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EU Law as a foreign language (AI, Law, and Otter Things #38)
Welcome to a new issue of AI, Law, and Otter Things! Today I write about law & tech readings, science fiction, and my personal experiences in learning EU law. As usual, there are cute otters by the end of the newsletter.
Dear reader, it has been a long while since I last wrote to (most of) you. This was unexpected, as September was quite productive in terms of concluding open projects—and ditching some other projects that were overwhelming me and/or moving toward uninteresting directions. The newsletter is not one of those projects, but I felt I had nothing interesting to say over the past few weeks. Between that, the Brazilian elections, and a relatively mild case of Covid early in the month, I ended up neglecting this side gig.
Today, I would like to share with you a few reading recommendations on topics related to law and technology. In addition, I also spend some time speaking about sci-fi stuff that I've found interesting lately. And, as usual for this newsletter, I also have a section for a personal rant—this time, a recollection of my experience researching EU law as somebody with legal training from a non-EU jurisdiction. After reading (or skipping) that, you will be treated to the usual selection of cute otters. Hope this issue is interesting!
Mike Ananny, ‘Seeing Like an Algorithmic Error: What Are Algorithmic Mistakes, Why Do They Matter, How Might They Be Public Problems?’ (2022) 24 Yale Journal of Law & Technology 1.
Algorithmic errors can be framed in various ways. Some of these ways present issues—and potential solutions—as narrow technical issues, while others characterize issues with algorithms as public problems. These framings, in turn, lead to different approaches and solutions to problems: something might seem an acceptable price to pay for progress, an unacceptable violation of rights, etc. By looking at the different ways in which errors can be framed and approached we can move beyond the "bias" frame to a more nuanced view of the sociotechnical impact of algorithms.
Gavin Sullivan, ‘Law, Technology, and Data-Driven Security: Infra-Legalities as Method Assemblage’ 49(S1) Journal of Law and Society
The use of AI technologies and decision-making systems reconfigures the social practices in law enforcement domains and the legal practices used to assess and control these practices. The author proposes a methodological move towards analysing infra-legalities, that is, the infrastructural configurations that shape and render possible certain uses of technology for specific purposes. Approaching automation through the perspective of infra-legalities is not merely an epistemological decision—to move from well-defined objects to the study of the relations and affordances existent in these socio-technical contexts—but an ontological move, which, in framing its object of study, provides levers for social action rather than claiming a "view from nowhere". This situated, relational view of knowledge opens up various possibilities of political intervention when dealing with AI systems used in security contexts, namely by dispelling claims of essentiality of what are actually contingent practices.
Bruno Turnheim and Benjamin K Sovacool, ‘Exploring the Role of Failure in Socio-Technical Transitions Research’ (2020) 37 Environmental Innovation and Societal Transitions 267.
Studies of socio-technical transitions, in particular in the sustainability domain, tend to focus on success cases. In doing so, they make the case that transitions are possible, but they might produce a biased image of transition processes and miss opportunities to learn from failures. This paper maps current works on failure, providing various useful distinctions between forms of failure and approaches to failed projects.
Ana Valdivia and others, ‘Neither Opaque nor Transparent: A Transdisciplinary Methodology to Investigate Datafication at the EU Borders’ (2022) 9 Big Data & Society.
Drawing from Data Feminism, the authors propose a methodology for combining digital humanities methods and close reading of procurement contracts at EU borders. With this mixed approach, the authors provide a glimpse at what is in the contracts—such as the parties and subcontracting clauses—and about what isn't there (e.g. data protection clauses and fundamental rights assessments). This not only provides insights about EU border management systems but suggests a digital humanities approach that avoids the pitfalls of quantitative reductionism.
David Gray Widder and Dawn Nafus, ‘Dislocated Accountabilities in the AI Supply Chain: Modularity and Developers’ Notions of Responsibility’
Modularity is an integral part of software development. Still, it feeds into von Braun-esque practices of "this is not my department", where people tend to frame ethical issues as the responsibility of other modules. Modularity also creates a cleavage between development practices and their application contexts, which is however mitigated by the existence of other kinds of cross-cutting frames—such as customer-facing mentalities—that bring "downstream" issues into the discussion. This alienating effect of modularity (and abstraction) creates problems for approaches such as checklists, which situate accountability at specific points and require comprehensive attention. Instead, the authors argue more effective accountability can emerge by drawing from Suchman's notion of located accountabilities and engaging with the reasons that make some kinds of work be deemed relevant and others...not.
