The Devil Is in the Defaults
Ian Kerr, "The Devil Is in the Defaults" (2017) 4:1 Critical Analysis of Law 91.
13 Pages Posted: 12 Jun 2019
Date Written: April 3, 2017
This review essay explores the concept of ‘shifting defaults’ as discussed in Mireille Hildebrandt’s book, Smart Technologies and the End(s) of Law. While some readers might mistake defaults as a minor topic within Hildebrandt’s book, this review argues they are of paramount importance, and elaborates on four distinct categories of shifting defaults: (i) natural, (ii) technological, (iii) legal, and (iv) normative. Natural defaults, like human memory, can be shifted by a technological innovation like the written word, which augments our natural memory, reconfiguring our brains, culture and politics in the process. Technological defaults, by contrast, are only changed with permission. Their demonstrated power to influence choice, particularly when they are opaque to the average user, poses a significant threat to privacy, identity, and autonomy. Legal defaults, regulated by courts and legislators, have been developed to clarify the law in the absence of a competing intention, with the aim of furthering the public good. Normative defaults point to the challenges of influencing a ‘default of usage’ once it is established, making it difficult to act against it without breaching social standards. A comparison of legal and technological defaults reveals the latter to be especially problematic, as the authority to shift them lies entirely in hands of private actors.
This review argues that technological defaults should be set to maximize user privacy through a legislative mandate: 'privacy by default'. This approach would guard against technology’s proven power to shift both natural and normative defaults to influence choice and undermine autonomy. It concludes by reframing Hildebrandt’s central thesis, questioning whether the Rule of Law itself, could ever be legitimately displaced by smart technologies.
Keywords: artificial intelligence, AI, privacy, privacy law, privacy theory, defaults, default settings, Rule of Law
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