II. STS: a brief primer

STS has been described as “an evolving interdisciplinary field with porous boundaries,”Footnote ¹² with different authors understanding the concept in different ways.Footnote ¹³ Nevertheless, within this broad collection or discipline, we can draw a few defining characteristics to address the question “What is STS?”

As already indicated, STS is a field which, inter alia, explores the idea that technology is inexplicably linked with society and politics.Footnote ¹⁴ Indeed, one of the key elements for STS scholars is to examine “the dialectical relationship between the social shaping of technology and the technical shaping of society.”Footnote ¹⁵ A second element of STS has been summarised by Law: “STS attends to practices” [emphasis in original].Footnote ¹⁶ In particular, Law points out that STS “almost always” uses case studies to “evoke, illustrate, disrupt, instruct, and help STS” in its examination of “how theories, methods, and materials are used in practice in specific social, organizational, cultural and national contexts.”Footnote ¹⁷

One way in which STS looks at these issues is by considering the social shaping of technology – the idea that the development of technology is not fixed, but instead can be negotiated, as different groups and interest nudge its path in one way or another.Footnote ¹⁸ This idea is inextricably linked to the concept of co-production, which is described as the mapping and/or analysing of the ways that science and society interact and work together,Footnote ¹⁹ “explicitly foreground[ing] this two-way dynamic.”Footnote ²⁰ When translating this concept into research, co-production can be employed in a range of methodological approaches and topics,Footnote ²¹ and can attempt to, inter alia, “provide normative guidance, or at least facilitate our critical interpretations” of such interactions.Footnote ²²

Going beyond this, STS also challenges the idea that scientists can act with so-called aperspectival objectivity.Footnote ²³ This idea that scientists can be purely objective has also been described as the “God trick” – the concept that scientists are supposedly “seeing everything from nowhere” and observing the system without actually being part of it.Footnote ²⁴ By rejecting this, STS also rejects the idea that those who research, design and develop technology could build something which is truly neutral. Instead, STS argues that a person’s work will always be influenced, whether consciously or otherwise, by their own views, beliefs, experiences and other societal factors which surround them. Another important concept is that of framing – the idea that, even before we get to actual scientific analysis or discussion, the initial act of deciding what is or is not important enough to investigate (and therefore, amongst other things, how scientific knowledge develops) is a fundamentally social or political question.Footnote ²⁵

This removal of objectivity does not simply apply to things that people create; STS also suggests that things which are defined in a certain way or observed as being true in one context may not be so when found or placed in a different context – the idea of multiplicity.Footnote ²⁶ Along similar lines, STS has produced a number of interesting insights relating to boundary work, including an exploration of the edges of categorisation or structure. For a prime example of this, we may turn to Star’s work on “Boundary Objects,” described as things (including both physical objects and abstract ideas or structures) which sit in “a shared space, where exactly that sense of here and there are confounded.”Footnote ²⁷ Under both of these ideas, much as with the God trick, STS rejects ideas of pure objectivity; rather, STS asks us to consider how changes in perspective can also change seemingly-fundamental “truths” about an object, and that the conceptual boundaries which we use to define or categorise things are not as firm as they may seem.

In practice, work within STS can take a number of forms. Some authors, for example, have focused on the concept of actor-network theory, “a method for mapping how every object or actor is shaped in its relations” without considering the “given form” that those things may have in another context.Footnote ²⁸ Under this approach, pre-existing relationships or approaches are effectively discarded; “society and nature, humans and nonhumans, people and technology – essential divisions have simply disappeared.”Footnote ²⁹ Another strand of STS is the sociology of scientific knowledge, which “advance[s] the thesis that sociologically and historically informed conceptions of scientific practice should replace logical-empericist epistemology.”Footnote ³⁰ This approach engages directly with the idea of scepticism, emphasising claims that sociological principles must influence our scientific conclusions and doubting claims that scientists can identify a one, true answer based on an objective reality.Footnote ³¹

The various strands of STS are not limited to academic work. For example, Vertesi and others have mapped different ways in which STS tools and concepts have been directly used to influence design choices, with researchers, developers and designers attempting to actively approach problems from an STS (rather than a purely technical or engineering) perspective.Footnote ³² These approaches have also been used to assess risk management strategies, promoting a full and comprehensive perspective which incorporates the warnings inherent in a lack of certainty and objectivity.Footnote ³³ Given its variable form, the utility of STS for legal academics, commentators and actors may vary, depending on what exactly it is that they are trying to do at the time. Indeed, beyond and alongside those discussed here, other interpretations, influences and approaches can be seen within STS,Footnote ³⁴ and other legal scholars have provided differently structured breakdowns or primers which focus on different elements to those raised above.Footnote ³⁵ Equally, it is important to note that some legal publications have already placed themselves directly within the context of STS,Footnote ³⁶ or have discussed ways in which STS can assist with legal analysis.Footnote ³⁷

