L Diver, P McBride, M Medvedeva, et al., (2022) ‘Typology of Legal Technologies’ (COHUBICOL). View online
Abstract
The Typology is an online, interactive publication, a methodology, and a mode of analysis. Substantively, it contains a curated set of typical legal technologies (applications, scientific papers, and datasets). The COHUBICOL team assessed these based on the claims made by their developers and/or providers, and on the substantiation of those claims, with an eye to the kind of legal impact their deployment might have. Our particular focus is on systems that might alter or impact the concept of legal effect that lies at the heart of law-as-we-know-it.
For a detailed discussion of the Typology’s methodology, see the FAQs & methodology page on the Typology website.
L Diver and P McBride, (2022) ‘Argument by Numbers: The Normative Impact of Statistical Legal Tech’ Communitas. View online
Abstract
The introduction of statistical ‘legal tech’ raises questions about the future of law and legal practice. While technologies have always mediated the concept, practice, and texture of law, a qualitative and quantitative shift is taking place: statistical legal tech is being integrated into mainstream legal practice, and particularly that of litigators. These applications – particularly in search and document generation – mediate how practicing lawyers interact with the legal system. By shaping how law is ‘done’, the applications ultimately come to shape what law is. Where such applications impact on the creative elements of the litigator’s practice, for example via automation bias, they affect their professional and ethical duty to respond appropriately to the unique circumstances of their client’s case – a duty that is central to the Rule of Law. The statistical mediation of legal resources by machine learning applications must therefore be introduced with great care, if we are to avoid the subtle, inadvertent, but ultimately fundamental undermining of the Rule of Law. In this contribution we describe the normative effects of legal tech application design, how they are potentially (in)compatible with law and the Rule of Law as normative orders, particularly with respect to legal texts which we frame as the proper source of ‘lossless law’, uncompressed by statistical framing. We conclude that reliance on the vigilance of individual lawyers is insufficient to guard against the potentially harmful effects of such systems, given their inscrutability, and suggest that the onus is on the providers of legal technologies to demonstrate the legitimacy of their systems according to the normative standards inherent in the legal system.
L Diver, (2021) ‘Digisprudence: The Design of Legitimate Code’ 13(2) Law, Innovation and Technology. View online
Abstract
This article introduces digisprudence, a theory about the legitimacy of software that both conceptualises regulative code’s potential illegitimacies and suggests concrete ways to ameliorate them. First it develops the notion of computational legalism – code’s ruleishness, opacity, immediacy, immutability, pervasiveness, and private production – before sketching how it is that code regulates, according to design theory and the philosophy of technology. These ideas are synthesised into a framework of digisprudential affordances, which are translations of legitimacy requirements, derived from legal philosophy, into the conceptual language of design. The ex ante focus on code’s production is pivotal, in turn suggesting a guiding ‘constitutional’ role for design processes. The article includes a case study on blockchain applications and concludes by setting out some avenues for future work.
L Diver, (2021) ‘Interpreting the Rule(s) of Code: Performance, Performativity, and Production’ MIT Computational Law Report. View online
Abstract
Software code is built on rules, and the way it enforces them is analogous in certain ways to the philosophical notion of legalism, under which citizens are expected to follow legal rules without thinking too much. The ontological characteristics of code – its opacity, immutability, immediacy, pervasiveness, private production, and ‘ruleishness’ – amplify its ‘legalistic’ nature far beyond what could ever be imposed in the legal domain, however, raising significant questions about its legitimacy as a regulator. This contribution explores how we might critically engage with the text of code, rather than just the effects of its performance, in order to temper these extremes with the reflexive wisdom of legality. This means contrasting the technical performance of code with the social performativity of law, demonstrating the limits of viewing the latter as merely a regulative ‘modality’ that can be easily supplanted by code. The latter part of the article considers code and the processes and tools of its production from the perspective of legality, drawing on theories of textual interpretation, linguistics, and critical code studies. The goal is to consider to what extent it might be possible to guide that production, in order to ameliorate an ingrained ‘legalism’ that is democratically problematic.
L Diver, (2020) ‘Computational Legalism and the Affordance of Delay in Law’ 1(1) Journal of Cross-disciplinary Research in Computational Law. View online
Abstract
Delay is a central element of law-as-we-know-it: the ability to interpret legal norms and contest their requirements is contingent on the temporal spaces that text affords citizens. As computational systems are further introduced into legal practice and application, these spaces are threatened with collapse, as the immediacy of ‘computational legalism’ dispenses with the natural ‘slowness’ of text.
