Rónán Kennedy

Algorithmic governance: Developing a research agenda through the power of collective intelligence

We are living in an algorithmic age where mathematics and computer science are coming together in powerful new ways to influence, shape and guide our behaviour and the governance of our societies. As these algorithmic governance structures proliferate, it is vital that we ensure their effectiveness and legitimacy. That is, we need to ensure that they are an effective means for achieving a legitimate policy goal that are also procedurally fair, open and unbiased. But how can we ensure that algorithmic governance structures are both? This article shares the results of a collective intelligence workshop that addressed exactly this question. The workshop brought together a multidisciplinary group of scholars to consider (a) barriers to legitimate and effective algorithmic governance and (b) the research methods needed to address the nature and impact of specific barriers. An interactive management workshop technique was used to harness the collective intelligence of this multidisciplinary group. This method enabled participants to produce a framework and research agenda for those who are concerned about algorithmic governance. We outline this research agenda below, providing a detailed map of key research themes, questions and methods that our workshop felt ought to be pursued. This builds upon existing work on research agendas for critical algorithm studies in a unique way through the method of collective intelligence.

Virtual rights? Property in online game objects and characters

The new industry of Massively Multi-Player Online Role-Playing Games (MMORPGs) brings together two sets of fictions: the interactive stories of shared computer games and the legal devices of intellectual property. In these virtual worlds, scarcity need not exist, but players tend to prefer the competition it creates. This leads to the development of property rights within the game world and players trading real money for virtual objects, ‘land’ and characters. This new phenomenon brings with it familiar legal problems such as theft, fraud and ownership disputes. Game creators also challenge the right of the players to claim ownership outside the game world. The volume and value of the items traded make real money trading an important area of current interest for intellectual property lawyers. Something is being traded, but does it fit neatly into existing conceptions of property rights and who owns it? Analysing the novel problems that result from various theoretical perspectives (utilitarianism, labour-desert theory and personality theory) leads to the conclusion that with time, we will see the development of property rights for players in online games. This connects with a growing understanding that the traditional conception of copyright law dealing with creative work generated by the solitary author is becoming less appropriate in the new creative spaces that information and communications technology brings, where individuals are both consumer and producer. In virtual worlds, new forms of intellectual property, and perhaps even new rights, are taking shape.

E-regulation and the rule of law: Smart government, institutional information infrastructures, and fundamental values

Information and communications technology (ICT) is increasingly used in bureaucratic and regulatory processes. With the development of the ‘Internet of Things’, some researchers speak enthusiastically of the birth of the ‘Smart State’. However, there are few theoretical or critical perspectives on the role of ICT in these routine decision-making processes and the mundane work of government regulation of economic and social activity. This paper therefore makes an important contribution by putting forward a theoretical perspective on smartness in government and developing a values-based framework for the use of ICT as a tool in the internal machinery of government. It critically reviews the protection of the rule of law in digitized government. As an addition to work on e-government, a new field of study, ‘e-regulation’ is proposed, defined, and critiqued, with particular attention to the difficulties raised by the use of models and simulation. The increasing development of e-regulation could compromise fundamental values by embedding biases, software errors, and mistaken assumptions deeply into government procedures. The article therefore discusses the connections between the ‘Internet of Things’, the development of ‘Ambient Law’, and how the use of ICT in e-regulation can be a support for or an impediment to the operation of the rule of law. It concludes that e-government research should give more attention to the processes of regulation, and that law should be a more central discipline for those engaged in this activity.

Algorithms and the rule of law

In this short article Ronan Kennedy explores fundamental issues surrounding the use of algorithms in the context of the rule of law in our society. He states, ‘The issues that are buried in these systems should be a matter of serious concern for law and lawyers as we try to protect fundamental values in the 21 st century, and we try to properly represent our clients’ interests against systems errors that we cannot easily identify’. *

Regulating intersectional activity: privacy and energy efficiency, laws and technology

ABSTRACT Using a case study, this paper explores the extent to which one area of law (privacy and data protection) can intersect with, and be challenged by, proposals for delivery of another goal – greater energy efficiency. The article then explores the extent to which these fields are becoming more integrated; and also the risks of relying on technology (notably through Privacy by Design) to do this, particularly given the uncertainties embraced by lawyers and which can be problematic to technologists. Having identified challenges in meeting both energy efficiency and privacy/data protection goals at the same time, the article develops two responses. One looks more widely in law, to competition, to prevent particular activity and to confirm the relevance of greater legal interdisciplinarity. The other is a more multi-faceted collaborative governance approach, involving legal and technical expertise and consumer perspectives, with standards having a valuable role. Addressing climate change through greater energy efficiency should be an appropriate motivation to bring about this second approach, which draws on wider environmental governance developments. With largely a UK and EU focus, but seeking to be of transnational relevance, the paper makes key contributions as to the capacity and limits of how law can address societal challenges; explores the risks of assuming that social and legal problems can be readily addressed by technology; confirms the need for lawyers to look to other fields of law; and assists progress in an increasingly intersectional and dynamic field.

An expanded definition of environmental information? Minch v Commissioner for Environmental Information [2016] IEHC 91

A recent Irish High Court decision has overturned a decision of the Commissioner for Environmental Information not to grant access to a report on broadband networking infrastructure on the grounds that the document sought was too remote from environmental decision-making. The Commissioner had held that information must fall within one of the categories in Article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007–2014 in order to constitute environmental information, not simply relate to one of them. The High Court held that this ‘remoteness’ approach was not the correct test as it failed to take into account that Article 3(1)(c) includes measures, programmes, and policies which are likely to affect elements of the environment, not just those which have affected those elements, but did not provide an alternative test. Irish practice in this regard may therefore be following that of England and Wales, which may not be welcome as it undermines the Freedom of Information regime. The decision may make some difference in practice, but it is too early to be certain. While some had hoped that this decision would provide clarity on the definition of environmental information, this will have to await at least the reconsideration by the CEI of the request which gave rise to this case, and possibly further High Court appeals.