There are certain conventions to be followed by any UK Supreme Court justice. Indeed, any senior judge in any jurisdiction might find them handy. The more potentially controversial your content, the more you need an anodyne title and a comprehensive knowledge of Greek classical philosophers. So, wishing to make observations a fortnight ago on algorithmic, impersonalised official decision-making of the kind so searingly identified by the combative Ken Loach in ‘I Daniel Blake”, Lord Sales preferred reference to Aristotle’s notion of ‘epiekeia (usually translated as equity)’ and not the left wing filmmaker. But the point in his speech a fortnight ago on ‘Algorithms, Artificial Intelligence and the Law’ was pretty much the same. How fortunate that many of our most senior judiciary have more university training in classics than in law. It helps greatly to preserves the fig leaf of their political neutrality.
Lord Sales has three basic points to make: there are, he says, ’a series of inter-connected problems regarding
- the lack of knowledge, understanding and expertise on the part of lawyers … and on the part of society generally;
- unwillingness on the part of progamming entities, mainly for commercial reasons, to disclose the program coding they have used, so that even with technical expertise it is difficult to dissect what has happened and is happening;
- and a certain rigidity at the point of the interaction of coding and law, or rather where coding takes the place of law.’
He has some observations to make on these familiar issues from a distinctively legal perspective. He wonders whether tort – civil liability for which consent is generally irrelevant – might be better than contract – extracted from users without effective consent – might be a better restriction on technology giants. ‘For access to digital platforms and digital services in the private sphere, the business model is usually take it or leave it: accept access to digital platforms on their terms requiring access to your data, and on their very extensive contract terms excluding their legal responsibility, or be barred from participating in an increasingly important aspect of the human world. This may be experienced as no real choice at all.’
He throws his weight behind ‘a new agency for scrutiny of programs in light of the public interest should be established, which would constitute a public resource for government, Parliament, the courts and the public generally. It would be an expert commission staffed by coding technicians, with lawyers and ethicists to assist them.’ He even suggests that this might have a pre-legislative scrutiny role like the Parliamentary Joint Committee on Human Rights. The problem is that the better analogy might be the Advisory Committee on the Misuse of Drugs, regularly sidelined and then neutered by governments which find its advice unpalatable.
Lord Sales is clearly aware of this point – though understandably reticent to mention it. He links his commission to the establishment of digital rights – suggesting the model of 5Rights Foundation: ‘who have called for five rights to enable a child to enjoy a respectful and supportive relationship with the digital environment: i) the right to remove data they have posted online, ii) the right to know who is holding and profiting from their information and how it is being used, iii) the right to safety and support if confronted by troubling or upsetting scenarios online, iv) the right to informed and conscious use of technology, and v) the right to digital literacy. These need to be debated at a legislative level. Such a rights regime could usefully be extended to adults as well.’
The judge has an ambitious vision for his commission: ‘perhaps we should think of it almost as a sort of constitutional court. There is an analogy with control and structuring of society through law. Courts deal with law and constitutional courts deal with deeper structures of the law which provide a principled framework for the political and public sphere. The commission would police baseline principles which would structure coding and ensure it complied with standards on human rights. One could even imagine a form of two-way reference procedure, between the commission and the courts (when the commission identifies a human rights issue on which it requires guidance) and between the courts and the commission (when the courts identify a coding issue on which they require assistance).’
Lord Sales allies himself with UN rapporteur Philip Alston (whose report on digital welfare states is to summarised in a later post). He takes a human rights perspective. He refers, rather unfashionably given domestic British politics, to the work of the European Union on digital accountability. Decision-making procedures in the digital world should continue to allow for transparency, accountability and participation.
Equivalent values need to be shown in the democratic discussion: ‘In elections, the detailed information about individuals harvested by computing platforms allows voters to be targeted by messaging directed to their own particular predilections and prejudices, without the need to square the circle of appealing to other points of view at the same time. We need to find ways of reconstituting a common public space.’ This is a point which others less judicially constrained might flesh out with references to Cambridge Analytica, Facebook and social media manipulation. And he places the law and the notion of enforceable rights at the centre of the fight back: ‘the law has an important role to play in protecting the private sphere in which individuals live their lives and in regulating surveillance. For example, the case law of the European Court of Human Rights and of our own Investigatory Powers Tribunal sets conditions for the exercise of surveillance powers by the intelligence agencies and provides an effective way of monitoring such exercise.’
How much of this internationalist and rights-based approach will survive Brexit in British political culture in the next few years must be open to doubt. Maybe somewhere else – perhaps the European Union itself – will step up to the plate. But it is important that people like Lord Sales are raising the issues for public debate.