This review essay explores the concept of ‘shifting defaults’ as discussed by my dear friend Mireille Hildebrandt in her truly brilliant and absolutely indispensable book: Smart Technologies and the End(s) of Law. Although even attentive readers might mistake the subject of defaults as a minor topic within her book, I argue that they are of paramount importance to Hildebrandt’s central thesis: namely, that the law’s present mode of existence is imperilled by smart technologies.
I begin by offering a taxonomy for Hildebrandt’s ‘shifting defaults’, carving them into four categories: (i) natural, (ii) technological, (iii) legal, and (iv) normative. Natural defaults, like human memory, can be shifted by a technological innovation like the written word, which augments our natural memory, reconfiguring our brains, culture and politics in the process. Technological defaults, by contrast, can be changed only with permission. I argue that their demonstrated power to influence choice, particularly when opaque to the average user, poses a significant threat to privacy, identity, autonomy, and, ultimately, many of our other normative and legal cornerstones. Legal defaults have been developed to clarify the law in the absence of a competing intention; they exist to accommodate unforeseen situations. I argue that legal defaults are regulated by courts and legislators with the aim of promoting clarity, predictability and the public good. Finally, normative defaults point to the difficulty of influencing a ‘default of usage’ once it has been established. I liken this to the philosophical notion of a ‘hardening of the categories’, whereby an established norm can be difficult to violate without breaching social standards. A comparison of legal and technological defaults reveals the latter to be especially problematic, as the authority to shift them lies entirely in hands of private actors.
Ultimately, I argue that technological defaults should be set to maximize user privacy. A legislative mandate, 'privacy by default', could protect against technology’s proven power to shift both natural and normative defaults to influence choice and undermine autonomy. I conclude by reframing Hildebrandt’s central thesis, questioning whether the Rule of Law itself, could ever be legitimately displaced by smart technologies. Careful readers who noticed my use of the word ‘legitimately’ in the preceding sentence can probably guess what my answer is.