NILS Talks: The Boundaries of the Law

By Illustrator unknown – From The Heath readers by grades, D.C. Heath and Company (Boston), p. 69.

Innovaties komen en gaan, maar houdt het recht hen wel bij?

Mina Morkoç, onze voorzitter, heeft afgelopen maand de Engelstalige minor “Responsible Innovation” aan de Universiteit Leiden, Technische Universiteit Delft en Erasmus Universiteit Rotterdam afgerond. Het is een multidisciplinaire minor, waar zij als enige rechtenstudent aan meedeed. Gedurende het vak in Leiden lazen zij het boek “Digital Technologies and Power: Surveillance Capitalism” van Prof. Shoshana Zuboff en kregen ze de opdracht om een essay te schrijven. Mina haar essay werd geselecteerd als een van de beste essays en zal worden opgestuurd naar de schrijver! Haar essay gaat over de grenzen van het recht, hoe het recht vaak achter innovatie aan loopt en wat wij daar aan kunnen doen. 

The boundaries of the law

“Hi! I’m Mina and I’m a law student”. This was how I introduced myself to Shoshana Zuboff on the 6th of November. I often introduce myself as a law student, because it is something I’m quite proud of. I hold the belief that the judicial system is one of the fundamental pillars of society. Therefore, I have chosen to study law, hoping it will become a big part of my future. In my opinion, the law offers protection, clarification and frameworks in situations where there is a need for guidance. However, the more I study, the more I see flaws within its framework. After my introduction, I asked a question regarding the limits of the law. “It’s easy to be pessimistic”, Zuboff answered. 

Being the only law student attending this minor, I started to realize that the law does not play a prominent role in the lives of students from other academic disciplines. I was surrounded by engineering students with great minds, who will most likely influence innovation immensely one day. Nonetheless, when discussing new developments and brainstorming ideas regarding responsible innovation, the law was rarely taken into consideration. Responsibility was frequently linked to sustainability and durability, while protecting values with the help of legislation was seen as an afterthought. 

How can we make sure that legislation positively influences the development and effects of innovations? Why is there such a gap with regards to time and knowledge between law and innovation? These questions have been stuck in my head ever since reading Zuboff’s The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. Thinking about these questions made me reflect on how we use rules and regulations to protect and prevent. Moreover, they made me realize that history is bound to repeat itself, once again. 

Time after time, bright innovations outpace the archaic, written laws. Therefore, the law becomes inadequate or seemingly incompetent. An illustrative example: recently there have been collective protests from the agrarian and construction industries in The Netherlands. Farmers and construction workers are flooding the streets because the government has halted farms and stalled up to 18,000 construction projects which could potentially have a negative impact on environmental issues, such as air pollution. A court order from The Council of State, the highest court in The Netherlands, ruled in favor of granting permits to these industries, in order to cut nitrogen oxide emission. 1 The decision from the court is an attempt to protect flora and fauna from the disastrous effects of air pollution. Drastic measure are being taken by courts to try to reverse the harmful effects of new innovations. Simultaneously, industries keeps polluting freely and consequently affecting important rights, such as the right to a healthy environment. 

In 1772 a Scottish physician discovered nitrogen2 and recent discoveries seem to suggest that farming arose around 23,000 BC.3 Hence, knowledge with regards to farming and possible pollution has been available to scientists for quite some time. Sadly, implementation of legislation which strives to combat the effects of humanity’s ancient tradition of agriculture, has only been a recent development. Because Dutch legislation has not been able to structurally reduce pollution, the government has halted farming and various building projects in order to enable the government to codify adequate legislation to prevent more air pollution.4 How can it be that no one, until recent years, had thought about the potential negative effects on the environment? 

Yet here we are, making the same mistake again. Legislation is once again years behind on new innovations. Struggling to keep up, we wait until it is too late. Only when it’s almost too late and important rights have already been violated, we take desperate measures to try and reverse the thing we should have prevented in the first place. 

While farming and constructing are tangible industries which we are capable of understanding, the transition from the industrial age to the information age brought new, more elusive innovations which we can’t even see or touch. These innovations are gaining pace fast. Layers upon layers of personal data are being accumulated, with or without our knowledge and with or without our consent. This general attitude is eloquently encapsulated by Tech columnist J. Naughton, who, in his interview with Zuboff, wrote that “lots of scholars are thinking, researching and writing about this stuff. But they’re like the blind men trying to describe the elephant in the old fable: everyone has only a partial view, and nobody has the whole picture”. 

Zuboff herself writes about the ‘unprecedented modification of capitalism’ or ‘surveillance capitalism’: A new actor in history that cannot be adequately grasped with our existing concepts. Within surveillance capitalism, the personal behavioral data – or as Zuboff calls it: “private human experience” – is seen as a commodity, which can be bought, sold and analyzed.6 Whereas we should have seen that innovations within agriculture and construction had the potential to tarnish important values, we ought to be aware of the possibility that more recent and looming innovations, which are quietly or not so quietly developing, have a potential to negatively impact the world we inhabit as well, starting with our right to privacy. 

Zuboff told me that it is easy to be pessimistic. I must agree that often times it is. However, it is easier to think that values will protect themselves and harder to imagine the negative impacts of innovations. Excitement often overthrows pessimism, when pessimism is needed most. We need pessimists to warn us when our values are in danger and to keep reminding us of the long-term goals, instead of short-term satisfactions. 

My solution is not for the government and its legislators to predict the future, but to think realistically about the boundaries of the law. We cannot outrun innovations, as it has the benefit of time and knowledge which legislators simply do not have. However, we can implement legal frameworks such as the European Union’s General Data Protection Regulation, which contains the principle of “Privacy by Design”. 7 In this way, we can ensure that new innovations ascribe to certain values. We do not need the complete picture to set frameworks for the future, because a complete picture is an unattainable target. We need a big, strong, legal frame where all partial views can coexist. 

Geschreven door Mina Morkoç.

1. Dutch Council of State,  ECLI:NL:RVS:2019:1603, Rechtspraak. (2019)
2. Weeks, Mary. “Daniel Rutherford and the discovery of nitrogen”. Journal of Chemical Education. (1934), page 101.
3. American Friends of Tel Aviv University. “First evidence of farming in Mideast 23,000 years ago: Evidence of earliest small-scale agricultural cultivation.” ScienceDaily. (2015).
4. Schaart, Eline. “The Netherlands struggles with nitrogen headache”. Politico. (2019)
5. Naughton, John. “”The goal is to automate us”: welcome tot he age of surveillance capitalism”. The Guardian. (2019)
6. Tsalikis, Catherine. “Shoshana Zuboff on the Undetectable, Indecipherable World of Surveillance Capitalism”. Cigi. (2019)
7. Areias, David. “GDPR – Privacy by design and by default”. Legalmondo. (2019)

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