OPINION
Tumbling into the abyss
By Ulrike Reisner
Ulrike Reisner is a self-employed political analyst, lecturer & journalist, based in Vienna / Austria, political analyst with "Creative Diplomacy" (PICREADI).
Following in the wake of terrorism and the migration crisis, EU member states are tightening their security laws, thereby cutting their democratic power structures. Conjuring up reasons to justify the absolute necessity of their decisive actions, the EU elite is constraining the legislative and judiciary powers for the benefit of the executive. With artificial intelligence looming on the horizon, will this turn out to be a fatal development?
Desperate times call for desperate measures.
Some EU member states, such as the United Kingdom, the Netherlands and France have already created a legal framework for a «state of emergency». Others, including Belgium, observing the ongoing political debates on special courts for terrorist trials, are allocating significantly more resources for authorities and police to support the «fight against terrorism» as well as implementing a corresponding restriction of freedom of expression. Member states' governments are extending the scope of legal provisions on terrorism-related crimes, relaxing procedural guarantees (such as the right to a fair trial) and issuing new guidelines to prevent radicalisation. Some of these measures are raising concerns about their compliance with the principle of legality, including legal certainty, and the rights to freedom of assembly and expression.
Heading towards a police state?
Following the terror attacks of 2015 and 2017, the state of emergency in France was extended not less than six times before finally coming to an end in November 2017 [1] . However, within this time period, France enacted laws making the state of emergency, or at least parts of it, the normal condition.
Today, French security authorities and civil servants have significantly more powers. The government also conducted a corresponding reform of criminal law in February 2016, which was adopted by the French National Assembly and the Senate in May 2016 [2] . From the point of view of leading French politicians, the aim of the law is to strengthen the fight against organised crime, terrorism and their financing, whilst improving efficiency and guaranteeing appropriate criminal proceedings. From the point of view of critical observers, this law enshrines the state of emergency in regular French law. Criminal police and prosecutors, for instance, are now empowered to order telephone tapping, video surveillance and interception of Internet data without judicial authorisation. Public prosecutors have the authority to order a house search at night without a court order. The police are legitimised to detain suspects of any kind for up to four hours at a police station without providing the assistance of a lawyer, just to name a few examples.
Before withdrawing from the state of emergency, French legislative authorities cleared the way for «targeted and adequate measures to prevent and fight terrorism» [3] by adopting «Loi n° 55-385 du 3 avril 1955 relative à l'état d'urgence» [4] over the course of the summer and autumn of 2017. In doing so, the powers of the authorities and the police were significantly extended at the expense of the judiciary. While leading politicians continue to argue that there is no viable alternative to these legal cuts, critics claim that the laws violate international human rights agreements.
Following the terror attacks of 2015 and 2017, the state of emergency in France was extended not less than six times before finally coming to an end in November 2017 [1] . However, within this time period, France enacted laws making the state of emergency, or at least parts of it, the normal condition.
Today, French security authorities and civil servants have significantly more powers. The government also conducted a corresponding reform of criminal law in February 2016, which was adopted by the French National Assembly and the Senate in May 2016 [2] . From the point of view of leading French politicians, the aim of the law is to strengthen the fight against organised crime, terrorism and their financing, whilst improving efficiency and guaranteeing appropriate criminal proceedings. From the point of view of critical observers, this law enshrines the state of emergency in regular French law. Criminal police and prosecutors, for instance, are now empowered to order telephone tapping, video surveillance and interception of Internet data without judicial authorisation. Public prosecutors have the authority to order a house search at night without a court order. The police are legitimised to detain suspects of any kind for up to four hours at a police station without providing the assistance of a lawyer, just to name a few examples.
Before withdrawing from the state of emergency, French legislative authorities cleared the way for «targeted and adequate measures to prevent and fight terrorism» [3] by adopting «Loi n° 55-385 du 3 avril 1955 relative à l'état d'urgence» [4] over the course of the summer and autumn of 2017. In doing so, the powers of the authorities and the police were significantly extended at the expense of the judiciary. While leading politicians continue to argue that there is no viable alternative to these legal cuts, critics claim that the laws violate international human rights agreements.
Curtailing member states' sovereignty [5]
In addition to this, the EU elite is desperately looking for ways out of the migration crisis. The EU Commission recently presented a proposal on this subject [6] , indicating that the European border management agency Frontex should be substantially expanded both financially and in terms of personnel. The current number of 1,200 Frontex employees will be increased to 10,000 over a two year period. The budget will also be increased to 11.3 billion euros (2021-2027). One of the most controversial issues of the proposal is the fact that Frontex officials could be legitimised to take over sovereign tasks at external borders, including allowing or denying entry, stamping travel documents, and patrolling borders and detaining persons. The draft also provides that - in an absolute emergency - Frontex officials could be empowered to take over the border protection of a country, even without any particular request from the respective member state. This matter was part of the closed-door negotiations during the course of the EU Council Meeting in Salzburg in mid-September. While countries such as Austria and Germany basically support these proposals, Southern member states are particularly sceptical about a comprehensive expansion of the agency's competencies.
