Sector: law

By Prianka Srinivasan, Andrew Young and Stefaan Verhulst

The Living Library’s Selected Readings series seeks to build a knowledge base on innovative approaches for improving the effectiveness and legitimacy of governance. This curated and annotated collection of recommended works on the topic of algorithmic scrutiny was originally published in 2017.

Introduction

From government policy, to criminal justice, to our news feeds; to business and consumer practices, the processes that shape our lives both online and off are more and more driven by data and the complex algorithms used to form rulings or predictions. In most cases, these algorithms have created “black boxes” of decision making, where models remain inscrutable and inaccessible. It should therefore come as no surprise that several observers and policymakers are calling for more scrutiny of how algorithms are designed and work, particularly when their outcomes convey intrinsic biases or defy existing ethical standards.

While the concern about values in technology design is not new, recent developments in machine learning, artificial intelligence and the Internet of Things have increased the urgency to establish processes and develop tools to scrutinize algorithms.

In what follows, we have curated several readings covering the impact of algorithms on:

• Information Intermediaries;
• Governance
• Finance
• Justice

In addition we have selected a few readings that provide insight on possible processes and tools to establish algorithmic scrutiny.

Selected Reading List

Information Intermediaries

• Nicholas Diakopoulos – Algorithmic Accountability – Examines how algorithms exert power and influence on individuals’ lives, and what framework for “algorithmic accountability,” particularly in journalism, can be introduced to better investigate their effects.
• Nicholas Diakopoulos and Michael Koliska – Algorithmic Transparency in the News Media – Analyzes how the increased use of algorithms in journalism—through news bots and automated writing—may compromise the transparency and accountability of the industry.
• Philip M. Napoli – The Algorithm as Institution: Toward a Theoretical Framework for Automated Media Production and Consumption – Uses institutional theory to analyze the use of algorithms and automated news production and consumption tools in journalism.
• Lucas Introna and Helen Nissenbaum – Shaping the Web: Why the politics of search engines matters – An early paper that analyzes the risks of search engines in influencing politics and introducing bias in our knowledge gathering.
• Tarleton Gillespie – The Relevance of Algorithms – Provides a “conceptual map” to interrogate algorithms, their role in the information ecosystem, and the political implications of their use.
• Lee Rainie and Janna Anderson – Code-Dependent: Pros and Cons of the Algorithm Age – A report from the Pew Research Center that seeks to determine whether the net effect of the growing use of algorithms will be positive or negative.
• Zeynep Tufekci – Algorithmic Harms beyond Facebook and Google: Emergent Challenges of Computational Agency –  Establishes some of the risks and harms in regard to algorithmic computation, particularly in their filtering abilities as seen in Facebook and other social media algorithms.
• Brent Mittelstadt, Patrick Allo, Mariarosaria Taddeo, Sandra Wachter, and Luciano Floridi – The Ethics of Algorithms: Mapping the Debate –  Suggests that algorithms are increasingly becoming the mediator between data and action in our societies, which obscures their ethical implications. Develops a framework of assessing the ethics of algorithms.

Governance

• Marijn Janssen – The challenges and limits of big data algorithms in technocratic governance – Investigates the lack of accountability and transparency of algorithms in creating policies and influencing governance. Argues that pure transparency is not adequate, but a greater understanding of how algorithms work is needed to improve their accountability.
• Natascha Just and Michael Latzer – Governance by Algorithms: Reality Construction by Algorithmic Selection on the Internet – Argues that algorithmic selection can influence our lives in the same way that institutions do, by constructing realities, affecting perceptions of the world, and influencing our behaviors.

Consumer Finance

• Mireille Hildebrandt – The Dawn of a Critical Transparency Right for the Profiling Era – Analyzes and attempts to predict changes in profiling capabilities for consumers, and what laws may develop to encourage their transparency.
• Brenda Reddix-Smalls – Credit Scoring and Trade Secrecy: An Algorithmic Quagmire or How the Lack of Transparency in Complex Financial Models Scuttled the Finance Market – Argues that the lack of transparency and regulation surrounding algorithms in financial markets—particularly their use in creating finance risk models—increases the likelihood of another financial crisis like the one on 2007-2008.

