In What Ways Might the Technologisation of Security Present Challenges to Legal Authority?

In what ways might the technologisation of security present challenges to legal authority?

The formation of security practices and measures have historically been dependent on some form of technology - be it as simplistic as a locked door or as intricate as Passive Infrared (PIR), electronic access control systems or Video Surveillance Cameras (VSS). But the role of technology in enhancing security has developed significantly in the contemporary world and many of its key functions, from close protection to the management of criminal risk are now heavily reliant upon technological solutions (e.g. through the use of Biometric Authentication as a deterrent to identity theft and the loss/disclosure of data in cyberspace).

Because the use of technology as an instrument of security has grown, so too has its 'regulatory' power, influential in keeping social order and exposing the threat of criminality. For certain critics, the balance between the protective and regulative purposes in security provision has shifted exponentially. We have become a 'society of control' (Deleuze, 2007) where technology exerts its own form of regulation and often goes beyond the law and due process. To be more concise, legal normativity in an information society needs translation into new technological devices in order to sustain the instrumental and protective normativity central to constitutional democracy (Hildebrandt, 2011). This very notion - the concept the technological must [in the 'interests' of society] outpace legal authority will represent a key theme here.

In his 'Code and other laws of Cyberspace' Lawrence Lessig argued that technology constitutes one of the four central regulatory patterns in society, sitting alongside the more traditional regulatory forms constituted by: Social Norms; The Market and The Law. This fourth influence, what he calls 'Code' or 'Architecture' is centred largely upon the computer environment - a technical code that filters and shapes how we can behave in this space. But, as I will argue, the regulatory power of technology now extends far outside this.

Lessig asks the following question, 'How do we protect liberty when the architectures of control are managed as much by the government as by the private sector?'(Lessig, 1999, p.3). The 'architectures of control' implicitly outlines a new kind of alliance of power between technical control, commerce and the State uses of technology for security. This convergence of technology, regulation and power has been referred to as a 'technomia' (McGuire, 2011) - something which cannot just be seen as an extension of the law, but a discourse by which the law is governed.

In this essay I want to critically evaluate the extent to which the law is subordinate to 'technomia'. I will consider its underlying assumptions at three crucial levels: a) at ideological level - as a set of attitudes which effects and predisposes our behaviour towards the technological; b) Second, within our experience of commonplace securities and the attempt to risk manage environments; and c) as what has been called an 'autonomic' force - something which regulates of and by its own accord. I want to then consider the premise on which this technological control is legitimated and what the implications are for justice, the legal process and legal authority in general.

So how have cultural expectations become 'technological' and thus more regulative in nature?

Max Weber famously reasoned,' instrumental' rationality (i.e. a 'value-free' rationality based on means-end goals) was beginning to dominate the social world (Morrison, 2006). A critical component of this idea was the thinking we could make things 'more efficient'. Weber conceived rationalisation fashioned three differentiated spheres of value in Science, Art and Law - and these in turn manifested a 'disunity of reason' (Szczelkun, 2011). 'Disunity of Reason' suggests culture moves away from an orthodox base in a consensual unified effort, to forms organised by commodification and led more by the interests of the State than of the population as a whole. In other words, society operates on a clear technological ideal, a machine style logic involving a rational of maximum output for minimum input.

In the domain of law, Weber's central theme of rationalisation also indicated a shift in legal judgements towards a system of decision-making stipulated 'on case precedent, universal legal principles and deductive reasoning based on facts related to the application of cases' (Morrison, 2006, p.280).

Political and historical trends in law then rely on calculation and technical knowledge to obtain rational control in the social world.

Herbert Marcuse in his book, 'One Dimensional Man' developed Weber's idea by arguing the modern world is now shaped and driven by 'technological a priori', a fundamental aspect of the regulatory power of technology [the justification technology in Criminal Justice is founded of 'efficiency']. The one- dimensional society Marcuse refers to appears as a closed system of technical action, excluding any ultimate change from within (Feenberg, 2010). 'Technological a priori' is then posited on the logic of domination.

The domination of man, by man is still a continuum linking pre-technological and technological reason. Society, over time, alters the basis of domination by replacing personal dependence with dependence on the 'objective order of things'. It therefore predisposes us to think and behave along certain technological lines, subjecting us to the ordered repetition of life and emphasising the presence of 'technological norms' in everyday life, i.e. the importance of technology functioning as it ought - such as hairdryers working and public transport running on time. Technology itself can then be viewed as a rationality directing it's own course (Lynn, 2010).

This brings us to the second part of our discussion, our experience of conventional securities with reference to the manipulation of risk factors in the environment. For the purposes of this paper, we will be exploring in detail two particular ways in which security and risk within our everyday environment are now technologized through Closed Circuit Television (CCTV) and DNA Profiling.

CCTV is a security technology used to manage risk (criminal or otherwise), but