WHEN CODE IS LAW, ALGORITHMS MUST BE MADE TRANSPARENT

by

Dirk Helbing (ETH Zurich/TU Delft/Complexity Science Hub Vienna) and Peter Seele (USI Lugano)

 

The rule of law as one of the key pillars of open democratic societies is currently challenged by private companies digitally shaping societies. In times where algorithms determine more and more what can and cannot be done in everyday life, “code is law” (1). Currently, however, code is neither being passed by parliaments, nor do the people have a say in how the algorithm-driven world is going to work.

As put forward in 1998 under the headline of “lex informatica” (2), technology itself has become a regulator. Following the original argument, it is code that determines the freedoms of the individual as well as of the legal system: “The importance of our commitment to fundamental values, through a self-consciously enacted constitution, will fade. We will miss the threat that this age presents to the liberties and values that we have inherited. The law of cyberspace will be how cyberspace codes it, but we will have lost our role in setting that law” (3). 18 years later, we see that this has become true on the scale of entire societies. In particular, in today’s attention economy, nudging, neuro-marketing, scoring, social bots, personalized pricing and AI-based content filtering have undermined open democratic discourse, i.e. the very basis of deliberate democracies built on collective intelligence, participation and openness.

Besides chat bots and personalized messages steering public opinion and manipulating elections with the help of social media (see the case of Cambridge Analytica and Facebook), it is a problem of today’s surveillance capitalism (4) that a few large Internet companies download a very detailed picture of our lives for free and give us little economic benefits and little choice of how this data is being used. This turns people into objects, which contradicts human dignity, and gives rise to obscure business models and misuse, which discriminate people and disrespect human rights.

“Creative destruction” as postulated by J. Schumpeter (5) as one of the key pillars of capitalism seems fine, but it must happen within reasonable limits. After the experience of World War II, the Third Reich, and the Holocaust, we cannot allow it to shake the very foundations of civilized life. But as law makers struggle to keep up with the pace of the digital revolution and its disruptive changes, how can we make sure code will be working in the best interest of humanity and all of us?

Restrictive regulations would slow down innovation. A similar thing would apply, if a new authority would have to approve algorithms before their deployment, if they may interfere with the way society evolves. The only way to manage the challenges of the digital age at the pace of digital innovation is algorithmic transparency. But how to achieve it without distorting competition in a free market society subscribing to deliberative democracy? Based on promises and self-declarations of companies? Certainly not. Just recently it has been proven that big tech companies will not change, until government steps in (6). Self-regulation as proposed by private actors in industry is increasingly critiqued as ineffective, even as “having burglars install your locks”, as put forward by Rob Moodie et al. in an interview (7) based on a Lancet study on the influence of company lobbying on public goods (8). 

Some progress is already on the way. Non-governmental organizations (NGOs) like AlgorithmWatch are concerned about algorithmic decision making (ADM), particularly its inherent dangers. AlgorithmWatch calls algorithmic decision making procedures a “black box” and, therefore, they have put together “the ADM Manifesto”, stating that the “creator of ADM is responsible for its results. [But] ADM is created not only by its designers” (9). The debate about creation and responsibility reveals the challenges in times when some algorithms already create other algorithms, while the question of responsibility and liability requires the existence of a legal entity. 

Given the legal, ethical and commercial difficulties in governing algorithms, we plea for algorithm transparency with a delay, based on the legal construct of intellectual property right protection. In analogy to patent protection, we propose algorithmic protection – but given the speed of digital innovation for a period of at most 24 months rather than decades. Within this time period, companies would typically make 95 percent of their profits, and new software versions would come out. After 24 months, the code would be unlocked and made open source. It is suggested, however, that exceptions apply, for example for code that touches national or cyber security, which would need separate quality and security control mechanisms. For all other code we suggest that companies, scientific institutions, NGOs and/or civil society would check whether the algorithms were consistent with human rights and with the values of our societies, or whether they discriminated, manipulated, obstructed, or harmed people. In such a way, violations of data protection laws, the discrimination of people (e.g. by certain personalized pricing schemes), or breaches of human rights would be revealed, such that feedback loops would set in, promoting better quality standards in the future. This would support a design for values (10), as they are laid out in our constitution, the Universal Declaration of Human Rights, or the UN Sustainable Development Goals. The IEEE, the biggest organization of engineers worldwide, supports a similar approach by demanding ethically aligned design (11). 