A number of ideas can be drawn from this brief primer. First, a core lesson of STS is that we must carefully consider how technology and society (including law) interact with, support, alter or otherwise influence each other. Secondly, STS contains many ideas and methods that may be relevant for legal work, some of which will be explored in more detail below. Thirdly, by incorporating legal work explicitly or consciously into STS, it is possible to increase the multi-disciplinary nature of the works and access to a wide range of important and interesting scholarship and material.

III. Bringing STS into law: exploring high-level questions

Having now set out some basics of STS, it is possible to explore how those concepts and approaches might help to expand upon or develop some existing legal discussions or concepts. This section will take two examples to explore how it can do so within relatively abstract or high-level legal discussions. These are, first, the discussion around the concept of “technology neutrality” in law and, secondly, Lawrence Lessig’s four modes of regulation.

The first of the two examples, “technology neutral” law, has been described by Hildebrandt and Tielmans as law where the “legal effect should not depend on the particular technology that is used by the addressees of the law” [emphasis in original].Footnote ³⁸ At first glance, laws which subscribe to this goal might seem antithetical to an STS perspective, aiming for a consistent legal result regardless of the technological context. On a deeper inspection, however, this topic easily embraces STS’s themes: Rather than asking us to divorce law from technology, technology neutrality encourages us to embrace the overlap, recognising their inevitable interactions so that we can try to examine and shape the way that technology responds to law (and vice versa). Certainly, this analysis could also be had without engaging in STS. Nevertheless, there are some interesting overlaps between the existing conversation, and the themes and methodologies put forward by STS.Footnote ³⁹

One such overlap would be the idea of scepticism, which may invite us to consider whether legal actors and regulators can ever actually gain enough objectivity and independence from the technological concept that they would be able to implement or interpret laws in a technologically neutral way. To discuss this, we could examine one possible interpretation of technology neutral law, being law that sets out a particular endpoint or result, while leaving users or companies to choose the technological means for reaching that goal.Footnote ⁴⁰ This approach clearly requires a separation of the route and the endpoint, considering only the latter without allowing the former to influence our decision making. However, even if we could consciously separate the two, we may find that our idea of that endpoint or result is unconsciously influenced by our existing understanding of society, technology and law, unintentionally making that goal easier to achieve for certain technological approaches.

A non-STS approach may argue that this problem requires a proper examination of our internal biases and understandings, and demand a methodology which restricts us to an appropriately objective and neutral description of the law’s goals. Scepticism, on the other hand, not only helps to foreground these implicit assumptions, it also emphasises that these subjectivities can never be entirely removed. An STS scepticist may say that, no matter how hard we try to exclude our existing understanding of the world, we will never be able to describe a truly neutral end goal, or create regulation which is truly neutral as to the choice of technology chosen to reach that goal. While it does not provide an entirely novel “solution,” this insight, and STS’s existing literature around the God Trick, can therefore help to improve our wider understanding and critique of both technology neutral law as a whole and of specific attempts to implement that goal within individual laws.

Another STS concept which may be useful here is the concept of situatedness. As noted above, STS attends to practice, with a focus on specific case studies instead of general propositions. Following this idea, STS may encourage us to narrow our examination from “How will the law produce the same result in all cases?” to “What result occurs when the law and the technology interact in this specific case?” Such investigations may also be combined with methodologies that involve co-production; we could, for example, use in-depth case studies promoted by STS to investigate how a law will play out in specific circumstances and, in doing so, consider how the technology and the law interact with each other. By requiring us to focus on these specifics, STS can then, in turn, help to inform our wider legal analysis, feeding back into our discussions about the effectiveness and desirability of different forms of and attempts at technology neutral law.

