The ‘rule of law’ implications of data-driven decision-making: a techno-regulatory perspective

Abstract

Techno-regulation is a prominent mechanism for regulating human behaviour. One type of techno-regulation concerns automated decision-making with legal effects. While automated decision-making (ADM) systems in the public domain have traditionally been based on conscious design of decisional norms, increasingly, Data Science methodologies are used to devise these norms. This data-driven approach causes frictions with the underlying principle of public-sector decision-making, namely adherence to the rule of law. In this paper we discuss three major challenges data-driven ADM poses to the Rule Law: law as a normative enterprise, law as a causative enterprise and law as a moral enterprise.

Data Protection in the Era of Artificial Intelligence: Trends, Existing Solutions and Recommendations for Privacy-Preserving Technologies

“…This challenge is a two-way street: on the one hand, there is a boundary to be sought in terms of explaining data complexities to wider audiences, and on the other hand there is a "duty of care" in digital services, meaning that technology development should aid human interaction with digital systems, not (unnecessarily) complicate them. Hence, the avenue of automating data regulation (Bayamlıoğlu and Leenes 2018) is of relevance here.…”

Platform Economy and Techno-Regulation—Experimenting with Reputation and Nudge

“…Moreover, in contrast to traditional legal rules, intrinsically ambiguous and open to interpretation, technorules are highly formalized and leave little room for ambiguity, thus reducing the likelihood of misunderstanding and lawsuits. Based on the current debate (see, among the most recent contributions References [5,[17][18][19]) and from an analysis of experiences made both in private and public contexts, we can sketch a tentative categorization of the directions taken by techno-regulation.…”

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“…In this transformational context, we suggest that one such questionthe question that inspires this Special Issueis this: Quite simply, how do our concerns for liberty and how do our concerns about the role of law (and the rule of law) fit with a strategy for crime control that relies, first, on a new generation of smart machines that form the infrastructure for the risk assessment of individuals and groups and, then, on the technological management of that risk (compare Bowling et al, 2008;Bayamlıoğlu and Leenes, 2018;Brownsword, 2019, Chapter 9)?…”