Algorithmic Erasure in the Shadow of Statutes

Abstract

A powerful remedy, coined "algorithmic disgorgement," has gained momentum especially in government enforcement actions. The remedy requires wrongdoers to eliminate from algorithmic models any tainted content or learning built from unlawful sources. It has significant potential to address ills, but also raises scientific complexities in application and potential for abuse. This article interrogates whether the relief is linked to unjust enrichment and its restitutionary disgorgement-of-profits remedy. After analyzing applications and enforcement goals of so-called algorithmic disgorgement, this article argues that a better description is algorithmic erasure or algorithmic destruction. This work contributes to a series of articles about restitution-based remedies that bring promise to resolve complex breaches that often lie at the cross‑section of rights or in a remedial gap zone. This phenomenon occurs in both common law and statutory arenas. The law of restitution and unjust enrichment provides a compelling path because it includes remedies, like disgorgement, that require defendants to surrender wrongful gains. These remedies capture unjust profit even when not correlative to plaintiff losses. Across a body of work, I argue that restitution remedies play a valuable role in vindicating rights at the margins and deterring opportunism. To ensure the ideal use of such relief, a key consideration is to ensure the focus remains on undoing unjust gains rather than punishment. Confronting the United States Supreme Court’s narrowing of statutory remedies across a variety of contexts, agencies pivot from disgorgement of profits to novel relief that may constitute algorithmic “disgorgement”—forcing companies to eliminate algorithms using information gained from wrongful conduct. If the algorithmic erasure remedy operates like a forfeiture or punishment, however, restitution aims are exceeded and greater procedural protections are necessary. This draft explores the catalyst, the foundation, the scope, and the shortcomings of this path. Ultimately, this work examines the overall potential of such a remedy as part of an unjust enrichment stable of options for novel forms of knavery where other remedies prove unworkable, insufficient, or utterly unavailable.