Data, Detection, and the Redistribution of the Sensible in International Law

Abstract

One dusty day in 2002, at Takhta Baig Voluntary Repatriation Centre near Peshawar in northwestern Pakistan, an Afghan woman—let us call her Amena—entered a nondescript room and sat down in front of a camera. A brief conversation took place with a woman sitting nearby at a computer terminal. Amena placed her chin where she was directed to do so, swept back a few strands of hair creeping out of her veil, and stared straight ahead for a few seconds while a series of photographs of one of her eyes was taken. Almost immediately, a small alarm sounded on the computer terminal of the woman seated alongside her. Amena was gently ushered toward the other side of the room for discussions with other officials. Some short time later, she was advised that her request to the Office of the United Nations High Commissioner for Refugees (UNHCR) for a modest cash grant and some supplies to aid her and her family's repatriation to Afghanistan had been denied. This was because, according to output of the UNHCR’s iris verification program, she had already received assistance earlier the same year. When asked, Amena admitted that she had indeed sought UNHCR repatriation assistance multiple times, under pressure from family members. She walked away. Soon, she could soon no longer be seen amid the press of trucks, cars, bicycles, and people that stretched to the suburbs in the distance.

“Taking on the Technicalities” of International Law – Practice, Description, Critique: A Response to Fleur Johns

“…28 The international legal regime on nuclear nonproliferation enacted by the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), for example, privileges a particular form of observation by IAEA inspectors and empowers a class of "specially anointed" experts to act as the world's "official sensors." 29 But with the increasing collection and analysis of satellite imagery and other geospatial data by the IAEA, unstructured data mining techniques are now commonly used to identify "patterns" of potential interest without the need for any human in the loop. Building on this description, Johns observes that "even the determination of what constitutes an 'object' for purposes of analysis and change detection is automated."…”

“…Building on this description, Johns observes that "even the determination of what constitutes an 'object' for purposes of analysis and change detection is automated." 30 In other words, the ocular inspection regime, elite observation practices and professional class of detection experts envisaged by the international nonproliferation legal regime are being quietly supplanted by data mining and machine learning techniques. Johns highlights the contradictions between international law's normative promise and practice merely by describing its technicalities.…”

“…31 Another innovative aspect of Johns' method lies in her attention to the agency of things and what she calls "international legal infrastructure." 32 The nonhuman objects that feature in this text-such as the UNHCR field guides, biometric databases, nuclear nonproliferation protocols, satellites, data mining processes and citizen sensors-are not inert tools, quietly placed in the background of international law. They are active protagonists in the global legal changes that Johns is describing, enabling and conditioning international law.…”

“…34 Yet Johns is at pains to distinguish her work from this quantification literature, instead situating it within a "new wave" of sociolegal scholarship on Big Data analytics. 35 Whilst I am excited by the possibilities of this new wave emerging, I am not persuaded that the existing literature on governance technologies and quantification practices has no role in the brave new world of automation. 36 Algorithms may detect unknown patterns in distinct and opaque ways, but they usually do so within sociotechnical assemblages where shared practices of verification and measurement remain important elements in data analysis.…”

“…It works to strengthen, rather than detract from, Johns' core claim that we need to "engage politically with the technical terms and practices through which resources and authority are distributed on the global plane" as a matter of urgency. 41 There is a growing recognition that the international legal landscape is in motion. As some have put it: "The conceptual boundaries of how international law may look in the future are wide open."…”