(What remains of) criminal law in the big data surveillance society?
In order to counter a Big Data surveillance society that is to be taken seriously with something substantial in terms of criminal law, a critique of criminal law is required that neither preaches technological solutionism nor glorifies a right of intervention or a classically designed criminal law. It therefore depends on which criminal law is addressed in the key question “What remains of criminal law in a post-digital big data surveillance society?”. Less of the bright side of an idealized and essentialized liberal criminal law and criminal procedural law remains than many might like. And more remains of its dark sides than we should like.
I will develop these theses based on the individual questions of whether we are facing the end of normativity (III. below) and the beginning of the end of initial suspicion (IV. below) in the post-digital big data surveillance society. Before I come to this, the terms mentioned above need to be sharpened. In doing so, I will also emphasize my above theses and outline the structural change in formal social control, which in a big data surveillance society is neither necessarily legally constituted nor based on punishment in the traditional sense (II. below).