Justice

• Katja Franko Aas – Sentencing Transparency in the Information Age – Looks at the use of computer assisted sentencing tools, and how this can affect trust in society, particularly in a Scandinavian context.
• Gregory Cui – Evidence-Based Sentencing and the Taint of Dangerousness – Calls for greater scrutiny of “evidence-based sentencing,” where automated risk-assessment tools are used to profile, measure and predict a defendant’s risk of recidivism. 

Tools & Process Toward Algorithmic Scrutiny

• Mike Ananny and Kate Crawford – Seeing without knowing: Limitations of the transparency ideal and its application to algorithmic accountability – Looks at the “inadequacy of transparency” for algorithmic systems, and the limitations of traditional ideals of accountability and transparency when it comes to algorithms.
• Anupam Datta, Shayak Sen and Yair Zick – Algorithmic Transparency via Quantitative Input Influence: Theory and Experiments with Learning Systems – Develops a formal model for algorithmic transparency, called Quantitative Input Influence (QII) which can provide better explanations over the decisions made by algorithmic systems.
• Bryce Goodman and Seth Flaxman – European Union regulations on algorithmic decision-making and a “right to explanation.” – Analyzes the content and implications of a new EU law that creates a “right to explanation,” whereby users can ask for an explanation of an algorithmic decision made about them.
• Rene F. Kizilcec – How Much Information? Effects of Transparency on Trust in an Algorithmic Interface – Studies how transparent designs of algorithmic interfaces can foster trust in users.
• Joshua A. Kroll, Joanna Huey, Solon Barocas, Edward W. Felten, Joel R. Reidenberg, David G. Robinson, and Harlan Yu – Accountable Algorithms – Questions whether transparency itself will solve the accountability challenges of algorithms, and instead suggests that technological tools can help create automated decisions systems more in line with our legal and policy objectives.

Annotated Selected Reading List

Information Intermediaries

Diakopoulos, Nicholas. “Algorithmic accountability: Journalistic investigation of computational power structures.” Digital Journalism 3.3 (2015): 398-415. http://bit.ly/.

• This paper attempts to substantiate the notion of accountability for algorithms, particularly how they relate to media and journalism. It puts forward the notion of “algorithmic power,” analyzing the framework of influence such systems exert, and also introduces some of the challenges in the practice of algorithmic accountability, particularly for computational journalists.

• Offers a basis for how algorithms can be analyzed, built in terms of the types of decisions algorithms make in prioritizing, classifying, associating, and filtering information.

Diakopoulos, Nicholas, and Michael Koliska. “Algorithmic transparency in the news media.” Digital Journalism (2016): 1-20. http://bit.ly/2hMvXdE.

• This paper analyzes the increased use of “computational journalism,” and argues that though transparency remains a key tenet of journalism, the use of algorithms in gathering, producing and disseminating news undermines this principle.

• It first analyzes what the ethical principle of transparency means to journalists and the media. It then highlights the findings from a focus-group study, where 50 participants from the news media and academia were invited to discuss three different case studies related to the use of algorithms in journalism.

• They find two key barriers to algorithmic transparency in the media: “(1) a lack of business incentives for disclosure, and (2) the concern of overwhelming end-users with too much information.”

• The study also finds a variety of opportunities for transparency across the “data, model, inference, and interface” components of an algorithmic system.

Napoli, Philip M. “The algorithm as institution: Toward a theoretical framework for automated media production and consumption.” Fordham University Schools of Business Research Paper (2013). http://bit.ly/2hKBHqo

• This paper puts forward an analytical framework to discuss the algorithmic content creation of media and journalism in an attempt to “close the gap” on theory related to automated media production.

• By borrowing concepts from institutional theory, the paper finds that algorithms are distinct forms of media institutions, and the cultural and political implications of this interpretation.

• It urges further study in the field of “media sociology” to further unpack the influence of algorithms, and their role in institutionalizing certain norms, cultures and ways of thinking.

