Ugo Pagallo

On the Principle of Privacy by Design and its Limits: Technology, Ethics and the Rule of Law

Over the last years lawmakers, privacy commissioners and scholars have discussed the idea of embedding data protection safeguards in ICT and other types of technology, by means of value-sensitive design, AI and legal ontologies, PeCAM platforms, and more. Whereas this kind of effort is offering fruitful solutions for operating systems, health care technologies, social networks and smart environments, the paper stresses some critical aspects of the principle by examining technological limits, ethical constraints and legal conditions of privacy by design, so as to prevent some misapprehensions of the current debate. The idea should be to decrease the entropy of the system via ‘digital air-bags’ and to strengthen people’s rights by widening the range of their choices, rather than preventing harm generating behaviour from occurring through the use of self-enforcement technologies.

Cracking down on autonomy: three challenges to design in IT Law

The paper examines how technology challenges conventional borders of national legal systems, as shown by cases that scholars address as a part of their everyday work in the fields of information technology (IT)-Law, i.e., computer crimes, data protection, digital copyright, and so forth. Information on the internet has in fact a ubiquitous nature that transcends political borders and questions the notion of the law as made of commands enforced through physical sanctions. Whereas many of today’s impasses on jurisdiction, international conflicts of law and diverging interpretations of statutes can be addressed by embedding legal safeguards in ICT and other kinds of technology, to overcome the ineffectiveness of state action by design entails its own risks, e.g., threats of paternalism hinging on the regulatory tools of technology. Rather than modelling people’s behaviour by design, the article suggests that design policies should respect individual and collective autonomy by decreasing the impact of harm-generating behaviour (e.g., security measures and default settings for data protection), or by widening the range of people’s choices (e.g., user friendly interfaces).

The Social Impact of P2P Systems

The chapter deals with the social impact of P2P systems in light of a bidirectional connection by which technological developments influence, in a complex and often unpredictable way, the social environment whereas the dynamic evolution of the latter does affect technological progress. From this perspective, the aim is to deepen legal issues, sociological trends, economical aspects, and political dimensions of P2P technology, along with some of its next possible outputs, in order to assess one of the most compelling alternatives to the traditional frame of highly centralized human interaction.

Good Onlife Governance: On Law, Spontaneous Orders, and Design

This chapter examines the legal challenges of the information revolution in terms of governance, spontaneous orders, and design. An increasing set of issues, such as connectivity and availability of resources, affect the whole infrastructure and environment of current legal systems and, thus, have to be tackled at international and transnational levels. Moreover, the intricacy of these issues is often increased by the emergence of spontaneous orders and the technicalities of design mechanisms, e.g., the principle of “privacy by design.” In light of these issues, the purpose of this chapter is to stress that governance actors, as game designers dealing with the twofold features of generative ICTs, ought to preventively understand the nature of the field in which they aim to intervene, i.e., “Onlife,” and consider the use of self-enforcing technologies as the exception, or a last resort option, for coping with the impact of the information revolution.

Introduction: complex systems and six challenges for the development of law and the semantic web

AICOL workshops aim to bridge the multiple ways of understanding legal systems and legal reasoning in the field of AI and Law. Moreover, they pay special attention to the complexity of both legal systems and legal studies, on one hand, and the expanding power of the internet and engineering applications, on the other. Along with a fruitful interaction and exchange of methodologies and knowledge between some of the most relevant contributions to AI work on contemporary legal systems, the goal is to integrate such a discussion with legal theory, political philosophy, and empirical legal approaches. More particularly, we focus on four subjects, namely, (i) language and complex systems in law; (ii) ontologies and the representation of legal knowledge; (iii) argumentation and logics; (iv) dialogue and legal multimedia.

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.

Ethics among peers: file sharing on the internet between openness and precaution

Purpose – The paper suggests overcoming the polarization of todays debate on peer‐to‐peer (P2P) systems by defining a fair balance between the principle of precaution and the principle of openness. Threats arising from these file sharing applications‐systems should not be a pretext to limit freedom of research, speech or the right “freely to participate in the cultural life of the community”, as granted by the Universal Declaration of Human Rights from 1948. The paper aims to take sides in todays debate.Design/methodology/approach – The paper adopts an interdisciplinary approach, including network theory, law and ethics. The method draws on both theoretical and empirical material so as to stress the paradox of the principle of precaution applied to P2P systems and why the burden of proof should fall on the party proposing that one refrain from action.Findings – Censors and opponents of P2P systems who propose to apply the principle of precaution to this case deny the premise upon which that principle re...

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.

What Robots Want: Autonomous Machines, Codes and New Frontiers of Legal Responsibility

This chapter examines the impact of robotics technology on legal systems and how a new generation of robo-traders, AI chauffeurs, artificial pop singers and autonomous lethal weapons affect individual’s knowledge, environments and perceptions of the world. Although lawyers deem robots under the current state of law as legally and morally without responsibility as these artificial agents lack a set of preconditions for attributing liability to a party within the realm of criminal law, such machines are reshaping notions of agency and human liability in civil (as opposed to criminal) law. We already have a number of artificial agents that send bids, accept offers, request quotes, negotiate deals and make contracts, so that such machines can be held liable for certain of their actions through new types of accountability, authentication systems and insurance models. At least in the civil law-field, “only robots shall pay” at times may be the right answer.

The Impact of Domestic Robots on Privacy and Data Protection, and the Troubles with Legal Regulation by Design

The paper examines a particular class of robotic applications, i.e. “domestic robots,” in order to stress that such robots will likely affect current legal frameworks of privacy and data protection. Since most of these machines act, new responsibilities of humans for the behaviour of others should be expected in the legal field. More particularly, focus is on the protection of people’s “opaqueness” and the transparency with which domestic robots should collect, process, and make use of personal data. Whilst the aim of the law to govern the process of technological innovation concerns here the regulation of producers and designers of robots through specific sets of norms, or the regulation of users behaviour through the design of their robots, three issues are fated to remain open. They concern: (i) a new expectation of privacy; (ii) the realignment of the traditional distinction between data processors and data controllers; and, (iii) a novel set of challenges to the principle of privacy by design. Although the claim and goal of lawmakers will probably revolve around the protection of individuals against every harm, e.g. psychological problems related to the interaction with domestic robots and the processing of third parties’ information, the intent to embed normative constraints into the internal control architecture of such artificial agents entails a major risk. If there is no need to humanize our robotic applications, we should not robotize human life either.