The Hitchhiker's Guide to Law & Tech
Last but not least, we are currently publishing a symposium on tech law at DigiCon, edited by Daniel Rozemberg, Nicolas Petit, and Francisco de Abreu Duarte. The symposium covers topics such as the demarcation of law & tech as a field of inquiry; the impact of technological change on constitutional and labour law; the EU approach to AI regulation; and the role of science fiction in conceptualizing technology; as well as a retrospective look at the cyberlaw debate. Stay tuned to this symposium!
Lately, I've been spending much of my free time on science fiction materials. After my wife enjoyed Strange New Worlds, we decided to watch older Star Trek shows together. Like me, she wasn't hugely into the original series, but we are now following The Next Generation through Max Temkin's episode guide. In addition to that, I am following Andor, a new show that shows a fresh perspective into the Star Wars universe by giving much more space to the experiences of people that do not wield lightsabers or cool armour.
Beyond television, I read Rob Willikins's moving biography of Terry Pratchett, A Life with Footnotes. Generally speaking, I am not a big fan of biographies, but I stuck to this one not just because I am a huge Pratchett fanboy, but also because of the insights it gave into his creative process and the sci-fi and fantasy environment that shaped him. Other than that, I've recently made the unwise—but highly entertaining—decision to start a game of XCOM Long War. Let's see where that goes.
At Opinio Juris, they are currently publishing a new edition of their "International Law & Pop Culture" symposium. I must admit that my interest in pop culture is somewhat limited: while I'm a huge science fiction fan, I don't really care for superheroes, horror and supernatural stories, or fantasy more broadly. Surprisingly, I'm not even that much of a weeb for somebody with my background and tastes. Still, I found last year's symposium very instructive in terms of what engagement with pop culture can teach us about the law, and I look forward to this year's contributions (especially the Evangelion post).
While we are at the intersection between law and science fiction, don't forget to check DigiCon's science fiction section. Though I am not a metaverse enthusiast, our co-founders Yeliz Doker and Francisco de Abreu Duarte have created a stunning art exhibition featuring artwork showcased at the blog. Yeliz and Natalia Menéndez are also running a sci-fi reading group that meets monthly; for more information about that, stay tuned to our Twitter account.
My relationship with EU law
Over the last few years, I have worked quite a bit on topics connected to European Union law: my work on automated decision-making began with a paper on Article 22 GDPR, and since then, I've written about the EU approach to various issues in tech regulation: not just data protection and the AI Act, but also on topics such as content moderation, standardization, fundamental rights, and the impact of automation on EU administrative law. I am pretty happy with (part of) this work, but I can't help but find it funny that EU law is such a prominent part of my work, as it was not a part of my legal education.
Why is my research focused on a jurisdiction other than the one I was trained in? The immediate answer is convenience: as I am now based in a European institution, and my supervisor is an expert on EU law, my engagement with the European approach to tech regulation has increased a lot over the last two years, and that has fed into my work. But even before that, the outsized influence of the EU in global tech regulation meant that European authors and arguments were present in Brazilian debates about data protection and other digital issues. Therefore, it would've been difficult to avoid EU tech law even if I'd stayed in Brazil.
To be fair, I could have prepared myself better for this engagement. For obvious reasons, Brazilian legal education includes no mandatory courses on EU law, yet some legal aspects of European integration were covered within one of the mandatory International Law courses. In addition, my university had a double degree option with French universities, which I could've pursued and would've forced me to take introductory courses on EU law. But my turn to technology law came at a relatively late stage of my legal studies, which means the value of EU law to my formation became apparent only after most opportunities to study it in my undergraduate degree had gone by. Oh well. No use crying over spilled milk.
Since it became clear that EU law would be an important part of my career path, I've been trying to catch up with it. To some extent, my work on various tech regulation topics has been an effort to broaden my engagement with the EU legal order, and the cross-cutting character of tech issues has been beneficial on that account. In parallel with that, I've been reading broadly on EU law and history to better understand the systemic issues one might miss through premature specialization. These efforts seem to be working, but I must admit that I am not (yet?) as conversant as I would like to be in case law beyond my immediate directions of work: I seem to grasp the overall movements and structures, but there's always the fear that I am missing something so obvious that it usually goes unsaid. In this sense, working on EU law feels like speaking a foreign language in which you are almost fluent enough for civil conversation, a task that has fortunately been made easier by the great interlocutors I've been working with. And hopefully, I will keep improving with time.
Last but not least, the otters
See you next week! And, in the meantime, don't forget to check the news from the International Otter Survival Fund: