Explanation < Justification: GDPR and the Perils of Privacy

Forthcoming, Pennsylvania Journal of Law and Innovation

29 Pages Posted: 22 Aug 2019 Last revised: 20 Oct 2019

See all articles by Talia B. Gillis

Talia B. Gillis

Harvard University, Law School

Joshua Simons

Harvard University, Faculty of Arts and Sciences, Department of Government, Students

Date Written: April 19, 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.

Keywords: machine learning, artificial intelligence, accountability, democracy, justification, explanation, governance, rights, algorithms, GDPR

Suggested Citation

Gillis, Talia B. and Simons, Joshua, Explanation < Justification: GDPR and the Perils of Privacy (April 19, 2019). Forthcoming, Pennsylvania Journal of Law and Innovation. Available at SSRN: https://ssrn.com/abstract=3374668 or http://dx.doi.org/10.2139/ssrn.3374668

Talia B. Gillis

Harvard University, Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Joshua Simons (Contact Author)

Harvard University, Faculty of Arts and Sciences, Department of Government, Students ( email )

1737 Cambridge Street
Cambridge, MA 02138
United States

HOME PAGE: http://https://scholar.harvard.edu/joshua-simons/home

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