Abstract
In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present relevant research in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability.
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Notes
Lessig (1999), p. 154.
Ambient Intelligence cannot be equated with Artificial Intelligence (AI) as criticised by, e.g., Dreyfus in his groundbreaking (1972). The reason is 2-fold: first, AI research has incorporated some of the criticisms and downsized some of its claims regarding machine intelligence, second, in this case AI techniques are used to create AmI, which is more contextual, user-centric and practice oriented than ‘old-style’ AI.
ITU (2005).
Kephart and Chess (2003).
Quoted in: Aarts and Marzano (2003), p. 259. Wired Magazine (online version: http://www.wired.com/wired/) is a famous magazine which reports on how technology affects culture, politics and economy. It tends to creative techno-optimism—as may be guessed from this quotation from its founding father.
Solove (2004).
Sunstein (2001).
This—in itself—is not a new situation. In the philosophy of mind swords have been crossed on this issue. Brain scientists have detected many ‘autonomic’ processes supposedly ‘causing’ our actions before conscious reflection comes in. On the complex relationship between conscious reflection and intentional action in the case of human subjects see Bayne (2006). Bayne critically discusses the conclusions drawn from the experiments by Libet, who is often claimed to have proven that brain states precede the conscious decision to act, supposedly meaning that they in fact ‘cause’ our actions. The fact that we experience our actions as the result of our own free will is then judged to be an illusion, see Haggard and Libet (2001). A more interesting position is developed by brain scientist and philosopher Varela in Varela et al. (1991).
Cp. Bourcier (2001).
Garreau (2005).
Latour (1999).
In philosophy an agent could be defined as a subject capable of action. When acting the agent becomes an actor. The notion of action is traditionally connected with intention. This is, however, not necessary. One could discriminate between action as a generic notion and intentional action as a particular type of action. Within the field of computer science software programs or nodes in a network are often called agents. See footnote 19 below.
Lévy (1990) (translation mh), p. 157.
Within computer science, a definition of a MAS could be: ‘An agent can be a physical or virtual entity that can act, perceive its environment (in a partial way) and communicate with others, is autonomous and has skills to achieve its goals and tendencies. It is in a multi-agent system (MAS) that contains an environment, objects and agents (the agents being the only ones to act), relations between all the entities, a set of operations that can be performed by the entities and the changes of the universe in time and due to these actions’, see Ferber (1999), as discussed in Rouchier (2001).
Cf. the integration of computer science and sociological perspectives in: Meister et al. (2007).
See again Varela et al. (1991) for a further elaboration of this position and of what they call ‘enaction’, being their paradigm for understanding the embodied mind.
Ibid (translation mh), pp. 169–170. Cp. Friedrich Nietzsche in Die Fröhliche Wissenschaft, 1882, nr. 217: ‘Before the effect one believes in other causes than after the effect (translation mh)’.
It may be interesting to discriminate—with Lévy—between types of action that merely consist of the realisation of a predefined possibility (implying mechanical application) and those that involve the actualisation of an underdetemined possibility (implying a measure of creativity and unpredictability). See Lévy (1998).
Hart (1994/1961). Rules of competence are ultimately a matter of practice, an example of legal authorities declaring themselves legal authorities (Münchhausen is mythical but very real). Cp. Hart’s ultimate rule of recognition.
One could think of a situation in which the violation of a constitutive rule results in damage because the objective of the rule is not achieved. If ‘causing’ such damage is criminalised the violation of this constitutive rule does lead to criminal liability.
I am appealing to Davidson’s principle of charity (or rational accommodation), claiming that the argument is coherent and refers to a reality that may overtake us sooner rather than later.
Which could be entered into in earlier times without complying with such rules.
Actually, it would be more precise to note that contemporary legal normativity, articulated in the technology of the script, cannot enforce compliance in the way that some technologies could. For an analysis of the transition from oral law to written law cp. Hildebrandt (2007).