It is interesting at this point to move to the second example, that of Lessig’s modalities of regulation. In Code 2.0,Footnote ⁴¹ Lessig sets out four different methods of regulation: law, architecture, norms and market.Footnote ⁴² An example which he uses to illustrate this is the regulation of smoking – whether or not one is able to smoke may be governed by, among other things, laws which say whether or not you can smoke, whether social norms prevent you from smoking in certain areas, whether the market allows you to actually afford cigarettes in the first place, and the technological design (ie the architecture) of the cigarettes and how that design affects their usability.Footnote ⁴³ When thinking about regulation, says Lessig, we must recognise that a change in one of the modalities will affect the others and the regulation as a whole, meaning that “[a] complete view … must consider these four modalities together.”Footnote ⁴⁴

Lessig himself places his work within the New Chicago School,Footnote ⁴⁵ but his argument clearly engage with STS-related themes and discussions. In an article discussing his four modalities, for example, Lessig explicitly considers how computer code changes law and vice versaFootnote ⁴⁶ and emphasises how important it is to question the way that these modalities interact.Footnote ⁴⁷ Although framed differently, then, Lessig’s discussion and ideas would seem to be directly in line with Law’s description of STS as something which examines “how theories, methods, and materials are used in practice in specific social, organizational, cultural and national contexts.”Footnote ⁴⁸

There are here some important caveats that must be made. In particular, while Code 2.0 is filled with many examples and close examination of cases, Lessig’s conclusions are drawn at or extrapolated to a very general or abstracted level. His work therefore arguably lacks the situatedness of STS. Equally, since it is not placed within STS, Lessig’s discussion is unsurprisingly built separately from existing STS scholarship, methods and discussions. For example, in his chapter on Privacy, Lessig identifies “two distinct threats to the values of privacy that the Internet will create,” being digital surveillance and increased aggregation of data.Footnote ⁴⁹ Lessig then maps out some possible approaches, notes that “there is no single solution to policy problems on the Internet” and then suggests some possible approaches that could help to address these problems.Footnote ⁵⁰ Yet, while Lessig’s discussion is undoubtedly narrowed to the problems that he addresses, a core part of his solution comes down to an abstracted, general proposal, ie, the introduction of a property right for personal data, supported in various ways by the various modalities of regulation.Footnote ⁵¹ Interestingly, Lessig also notes that he rejected a similar regime for the protection of intellectual property, arguing that the specific elements of the two are dissimilar enough to warrant the change in approach.Footnote ⁵² His arguments for doing so are interesting, but it would have been interesting to see how this argument develops in light of STS’ scholarship around situatedness.

This lack of engagement with STS has been described as something of a missed opportunity. Calo, for example, has suggested that “clearly law and technology has been sounding similar notes to STS for years without listening to its music.”Footnote ⁵³ Lessig’s work, and the legal discussion and debate which followed it, are an example of this, with Calo describing the discussion as one which “would benefit from core insights of STS”Footnote ⁵⁴ and asserting that “cyberlaw took decades to wind up where STS would have started.”Footnote ⁵⁵

Calo’s interpretation is persuasive, but I would perhaps place a more positive interpretation on the missing insights. Similarly to the discussions on technical neutrality, works like Lessig’s show that it is possible to provide interesting and nuanced discussions of the interactions between law, other societal elements and technology without being explicitly placed within STS scholarship or methodologies. Nevertheless, by then placing these works alongside STS, we can then continue to develop our ideas in new and interesting ways. For example, we may develop our understanding of law by analysing the interactions between Lessig’s four modalities of regulation within the framework of STS’s work on co-production, or by considering how situatedness might develop, support or rebut Lessig’s various arguments relating to property rights, personal data and copyright. Alternatively, we may consider how the idea of multiplicity changes our understanding of those modalities and the way that they interact, or even consider whether work with boundary objects challenges the distinction between those modalities in the first place. Further, as noted in the primer, STS is an “interdisciplinary field with porous boundaries”;Footnote ⁵⁶ collecting existing legal works, analysing them through the frames, methods and concepts of STS, and placing them into this multidisciplinary environment may allow for future works to address similar topics, or help reach a wider research and distribution. Being able to take advantage of and engage with that wider culture and base provided by STS is therefore advantageous, even for works which already address the overlap between law, society and technology.

IV. Attending to practice: STS, automated decision-making, and legal or similarly significant effects

Having looked at the above examples, it is now time to examine how STS may interact with some of the live questions and issues surrounding automated decision-making. As above, I will not attempt to resolve the issues raised, but rather will examine the potential role of STS in the legal discussion.

