Robert Brauneis
Professor of Law
George Washington University
Areas of Expertise: Generative AI and Copyright; AI Transparency and Accountability
Robert Brauneis is a professor of law and co-director of the Intellectual Property Program at The George Washington University Law School. His teaching and scholarly interests include copyright, trademark, property and constitutional law. He is a member of the Managing Board of the Munich Intellectual Property Law Center and a trustee of the Copyright Society of the USA.
-
Brauneis, R., & Goodman, E. P. (2018). Algorithmic Transparency for the Smart City. Yale Journal of Law & Technology, Vol. 20.
Abstract: Emerging across many disciplines are questions about algorithmic ethics – about the values embedded in artificial intelligence and big data analytics that increasingly replace human decisionmaking. Many are concerned that an algorithmic society is too opaque to be accountable for its behavior. An individual can be denied parole or denied credit, fired or not hired for reasons she will never know and cannot be articulated. In the public sector, the opacity of algorithmic decisionmaking is particularly problematic both because governmental decisions may be especially weighty, and because democratically-elected governments bear special duties of accountability. Investigative journalists have recently exposed the dangerous impenetrability of algorithmic processes used in the criminal justice field – dangerous because the predictions they make can be both erroneous and unfair, with none the wiser.
We set out to test the limits of transparency around governmental deployment of big data analytics, focusing our investigation on local and state government use of predictive algorithms. It is here, in local government, that algorithmically-determined decisions can be most directly impactful. And it is here that stretched agencies are most likely to hand over the analytics to private vendors, which may make design and policy choices out of the sight of the client agencies, the public, or both. To see just how impenetrable the resulting “black box” algorithms are, we filed 42 open records requests in 23 states seeking essential information about six predictive algorithm programs. We selected the most widely-used and well-reviewed programs, including those developed by for-profit companies, nonprofits, and academic/private sector partnerships. The goal was to see if, using the open records process, we could discover what policy judgments these algorithms embody, and could evaluate their utility and fairness.
To do this work, we identified what meaningful “algorithmic transparency” entails. We found that in almost every case, it wasn’t provided. Over-broad assertions of trade secrecy were a problem. But contrary to conventional wisdom, they were not the biggest obstacle. It will not usually be necessary to release the code used to execute predictive models in order to dramatically increase transparency. We conclude that publicly-deployed algorithms will be sufficiently transparent only if (1) governments generate appropriate records about their objectives for algorithmic processes and subsequent implementation and validation; (2) government contractors reveal to the public agency sufficient information about how they developed the algorithm; and (3) public agencies and courts treat trade secrecy claims as the limited exception to public disclosure that the law requires. Although it would require a multi-stakeholder process to develop best practices for record generation and disclosure, we present what we believe are eight principal types of information that such records should ideally contain.
