Law, Rule of Law and Computer Science

Lots to consider here, and it seems we are not close to understanding the implications.  The pressure to automate lots of this is very strong. 

Understanding Law and the Rule of Law: A Plea to Augment CS Curricula,  By Mireille Hildebrandt

Communications of the ACM, May 2021, Vol. 64 No. 5, Pages 28-31   10.1145/3425779

Some people think they are above the law. In a constitutional democracy this cannot be the case. Neither the head of state nor the doctor or the police are above the law. They should all be enabled to do their work, but we do not buy the claim that they could act as they wish. In 18th century Europe we replaced the authoritarian rule by law with a rule of law, to mitigate uninhibited power, and to ensure that those in power can be held to account in a court of law. Whereas rule by law is rule by persons (law as an instrument of control), rule of law implies a division of powers where those who enact the rules do not get the last word on their interpretation.13

This also refers to the difference between law and ethics. Replacing rule by law with rule of law means we do not want to depend on the ethical inclinations of those who rule us. Instead, we can send them home if we don't agree with the rules they impose (democracy) and we can contest their interpretation of those rules in court (rule of law). As a thought experiment I ask the reader how this would apply to the rules computing systems impose: Can we send home the developers (and/or those who implement these systems to gain a profit or to engage in public administration)? Can we contest their rules in a court of law when they impact our choice architecture?

Law and the rule of law have been implemented by way of intricate checks and balances that safeguard the contestability of legally relevant decision making, thus preparing the ground for robust, legitimate, and binding decisions. This is how we create and sustain societal trust: not by cherishing the illusion of an ideal world where power plays no role, but by creating and sustaining countervailing powers. Simultaneously, law is about coordinating human interaction, making sure that governments treat their citizens with equal respect and concern,5 thus providing for legal certainty and justice. That is why it is imperative that nobody is above the law.

This also goes for the architects of our computational environments, who increasingly design and engineer the space we inhabit. Computer scientists, Web developers, roboticists, and software engineers must understand both when and how the law applies to them, and insofar as they develop modules, systems or applications for specific use cases, they should be sensitized about how and when the law may apply. This goes for issues of privacy and data protection, cybercrime, intellectual property rights and private law liability (for example, tort), but also for issues of jurisdiction (what law applies) and international law (how national legal systems interact at the global level). It goes even more for the idea of the rule of law that should inform our understanding of the law.

Based on many years of teaching law to master's students of computer science,8 I have come to believe that by teaching them about law I am not only helping them to comply with current law, but also offering them a unique opportunity to engage with the foundations and implications of their own 'trade' (precisely because computing systems also produce rules that affect human behavior).   ....  '