As a brief introduction, the GDPR, Article 22 is entitled “Automated individual decision-making, including profiling” and, as the name would suggest, is designed to provide protection for data subjectsFootnote ⁵⁷ in certain situations where decisions are made through an automated process. This protection takes two forms. First, there is a general ban on subjecting data subjects to certain types of automated decisions, with exceptions that only allow this to happen under limited conditions. Secondly, where an automated decision which falls under this article is permitted, data subjects are given extra protections to ensure that they have sufficient information about the decision and decision-making process and that their fundamental rights are being properly protected.

It is at this stage important to emphasise that (despite the name and some of the rhetoric surrounding it) Article 22 does not cover all automated decision-making. Indeed, the conditions for its application are actually relatively narrow. In particular, para (1) states that “The data subject [ie the individual to whom personal data relates] shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.” Readers of this provision can immediately see that there are a number of (potentially quite ambiguous) qualifiers in this language, including that a decision must be made “solely” by the automated process, and that its effects must be sufficiently significant.

This section will focus on the limitation that the decision should not produce legal, or similarly significant, effects on the data subject. A restriction of this kind is sensible; conceptually speaking, there are no limits on how trivial (or, indeed, how important) an automated decision can be, and the number of automated decisions that could happen every day is so high as to effectively be unlimited. A particularly broad law would, then, be difficult to design well and likely be even harder to enforce. Interpreting the term “legal effect” may pose relatively little trouble to lawyers; the topic would seem to engage directly with the internal content of law, and we do not necessarily need to engage external perspectives to arrive at a satisfactory answer. More interesting, perhaps, is what qualifies as a decision with an effect that is similarly significant to a legal effect.

To interpret this latter term, a doctrinal analysis of the law might point to the GDPR’s recitals, which give some examples of decisions that might fall under Article 22. These include “automatic refusal of an online credit application or e-recruiting practices without any human intervention,”Footnote ⁵⁸ which the Article 29 Working Party placed into the category of a similarly significant effect.Footnote ⁵⁹ The Working Party further laid out a number of possible categories of decisions, including those which “affect someone’s financial circumstances … [or] access to health services; … deny someone an employment opportunity or put them at a serious disadvantage; … [or] affect someone’s access to education.”Footnote ⁶⁰ However, there are still a number of open questions as to what kind of effects may qualify.

STS may be particularly useful for investigations into this ground. To explore this potential, one could take a situation that falls outside of the GDPR’s pre-defined examples: That of online targeted advertising. Targeted advertising can be described as the delivery of adverts to specific people because those people have certain characteristics or features, typically where the advertiser believes that those characteristics or features will make them more receptive to the advert in question. Targeting may be based on a single piece of personal data, or may be based on a more comprehensive profile. Equally, targeting may be used for something as simple as “We predict that this person might buy this product and so they will receive an advert, whereas we predict that that person will not and so they will not receive one,” or as sophisticated as “We predict that this person will be most receptive to this type of language and so will receive an advert with this wording, while we predict that person will be most receptive to that type of language and so will receive an advert with that wording.”Footnote ⁶¹

The Article 29 Working Party has suggested that such online adverts would generally not have a sufficiently significant effect and so would normally fall outside of the GDPR, Article 22, unless special circumstances mean that the advert is particularly significant. This could depend on, for example, “the intrusiveness of the profiling process…; the expectations and wishes of the individuals concerned; the way the advert is delivered; or [the] using [of] knowledge of the vulnerabilities of the data subject targeted.”Footnote ⁶² The Working Party further noted that a decision could have a sufficiently similar effect for some individuals or groups and not for others – and that whether the effects were sufficiently significant did not necessarily need to be as a result of the controller’s actions.Footnote ⁶³ Such advertising is therefore interesting for our purposes as it represents a grey area, where the same advert may have vastly different legal consequences, depending on to whom and in what context it is deployed.

This kind of analysis can be handily enhanced by the inclusion of STS. For example, the idea that the effects are significant for one group and not for another is very familiar to STS.Footnote ⁶⁴ By adopting STS’s relational view of the world, and borrowing from its existing methodologies, it is therefore possible to examine the practices of an automated decision-making process within their social context, identify the effects within that context and determine whether or not the GDPR, Article 22 should apply. In particular, the use of STS can help to provide both the tools and the language for investigating and expressing these variable effects, which can then be imported into the legal process when we decide whether or not the processing was lawful.

