Many important decisions historically made by people are now made by computers. Algorithms count votes, approve loan and credit card applications, target citizens or neighborhoods for police scrutiny, select taxpayers for IRS audit, grant or deny immigration visas, and more. The accountability mechanisms and legal standards that govern such decision processes have not kept pace with technology. The tools currently available to policymakers, legislators, and courts were developed to oversee human decisionmakers and often fail when applied to computers instead. For example, how do you judge the intent of a piece of software? Because automated decision systems can return potentially incorrect, unjustified, or unfair results, additional approaches are needed to make such systems accountable and governable. This Article reveals a new technological toolkit to verify that automated decisions comply with key standards of legal fairness. We challenge the dominant position in the legal literature that transparency will solve these problems. Disclosure of source code is often neither necessary (because of alternative techniques from computer science) nor sufficient (because of the issues analyzing code) to demonstrate the fairness of a process. Furthermore, transparency may be undesirable, such as when it discloses private information or permits tax cheats or terrorists to game the systems determining audits or security screening. The central issue is how to assure the interests of citizens, and society as a whole, in making these processes more accountable. This Article argues that technology is creating new opportunities-subtler and more flexible than total transparency-to design decisionmaking algorithms so that they better align with legal and policy objectives. Doing so will improve not only the current governance of automated decisions, but also-in certain cases-the governance of decisionmaking in general. The implicit (or explicit) biases of human decisionmakers can be difficult to find and root out, but we can peer into the "brain" of an algorithm: computational processes and purpose specifications can be declared prior to use and verified afterward. The technological tools introduced in this Article apply widely. They can be used in designing decisionmaking processes from both the private and public sectors, and they can be tailored to verify different characteristics as desired by decisionmakers, regulators, or the public. By forcing a more careful consideration of the effects of decision rules, they also engender policy discussions and closer looks at legal standards. As such, these tools have far-reaching implications throughout law and society. Part I of this Article provides an accessible and concise introduction to foundational computer science techniques that can be used to verify and demonstrate compliance with key standards of legal fairness for automated decisions without revealing key attributes of the decisions or the processes by which the decisions were reached. Part II then describes how these techniques can assure that decisions are made with the key governance attribute of procedural regularity, meaning that decisions are made under an announced set of rules consistently applied in each case. We demonstrate how this approach could be used to redesign and resolve issues with the State Department's diversity visa lottery. In Part III, we go further and explore how other computational techniques can assure that automated decisions preserve fidelity to substantive legal and policy choices. We show how these tools may be used to assure that certain kinds of unjust discrimination are avoided and that automated decision processes behave in ways that comport with the social or legal standards that govern the decision. We also show how automated decisionmaking may even complicate existing doctrines of disparate treatment and disparate impact, and we discuss some recent computer science work on detecting and removing discrimination in algorithms, especially in the context of big data and machine learning.
|Original language||English (US)|
|Number of pages||73|
|Journal||University of Pennsylvania Law Review|
|State||Published - Feb 2017|
All Science Journal Classification (ASJC) codes