Neuromancing the law
Regulating the techno-regulators
Column According to the Information Commissioner we are now waking up to find ourselves in a surveillance society. But what is a surveillance society?
We can all see the cameras, so now everyone's chattering about CCTV. But what about the vast array of other technologies being sewn into the fabric of society? Who is controlling them, and with what implications?
Unfortunately, the world we are building might not be as safe as it is secure.
On 8 April, TELOS was launched. Fifty academics from around the world congregated at TELOS's inaugural conference on "Regulating Technologies".
The double entendre in the title of the conference was no accident and visiting academics spent their Easter weekend grappling with the extent to which we are being regulated by technology - from talking CCTV cameras to "cellular enhancements" - and the extent to which we can or should seek to regulate this technology.
Cyberspace promised freedom. We abandoned our fortified castles of privacy for virtual communication in the naïve belief that we would be free to roam anonymously where we wished. Increasingly, we find ourselves bombarded with spam and viruses causing the fearful to draw in their horizons and retreat to the secure corporate environments of TiVo, Sony, Mylo, and BlackBerry.
Jonathan Zittrain, professor of internet governance and regulation at Oxford University and co-founder of the Berkman Centre for Internet and Society at Harvard University said users are tethering themselves to the makers of these devices. The makers are thereby empowered to determine what the users can do with their product and the extent to which what they do is monitored by law enforcement.
Persistent PC users invest in or are involuntarily "protected" with "filtering mechanisms", justified on the basis that law enforcement of cybercrime is ineffective (as opposed to law enforcement's legendary effectiveness in preventing street crime?).
TJ McIntrye, lecturer in law at University College Dublin, asked whether the rhetoric of "filtering" (and the connotations with sewage and clean water) disguised its true nature and ruled out effective accountability. OK, information was piped into our home and was passively consumed, so perhaps it needs to be regulated - but how and by whom? Is unfiltered data unclean or dangerous for everyone?
Unlike older methods of censorship such as banning books, end users of automated filtering might not even be aware of the censorship. He gave the example of BT's Cleanfeed filtering system that tells users attempting to access an unauthorised site that it is unavailable owing to a technical fault; the end-users are deceived by the filter into believing that the temptation does not exist.
Unlike formal legal mechanisms that ensure a degree of public accountability (for example: the obscenity trial of D H Lawrence's Lady Chatterley's Lover, which lowered the threshold of censorship) filtering systems failed to provide a list of prohibited sites, their criteria for designation, prior notice of prohibition, or an appellate procedure.
He asked whether it is desirable that governmental authority for citizen control is delegated to non-state actors; whether it is desirable for governments to seek to shape the internet in such a way as to make certain crimes impossible, and whether this leads to a removal of responsibility from the individual.
These thorny issues are no longer the exclusive domain of cyber-libertarians; they have penetrated the walls of cyberspace and infected our physical environment. A retreat to the Englishman's castle is no longer an option if real space goes virtual and the rule of law is substituted with the rule of technology.
Novel technologies, like coded access to the internet, seek to prohibit or restrict our ability to engage in behaviour that may or may not be illegal. Conference speakers outlined a blossoming eco-structure of design-based and artificially-intelligent organisms which would undercut our constitutional framework, by-passing human rights and undermining our autonomy.
Electromagnetic surveillance enables police to see through our clothes and into our homes without recourse to legislative safeguards; mobile phones transform carriers into roving microphones at the behest of the intelligence services; nano-technology reaches into the past to record yesterday's conversations, and neuro-imaging translates our cognitive processes into coloured pools of ink.
Increasingly complex algorithms are built in to the technology surrounding us to steer our behaviour: smart integrated transport systems will control our driving; cars containing sensors will cut out the engine on detecting tiredness or drunkenness in the driver's physiology; bionic stomachs with limited calorie processing capacity will regulate our metabolism; technologies of human enhancement (a loaded term) will "weaponise" our soldiers; and direction-controlling audio transmitters will decorate our walls.
These sorts of technologies are under construction and amount to powerful resources for controlling society. They are not being designed according to the normal procedures for democratic rule-making, but by engineers. So how do we control this process?
A novel method proposed by a handful of speakers would be to embed democratic principles within the technological design - a process some refer to as "ambient law". No means for encoding and incorporating these principles were actually specified. Could the legal profession, in extending its research tentacles into the sci-fi world of "ambient law", be accused of making a bid to become part of the ruling elite in an emerging technocracy?
The idea that the Terminator could be taught to respect human rights is an intriguing one, but there is a danger of legislators falling into the same trap as law enforcement and allowing human judgement to be substituted with algorithm-educated detectors of unlawful behaviour.
Perhaps before governments and corporations rush into the erection of technology that seeks to override human volition, they should ask their citizens and customers (who are paying for the research behind these projects) how secure we want our environment to be and how tightly secured we wish to be within it.
Unfortunately, the majority of our increasingly fearful citizenry would probably answer "as secure as possible please". Which is why TELOS is focusing on how to regulate the regulators of the future within an appropriate legal framework. ®