Within this discussion, it is also interesting to highlight the issue of targeted political advertising. As with the advertising discussed above, such adverts are typically targeted to individuals, based on profiles, and provide customised or individualised content to specific people. However, the use of such adverts in the political sphere has proven particularly controversial, in part due to concerns about the potential manipulation of the democratic process.Footnote ⁶⁵ Whether or not these adverts actually have such consequences, free participation in the democratic process is an extremely important part of European Union governance. If, therefore, it is found that an automated decision has a real and sufficiently large impact on the exercise of one’s democratic rights and responsibilities (eg voting in an election), this would indeed qualify as an effect which is similarly significant to a legal effect. This then leads us to wonder at what point is this article engaged by online political advertising – and what would be the consequences of setting that point at any one particular level.

STS may assist with this analysis, given its familiarity with navigating between law, politics and science (each of which will feature heavily in a topic such as targeted political advertising). Moreover, the fact that STS favours case studies, and particularly case studies that help to illuminate “how theories, methods, and materials are used in practice in specific social, organizational, cultural and national contexts,”Footnote ⁶⁶ will be helpful at analysing the impact of such adverts. Indeed, given the immense complexity and seemingly unique circumstances surrounding different elections, we may find cases particularly helpful for seeing how targeted political advertising actually works in practice – and how the law might affect the role that it plays.

Another important element from STS is that of framing. Both political and targeted advertising are regulated by a number of legal fields, each prioritising different elements and imposing different rules. By placing this balancing act within the context of framing, STS can help us to identify the consequences of the different ways that rights and interests are selected, weighed and presented, and help us to ensure that our legal approaches clearly explicate, evaluate and justify our choices.

Finally, we may benefit from STS’ insights into the social shaping of technology and the idiom of co-production. It may, for example, be very easy to focus law’s regulatory effects on particularly visible targeting and tailoring technologies, or on certain platforms that enable profiling and advert delivery. However, the lessons of co-production may encourage us to take a broader perspective, considering how wider societal elements or movements may co-produce the impacts that we wish to avoid. The lessons learned from STS would, then, lead us to properly round out our legal discussion, prompting us to ask, among other things, how this co-production affects our regulatory goals, when and how certain regulatory tools should be use, and how many of the factors that contribute to the issue are actually appropriate for legal regulation.

V. STS and law: a word of caution

It is hoped that the above will have persuaded the reader of three things. First, that STS is an interesting field with valuable ideas. Secondly, that STS’s themes can already be seen in existing legal analysis and debate, even if has not always been explicitly invoked. And thirdly, that there are live legal issues which would benefit from the use of STS’s tools, methods and approaches. The best source for such tools, methodologies and approaches will be those works written directly within STS itself.Footnote ⁶⁷ This section, however, will briefly explore a few points which may prevent law from simply embracing STS wholesale.

Calo has drawn out two limitations of STS (which he described as “opportunities for law to share back”Footnote ⁶⁸ ): The fact that law has a “relative comfort with normativity” that is absent from STS, and “law’s pragmatism, and especially the facility of legal scholarship to navigate levers of power”Footnote ⁶⁹ Calo further notes that, when using STS methodology, two things are required: “The first is to acknowledge the normative character of law, and hence the normative nature of legal change … The second is to arrive at a level of complexity and stability that makes it possible to operationalize knowledge. This will require a certain amount of oversimplification and muddling through … sometimes act[ing] ‘as if’ the world were simpler and more stable than it is.”Footnote ⁷⁰

To these, I would add, if not a new consideration, then at least an expansion: That while STS may focus on situatedness, and while situatedness may be important for considering individual cases, law is (and to some extent must always be) restricted to a wider scale than STS scholarship would perhaps prefer. This particularly ties in with Calo’s second point – that law will require a certain level of oversimplification and muddling to allow it to become operationalised – but the actual break from situatedness itself is worth emphasising. While the way that the law is applied may vary on the facts in question, and some laws may be written in a way that is more flexible than others, legal certainty and the rule of law demand some level of universality.

This is important, both when implementing and when designing law, and law must be drawn such that it can reliably create the desired effect across a range of factual scenarios and backgrounds (albeit with the size of that range varying from law to law). Certainly, STS methodologies may help with resolving multiplicity and highlighting situatedness, and a particularly purist view may dislike the idea of using STS methodologies to derive or support rules that will be applied more generally. Nevertheless, it is important to remember that, while certain STS approaches are useful in some areas of law or aspects of legal analysis, they may be less so in others. While engaging with STS, it is therefore important that we do so with an eye to compromising and co-operating with both its tenants and with those who have spent their life developing its methodologies. Ideally, law should work together with STS, adapting STS methodologies where necessary to produce results that are usable in law, and making sure that we do so in a way that does not sacrificing their value or reliability.