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The Algorithmic Leviathan and the Rule of Law: An examination of how algorithmic regulation in the public sector can lead to ‘algorithmic rule by law’, and a critical evaluation of EU legal safeguards

Boek - Dissertatie

In this thesis, I explore two current global developments. The first concerns the increased use of algorithmic systems by public authorities in a way that raises significant ethical and legal challenges. The second concerns the erosion of the rule of law and the rise of authoritarian and illiberal tendencies in liberal democracies, including in Europe. While each of these developments is worrying as such, I argue that the combination of their harms is currently underexamined. By analysing and demonstrating how the former development might reinforce the latter, I provide a better understanding of how algorithmic regulation can undermine the rule of law ― a threat that I conceptualise as algorithmic rule by law ― and I seek to identify pathways towards countering this problem. At least two problematic scenarios are thinkable. Under a first scenario, a state may resort to the implementation of algorithmic regulation with ill intentions to augment its power under the guise of 'efficiency', while avoiding public scrutiny. It can, for instance, creatively translate law to code and program algorithms in a manner favourable to government supporters, yet unfavourable to dissidents, minority groups or anyone the state considers falling outside the 'norm'. Under a second scenario, a state may resort to algorithmic regulation with good intentions, yet without proper attention to the risks that can arise therefrom. While the well-intentioned government may not seek to abuse the vulnerabilities it creates, individuals subjected to the system can nevertheless be harmed, and the rule of law's principles might be affected. Moreover, an infrastructure is put in place that can easily be abused by a next, less well-intentioned government. Evidently, neither of those two scenarios is desirable, and a third one should be ensured: one in which appropriate safeguards exist to counter this threat. I start my inquiry by defining algorithmic regulation and discussing how public authorities are relying on it to inform or adopt administrative acts (Chapter 2). Subsequently, I define the rule of law in the context of liberal democracies and draw on the acquis of the European Union ('EU') and the Council of Europe to distil six requirements that public authorities must meet to comply with the rule of law (Chapter 3). By analysing concrete applications of algorithmic regulation that are used by public authorities, I comprehensively assess how each of these six rule of law-requirements can be obstructed. I conclude that the irresponsible use of such applications can lead to algorithmic rule by law instead: a distortion of the rule of law under the guise of legality and algorithmic efficiency (Chapter 4). Finally, I assess whether the EU's legal framework, which includes new legislative initiatives in the sphere of artificial intelligence, is sufficiently armed against this new threat (Chapter 5). I conclude that the EU's digital agenda and its rule of law agenda are not merely misaligned, but seem to be pursuing fundamentally antagonistic ends. I close with a set of recommendations that might help address this threat, and a plea for further reflection before proceeding with the large-scale roll-out of algorithmic regulation in the public sector (Chapter 6).
Jaar van publicatie:2022
Toegankelijkheid:Closed