Explanation < Justification: GDPR and the Perils of Privacy
Pennsylvania Journal of Law and Innovation, 2019
29 Pages Posted: 22 Aug 2019 Last revised: 6 Feb 2020
Date Written: April 19, 2019
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
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