Inferential Capability Does Not Determine Legal Scope

• URL: http://arxiv.org/abs/2608.10601v2
• Date: Wed, 12 Aug 2026 05:59:48 GMT
• Title: Inferential Capability Does Not Determine Legal Scope
• Abstract summary: Article 3(1) of the Act uses the capability to inferly.<n>The inference never defines, yet governs it protectively.<n>The thesis: inferential capability does not determine legal scope.
• Score: 0.0
• License: http://creativecommons.org/licenses/by-nc-nd/4.0/
• Abstract: Two instruments of EU digital law place inference at their centre and mean different things by it. Article 3(1) of the AI Act uses the capability to infer constitutively: it is the central feature separating the regulated category from conventional software. The GDPR never defines inference, yet governs it protectively: the consequences follow from the processing of personal data and from what the inference says about, or does to, a person, whether or not the technology that produced it qualifies as an AI system. The two perimeters are not concentric. Their non-coincidence remained invisible in single-shot systems; agentic architectures make it operationally acute. The thesis: inferential capability does not determine legal scope, and its absence does not create immunity. The framework is two-level. Inference performs two legal functions, constitutive and protective; the protective function operates through three pathways - identificatory, attributive and decisional. Composition is not a fourth pathway but a cross-cutting architectural dimension which, with reach, persistence and reviewability, is what agentic architectures modify. Three concepts support it: the inferential threshold, the inferential reach and the inferential chain, mapped onto the chain of imputation. Regulation (EU) 2026/1744 left the constitutive criterion untouched and inserted a provision contemplating outputs that influence the inputs of future operations, without supplying any rule of aggregation. The article proposes an interpretive rule, a compositional-effects test identifying the decision unit under Article 22 GDPR together with the allocation of the burden of establishing it, and documentation duties calibrated to inference chains.

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