Introna, Lucas D., and Helen Nissenbaum. “Shaping the Web: Why the politics of search engines matters.” The Information Society 16.3 (2000): 169-185. http://bit.ly/2ijzsrg.

• This paper, published 16 years ago, provides an in-depth account of some of the risks related to search engine optimizations, and the biases and harms these can introduce, particularly on the nature of politics.

• Suggests search engines can be designed to account for these political dimensions, and better correlate with the ideal of the World Wide Web as being a place that is open, accessible and democratic.

• According to the paper, policy (and not the free market) is the only way to spur change in this field, though the current technical solutions we have introduce further challenges.

Gillespie, Tarleton. “The Relevance of Algorithms.” Media
technologies: Essays on communication, materiality, and society (2014): 167. http://bit.ly/2h6ASEu.

• This paper suggests that the extended use of algorithms, to the extent that they undercut many aspects of our lives, (Tarleton calls this public relevance algorithms) are fundamentally “producing and certifying knowledge.” In this ability to create a particular “knowledge logic,” algorithms are a primary feature of our information ecosystem.

• The paper goes on to map 6 dimensions of these public relevance algorithms:
  • Patterns of inclusion
  • Cycles of anticipation
  • The evaluation of relevance
  • The promise of algorithmic objectivity
  • Entanglement with practice
  • The production of calculated publics

• The paper concludes by highlighting the need for a sociological inquiry into the function, implications and contexts of algorithms, and to “soberly  recognize their flaws and fragilities,” despite the fact that much of their inner workings remain hidden.

Rainie, Lee and Janna Anderson. “Code-Dependent: Pros and Cons of the Algorithm Age.” Pew Research Center. February 8, 2017. http://bit.ly/2kwnvCo.

• This Pew Research Center report examines the benefits and negative impacts of algorithms as they become more influential in different sectors and aspects of daily life.

• Through a scan of the research and practice, with a particular focus on the research of experts in the field, Rainie and Anderson identify seven key themes of the burgeoning Algorithm Age:
  • Algorithms will continue to spread everywhere
  • Good things lie ahead
  • Humanity and human judgment are lost when data and predictive modeling become paramount
  • Biases exist in algorithmically-organized systems
  • Algorithmic categorizations deepen divides
  • Unemployment will rise; and
  • The need grows for algorithmic literacy, transparency and oversight

Tufekci, Zeynep. “Algorithmic harms beyond Facebook and Google: Emergent challenges of computational agency.” Journal on Telecommunications & High Technology Law 13 (2015): 203. http://bit.ly/1JdvCGo.

• This paper establishes some of the risks and harms in regard to algorithmic computation, particularly in their filtering abilities as seen in Facebook and other social media algorithms.

• Suggests that the editorial decisions performed by algorithms can have significant influence on our political and cultural realms, and categorizes the types of harms that algorithms may have on individuals and their society.

• Takes two case studies–one from the social media coverage of the Ferguson protests, the other on how social media can influence election turnouts–to analyze the influence of algorithms. In doing so, this paper lays out the “tip of the iceberg” in terms of some of the challenges and ethical concerns introduced by algorithmic computing.

Mittelstadt, Brent, Patrick Allo, Mariarosaria Taddeo, Sandra Wachter, and Luciano Floridi. “The Ethics of Algorithms: Mapping the Debate.” Big Data & Society (2016): 3(2). http://bit.ly/2kWNwL6

• This paper provides significant background and analysis of the ethical context of algorithmic decision-making. It primarily seeks to map the ethical consequences of algorithms, which have adopted the role of a mediator between data and action within societies.
• Develops a conceptual map of 6 ethical concerns:
  • • Inconclusive Evidence
  • • Inscrutable Evidence
  • • Misguided Evidence
  • • Unfair Outcomes
  • • Transformative Effects
  • Traceability

• The paper then reviews existing literature, which together with the map creates a structure to inform future debate.

Governance

Janssen, Marijn, and George Kuk. “The challenges and limits of big data algorithms in technocratic governance.” Government Information Quarterly 33.3 (2016): 371-377. http://bit.ly/2hMq4z6.

