Dans l’intérêt de la communauté ? L’affaire R (Bridges), ou les limites des réponses juridiques libérales à la technologie de la reconnaissance faciale et les promesses d’un paradigme technosocial

In the case of R (on the application of Bridges) v Chief Constable of South Wales Police ([2020] EWCA Civ 1058), the England and Wales Court of Appeal held that the South Wales Police Force’s facial recognition technology (FRT) pilot programme was unlawful: it breached privacy rights, data protection laws and equality law. But while human rights organisation Liberty hailed the judgment as a “major victory in the fight against discriminatory and oppressive facial recognition” and called for the FRT pilot to “end immediately”, South Wales Police stated that “this is a judgment that we can work with” and that they would continue to use the technology with minor changes.

What is it about Bridges that enabled both parties to claim victory? In this paper, we read the legal reasoning and effects of the case in their political context, from the point of view of philosophies of technosocial ecologies. We show that although findings of unlawfulness were made on three grounds, these findings do not address the politically salient features of facial recognition tech. Rather, Bridges demonstrates that predominant litigation-dependent legal regulatory mechanisms operate to normalise and adjust public authorities’ use of new information technologies, despite their impact on political life. ‘Lawfulness’ litigation, we therefore suggest, has the perverse effect of facilitating authorities’ use of technology in a way that transforms, rather than preserves, the politico-legal community. Amidst dominant rights-based approaches to the regulation of facial recognition technology, we argue that such approaches are limited by the securitizing logic of the liberal legal notion of the ‘interests of the [political] community’ that they necessarily entail.

After briefly contextualising the problem with Bridges as common to ‘media-neutral’ legal responses to new information technologies (as well as exemplifying political liberalism’s relationship with technology), we conclude by turning to an alternative conception of technology, subjectivity and politics in philosophers of technology such as Gilbert Simondon, Bernard Stiegler and Yuk Hui. We call for further legal attention on these non-liberal ontologies of technosocial life – and we outline how the recently-commenced project at Kent Law School, ‘The Future of Good Decisions’, is working to reimagine human-AI legal decision-making on this basis.