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Data Protection as a Normative Problem

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The De Gruyter Handbook on Law and Digital Technologies
This chapter is in the book The De Gruyter Handbook on Law and Digital Technologies

Abstract

At any moment in time, positivist legal theory furnishes us with a range of legal theoretical categories and concepts which might be used to understand and order legal systems. Law changes over time, however, and legal theoretical constructs must be developed, or even invented, to adapt to this change. EU data protection law has, since its inception, been the subject of many, and broad, substantial discussions. These discussions, from a positive perspective at least, however, seem largely to have been conducted on the basis that it constitutes an essentially regular area of law, and accordingly, that it might largely be understood, and ordered, in terms of traditional legal theoretical categories and concepts. This chapter aims to paint this area of law in a different light. Specifically, it aims to depict this area of law as one likely to exhibit a particular prevalence of novel legal phenomena, one in which use of inherited legal theoretical categories and concepts should be undertaken with caution, and one which would benefit from greater theoretical reflection. In other words, the chapter aims to depict EU data protection law as a normative problem—i.e., as a normative phenomena which would benefit from further theoretical consideration, and whose understanding and ordering might benefit from the development of novel theoretical concepts.

Abstract

At any moment in time, positivist legal theory furnishes us with a range of legal theoretical categories and concepts which might be used to understand and order legal systems. Law changes over time, however, and legal theoretical constructs must be developed, or even invented, to adapt to this change. EU data protection law has, since its inception, been the subject of many, and broad, substantial discussions. These discussions, from a positive perspective at least, however, seem largely to have been conducted on the basis that it constitutes an essentially regular area of law, and accordingly, that it might largely be understood, and ordered, in terms of traditional legal theoretical categories and concepts. This chapter aims to paint this area of law in a different light. Specifically, it aims to depict this area of law as one likely to exhibit a particular prevalence of novel legal phenomena, one in which use of inherited legal theoretical categories and concepts should be undertaken with caution, and one which would benefit from greater theoretical reflection. In other words, the chapter aims to depict EU data protection law as a normative problem—i.e., as a normative phenomena which would benefit from further theoretical consideration, and whose understanding and ordering might benefit from the development of novel theoretical concepts.

Chapters in this book

  1. Frontmatter I
  2. Contents V
  3. Authors’ Biographies IX
  4. Introduction 1
  5. Part I: Digital Technologies and Social Transformation
  6. Cyber-Humans and Robotics 7
  7. Online Disinformation: Regulatory Issues and Approaches in the European Legal Landscape 31
  8. Agile Governance: Japanese Approach to Governing Cyber-Physical Systems 53
  9. Blockchain and Access to Justice 75
  10. Data Protection, Privacy, and Unfalsifiable Predictions 95
  11. The WTO in the Digital Age of Artificial Intelligence and the Future of Global Trade Governance: Some Fundamental Considerations 123
  12. When EU Law Meets (Large) Language Models 147
  13. The Charge of AI Systems, Smart Robots, and Information Technologies in Healthcare: A Normative Look into the Future 173
  14. Part II: The Legal Framework
  15. Sovereign Powers and Digital Liberties 191
  16. Technology As Regulation: Tensions, Transitions, and Tectonic Shifts in Governance 211
  17. The Law of Data-Driven Trade 229
  18. From AI Risks to Legal and Ethical AI Governance: A Four-Dimension Framework 251
  19. Agents and Persons? AI Systems Acting in the World and the Limits of Legal Personality 279
  20. Regulation by Design: Reshaping the Relationship between Technology Development and Law 303
  21. AI in the Courtroom: The Right to a Human Judge? 327
  22. Regulating AI Autonomy: A Constitutional Framework for the Digital Era 353
  23. Part III: Key Normative Challenges
  24. The Social Classification of Robots by Perceived Race and Gender 383
  25. Mission Impossible? Artificial Intelligence, Space Debris, and the Legal Implications for Space Sustainability 417
  26. Fintech: A Renaissance moment for Finance and its Regulation? 445
  27. Data Protection as a Normative Problem 483
  28. Artificial Intelligence for Sustainability and Sustainability of Artificial Intelligence: The approach of the EU AI Act 503
  29. Research Data Governance in a Digital Age 525
  30. From AI Ethics Principles to Practices: A Teleological Methodology to Apply AI Ethics Principles in the Defense Domain 549
  31. Labor Law and Automated Systems in the EU 571
  32. Index
https://doi.org/10.1515/9783111346632-021

Chapters in this book

  1. Frontmatter I
  2. Contents V
  3. Authors’ Biographies IX
  4. Introduction 1
  5. Part I: Digital Technologies and Social Transformation
  6. Cyber-Humans and Robotics 7
  7. Online Disinformation: Regulatory Issues and Approaches in the European Legal Landscape 31
  8. Agile Governance: Japanese Approach to Governing Cyber-Physical Systems 53
  9. Blockchain and Access to Justice 75
  10. Data Protection, Privacy, and Unfalsifiable Predictions 95
  11. The WTO in the Digital Age of Artificial Intelligence and the Future of Global Trade Governance: Some Fundamental Considerations 123
  12. When EU Law Meets (Large) Language Models 147
  13. The Charge of AI Systems, Smart Robots, and Information Technologies in Healthcare: A Normative Look into the Future 173
  14. Part II: The Legal Framework
  15. Sovereign Powers and Digital Liberties 191
  16. Technology As Regulation: Tensions, Transitions, and Tectonic Shifts in Governance 211
  17. The Law of Data-Driven Trade 229
  18. From AI Risks to Legal and Ethical AI Governance: A Four-Dimension Framework 251
  19. Agents and Persons? AI Systems Acting in the World and the Limits of Legal Personality 279
  20. Regulation by Design: Reshaping the Relationship between Technology Development and Law 303
  21. AI in the Courtroom: The Right to a Human Judge? 327
  22. Regulating AI Autonomy: A Constitutional Framework for the Digital Era 353
  23. Part III: Key Normative Challenges
  24. The Social Classification of Robots by Perceived Race and Gender 383
  25. Mission Impossible? Artificial Intelligence, Space Debris, and the Legal Implications for Space Sustainability 417
  26. Fintech: A Renaissance moment for Finance and its Regulation? 445
  27. Data Protection as a Normative Problem 483
  28. Artificial Intelligence for Sustainability and Sustainability of Artificial Intelligence: The approach of the EU AI Act 503
  29. Research Data Governance in a Digital Age 525
  30. From AI Ethics Principles to Practices: A Teleological Methodology to Apply AI Ethics Principles in the Defense Domain 549
  31. Labor Law and Automated Systems in the EU 571
  32. Index
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