• In regarding the centrality of algorithms in enforcing policy and extending governance, this paper analyzes the “technocratic governance” that has emerged by the removal of humans from decision making processes, and the inclusion of algorithmic automation.

• The paper argues that the belief in technocratic governance producing neutral and unbiased results, since their decision-making processes are uninfluenced by human thought processes, is at odds with studies that reveal the inherent discriminatory practices that exist within algorithms.

• Suggests that algorithms are still bound by the biases of designers and policy-makers, and that accountability is needed to improve the functioning of an algorithm. In order to do so, we must acknowledge the “intersecting dynamics of algorithm as a sociotechnical materiality system involving technologies, data and people using code to shape opinion and make certain actions more likely than others.”

Just, Natascha, and Michael Latzer. “Governance by algorithms: reality construction by algorithmic selection on the Internet.” Media, Culture & Society (2016): 0163443716643157. http://bit.ly/2h6B1Yv.

• This paper provides a conceptual framework on how to assess the governance potential of algorithms, asking how technology and software governs individuals and societies.

• By understanding algorithms as institutions, the paper suggests that algorithmic governance puts in place more evidence-based and data-driven systems than traditional governance methods. The result is a form of governance that cares more about effects than causes.

• The paper concludes by suggesting that algorithmic selection on the Internet tends to shape individuals’ realities and social orders by “increasing individualization, commercialization, inequalities, deterritorialization, and decreasing transparency, controllability, predictability.”

Consumer Finance

Hildebrandt, Mireille. “The dawn of a critical transparency right for the profiling era.” Digital Enlightenment Yearbook 2012 (2012): 41-56. http://bit.ly/2igJcGM.

• Analyzes the use of consumer profiling by online businesses in order to target marketing and services to their needs. By establishing how this profiling relates to identification, the author also offers some of the threats to democracy and the right of autonomy posed by these profiling algorithms.

• The paper concludes by suggesting that cross-disciplinary transparency is necessary to design more accountable profiling techniques that can match the extension of “smart environments” that capture ever more data and information from users.

Reddix-Smalls, Brenda. “Credit Scoring and Trade Secrecy: An Algorithmic Quagmire or How the Lack of Transparency in Complex Financial Models Scuttled the Finance Market.” UC Davis Business Law Journal 12 (2011): 87. http://bit.ly/2he52ch

• Analyzes the creation of predictive risk models in financial markets through algorithmic systems, particularly in regard to credit scoring. It suggests that these models were corrupted in order to maintain a competitive market advantage: “The lack of transparency and the legal environment led to the use of these risk models as predatory credit pricing instruments as opposed to accurate credit scoring predictive instruments.”

• The paper suggests that without greater transparency of these financial risk model, and greater regulation over their abuse, another financial crisis like that in 2008 is highly likely.

Justice

Aas, Katja Franko. “Sentencing Transparency in the Information Age.” Journal of Scandinavian Studies in Criminology and Crime Prevention 5.1 (2004): 48-61. http://bit.ly/2igGssK.

• This paper questions the use of predetermined sentencing in the US judicial system through the application of computer technology and sentencing information systems (SIS). By assessing the use of these systems between the English speaking world and Norway, the author suggests that such technological approaches to sentencing attempt to overcome accusations of mistrust, uncertainty and arbitrariness often leveled against the judicial system.

• However, in their attempt to rebuild trust, such technological solutions can be seen as an attempt to remedy a flawed view of judges by the public. Therefore, the political and social climate must be taken into account when trying to reform these sentencing systems: “The use of the various sentencing technologies is not only, and not primarily, a matter of technological development. It is a matter of a political and cultural climate and the relations of trust in a society.”

Cui, Gregory. “Evidence-Based Sentencing and the Taint of Dangerousness.” Yale Law Journal Forum 125 (2016): 315-315. http://bit.ly/1XLAvhL.

• This short essay submitted on the Yale Law Journal Forum calls for greater scrutiny of “evidence based sentencing,” where past data is computed and used to predict future criminal behavior of a defendant. The author suggests that these risk models may undermine the Constitution’s prohibition of bills of attainder, and also are unlawful for inflicting punishment without a judicial trial.

