood as a measure of the degree of complexity of our information societies.

An Informational Approach to the Law

The evolution of ICTs is gradually transforming our postmodern habitat. We are witnessing the convergence of physical and virtual reality and the creation of a new environment, the so-called infosphere. It is likely that the evolution of ICTs will have a sweeping transformative impact on our conception of law: first, by multiplying the sources of norms (legal information); secondly, by introducing competition between different normative systems; thirdly, by changing the very reality that the law is intended to govern, through the re-ontologization of reality and changes in our notion of environment. Technological normativity is deeply embedded in our societies and democracies. We are thus not just moving from a State-based form of regulation towards multi-agent and multi-level forms of regulation that are technologically mediated. We are also experiencing a radical paradigm shift in our normative mind-set towards the representation of reality. Our normative beliefs are no longer rooted in and regulated solely according to a deep-seated, traditional representation of reality (i.e., the material objects of the world), but also according to its informational representation (i.e., virtual reality, informational entities, and streams of information).

The Centre of the Universe

Technology does not really displace the role of human beings, as many authors seem to believe. On the contrary, according to Floridi’s constructionist view of homo poieticus, technology calls on the role of human responsibility as never before. It is precisely to fully respond to this call that Floridi proposes a new ethical approach that reconfigures the question of the moral subject by abandoning the unchallenged theoretical privilege accorded to anthropocentrism since the modern ages. Human beings are no longer considered standalone entities at the centre of the universe as the unique principle of measure and legislator of all things. Floridi proposes an ontocentric approach based on the notion of informational object, enabling us to take into account the role of agent and of patient in a non-anthropocentric perspective and to extend the class of what counts as a moral subject. In the present chapter, our specific aim is therefore to elucidate how a non-anthropocentric approach does not necessarily lead to anti-humanistic rhetoric fostered by post-modern philosophy but, on the contrary, strengthens the role of human responsibility.

The Informational Environment

Our world is technological. According to a longstanding philosophical tradition, the conceptual core of technology can be understood as being based on the relation between two main philosophical categories: the subject and the object (e.g. the relation between ‘culture’ and ‘nature’). This tradition mainly conceives technology as a set of means that can be used to control and manipulate nature (the object), in order to achieve some end (culture) established by human beings (the subject). Consequent to the ICT revolution, this scenario must now be devised in terms of an informational world or environment. This requires a change of paradigm in the study of technology and in the comprehension of our world that displaces the presumed ‘central’ role of the subject. This happens in ways and for motives that have nothing to do with the philosophical hitches that ensue from the post-modern relativistic or nihilistic death of the subject. In the present chapter, we expound the meaning of this scenario, by focusing our attention upon the informational nature of the environment in which we live and act.