Lessig (1999), chapters 3 and 4. For instance, the anonymity and subsequent lack of accountability of behaviour on the Internet is a consequence of its design.
The idea that democracy is at stake wherever people suffer or enjoy the indirect consequences of an action can be found in Dewey (1927).
For an out-of-the-box way of rethinking democracy cp. Latour (2004).
Verbeek (2005), pp. 6–9.
‘Mobile phone operators report their biggest profits from the runaway success of short text messages’, Damina Mycroft, ‘Intrinsic and Extrinsic Intelligence', Aarts and Marzano (2003), p. 256.
At least, this is what Montesquieu suggested in his The Spirits of the Laws, XI, 3, Paris 1748: ‘liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will’. Translation available at: http://www.agh-attorneys.com/4_charles_montesquieu_SOTL.htm
An example of such a plea is the—unsuccessful—plea of a husband who claimed that his raping his wife did not count as rape under the common law. See (1995) 21 EHRR 363, wherein the Court ruled that in this case the husband having sex with his wife in fact counted as rape.
To remedy this deficit we may have to learn to articulate some of the protective aspects of law in the technologies we aim to regulate, cf. Hildebrandt (2008, to be published).
About the notion of a script, see Latour (1993). About the fact that the actual normative impact is constituted by the way humans actually attach themselves to a technology, see Verbeek (2005), p. 217 on the multistability of technological mediation and the interpretive flexibility this provides. The fact that a moral evaluation cannot be made in advance does not imply that we can sit back until the consequences are in force. It rather calls for speculative exploration of such consequences and should involve some kind of democratic participation of those who may suffer or enjoy them.
Kranzberg (1986).
Verbeek (2005), p. 11.
Ibid. Verbeek provides a critical reconstruction of the work of Jaspers, Marcuse, and Heidegger before moving into Ihde, Latour and Winner.
Empirical speculation involves actual knowledge of a specific emerging technology and of the environment into which it may be introduced, it involves educated guessing and trained intuition instead of both general deductive reasonings and reductive quantitative social research. Cp. the way Isabelle Stengers uses the term speculation in: Stengers (2000).
This instrumentality differs from instrumentalism the way the pragmatist consequentialism of Peirce and Dewey differs from a utilitarian pragmatism in which means and ends are separated. In that sense prevention regards the legitimate anticipation of the consequences of one’s actions rather than an amoral calculation of costs and benefits. This means that we agree with Duff’s rejection of utilitarian consequentialism (Duff 2001, pp. 3–19), without reverting to a Kantian position in which only intentions count.
Interactive computing depends on deliberate human-computer interaction, proactive computing does not. It builds on the real time monitoring and machine anticipation of inferred human preferences. Cp. Tennenhouse (2000).
Stalder (2000–2003).
A common definition of a node can be found at http://en.wikipedia.org/wiki/Node_(IT): A node is a device that is connected as part of a computer network. (…) Nodes can be computers, personal digital assistants (PDAs), cell phones, or various other network appliances, (…). We are using the term in a more generic way, integrating social network theory with network theory; a node in our case is the nexus of different lines of communication in a networked environment, meaning that nodes can also be human individuals.
Miller (2006).
This brings us well into the nexus of the philosophy of mind and the neurosciences, cp. Varela et al. (1991).
Duff (2001), p. 79.
In the community of researchers on Artificial Intelligence (AI) and Computational Intelligence (CI) claims concerning the emergence of artificial consciousness are paramount. CI is defined as involving ‘iterative development or learning (…). Learning is based on empirical data and is associated with non-symbolic AI, scruffy AI and soft computing. Methods mainly include: neural networks, fuzzy systems and evolutionary computations’, see http://en.wikipedia.org/wiki/Artificial_intelligence.
Plessner (1975).
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Hildebrandt, M. Ambient Intelligence, Criminal Liability and Democracy. Criminal Law, Philosophy 2, 163–180 (2008). https://doi.org/10.1007/s11572-007-9042-1
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DOI: https://doi.org/10.1007/s11572-007-9042-1