Tools & Processes Toward Algorithmic Scrutiny

Ananny, Mike and Crawford, Kate. “Seeing without knowing: Limitations of the transparency ideal and its application to algorithmic accountability.” New Media & Society. SAGE Publications. 2016. http://bit.ly/2hvKc5x.

• This paper attempts to critically analyze calls to improve the transparency of algorithms, asking how historically we are able to confront the limitations of the transparency ideal in computing.

• By establishing “transparency as an ideal” the paper tracks the philosophical and historical lineage of this principle, attempting to establish what laws and provisions were put in place across the world to keep up with and enforce this ideal.

• The paper goes on to detail the limits of transparency as an ideal, arguing, amongst other things, that it does not necessarily build trust, it privileges a certain function (seeing) over others (say, understanding) and that it has numerous technical limitations.

• The paper ends by concluding that transparency is an inadequate way to govern algorithmic systems, and that accountability must acknowledge the ability to govern across systems.

Datta, Anupam, Shayak Sen, and Yair Zick. “Algorithmic Transparency via Quantitative Input Influence.” Proceedings of 37th IEEE Symposium on Security and Privacy. 2016. http://bit.ly/2hgyLTp.

• This paper develops what is called a family of Quantitative Input Influence (QII) measures “that capture the degree of influence of inputs on outputs of systems.” The attempt is to theorize a transparency report that is to accompany any algorithmic decisions made, in order to explain any decisions and detect algorithmic discrimination.

• QII works by breaking “correlations between inputs to allow causal reasoning, and computes the marginal influence of inputs in situations where inputs cannot affect outcomes alone.”

• Finds that these QII measures are useful in scrutinizing algorithms when “black box” access is available.

Goodman, Bryce, and Seth Flaxman. “European Union regulations on algorithmic decision-making and a right to explanation” arXiv preprint arXiv:1606.08813 (2016). http://bit.ly/2h6xpWi.

• This paper analyzes the implications of a new EU law, to be enacted in 2018, that calls to “restrict automated individual decision-making (that is, algorithms that make decisions based on user level predictors) which ‘significantly affect’ users.” The law will also allow for a “right to explanation” where users can ask for an explanation behind automated decision made about them.

• The paper, while acknowledging the challenges in implementing such laws, suggests that such regulations can spur computer scientists to create algorithms and decision making systems that are more accountable, can provide explanations, and do not produce discriminatory results.

• The paper concludes by stating algorithms and computer systems should not aim to be simply efficient, but also fair and accountable. It is optimistic about the ability to put in place interventions to account for and correct discrimination.

Kizilcec, René F. “How Much Information?: Effects of Transparency on Trust in an Algorithmic Interface.” Proceedings of the 2016 CHI Conference on Human Factors in Computing Systems. ACM, 2016. http://bit.ly/2hMjFUR.

• This paper studies how transparency of algorithms affects our impression of trust by conducting an online field experiment, where participants enrolled in a MOOC a given different explanations for the computer generated grade given in their class.

• The study found that “Individuals whose expectations were violated (by receiving a lower grade than expected) trusted the system less, unless the grading algorithm was made more transparent through explanation. However, providing too much information eroded this trust.”

• In conclusion, the study found that a balance of transparency was needed to maintain trust amongst the participants, suggesting that pure transparency of algorithmic processes and results may not correlate with high feelings of trust amongst users.

Kroll, Joshua A., et al. “Accountable Algorithms.” University of Pennsylvania Law Review 165 (2016). http://bit.ly/2i6ipcO.

• This paper suggests that policy and legal standards need to be updated given the increased use of algorithms to perform tasks and make decisions in arenas that people once did. An “accountability mechanism” is lacking in many of these automated decision making processes.

• The paper argues that mere transparency through the divulsion of source code is inadequate when confronting questions of accountability. Rather, technology itself provides a key to create algorithms and decision making apparatuses more inline with our existing political and legal frameworks.

• The paper assesses some computational techniques that may provide possibilities to create accountable software and reform specific cases of automated decisionmaking. For example, diversity and anti-discrimination orders can be built into technology to ensure fidelity to policy choices.