Secret Algorithms, IP Rights, and the Public Interest

Abstract

The secrecy surrounding the algorithms that play a central role in American life today is proving to have alarming effects. Judges and juries are convicting defendants based on secret evidence. Major advertisers like Facebook are discriminating against minorities seeking housing. And Russians may very well be hacking our voting machines to change election outcomes. The algorithm secrecy underlying these results obscures whether such legal outcomes are actually accurate and fair or whether they were based on faulty evidence, affected by bias, or manipulated by outside influences. These are just a handful of the public-interest perils of algorithm secrecy. This Article explains that the pervasive secrecy surrounding algorithms is not entirely by accident. The Supreme Court’s recent overhaul of intellectual property (IP) law has driven algorithm developers toward secrecy. By limiting patent protection for software, the Court’s new IP regime pushes developers away from the required disclosure of patent law and toward the obscurity of trade secret law. In doing so, the new regime neglects to take into account the many negative effects that this heightened secrecy has on the public interest. Accuracy, fairness, and good policy require a more careful consideration of the tradeoffs between secrecy and transparency. This includes not only exploring how to minimize these swelling public-interest concerns but also reexamining the Court’s new IP rules with these negative effects in mind.

Keywords: algorithm, software, computer, intellectual property, IP, trade secret, patent, voting, hacking, election, criminal justice, wrongful conviction, breathalyzer, racism, housing, discrimination, public interest