Title: LAW AND TECHNOLOGY

There are different ways to understand the relation between law and technology: 

1. law as set of prescriptive rules and technology as an instrument of their implementation; 

2. law and technology as interchangeable instruments of regulation; 

3. law as a body of authoritative normative incentives, embodied in rituals, orality, the script, printed codes or other types of technologies. 

The idea (a) that a technology is a mere means to implement the law is prone to mistake technology for a neutral tool. In reality, technology, though neither good nor bad, is never neutral (Kranzberg 1986), as it has an unmistakably normative impact on those using it. The idea (b) that law and technology are interchangeable instruments of regulation opens the possibility to short-cut democratic procedure, because contrary to law, technologies do not, generally speaking, require legislative effort. To understand the idea of Ambient Law (AmL), this must be kept in mind, as it presumes another relationship between law and technology, as formulated in (c). Historically, law has always been embodied in one technology or another. In fact, the transformation of oral law via written law to printed code has fundamentally changed the scope and the nature of law. Law as we know it today is unthinkable without the advance of the printing press at the beginning of modernity, and the move from printing press’ letterisation to the digitalisation of information storage and communication will again have a major impact on the next stage of the law.

This is not to say that all of the law will now be AmL. Modern law depends on the printing press, but we still speak of written law and unwritten law, even if this cannot be equated with medieval law or law in non-state societies. Our interest in Ambient Law derives from the lack of efficiency and effectiveness of contemporary data-protection legislation as embodied in printed code. This ineffectiveness erodes the legitimacy of data protection and may nourish distrust of emerging technologies. The ineffectiveness of data protection finds its climax in the face of the vision of Ambient Intelligence, based on real-time profiling of things, people, movements, and states (temperature, humidity etc.). Ambient Intelligence involves a shift from interactive to proactive computing, and this in itself seems to solidify a loss of user control, however comfortable the user may feel in her customised environment. To regain some measure of transparency – a necessary precondition for control – new technologies will have to be developed that reveal which profiles are inferred and applied, and what the consequences are in terms of the risks and opportunities attributed to categories of users.  

In the following section, we will briefly refer to the technological embodiment of pre-modern law, explaining some of the consequences of the move to the printing press and modern law. This will form the prolegomena to a conceptualisation of the embodiment of law in the emerging technologies that nourish AmI, which constitutes Ambient Law.