Legal Protection by Design: Objections and Refutations

To cope with an increasingly proactive technological infrastructure a so-called vision of Ambient Law has been developed. It entails the articulation of legal protection into the ICT architecture, to safeguard our rights and freedoms within the various cyberspaces we inhabit. I will argue that the Internet of Things and Ambient Intelligence generate novel challenges to the rights to privacy, due process and non-discrimination, warranting effective remedies beyond the written law. The vision of Ambient Law builds on similar notions within the domain of ethics of technology (e.g. privacy by design, privacy by default, value-sensitive design). Expanding on previous publications this contribution engages with three possible objections to the idea of legal protection by design. Firstly, one could object that legal protection should be technology-neutral, meaning that regulators should avoid technology dependence when formulating legal norms. This could imply that legal protection cannot be part of a technological design. Second, one might equate this approach with taking a command-and-control perspective, assuming that the intervention of the democratic legislator engages a top down perspective, compared to e.g. public-private collaboration. Third, one might equate the idea of Ambient Law with techno-regulation, or technological enforcement of administrative law. I will argue that all three objections misconstrue the notion of Ambient Law, and miss the point that law-as-we-know-it is already technologically embodied. The conclusion will be that when we move from the technologies of the script to those of mobile interconnected digital computer systems, effective legal protection requires creative re-enactment into the novel infrastructures.