The Challenges of Ambient Law and Legal Protection in the Profiling Era
| Published date | 01 May 2010 |
| Author | Mireille Hildebrandt,Bert‐Jaap Koops |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00806.x |
| Date | 01 May 2010 |
The Challenges of Ambient Law and Legal Protection in
the Pro¢ling Era
Mireille Hildebrandt and Bert-Jaap Koops
n
Ambient Intelligence is a vision of a future in which autonomic smart environments take an
unprecedented number of decisions both for the private and the public good. It involves a shift
to automated pattern recognition, a new paradigm in the construction of knowledge.This wil l
fundamentally a¡ect our lives, increasing speci¢c types of errors, loss of autonomy and privacy,
unfair discrimination and stigmatisation, and an absence of due process. Current law’s articula-
tion in the technologyof the printed script is i nadequatein the face of the new type of knowledge
generation. A possible solution is to articulate legal protections within the socio-technical i nfra-
structure. In particular, both privacy-enhancing and transparency-enhancing technologies must
be developed thatembed legal rule s in ambient technologies themselves.This vision of ‘Ambient
Law’ requires a novel approach to law making which addresses the challenges of technology,
legitimacy, and political-legal theory. Only a constructive and collaborative e¡ort to migrate
law from books to othertech nologies can ensure that Ambient Lawbecomes reality, safeguard-
ing the fundamental values underlying privacy, identity, and democracyin tomorrow’s ambient
intelligent world.
INTRODUCTION
Ambient Intelligence is a vision of a future world in which autonomic smart
environments take an unprecedented number of decisions for us and about us,
in order to cater to our inferred preferences. In such a world, waking up will be
accompanied by a personalised in£ux of light and music; co¡ee will be ready at
the right moment and with the correct measures of sugar, milk, and ca¡eine in
accordance with personal taste and budget; food will be ordered in tune with
one’s lifestyle ^ possibly including health-related restrictions; the drive to the
o⁄ce will be organised by one’s smart car that communicates with other cars
and tra⁄c monitoring systems; o⁄ce buildings will be accessible for those
chipped withthe right ID; incomingmessages will be sorted in terms of urgency
and importance; and agendas will be recon¢gured in light of automatically
inferred work-£ow requirements.
Ambient Intelligence builds on pro¢ling techniques or automated pattern
recognition, whichconstitutes a new paradigm inthe construction of knowledge.
n
Mireille Hildebrandt is Associate Professor of Jurisprudence at the Erasmus School of Law, Rotter-
dam and Se nior Researcher at the Vrije Universiteit Brussel. Bert-Jaap Koops is Professor of Regula-
tion &Technology atTilburg University, the Netherlands.Th is article waswritten as part of the EU-
funded project FIDIS (Future of Identity in the Information Society, see http://www.¢dis.net). It is
also based on the ¢ndings of the ¢rst author’s research in the GOAproject on ‘Law and autonomic
computing: mutual transformations’, ¢nanced by theVrije Universiteit Brussel, and on the results of
the second author’s Dutch NWO-funded VIDI project on law, technology and shifting balances of
power. The authors thank Jozef Vyskoc, Els Soenens and two anonymous reviewers for their salie nt
comments, and MoragGoodwin for her valuable help in editing.
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(3) 428^460
We will argue that this new paradigmwill fundamentallya¡ect our lives, and that
the emerging socio-technical infrastructure generates several types of vulnerabi-
lities. This raises the question of whether current law is su⁄ciently equipped to
addressthese vulnerabilities.Wewill also argue that thecharacteristics of Ambient
Intelligence call for a systematicallydi¡erent approach to legal protection if we are
to safeguard citizens in the pro¢lingera in light of these emerging vulnerabilities.
We contend that the vision of Ambient Intelligence calls for avision of an Ambi-
ent Law that inscribes legal protection into the socio-technical infrastructure, pro-
viding protection to the users, even if this poses novel challenges for legislators,
policy-makers, businesses, and engineers.
To demonstrate why and how an Ambient Law should be developed, wehave
divided this paper into three parts.The ¢rst part considers the implications of
Ambient Intelligence infrastructure for privacy, identity, and the rule of law.The
answerfocuses on the type of errors thatcan be expected, on theloss of autonomy
and privacy, on unfair discrimination and stigmatisation, and on the absence of
due process. The second part investigates the extent to which current law is able
to address these vulnerabilities and how this relates to the current form of law.
Building on previous work in which we explored the idea that in the face of
Ambient Intelligence the articulation of law in the technologies of the script is
inadequate, the present article concludes that the failureof current law is systemic.
A possible solutionto address the systemic gaps in legal protection is to articulate
legal protections into the socio-technical infrastructure itself as it is under con-
struction. Acknowledging the embodied character of the law, being a normativ-
ity that is currently articulated in technologies of the script (manuscripts and
printing press), we argue that to prevent the rule of law from becoming obsolete
as it is replaced by what will e¡ectively turn out a mere rule of technology, legal
protections will need to be articulated in the novel communication infrastructure
itself.Several legal scholars havesuggested similar undertakings, buildingon Les -
sig’s idea of ‘code as law’ and Flanagan and Nissenbaum’s ‘values in design’. We
have introduced the notion of Ambient Law to refer to such novel articulations.
