Cliquez et modifiez le titre,Cliquez pour modifier les styles du texte du masque,Deuxime niveau,Troisime niveau,Quatrime niveau,Cinquime niveau,*,Technological normativity vs.Legal normativity the virtues of the explicit,Vox Internet II&Orange Chair,March,31,st,-,PARIS,Antoinette Rouvroy,Yves Poullet,CRID,University of Namur,From governance to governmentality,Governing=structuring the possible field of actions of others;acting upon the possibilities of actions of others.Two approaches:,Governance,:institutional stage:coordination of stakeholders involved in technical standardization(production of,optimal interactions,of actors in the technological landscape)-,technical standardization,Governmentality,:applications and uses stage:the way by which conducts may be directed(production of,regular conducts,in society),transformations of the modes of exercise of power.-,technological normativity,Interactions between governance and governmentality,Standards:,normative neutrality a priori(absence of explicit regulatory aim),implemented and deployed in unpredictable applications,thus hardly revised or challenged(choosing a standard is acting upon the possibilities of action of other people),ICTs and governmentality,Impact on structures of human interactions and on social dynamics,Ubiquity of ICT cognitive(quasi-prothetic)interfaces,deeply embedded in the fabric of daily life,Actuarial,turn:detection,classification,forward-looking evaluation(of behaviours,merits,needs,preferences)allowing for preventive and pre-emptive regulationonto-power shaping subjectivity at pre-conscious stage.What disappears:the capacity to give account of the reasons of our behaviours and preferences.,Typology of technological norms,Normative intensity:,Regulative/(persuasive)/constitutive,(J.Searle,M.Hildebrandt),Transparency or opacity of normative content:Implicit/explicit,Articulation with,without or against legal rules:,in the prolungation of law/independent from legal rule.,Comparison between,legal,and technological normativities(1),Territorial Scope,Linked to a territory and a culture,Mode of creation,In principle democratic discussion following constitutional rules,Mode of expression,Explicit through a readable text,Transparency of the rule and obtrusive character:visible constraint,Mode of dissemination,Mainly by publication of the text,technology of script,language,Territorial scope,To a certain extent,global and,a priori,not,linked to a culture,Mode of creation,Private or governmental decision following economic or general interest reasons,Mode of expression,Implicit and apparently obvious(no alternative),Transparency as invisibility and unobtrusiveness,Mode of dissemination,By contamination due to the interoperability,Cumulative effects of the usages,Comparison between,legal,and technological normativities(2),Effectiveness,A posteriori,control and punishment,No 100%effectiveness(importance of the implicit level of normativity),Contestability,Individual or collective,Essential in the functioning of the system:,recursivity,Effectiveness,A priori,Might be effective at 100%,Contestability,Possible but difficult to organize due to the opaque and apparently obvious functioning of the system,Comparison between legal and technological normativities(3),Intermediate conclusions,:,Legal and technological normativities are only apparently two twin sisters (M.Hildebrandt)radical discrepancies due to the,explicit,character of the legal norm and its intrinsic contestability(recursivity through interaction between legislative and judicial power).New role for the law:organizing the contestability of technological norms?,The dialog between the two normativities:alliances or challenges,?,The legal normativity challenged by the technological one:Are there still borders?Which sovereignty for the legislators?,Code is a code (Lessig),The technological normativity against the legal one:e.g.the privacy killing technologies,The technological normativity at the legal normativity rescue:the PETS,IPETS,CPETS,etc,Alliances or challenges,?(2),Towards a greater effectiveness of the legal rule but,Subversive side effects of the T.N on the L.N.,Examples:tatoeing(IPR)or P3P(Privacy),Challenging the concepts of our legal system and the balance embedded into our legislation,Is there still a lawyer in the room?,The claim for transparency of the technological normativity(e.g.the statistical inferences behind the building up of profiles,the ranking methods used by Google),The obligation to qualify the impact of the technological normativity and to deepen the traditional legal concepts and their significances taking fully into account the new environment(see e.g the e-ID card,IP and the DRM),The precaution principle the need to create public debates(e.g.the EU RFID debate),The reassertion of fundamental values:,Non discrimination:against social sorting,Human Dignity which means respect of autonomy,Is there still a lawyer in the room?,(2),Capacitation of the individuals as