WORKING

PAPERS

WORKING PAPER • VOL. 6 • N° 22 • May 2020

The “Ethification” of Privacy and Data Protection Law in the European Union. The Case of Artificial Intelligence

By Niels van Dijk and Simone Casiraghi

ABSTRACT

Several European Commission’s initiatives have been resorting to ethics as a means to protect individuals from the risks posed by emerging technologies and as a way to govern and regulate the same innovation fields. The proliferation of invocations of “ethics” and “ethical principles/values” in the legal and policy discourse, as well as the growing importance of ethical expertise, ethical committees, ethical advisory groups and boards, ethical guidelines and principles can be referred to as the “ethification” phenomenon. While originally limited to the fields of life and medical sciences (in particular bioethics), this increasing propagation of ethics can recently be observed in the field of data protection law, especially concerning the recent European Union (EU) initiatives on (the regulation of) Artificial Intelligence (AI). This working paper aims to explore and shed light on where and through which means ethics is claiming authority and autonomy from data protection law as a separate field and regulation strategy. First, it will provide a topological mapping to locate where the ethics work is being produced in the EU. Second, the authors will elaborate a typology of ethics based on the mapping. Third, the effects on this ethification phenomenon on data protection law and AI regulation will be analyzed through the concept of boundary work, highlighting how ethics, on the one hand, is tracing boundaries to claim autonomy from the law, on the other, it is obfuscating these boundaries when it comes to give foundations to its practice. The aim is to elucidate the benefits and drawbacks of the ethification of data protection and privacy law, and its effects on the articulations of law, technology and ethics in democratic constitutional states.

Keywords: Ethics, Ethification; Privacy; General Data Protection Regulation; Innovation Governance; Artificial Intelligence; European Commission; Horizon 2020; Science and Technology Studies; Boundary Work