Posts Tagged New Technologies
Proposition Walhalla. ‘The algorithms of the law must keep pace with new and emerging technologies.’
Update 17 January 2020 the European Commission reportedly has a different view and is preparing a proposal to ban this use temporarily.
‘The algorithms of the law must keep pace with new and emerging technologies’ is the opening sentence of Hadon-Cave LJ and Swift J in R v The Chief Constable of South Wales Police and others  EWHC 2341.
The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR (automated face recognition) in a free and civilized society. The High Court finds it is. No doubt appeal will follow. I leave the assessment of the findings (discussing in particular Article 8 ECHR: right to respect for one’s private and family life, one’s home and one’s correspondence) of the Court to others. It is the opening sentence which drew my attention as, inevitably, it did others’. It is a sentence upon which one can hinge en entire regulatory /new technologies course. Must the algorithms of the law (whatever these may be) keep pace with technology? Or rather, guard against the challenges of same?
A short update on the innovation principle‘s continued (corporate-sponsored, let’s be frank) journey.
Thank you first of all prof Maria Lee for signalling the UK’s planned introduction of an ‘innovation test’, to be piloted as part of industrial strategy. Its goal is expressed as ‘We will create an outcome-focused, flexible regulatory system that enables innovation to thrive while protecting citizens and the environment.’ Not much more detail is given. Formulated as such, it does nothing that the current EU regulatory model does not already address – its true goal undoubtedly is a post-Brexit libertarian regulatory environment.
Further, Nina Holland observed with eagle eyes the link between Nafta 2.0 (USMCA) and innovation, in particular Article 12-A-4 ‘parties’ “recognize the importance of developing and implementing measures in a manner that achieves their respective level of protection without creating unnecessary economic barriers or impediments to technological innovation’ (like the UK initiative: meaningless for already addressed by current international trade agreements; the real intention actually is deregulation). American industry has been arguing that the US should ‘build on’ the new NAFTA when negotiating with the EU (should TTIP ever be resuscitated).
Ghostbusters and the Marshmallow Man. The European Commission covert consultation and study on the innovation principle.
I have reported before on the innovation principle, the industry efforts behind it and the European Commission response to same. I have linked our initial paper as well as media and other reports in an earlier posting. The most comprehensive overview of the genesis of the principle is included here.
One of the comments I made in that earlier post is that Commissioner Moedas has emphasised verbatim that the innovation principle is not binding EU law: ‘“I think we have some misunderstanding here … The Horizon Europe proposal does not in any way establish the innovation principle or incorporate it into EU law. It is referred to in the recitals but it is not something that is [in] the proposal,” he said.
At the end of the original Ghostbusters movie, a giant Marshmallow Man appears as a result of the main ghost’s conjuring up himself as the physical manifestation of the first thought popping up into the mind of the lead characters’ mind (further info here). The road to turning the imagination of the innovation principle into reality is currently equally continuing with no less than a Commission-ordered Consultation Report, from the Centre for European Policy Studies, on the evaluation of the innovation principle: see the Directorate-General’s invitation letter and the questionnaire.
Both documents reached me via a little Berlaymont bird. I have anonymised individuals mentioned in the documents and I have also changed the order of questions in the questionnaire just in case individual copies were drafted to facilitate the coveted ‘confidentiality’ – contents of the questionnaire have stayed the same. The questionnaire is meant for ‘selected stakeholders’ who are instructed not to ‘share, quote or cite it’.
The principle even if it does exist certainly does not do so in EU law – as confirmed by the Commissioner. Yet it is his DG which has instructed CEPS to carry out the study, confidentially: not exactly a driving principle of the Better Regulation Agenda to which the documents purport to answer.
The invite states that ‘the overall aim of this evaluation is to describe the status quo and prepare recommendations for future action in accordance with the better regulation guidelines. These recommendations will serve to apply the Innovation Principle in a way which helps the achievement of EU policy objectives and is consistent with identified stakeholder needs.’
