The Rule of Law versus the Rule of the Algorithm
Algorithms have become an undeniable fixture, invisibly pervading our daily lives and mediating processes which affect the fabric of the rule of law. In this symposium, we have invited experts to ask questions about the fundamental compatibility between algorithms and elements of the rule of law, and to make suggestions on how to make the best of the seemingly inevitable rise of AI.
Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator.
The institutional safeguards formulated under the Rule of Law tend to focus on “an individual” or “the individual” who can be the bearer of the rights and protections it awards. This pre-digital formulation worked well in an era where law was the pre-eminent form of social regulation. However, increasingly, individual interests are impacted not only on the basis of the actions and choices of the concerned individual, but also on the basis of data collected about her social context and that of other similarly situated individuals. In order to reconcile these tensions, in this blog, I argue for supplementing the existing individual protections recognized under the Rule of Law framework with recognition of collective interests in order to strengthen the Rule of Law in the age of AI.
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On the 13th of January 2022, a Spanish Administrative court ruled in favour of algorithmic opacity. Fundación Civio, an independent foundation that monitors and accounts public authorities, reported that an algorithm used by the government was committing errors. BOSCO, the name of the application which contained the algorithm, was implemented by the Spanish public administration to more efficiently identify citizens eligible for grants to pay electricity bills. Meanwhile, Civio designed a web app to inform citizens whether they would be entitled for this grant.
Continue reading >>The requirement of explanation for administrative decisions can be found, in one guise or another, in most legal systems. This requirement is a positive obligation on decision-makers in public administrative bodies (among others) to provide the legal basis for their decision. With the continuing growth of artificial intelligence/machine learning technologies being used to streamline administrative decision-making, providing for a right to explanation from black box algorithmic decision-making systems is not a straightforward endeavor.
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The advent of statistical ‘legal tech’ raises questions about the future of law and legal practice. While it has always been the case that technologies have mediated the concept, practice, and texture of law, a qualitative and quantitative shift is taking place. Statistical legal tech is being integrated into mainstream legal practice, particularly that of litigators. These applications mediate how practicing lawyers interact with the legal system. By shaping how law is ‘done’, the applications ultimately come to shape what law is.
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Algorithms can seem like esoteric subjects, often relegated to the realm of engineers and technology companies, given the technical nature of algorithmic design. Algorithms, when applied, take on a social character that invites us into peer beneath the hood to understand both their function and application. Given the growing ubiquitousness of algorithms in our daily lives, policymakers are looking to capture algorithms within regulatory mechanisms. This article seeks to understand the inequalities that undergird algorithmic applications, in order to understand how to regulate these systems.
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Many online services - search, e-commerce, movie streaming, social media, and news - use recommender systems. I argue that it is largely unnecessary and, in any case, contrary to the rule of law to regulate how news media deploy recommender systems to select and rank the news for individual users. Instead, I consider an alternative for state regulation of news recommenders, should empirical research show that certain news recommender systems have harmful effects on individual rights and societies.
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One function of the rule of law is the promotion of human flourishing, often represented by the term ‘autonomy’. However, the ability to rely on the rule of law as a tool for counteracting AI’s constricting effect on human flourishing is being negated as the composition and design AI systems flout the ideals that the rule of law demand as necessary for a certain type of society.
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Liberal democracies have an artificial intelligence problem. The disruptive impact and complex harms of artificial intelligence (AI) decision-making, including their intrusive surveillance, unjustifiable biases, and deceptive manipulations matter in all societies, but they matter more in open, pluralist democracies, which depend on messy human accountability processes. AI decision-making systems are notoriously resistant to demands for external scrutiny.
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The regulation of recommender systems is often framed as an issue of algorithmic governance. In this post I want to argue that this focus on recommender algorithms can be restrictive, and to show how one can go about regulating recommender systems in a broader sense. This systemic view pays closer attention to recommendation outputs (i.e. recommendations) and inputs (i.e. user behavior), and not just processing logics.
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Digital platforms have strategically positioned themselves as intermediaries between individuals, businesses, organisations, governments, and others. Platform companies frequently adopt business models based around extensively tracking user behaviour and using that information to supply targeted advertising, algorithmically personalise services, and grow user engagement, revenue, and market position. While platform capitalism can be immensely profitable, the problems this brings are increasingly stark. As we have argued elsewhere, it’s time to regulate recommending.
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Well-functioning democracies require a well-informed citizenry, an open social and political discourse and absence of opaque or deceitful influence. Western democracies have however always been prone to power asymmetries and to coercion and the curbing of these freedoms through oppression and propaganda. Adoption of AI and datafication has raised concerns whether society is sliding into an Orwellian nightmare, where all of our actions are being scrutinized, controlled and manipulated at a scale that has never been possible before. So, what is it exactly that makes this time so different?
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Democracy requires to strengthen the Rule of Law wherever public or private actors use algorithmic systems. The law must set out the requirements on AI necessary in a democratic society and organize appropriate accountability and oversight. To this end, the European Commission made several legislative proposals. In addition to the discussion on how to use algorithmic systems lawfully, the question when it is beneficial to use them deserves more attention.
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When we chose the title of this symposium, we thought it might be controversial. We expected that at least some of the authors would argue that algorithmic threats to the rule of law were solvable, or that responsibly-implemented algorithms could even help the delivery of justice. None of the experts did. In the series of articles which we will present to you in the next days, we find no techno-optimism. That should give everybody pause - especially to the advocates in favour of algorithmic solutions for every problem.
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