Critical Data Theory

Abstract

Critical Data Theory examines the role of AI and algorithmic decision making at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in law enforcement practices, and homeland and national security pro-grams. To take one example of AI’s impact, this Article argues that mass incarceration’s technological interdependencies and trajectories can be better conceptualized through Critical Data Theory. This Article proposes that the theory can help assess the computational and AI impact of technological developments that may exacerbate mass incarceration and limit criminal procedure rights.

Keywords: AI governance, algorithmic discrimination, Critical Theory, Fourth Amendment, National Surveillance State