Freedom of Thought in A. I Freedom of Thought in A.I. Virtual Realities & The Rule of Law Step 2 + UBC Emerging Media Lab Lecture Series 9.25.18 Jon Festinger Q.C. Faculty in Residence, EML; Centre for Digital Media; UBC Law; QMUL CCLS; Festinger Law & Strategy http://commlaw.allard.ubc @jonfestinger jon_festinger@thecdm.ca

Step 2

2019 When human respect is disintegrating, This is whole crazy world is too frustrating. And you tell me over and over and over again my friend, Ah, You don’t believe we’re on the eve of destruction. Barry McGuire – “Eve of Destruction”

Intelligence that truly is artificial…

Because BIG DATA

Because Artificial Intelligence (A.I.)

Because Machine Learning

Because Virtual/Augmented Reality

“Perhaps interactive gaming evolution/growth/usage with related data collection/analytics/real-time simulations and engagement has been helping prepare society for the ongoing rise of human - computer interaction?” Mary Meeker - 2017 Kleiner Perkins Internet Trends report Answers (?): “Equally strange is our general addiction to games, both physical and mental. The profusion of games is truly startling: card games, board games, word games, ball games, electronic games….We even assemble in huge crowds to watch others playing games. What does all this mean? Do we simply get easily bored and cannot tolerate inactivity? I can find nothing in the literature of scientific psychology that helps me to understand such bizarre behavior.” Leon Festinger in the Introduction to his final book “The Human Legacy”, Columbia University Press, 1983.

Rather could it be that… A.I. technology can increasingly individuate us and the rights we individuals have or should have, especially to protect and enhance our human agency, including privacy, freedom of thought, copyright including Fair Use & “user’s rights”, freedom of expression, as well as contract law considerations including consumer protections.

post-structuralist technology? one that Could A.I. actually be a post-structuralist technology? one that encourages/reinforces/represents the value of human agency, individualism, choice, & creativity?????

To A.I. as tool of individuated liberation* From A.I. as oppressor To A.I. as tool of individuated liberation* *Note both states can co-exist at the same time

Not…

It’s the narrative that will evolve through the tools – & we will grow with the narrative

Still… We likely must emphasize & empower more, better, and increasingly authentic modalities of human communication (peer to peer). Less so the vertical ones (network to peer). Blockchain as a solution?

Inferring the future of the rule of law from V.R.A.I

My preferred title… A.I. & THE RULE OF LAW % complete

What you need to know… GENERALLY…

1. Law Treats Technologies As Neutral

2. Law Treats People As Equal

Memes of Justice & Technology Relate Photo Credit: The Rand Corporation

WHY DOES LAW SEEM TO RESPOND SO SLOWLY TO TECHNOLOGICAL CHANGE? Consider the Question WHY DOES LAW SEEM TO RESPOND SO SLOWLY TO TECHNOLOGICAL CHANGE?

http://nymag.com/daily/intelligencer/2014/04/supreme-court-confused-technology.html

Consider the possibility... …that concepts of Law & Justice can never adequately resolve issues related to communications because…technologies have a role in proactively defining how we communicate…and therefore the future meanings of Justice & the forms Law will take.

In other words… Concepts of law & justice do not shape communications technologies nearly as much as they are shaped by the memes, concepts and meanings arising from communications technologies.

Technology /Justice (Parallels)? Before Justice was Revenge 1. Pre-literate => Justice as Retribution 2. Writing Instruments =>Justice as Compensation 3. Printing Press => Justice as Rights 4. Mass Media & Satellites => Justice as Truth 5. Digital => Justice as Resolution 6. Big Data=>Justice as (Individual) Boundaries 7. Virtual reality => Freedom of Thought

Not Mutually Exclusive Phases… Might work as suggested in: D.L Shaw, “The Rise and Fall of American Mass Media: Roles of Technology and Leadership”, April 1991 “Roy W. Howard Lecture” Indiana University. “No medium, once it has lost it’s dominant position has ever returned to the top” Accordingly all forms of justice are present in some form even if superseded.

