Infra-Legalities: Global Security Infrastructures, Artificial Intelligence and International Law

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Terrorist risks and threats are increasingly identified and countered through new forms of data analytics made possible by rapid advances in machine learning (ML) and artificial intelligence (AI). Private actors, including social media platforms, airlines and financial institutions, now actively collaborate with states and international organisations (IOs) to implement ambitious data-led security projects to support global counterterrorism efforts. The UN Security Council (UNSC) has called on all states to intensify the exchange of information about suspected terrorists by building watchlists and sharing biometric data, using ML to predictively identify 'future terrorists' in advance. Social media platforms are using AI to detect extremist content online and regulate global data flows on an unprecedented scale. Passenger data from the aviation industry is analysed to identify suspicious 'patterns of behaviour' and control the movements of risky travellers. Financial data is mined by banks to spot suspicious transactions and terrorist 'associations'. These changes are all putting new and far-reaching global information infrastructure projects into motion. Yet the implications of these shifts for how international law is practiced, global security threats known and powerful actors held accountable remain uncertain. The data infrastructures underlying global governance have been largely neglected in legal scholarship. And whilst potential problems that AI poses (discrimination and privacy violations) are becoming clearer, solutions remain elusive - especially in the security domain, where secrecy is key and the inner workings of algorithms are 'black-boxed' even more than usual. Regulatory theorists argue that we urgently need to 'expand our frame of rights discourse to encompass our socio-technical architecture' to respond to the accountability challenges of AI (Yeung 2019). Data infrastructures, in other words, might provide the basis for reimagining how information and rights could be reconnected in our digital present. This project rethinks global security law from the 'infrastructure space' it is creating, focusing on (i) countering terrorism online and (ii) controlling the movements of 'risky' individuals. My hypothesis is that the most far-reaching changes to global security governance are not being written in the language of international law, or created through the formal powers of states and IOs, but built through new socio-technical infrastructures and the expertise they are enabling. Data infrastructures are critical for understanding how rights might be extended through AI. I develop the concept of 'infra-legalities' (or, the regulatory effects of data infrastructures) to analyse these shifts and develop a new approach for studying international law and regulation in the age of algorithmic global governance. Infrastructure is usually disregarded as an invisible substrate on which powerful actors act. It is rarely seen as something through which knowledge and governance can be created and shaped. Drawing from Science and Technology Studies, computer science and security studies, this project performs what Bowker and Star (1999) call an 'infrastructural inversion' by mapping the seemingly mundane governance work of data infrastructures in this domain. By 'following the data' - and tracing the socio-technical relations, norms, knowledge practices and power asymmetries that security infrastructures are enacting - a different method of studying global governance can emerge. States, IOs and tech platforms are all calling for the ethical development of AI. Different regulatory approaches are proposed with no consensus on how to mitigate the adverse effects of AI whilst embracing its vast potentialities. Studying the infra-legalities of global security law opens space for addressing these challenges and shaping current policy debates on security, trust and accountability in the age of AI and automation.