In addition to this, the EU elite is desperately looking for ways out of the migration crisis. The EU Commission recently presented a proposal on this subject [6] , indicating that the European border management agency Frontex should be substantially expanded both financially and in terms of personnel. The current number of 1,200 Frontex employees will be increased to 10,000 over a two year period. The budget will also be increased to 11.3 billion euros (2021-2027). One of the most controversial issues of the proposal is the fact that Frontex officials could be legitimised to take over sovereign tasks at external borders, including allowing or denying entry, stamping travel documents, and patrolling borders and detaining persons. The draft also provides that - in an absolute emergency - Frontex officials could be empowered to take over the border protection of a country, even without any particular request from the respective member state. This matter was part of the closed-door negotiations during the course of the EU Council Meeting in Salzburg in mid-September. While countries such as Austria and Germany basically support these proposals, Southern member states are particularly sceptical about a comprehensive expansion of the agency's competencies.
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Replacing flawed legislative with algorithms?
Following in the wake of terrorism and the migration crisis, EU member states are tightening their security laws, thereby shifting their democratic power structures for the benefit of the executive. As if this wasn't enough, the EU elite is seeking to establish central political control, amongst other things, in the fields of security policy. However, central control in the sense of establishing a central power in the EU can only function if the sovereignty of member states is severely curtailed. When it comes to Frontex, EU officials are talking bluntly about a «renouncement of sovereignty». Against the background of the EU`s democratic deficits, this is a worrying trend. The EU lacks both a common constitutional framework and a coherent legal system at all levels. This includes a coherent separation of powers, the full democratic legitimisation of central EU institutions like the Commission, the recognition of the principle of subsidiarity, as well as the federal structure of some member states.
With artificial intelligence looming on the horizon, this could turn out to be a fatal development. Algorithms, big data and artificial intelligence are also blazing a trail, in the fields of legislation. The keyword «self-driving law» has come to dominate relevant international forums and publications with remarkable speed. Taking up the idea of «self-driving cars», the promotors of «self-driving law» assume that artificially intelligent machines will soon have an essential impact on legislation:
Following in the wake of terrorism and the migration crisis, EU member states are tightening their security laws, thereby shifting their democratic power structures for the benefit of the executive. As if this wasn't enough, the EU elite is seeking to establish central political control, amongst other things, in the fields of security policy. However, central control in the sense of establishing a central power in the EU can only function if the sovereignty of member states is severely curtailed. When it comes to Frontex, EU officials are talking bluntly about a «renouncement of sovereignty». Against the background of the EU`s democratic deficits, this is a worrying trend. The EU lacks both a common constitutional framework and a coherent legal system at all levels. This includes a coherent separation of powers, the full democratic legitimisation of central EU institutions like the Commission, the recognition of the principle of subsidiarity, as well as the federal structure of some member states.
With artificial intelligence looming on the horizon, this could turn out to be a fatal development. Algorithms, big data and artificial intelligence are also blazing a trail, in the fields of legislation. The keyword «self-driving law» has come to dominate relevant international forums and publications with remarkable speed. Taking up the idea of «self-driving cars», the promotors of «self-driving law» assume that artificially intelligent machines will soon have an essential impact on legislation:
"Future developments in artificial intelligence and machine learning will dramatically reduce the costs currently associated with rules and standards. Extending this insight, we predict a world of precisely tailored laws («micro-directives») that specify exactly what is permissible in every unique situation. These micro-directives will be largely automated. If the state of the world changes, or if the objective of the law is changed, the law will instantly update. The law will become «self-driving».
Advocates of this development emphasise a dramatic reduction in costs, the advantages of using predictive technologies, and opportunities for communication technology to better inform citizens. Critics point out the risks of institutional upheavals due to a shift in the balance of political institutions, above all the judiciary. And:
"The normative concern here raises a separate question about whether machine-aided algorithms can implement policy objectives", not forgetting that "privacy would no doubt be affected since machines need to gather data about human behaviour in order to make decisions" [7] .
Artificially intelligent absolutism
The prospect of these two application areas becoming more and more overlapping in the near future is alarming. This scenario is anything but pure fiction if we take into account the fact that we have already become accustomed, for instance, to computer-controlled traffic steering systems within a short time period [8] .
Let's play a little intellectual game:
What does the legal enshrinement of special competences for the executive mean? What does it mean if there is only minimal determination as to when, where and how these special competences may be exercised?
