Impacted Stakeholder Participation in AI and Data Governance

Abstract

Privacy law has long centered on the individual. But something else is afoot. There is growing recognition that data-driven practices, including the development and use of AI systems, impact not just atomized individuals but neighborhoods, communities, and groups, including and especially situationally vulnerable and historically marginalized persons. This Article explores a nascent and important shift in both data privacy law and the newly developing law of Artificial Intelligence (AI): a turn to stakeholder participation, specifically by impacted groups often representing historically marginalized communities. In this Article we chart this development across an array of recent laws in both the United States and the European Union. We explain reasons for the turn, both theoretical and practical. We then turn to analysis of the legal scaffolding of impacted stakeholder participation, establishing a catalog of both existing and possible interventions. We close with a call for reframing impacted stakeholders as rights-holders and the recognition of several variations on a group right to contest AI systems, among other collective means of leveraging and invoking rights individuals have already been afforded.

Keywords: AI, Privacy, Data Privacy, Law, Governance, Participation, Stakeholder