The text pays lip service to the general interest which ‘innovation’ is meant to serve, yet also repeatedly emphasises that existing regulatory hurdles to ‘innovation’ ought to be classified and potentially removed; that the EC may take the necessary steps to initiate this; and nowhere does it question the very existence of the principle.
It is noteworthy in this respect that Horizon Europe, Europe’s next flagship research and development program, refers drastically less to responsibly research and innovation -RRI than did its predecessor. Parliament did not halt references to the innovation principle in its recitals.
I would like to emphasise again that with my co-authors of the paper, I am not an unshakable opponent of the introduction of an innovation principle. Provided the discussion on it is done in the appropriate institutions and at the very least in the public domain. A confidential survey confirms the reactionary character which this principle so far represents on the EU scene.
Update 14 December 2018 Parliament failed to halt references to the innovation principle in Horizon Europe (recital 3 in COM(2018) 435: ‘The promotion of research and innovation activities deemed necessary to help realise Union policy objectives should take into account the innovation principle as put forward in the Commission Communication of 15 May 2018 ‘A renewed European Agenda for Research and Innovation – Europe’s chance to shape its future’ (COM(2018)306).’ An initial report on the failure is here, I shall have a post soon. Of crucial note is that Commissionner Moedas has emphasised verbatim that the innovation principle is not binding EU law: from the Politico Report: ‘“I think we have some misunderstanding here … The Horizon Europe proposal does not in any way establish the innovation principle or incorporate it into EU law. It is referred to in the recitals but it is not something that is [in] the proposal,” he said.
Moedas continued: “We need an innovation principle as we need a precautionary principle. Both are complimentary.”
Commission officials say the innovation principle does not have the same legal weight as the precautionary principle, which is included in the EU treaties.
Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.
(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.
I have just recently stumbled across the EU’s Bioeconomy strategy, classified in the administrative organogram at least under ‘Research and innovation’. It could also be DG Industry. Or DG Trade. Or DG Env. Or indeed DG Agri. Tucking it away under Research and innovation was a good idea, I believe: best to keep it safely away from daily policy concerns and ditto lobbying. The Bioeconomy – which is defined as encompassing the sustainable production of renewable resources from land, fisheries and aquaculture environments and their conversion into food, feed, fiber bio-based products and bio-energy as well as the related public goods – is seen by the EC as a successor to the EU’s Biosociety program, which however was more scientific in outlook (lots of talk of new technologies).
A big gap in its approach, to me at least, is its lack of discussion on reduced consumption and ‘need‘ (the Club of Rome has some powerful insight into this) which is a pitty. It talks mostly about increasing and diversifying ‘output’, rather than on reducing it or matching it to true need. For in its current outlook, the Bioeconomy feels more like a postersite for EU ‘innovative’ technologies than one for foresight in development priorities. And no, that is not properly done elsewhere in the EC.
Australia, Nigeria and South Korea (a bit of an unusual troika, truth to be told) have jointly proposed an amendment to the London Protocol [Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter 1972 and 1996 Protocol Thereto]. The Amendment would severely and formally restrict the legality of geo-engineering among signatory States. As reported earlier, in 2008, Parties to the London Convention and Protocol adopted a resolution prohibiting ocean fertilization other than for legitimate scientific research. The proposed amendment would strengthen the nature of that prohibition.
Ocean fertilisation would be the only accepted form of geo-engineering which can continue to be researched, under monitoring and supervision of the Protocol. All other activities would remain subject to the general ban on dumping of wastes at sea. Evidently the Protocol does not capture all geo-engineering techniques, whence even if accepted, the amendment would fall short of a global regime for geo-engineering, thereby confirming the incremental process of regulating global environmental concerns.
I have searched high and low but have as yet not located a copy of the actual proposal: this post is based on the Australian government’s press release, on reporting in The Age, Environment and the geo-engineering blogspot.