Document Type

Article

Publication Date

2019

Abstract

The European Union’s General Data Protection Regulation (GDPR) is the most comprehensive legislation yet enacted to govern algorithmic decision-making. Its reception has been dominated by a debate about whether it contains an individual right to an explanation of algorithmic decision-making. We argue that this debate is misguided in both the concepts it invokes and in its broader vision of accountability in modern democracies. It is justification that should guide approaches to governing algorithmic decision-making, not simply explanation. The form of justification – who is justifying what to whom – should determine the appropriate form of explanation. This suggests a sharper focus on systemic accountability, rather than technical explanations of models to isolated, rights-bearing individuals. We argue that the debate about the governance of algorithmic decision-making is hampered by its excessive focus on privacy. Moving beyond the privacy frame allows us to focus on institutions rather than individuals and on decision-making systems rather than the inner workings of algorithms. Future regulatory provisions should develop mechanisms within modern democracies to secure systemic accountability over time in the governance of algorithmic decision-making systems.

This paper examines those provisions. We explore the tools the GDPR provides for ensuring that institutions justify their use of algorithmic decision-making systems, to both regulators and individuals subject to their decisions. Our aim is not simply to interpret the GDPR, though we side with scholars who argue that the main text of the GDPR must be read in conjunction with surrounding ‘soft-law’, including the Recitals, Article 29 Working Party (A29WP) guidance, and the interpretations of authorities mandated with enforcing its provisions.1 Rather, our aim is to step back and examine the concepts that underpin the right to explanation debate, and the broader challenge of regulating algorithmic decision-making.

Disciplines

Law | Science and Technology Law

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