By Fleur Johns
Public international lawyers are forever in catch-up mode, or so it seems. The international legal appetite for ‘raw’ data of global life is seemingly inexhaustible and worry about the discipline lagging behind technology is perennial. There has, accordingly, been considerable energy devoted to ‘cybernating’ international law, in one way or another, or adapting the discipline to new possibilities posed by digital technology.
Much international legal writing concerned with computer and information technology (CIT) and global data flows has been concerned with developing law on these phenomena on the global plane. Scholars and practitioners of international law have, for instance, published important work on privacy and data protection and cyberwarfare.
Just as important, however, but receiving far less attention, are legal and equitable dimensions of the global data economy being envisioned by institutions such as the World Economic Forum. International law is often viewed, in this context, diminutively and technically: as a means of delivering on foregone conclusions and facilitating the realization of pre-agreed goals. Yet, as a recent paper in the London Review of International Law argued, there is much more at stake in the global laws surrounding data-gathering, data-mining and the monetization and use of datasets, than the technical assurance of frictionless interface and the protection of privacy. Whether with regard to global offshoring in the CIT industry, or global practices of data gathering and profit-seeking at the ‘bottom of the pyramid’, new modes of economic inequality are under construction, with law playing a crucial infrastructural role – a role which merits tougher questioning.
Another set of challenges for contemporary international lawyers arises from the turn to ‘big data’ — large-scale data mining and data analytics — for global governance. In the UN Global Pulse initiative, for example, the United Nations is mining digital data sources and using real-time data analytics to evaluate human wellbeing and vulnerability, and directing resources and policymaking attention accordingly. When states that are parties to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) gather to review the listing of animal and plant species for differing levels of treaty protection, they frequently act (in part) on the basis of species distribution modeling (SDM). This SDM will have been carried out by software implementing one among a number of possible presence/absence algorithms.
It is a routine preoccupation of international lawyers that global norms and public decision-making processes should be apparent to those whom they impact: transparency is today treated as a meta-principle of international legal order. Yet it is still unclear what ‘transparency’ could or should entail when decision-making processes in question are partially automated, use complex and dynamic algorithmic operations, and draw inputs from a range of public and private sources. In relation to SDM for CITES listing purposes, for instance, a recent report in Science suggested that the relevant software’s intricacies are not grasped by many scientist-modelers: there are ‘many in the SDM domain unable to interpret the original algorithms, much less understand how they were implemented in the distributed code’. One wonders what CITES decision-makers to whom SDM modeling outcomes are being delivered are making of this material, if many responsible for these models’ development are unable to interpret them satisfactorily. Another recent paper has drawn attention to the traps that big data analysis can present for policy-makers seeking up-to-the-minute insights on global populations’ health and wellbeing.
Public international lawyers will doubtless continue to pursue broad-ranging regulatory initiatives, regionally and globally, concerning cybercrime and data protection. Beyond these efforts, however, global policy-makers and international lawyers working in a far greater range of fields need to engage critically with the priorities, preferences and relations embedded in, or generated by, the software and hardware of global data gathering and analysis. Associations among co-patterners (or those correlated in some analytical pattern) may prove just as significant as those among co-citizens or fellow right-holders — if not more so — in the global operations of law.
Fleur Johns is a Professor in the Faculty of Law at UNSW Australia, Sydney and a contributor to the London Review of International Law, a new journal, published by Oxford University Press, which publishes highest-quality scholarship on international law from around the world; the first issue featuring Professor Johns’ article ‘The deluge’, discussing the significance of big data for public international law, is free to read online for a limited time.
The London Review of International Law publishes highest-quality scholarship on international law from around the world. Reflecting the pace and reach of developments in the field, the London Review seeks to capture the ways in which received ideas are being challenged and reshaped by new subject-matters, new participants, new conceptual apparatuses and new cross-disciplinary connections.
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