It means a blank check for the concentrated exercise of violence, without any exact connection to legal rules and without any accompanying control by the judiciary. To put it bluntly, this is lawless arbitrariness par excellence.
What does the technical implementation of artificial intelligence in the form of self-driving law mean for the system of state powers?
From a systematic point of view, self-driving law would be assigned to the legislative power. In reality, this development intends to establish a combined system between legislation, the application of existing law and further development by case law. Since the latter is assigned to the judicative power of a state, it becomes obvious that self-driving law will result in the dissolution of the legislative and judicative powers.
If EU member states continue to grant special competences to the executive accompanied by a generous legal authorisation through the means of self-driving law, they will soon face an executive power that randomly and incessantly writes its own rules of action.
In short, this will be institutionalised state arbitrariness, steered by artificial intelligence.
The prospect of these two application areas becoming more and more overlapping in the near future is alarming. This scenario is anything but pure fiction if we take into account the fact that we have already become accustomed, for instance, to computer-controlled traffic steering systems within a short time period [8] .
Let's play a little intellectual game:
What does the legal enshrinement of special competences for the executive mean? What does it mean if there is only minimal determination as to when, where and how these special competences may be exercised?
It means a blank check for the concentrated exercise of violence, without any exact connection to legal rules and without any accompanying control by the judiciary. To put it bluntly, this is lawless arbitrariness par excellence.
What does the technical implementation of artificial intelligence in the form of self-driving law mean for the system of state powers?
From a systematic point of view, self-driving law would be assigned to the legislative power. In reality, this development intends to establish a combined system between legislation, the application of existing law and further development by case law. Since the latter is assigned to the judicative power of a state, it becomes obvious that self-driving law will result in the dissolution of the legislative and judicative powers.
If EU member states continue to grant special competences to the executive accompanied by a generous legal authorisation through the means of self-driving law, they will soon face an executive power that randomly and incessantly writes its own rules of action.
In short, this will be institutionalised state arbitrariness, steered by artificial intelligence.
Post Scriptum
In the fields of the currency policy of the Euro Zone, EU member states have already ceded essential parts of their sovereignty for the benefits of a powerful central steering institution. The European Central Bank is partly exempt from EU legislation and sets itself its own rules. In addition, and as a tribute to globalisation and digitalisation, the European currency policy is exposed to algorithms, whereas the influence of member states and their political representatives is being reduced to a minimum.
The article reflects the personal opinion of the author.
In the fields of the currency policy of the Euro Zone, EU member states have already ceded essential parts of their sovereignty for the benefits of a powerful central steering institution. The European Central Bank is partly exempt from EU legislation and sets itself its own rules. In addition, and as a tribute to globalisation and digitalisation, the European currency policy is exposed to algorithms, whereas the influence of member states and their political representatives is being reduced to a minimum.
The article reflects the personal opinion of the author.
For further reading: Why the double standards? by Ulrike Reisner
[1] The presidential elections of late April and early May 2017 were therefore held under a state of emergency.
[2] https://www.gouvernement.fr/argumentaire/projet-de...
[3] The President of the French Republic in a speech before the European Court of Human Rights, October 31st, 2017
[4] Loi n° 55-385 du 3 avril 1955 relative à l'état d'urgence.
https://www.legifrance.gouv.fr/affichTexte.do?cidT...
[5] In this context, the term «sovereignty» refers more to the political theory of ultimate authority in the decision-making process of the state and in the maintenance of order, and less to «sovereignty» according to the international law.
[6] http://europa.eu/rapid/press-release_MEMO-18-5715_...
[7] Anthony Casey & Anthony Niblett, "Self Driving Laws", 66 University of Toronto Law Journal 429 (2016) [1] Ibidem, p. 438
[8] Referring to the legal system of the Republic of Austria, every different signal of a traffic guiding device corresponds to a sovereign act in the form of a prescription or an order
[2] https://www.gouvernement.fr/argumentaire/projet-de...
[3] The President of the French Republic in a speech before the European Court of Human Rights, October 31st, 2017
[4] Loi n° 55-385 du 3 avril 1955 relative à l'état d'urgence.
https://www.legifrance.gouv.fr/affichTexte.do?cidT...
[5] In this context, the term «sovereignty» refers more to the political theory of ultimate authority in the decision-making process of the state and in the maintenance of order, and less to «sovereignty» according to the international law.
[6] http://europa.eu/rapid/press-release_MEMO-18-5715_...
[7] Anthony Casey & Anthony Niblett, "Self Driving Laws", 66 University of Toronto Law Journal 429 (2016) [1] Ibidem, p. 438
[8] Referring to the legal system of the Republic of Austria, every different signal of a traffic guiding device corresponds to a sovereign act in the form of a prescription or an order
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