Before Justice was Revenge “Revenge is a kind of wild justice, which the more a man's nature runs to, the more ought law to weed it out.” - Francis Bacon “Haste me to know’t, that I, with wings as swift As meditation or the thoughts of love, May sweep to my revenge” HAMLET (1.5.7)

1. Pre-literate  Justice as Retribution Speculation that Code of Hammurabi (Babylonia 1172 B.C.) imposed “eye for an eye” punishments to limit uncontrolled revenge as the prevailing principle. * “Let the punishment fit the crime” * Actually a limitation on unlimited revenge though we see it as barbaric today. * Code of Hammurabi (1900 B.C.) was a non-binding restatement of Principles* * Related to trial by ordeal? * Driver and Miles via L. Festinger @ p.156 “The Human Legacy”

“An Eye For An Eye” "And a man who inflicts an injury upon his fellow man just as he did, so shall be done to him [namely,] fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted upon him” Leviticus 24:19-21 “An eye for an eye only ends up making the whole world blind.” Mahatma Gandhi

2. Writing Instruments  Justice as Compensation Law of Æthelberht (early 7th century) first Germanic-language law code sets out compensations for loss caused by others.

Moving towards Justice as Rights The Magna Carta Limiting King’s arbitrary powers. Established principle of no punishment except by law. Justice as a privileged right

3. Printing Press  Justice as Rights Fascinating transition from Justice as a privileged right… to… Justice as egalitarian right. From “Declaration of the Rights of Man and of the Citizen” 1789… to “Declaration of the Rights of Man and Citizen” 1793.

Made Stare Decisis possible… http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263610

4. Mass Media  Justice as (search for) Truth Symptom: Huge increase in size of trials, discovery, documents & process. Motivation: Evidence/facts as truth/justice (as opposed to reason, argument & persuasion yielding justice). Result: 1. What could be “seen” more important then what is believed 2. Bigger became “better” Observation: All of the above happened first in media, then in law. Big Media/Big Law?

Mass Media       Justice as (search for) Truth

5. Digital  Justice as Resolution Mediation/Arbitration Truth & Reconciliation Commissions “Peace is Justice”???

6. Big Data  Justice as Boundaries Harassment/Privacy test is “reasonable expectation of..” Similar to “user’s rights” in SCC pentalogy – Abella J. for the majority in “Access Copyright” case 2012 SCC 37 “…fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose…is that of the user…”

7. Virtual reality  Freedom of Thought The Future as “Thought control”

WHAT IF…

…the 8th Technological Meme is A. I. Then, what will A. I …the 8th Technological Meme is A.I.? Then, what will A.I.’s influence on defining Justice yield?

Tailored to individual wants, needs, and circumstances  all about personal choices & personal control

Tattoos

YouTube Creator/Influencers

So?...If this, then what is the meme of Justice? 8. A.I. …

Cliff-hanger AGAIN (?!!!)…

Pause

Shout-outs (No explanations)

8. A.I. Justice is Personal

Revised: Technology /Justice (Parallels)? Before Justice was Revenge 1. Pre-literate => Justice as Retribution 2. Writing Instruments =>Justice as Compensation 3. Printing Press => Justice as Rights 4. Mass Media & Satellites => Justice as Truth 5. Digital => Justice as Resolution 6. Big Data=>Justice as (Individual) Boundaries 7. Virtual reality => Freedom of Thought 8. A.I. => Justice is Personal

Why is this DISRUPTIVE (if correct)? Suggests that Justice may manifest individually and implies that law should in certain cases actualize that possibility. That can be interpreted as being at odds with the cherished principle (including by me) that the law should apply in the same way to everyone.

What might this post-structural notion of “Tailored Justice” look like?

Example 1 What if to deal with perceived unfairness's in copyright law, those who shared the content they created could use content created by others in direct proportion to their own openness – and this was measured both by quantity and by quality. GPL ‘65 Mod

Example 2 What if two private parties having a dispute could have that dispute settled in a binding non-appealable way by applying any set of rules (so long as not unconscionable). “The old rules are crumbling and nobody knows what the new rules are, so make up your own rules.”

Example 3: Dangers As tiresome as it may be to be to be tolerant of the intolerant, the individually tailored road enabled by Narrow A.I. from gaming ghettos to address cheating to China’s social currency implementations is fraught.

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Final Step Today

Question to Think About: How can A.I. serve the uniquely personal?

Embedded Self-Socratic A.I.(ish)

Also Think Critically 1. Hopelessly “Western”?

2. Beware: Technological Determinism “Technological determinism is a reductionist theory that presumes that a society's technology drives the development of its social structure and cultural values.” (Wikipedia)

3. Beware: Diminishing Equality Before the Law Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

A MATTER OF PERSPECTIVE

In learning you will teach And in teaching you will learn Phil Collins' Son of Man (1999)

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