This chapter focuses on due process, understood in the broad sense of the effective capability to contest decisions that have a significant impact on one’s life. To contest such decisions, a person must be aware of them and be able to foresee their impact. In that sense due process seems to require transparency and/or a measure of knowledge symmetry. The research questions for this chapter are, first, how the application of data science challenges such transparency and, second, how we can reinvent it with regard to the proliferating machine-generated profiles that have an increasing influence on our life. First, I introduce the Deleuzian concepts of de-realisation and virtualisation to elucidate what it is that profilers construct when they create large ‘populations’ of anonymous profiles that can be applied to large populations of individual human beings. I continue this line of thought and add the Deleuzian concept of the dividual, aligned with terms from the domain of computer science: data, data models, attributes, characteristics and properties. This should help to prepare the ground for an answer to the question of whether data science practices in the field of commerce and law enforcement afford virtualisation or merely de-realisation. I then explore the notions of transparency and enlightenment, connecting them to Parsons’s and Luhmann’s concept of double contingency. This regards the double and mutual anticipation that is constitutive for self, mind and society. The concept refers to the fundamental uncertainty that rules human communication, creating the possibility for new meaning amidst inevitable but productive misunderstandings. It also refers to the need for socio-technical infrastructures that stabilise meaning amongst individual minds, notably language, writing, the printing press, hyperlinked digitisation and finally the hidden complexity of computational decision-systems. To figure out how the double contingency fares in the era of the pre-emption of intention, I engage Stiegler’s notion of tertiary retention and the need to reinvent what he terms ‘introjection’ in the digital age. He introduces these notions in a plea for a new Enlightenment that should inform a new Rule of Law. Finally, I argue that renegotiating a novel double contingency will require profile transparency at the level of the digital infrastructure. I conclude with a brief sketch of what this could mean, taking into account that transparency can never be complete. The renaissance painting techniques of the claire-obscure provide a salient background for a discussion of the balance between knowledge requirements and our bounded rationality.
|Title of host publication||Privacy and Due Process after the Computational Turn|
|Editors||M. Hildebrandt, K. De Vries|
|Place of Publication||Abingdon|
|Number of pages||26|
|Publication status||Published - 2013|