Page updated May 2019.
Doctoral thesis (pending examination)
Title: Digisprudence — the affordance of legitimacy in code-as-law
Supervisors: Prof. Burkhard Schafer and Judith Rauhofer
The thesis considers the ways in which code architectures regulate behaviour, and how this form of regulation should be made legitimate. The specific notion of legitimacy that I adopt comes from the literature on legal theory, specifically in the area of rule creation (i.e. legislation). I first describe, using design theory, the ways in which computer architectures enable and constrain end-user behaviour. I then look at these characteristics from a legal theoretical perspective, mapping them on to the philosophical concept of legalism. This leads me to propose a theory of computational legalism, which is the first significant contribution of the thesis. From that position I explore how mechanisms that are designed to reduce legalism in the traditional legal context might be transferred into the code design context, given that (as I argue) the design environment is essentially a type of legislature where rules that enable and constrain end-user behaviour are created. Like legal rules, code rules should be held to standards of legitimacy in order to be accepted and acceptable in a democratic society. This is the basis of the second significant contribution, which considers how such standards might be imposed at the production phase of the code development process, and what design characteristics might, when present in code, render the latter legitimate. The analysis is complemented by a discussion of some ways in which the framework of digisprudential affordances that I develop might be integrated into the development process, creating 'constitutional' guides that prevent the creation of illegitimate code from the outset.
Click the arrows on the right for abstracts and full texts.
Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively. It then posits that in applying them in the legal context we should seek to retain the relational user-artefact structure around which they were originally conceived, with the law cast as the user of the artefact, from which it seeks certain features or outcomes. This approach is effective for three reasons. Firstly, it acknowledges the power imbalance between law and architecture, where the former is manifestly subject to the decisions, made by designers, which mediate and transform the substance of the legal norms they instantiate in technological artefacts. Secondly, from an analytical perspective, it can help avoid some of the conceptual and definitional problems evident in the nascent legal literature on affordance. Lastly, approaching designers on their own terms can foster better critical evaluation of their activities during the design process, potentially leading to more effective ‘compliance by design’ where the course of the law’s mediation by technological artefacts can be better anticipated and guided by legislators, regulators, and legal practitioners.
Building on the growing literature in algorithmic accountability, this paper investigates the use of a process visualisation technique known as the Petri net to achieve the aims of Privacy by Design. The strength of the approach is that it can help to bridge the knowledge gap that often exists between those in the legal and technical domains. Intuitive visual representations of the status of a system and the flow of information within and between legal and system models mean developers can embody the aims of the legislation from the very beginning of the software design process, while lawyers can gain an understanding of the inner workings of the software without needing to understand code. The approach can also facilitate automated formal verification of the models’ interactions, paving the way for machine-assisted privacy by design and, potentially, more general ‘compliance by design’. Opening up the ‘black box’ in this way could be a step towards achieving better algorithmic accountability.
Jon Bing was not only a pioneer in the field of artificial intelligence and law and the legal regulation of technology. He was also an accomplished author of fiction, with an oeuvre spanning from short stories and novels to theatre plays and even an opera. As reality catches up with the imagination of science fiction writers who have anticipated a world shared by humans and non-human intelligences of their creation, some of the copyright issues he has discussed in his academic capacity take on new resonance. How will we regulate copyright when robots are producers and consumers of art? This paper tries to give a sketch of the problem and hints at possible answers that are to a degree inspired by Bing’s academic and creative writing.
Advances in artificial intelligence have changed the ways in which computers create "original" work. Analogies that may have worked sufficiently well in the past, when the technology had few if any commercially viable applications, are now reaching the limit of their usefulness. This paper considers particularly radical thought experiment in relation to computer generated art, challenging the legal responses to computer generated works and discussing their similarity to works by animals.
"Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?"
Software is an anomaly in the traditional sphere of IP, and its problematic nature has been manifest in the confused findings of courts on both sides of the Atlantic. This article considers the reasons for the confusion, where things might have been done better, and how the law could develop considering the realities of the industry.
Software protection at present favours the multinational corporations, while the interests of smaller companies and the Free and Open Source Software community are prejudiced greatly. The current regime is not fundamentally incompatible with software, however, and as such features of it could and should be retained in the creation of a sui generis IP right.
Much of today's software industry is driven by the efforts of small enterprises and the Free and Open Source Software community. Their interests are not recognized in the current protection-biased framework, and as a result innovation is being stifled by the threat of litigation. IP law in this area is preventing the very thing it is designed to foster—enterprise and innovation.
"The law as (mere) user: affordance and the mediation of law by technological artefacts"
"Digisprudence: developing a legal-theoretical approach to rational compliance by design"
"From Privacy Impact Assessment to Social Impact Assessment: Building Trust in the Internet of Things"
"The lawyer in the machine: towards the automation of Privacy by Design"
Commentaries, book reviews, and blog posts
Book review: Collisions in the Digital Paradigm by David Harvey
Copyright Exceptions for Disability
Equal access: harmonising copyright exceptions for those with disabilities