As a further benefit of algorithmic transparency with a delay, everyone could learn from each other’s code. This would promote combinatorial innovation, which could benefit everyone and may lead even to the prevention of conflict and the promotion of peace (12). It would also be the basis of a true information and innovation ecosystem, in particular if all personal data would be made accessible based on the principle of informational self-determination (13).

Many billionaires have recently decided to donate half of their fortune. It is time to extend this philanthropic principle to algorithms and data. Small and medium-size businesses, spin-offs, scientific institutions, NGOs and civil society can only make significant contributions to a better future, if they get access to sizable amounts of data and powerful ways of processing them.[1]

In accordance with one of the UN sustainable development goals, following our proposal would lead to an inclusive digitization, the “digitalization 2.0” (14). Given the serious sustainability crisis of our planet, which threatens one sixths of all species (15), it is our responsibility to unlock the potentials of data and algorithms to the benefit of our planet and the species living on it. In times, where the Earth is geared towards global emergencies, which puts many lives at risk, we must promote more resilient forms of society and more cooperative forms of innovation. Opening up algorithms after 24 months and establishing full informational self-determination when it comes to our data (13) is a feasible approach, which can largely accelerate the progress of humanity towards solving its existential problems and achieving a higher quality of live for everyone. What keeps us from doing this now?

1. 1. Lessig, L. Code and Other Laws in Cyberspace (Basic Books, New-York, 2000).
   2. Reidenberg, J. R. Lex informatica: the formulation of information policy rules through technology. Texas law Review 76, 553-594 (1998).
   3. Lessig, L. Code is law: on liberty in cyberspace. Harward Law https://harvardmagazine.com/2000/01/code-is-law-html (2000). 
   4. Zuboff, S. A digital declaration. Frankfurter Allgemeine http://www.faz.net/aktuell/feuilleton/debatten/the-digital-debate/shoshan-zuboff-on-big-data-as-surveillance-capitalism-13152525.html (2014). 
   5. Schumpeter, J. Capitalism, Socialism and Democracy. Routledge, London, (1994) [1942]. 
   6. Mahdawi, A. Google’s snooping proves big tech will not change – unless governments step in. The Guardian https://www.theguardian.com/commentisfree/2018/aug/14/googles-snooping-proves-big-tech-will-not-change-unless-governments-step-in (2018). 
   7. Oswald, K. Industry involvement in public health “like having burglars fit your locks”. MedwireNews https://www.news-medical.net/news/20130215/Industry-involvement-in-public-health-e28098like-having-burglars-fit-your-lockse28099.aspx (2013). 
   8. Moodie, R et al. Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries. The Lancet 381, 670-679 (2013).
   9. Algorithm Watch https://algorithmwatch.org/en/the-adm-manifesto/ 
   10. Design for Values, http://designforvalues.tudelft.nl/ 
   11. IEEE Global Initiative. Ethically aligned design Version 1 and 2. http://standards.ieee.org/develop/indconn/ec/ead_v1.pdf (2016) and http://standards.ieee.org/develop/indconn/ec/ead_v2.pdf (2018). 
   12. Helbing, D., Seele, P. Sustainable development: turn war rooms into peace rooms. Nature 549, 458 (2017). doi:10.1038/549458c 
   13. Helbing, D. How to stop surveillance capitalism. The Globalist https://www.theglobalist.com/capitalism-democracy-technology-surveillance-privacy (2018). 
   14. Helbing, D. (ed.) Towards Digital Enlightenment (Springer International Publishing, 2018). 
   15. Urban, M. C. Accelerating extinction risk from climate change. Science, 348, 571–573 (2015).

 

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[1] To avoid misuse, however, access to data, code, and functionality should be proportional to qualification and a reputation for responsible use.