Abstract
This book focuses on cases where regulation has been imposed on advanced algorithms due to judicial or administrative decisions. From a series of different topics of algorithmic conduct, a number of case studies have been selected, in order to determine similarities or divergence in regulatory behavior. The development of regulatory bodies is therefore also discussed. Moreover, this book constitutes a first of its kind in terms of recording, classification, and comparative legal assessment of significant cases of algorithmic regulation, with a view to establishing best practice and a responsible way forward.
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Notes
- 1.
- 2.
In AGI, machine intelligence matches human intellectual properties; see, e.g., Goertzel and Pennachin (2007); the respective point in time this might take place is known as ‘singularity.’
- 3.
See Adams (1979).
- 4.
See Clarke (1968).
- 5.
On Rousseau’s democratic principle and the surrounding discussion see, e.g., MacAdam (1983); the Universal Declaration of Human Rights states that “[t]he will of the people shall be the basis of the authority of government;” in United Nations (1948), Art. 21 §3; Cohen and Rogers (1983), p. 149, introduce the Principle of Democratic Legitimacy as a principle for public justification.
- 6.
United Nation’s 1948 Universal Declaration of Human Rights constitutes a milestone document in the history of fundamental human rights; see also supra note 5.
- 7.
Sunstein (2017) illumines the dangers to democracy that arise out of the uncontrolled use of the internet.
- 8.
In the case of judicial decisions we generally speak of case law.
- 9.
A concise overview of this area of the law is provided by Leyland and Anthony (2012).
- 10.
Definition taken from Aho et al. (1983), p. 2.
- 11.
According to Oxford Dictionaries, s.v. “algorithm,” accessed May 30, 2019, https://en.oxforddictionaries.com/definition/algorithm.
- 12.
See, e.g., Louridas (2017).
- 13.
Such instructions are encoded according to the typology of a computer language.
- 14.
Additional commands may define, among others, the User Interface (UI), data handling, communication protocols, and interaction with other system parameters.
- 15.
- 16.
- 17.
In Chap. 2, examples of algorithmic opacity are going to be discussed within the discussion that touches upon basic principles of administrative law, such as non-discrimination and transparency.
- 18.
See relevant CNN Business report by Gold and Siad (2019); France pursues an increasingly aggressive strategy in the regulation of social networks, see Desmaris et al. (2019), whereas at the moment the European Commission (2018) is relying on voluntary action by the stakeholders, through an EU Code of Practice on disinformation.
- 19.
In Orbach (2012), p. 10.
- 20.
- 21.
See Jordana and Levi-Faur (2004), p. 10.
- 22.
Gibbons (1997, p. 483) names no regulation of cyberspace a “null choice.”
- 23.
See also Kleinsteuber (2004), p. 64.
- 24.
The timing mode, for instance, is event driven, i.e., regulation may be imposed before (ex-ante) or after (ex-post) a certain event has occurred; similarly, judicial regulation within the type mode is (mostly) triggered following a series of events that lead to legal action; in the following chapters, the type and the timing modes will frequently be used interchangeably; this does not mean that they are always identical, as legislative action may follow a judicial decision leading to a spiral of further actions from different stakeholders.
- 25.
- 26.
Principles-based self-regulatory/coregulatory measures have been proposed by the European Commission to regulate online platforms; see, e.g., Finck (2017).
- 27.
This mode positions regulatory action in the chain of multi-level governance.
- 28.
The nature of regulation is captured herein, i.e., whether regulation aims at changing the code of a given algorithm (direct regulation) or its environment, such as the behavior of its controller (indirect regulation).
- 29.
The type mode describes regulation coming out of two basic branches of government, legislative and judicial; bylaws and other administrative decisions are frequently not possible to be issued without prior legislative acts or judicial decisions.
- 30.
See supra note 24 and accompanying text.
- 31.
See, e.g., the COMPAS and the Amazon’s Echo cases in Chap. 2.
- 32.
The number of possible regulatory modes, which were presented earlier, speaks for the complexity involved in imposing algorithmic regulation.
- 33.
This also goes under the name General Data Protection Regulation (GDPR).
- 34.
Six of the case studies represent legal disputes that were ruled before the courts (judicial regulation); in addition, two legislative frameworks are discussed (GDPR and MiFID); these eight case studies are analyzed in Chap. 3. The effects of algorithms in the realm of administrative law are discussed in Chap. 2.
- 35.
See Chap. 5 for an overview of analyzed topics and legal bases in the regulations of advanced algorithms.
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Fitsilis, F. (2019). Introduction, Definitions and Scope. In: Imposing Regulation on Advanced Algorithms. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-030-27979-0_1
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