Automated Decisions Based on Profiling: Information, Explanation or Justification – That Is The Question!

Autonomous Systems and the Law (2019). Editors: Nikita Aggarwal, Horst Eidenmüller, Luca Enriques, Jennifer Payne, Kristin van Zwieten. Beck C. H., ISBN 978-3-8487-5733-6

11 Pages Posted: 19 Apr 2019

See all articles by Lokke Moerel

Lokke Moerel

Tilburg University - Tilburg Institute for Law, Technology, and Society

Marijn Storm

Morrison & Foerster LLP

Date Written: March 20, 2019

Abstract

This article discusses the obligations of controllers with regard to automated decision making; must they provide individuals with information, an explanation or a justification? The answer is: all three. The main underlying rationales of EU data protection laws are preventing information inequality and information injustice. These rationales can only be served if controllers cannot hide behind algorithms for automated individual decision-making. In order to comply with their data protection obligations, controllers must design, develop, and apply algorithms in a transparent, predictable and verifiable manner. Controllers will be accountable for the outcome and will therefore have to be able to ultimately justify the criteria based on which automated decision-making takes place. The current academic debate whether individuals have a limited right to information only or also a right to an explanation, misses the bigger picture, with the risk that companies do the same. The article uses multidisciplinary sources from regulatory studies, law, and computer science to understand the multifaceted implications of algorithm accountability on the protection of personal data and the expectations that individuals may have thereof. The article concludes with an overview of the requirements of white box development.

Keywords: General Data Protection Regulation, Automated decision making, profiling, algorithms, algorithmic accountability, privacy, data protection

Suggested Citation

Moerel, E.M.L. and Storm, Marijn, Automated Decisions Based on Profiling: Information, Explanation or Justification – That Is The Question! (March 20, 2019). Autonomous Systems and the Law (2019). Editors: Nikita Aggarwal, Horst Eidenmüller, Luca Enriques, Jennifer Payne, Kristin van Zwieten. Beck C. H., ISBN 978-3-8487-5733-6 , Available at SSRN: https://ssrn.com/abstract=3356631 or http://dx.doi.org/10.2139/ssrn.3356631

E.M.L. Moerel (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society ( email )

Tilburg, 5000LE
Netherlands

Marijn Storm

Morrison & Foerster LLP ( email )

Boulevard Louis Schmidt
29
Brussel, Région de Bruxelles-Capitale 1040
Belgium
+32492971327 (Phone)
+3223471824 (Fax)

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