J Zomignani Barboza, L Jasmontaitė-Zaniewicz, L Diver, (2020) ‘Aid and AI: The Challenge of Reconciling Humanitarian Principles and Data Protection’ Privacy and Identity 2019: Privacy and Identity Management. Data for Better Living: AI and Privacy 161. View online
Abstract
Artificial intelligence systems have become ubiquitous in everyday life, and their potential to improve efficiency in a broad range of activities that involve finding patterns or making predictions have made them an attractive technology for the humanitarian sector. However, concerns over their intrusion on the right to privacy and their possible incompatibility with data protection principles may pose a challenge to their deployment.
L Diver, (2018) ‘Law as a User: Design, Affordance, and the Technological Mediation of Norms’ 15(1) SCRIPTed 4. View online
Abstract
Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively.
L Diver and B Schafer, (2018) ‘Opening the Black Box: Petri Nets and Privacy by Design’ 31(1) International Review of Law, Computers & Technology 68. View online
Abstract
Building on the growing literature in algorithmic accountability, this paper investigates the use of a process visualisation technique known as the Petri net to achieve the aims of Privacy by Design. The strength of the approach is that it can help to bridge the knowledge gap that often exists between those in the legal and technical domains. Intuitive visual representations of the status of a system and the flow of information within and between legal and system models mean developers can embody the aims of the legislation from the very beginning of the software design process, while lawyers can gain an understanding of the inner workings of the software without needing to understand code. The approach can also facilitate automated formal verification of the models’ interactions, paving the way for machine-assisted privacy by design and, potentially, more general ‘compliance by design’. Opening up the ‘black box’ in this way could be a step towards achieving better algorithmic accountability.
L Edwards, D McAuley, L Diver, (2016) ‘From privacy impact assessment to social impact assessment’ IEEE Security and Privacy Workshops (SPW) 53. View online
Abstract
In order to address the continued decline in consumer trust in all things digital, and specifically the Internet of Things (IoT), we propose a radical overhaul of IoT design processes. Privacy by Design has been proposed as a suitable framework, but we argue the current approach has two failings: it presents too abstract a framework to inform design, and it is often applied after many critical design decisions have been made in defining the business opportunity. To rebuild trust we need the philosophy of Privacy by Design to be transformed into a wider Social Impact Assessment and delivered with practical guidance to be applied at product/service concept stage as well as throughout the system’s engineering.
D Komuves, JN Zatarain, B Schafer, L Diver, (2015) ‘Monkeying Around with Copyright – Animals, AIs and Authorship in Law’ Internationales Rechtsinformatik Symposion (IRIS) 26. View online
Abstract
Advances in artificial intelligence have changed the ways in which computers create “original” work. Analogies that may have worked sufficiently well in the past, when the technology had few if any commercially viable applications, are now reaching the limit of their usefulness. This paper considers particularly radical thought experiment in relation to computer generated art, challenging the legal responses to computer generated works and discussing their similarity to works by animals.
B Schafer, D Komuves, JMN Zatarain, L Diver, (2015) ‘A fourth law of robotics? Copyright and the law and ethics of machine co-production’ 23(3) Artificial Intelligence and Law 217. View online
Abstract
Jon Bing was not only a pioneer in the field of artificial intelligence and law and the legal regulation of technology. He was also an accomplished author of fiction, with an oeuvre spanning from short stories and novels to theatre plays and even an opera. As reality catches up with the imagination of science fiction writers who have anticipated a world shared by humans and non-human intelligences of their creation, some of the copyright issues he has discussed in his academic capacity take on new resonance. How will we regulate copyright when robots are producers and consumers of art? This paper tries to give a sketch of the problem and hints at possible answers that are to a degree inspired by Bing’s academic and creative writing.
L Diver, (2008) ‘Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?’ 3(2) Journal of Intellectual Property Law & Practice 125. View online
Abstract
Legal context: Software is an anomaly in the traditional sphere of IP, and its problematic nature has been manifest in the confused findings of courts on both sides of the Atlantic. This article considers the reasons for the confusion, where things might have been done better, and how the law could develop considering the realities of the industry.
Key points: Software protection at present favours the multinational corporations, while the interests of smaller companies and the Free and Open Source Software community are prejudiced greatly. The current regime is not fundamentally incompatible with software, however, and as such features of it could and should be retained in the creation of a sui generis IP right.
Practical significance: Much of today’s software industry is driven by the efforts of small enterprises and the Free and Open Source Software community. Their interests are not recognized in the current protection-biased framework, and as a result innovation is being stifled by the threat of litigation. IP law in this area is preventing the very thing it is designed to foster—enterprise and innovation.