This leads to the thirdpart of the paper whichconsiders the waysin which the law
should bechanged in order to make the visionof Ambient Intelligencea reality at
the same time as a visionof Ambient Law that embeds fundamental values in the
ambient pro¢ling technologies.This issue is taken up as a combination of techni-
cal, legal, and democraticchallenges. It entails a smart kind of informational priv-
acy that goes beyond an indiscriminate hiding of personal data.The point is to
facilitate individual citizens’ choice as to which of their data they want to hide,
based on a measure of transparency of the pro¢les that match their personal data.
This transparency ^ as well as the smart opacityit enables ^ requires the develop-
ment of so-called transparency-enhancing as well as privacy-enhancing tools. As
Ambient Law concerns the inscription of legal norms into the technical infra-
structure, these tools are simultaneously legal and technological, raising the issue
of how toprevent a‘rule of technology’ while preserving the rule of law. We con-
clude that although the te chnical, legal, and democratic challenges can be analyti-
cally distinguished, they are entangled in practice.To establish such an Ambient
Law, we therefore require novel approaches and a novel digital literacy to sustain
the historical artefact of constitutional democracy.
Mireille Hildebrandt and Bert-Jaap Koops
429
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(3) 428 ^460
PROFILING AND AMBIENT INTELLIGENCE
Ambient Intelligence
Ambient Intelligence refers to a research program, to avision of the future,and to
a novel paradigm.
1
The concept was introduced at the end of the 1990s by Philips
and embraced by the European Commission as a vision of our technological
future. AmbientIntelligence builds on earlierideas about ubiquitous computing,
2
and envisions a further increase of computing systems that run ourenvironment
for us whiletheir technologicalcomplexityis hidden behindthe surface of things.
In 1991, MarkWeiser launched the idea of ubiquitous computing:
Inspired by the social scientists, philosophers, and anthropologists at PARC, we
have been trying to take a radical look at what computing and networking ought
to be like.We believe that peoplel ivethrough their practices and tacit knowledge so
that the most powerful things are those that are e¡ectively invisible in use . . .This is
a challenge that a¡ects all of computer science. Our preliminary approach: Activate
the world. Provide hundredsof wireless computing devices per person per o⁄ce, of
all scales (from 100 displays to wall sized). This has required new work in operating
systems, user interfaces, networks, wireless, displays, and many other areas.We call
our work‘ubiquitouscomputing’.This is di¡erent from PDA’s, dynabooks, or infor-
mation at your ¢ngertips. It is invisible, everywhere computing that does not live
on a personal device of any sort, but is in the woodwork everywhere.
3
Similarly, the vision of Ambient Intelligence assumes that keyboards and even
computerscreens will disappear as human-machine-interfaces. Instead, the envir-
onment will infer a person’s preferences from her machine-readable behaviours,
recorded by a set of invisible technologies,stored in large databases and mined by
means of mathematical techniques that allow the detection of relevant patterns.
The environment itself becomes the interface, infused with sensor technologies,
radio frequency identi ¢cation (RFID) systems, and behavioural and physical bio -
metric pro¢ling, all interconnected via online databases that store and aggregate
the datathat are ubiquitously captured.
Ambient Intelligence presents an adaptive environment that ‘learns’what time
you get up, how you like your co¡ee, which types of groceries you buy in the
course of the week, what kind of news, mail, or calls are relevant for your profes-
sional life; it calculates what is important and what is urgent, in order to ¢lter,
sort, and prioritise incoming communications for you. Ambient Intelligence is
1 See E. Aarts and S. Marzano (eds),The NewEveryday:Viewson Ambient Intelligence (Rotterdam:010
Publishers, 2003)and Information SocietyTechnologyAdvisory Group, Scenarios forAmbient I ntelli-
gence in 2010 (ISTAG, 2001) available at http://www.cordis.lu/ist/istag-reports.htm (last visited 28
December 2009); A. Green¢eld, Everyware:The Dawning Age of Ubiquitous Computing (Berkeley:
New Riders,20 06);B.Van den Berg,TheSituated Self:Identity in aWorldof Ambient Intelligence (Rot-
terdam: ErasmusUniversiteit, 2009).
2 See h is seminal text, M.Weiser,‘The Computer for the 21stCe ntury’ (1991) Scienti¢c American94.
Weiser describes ubiquitous computing as the opposite of virtual worlds; instead of focusing on
the realm of online interactions, ubiquitous computing involvesthe further computerisation of the
o¥ine world.
3 See http://www.ubiq.com/hypertext/weiser/UbiHome.html(last visited 28 December 2009).
The Challenges of Ambient Law and Legal Protection in the Pro¢ling Era
430 r2010The Authors. Journal Compilation r2010 The ModernLaw Review Limited.
(2010) 73(3) 428^46 0
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