Cary Coglianese (U Penn Law) and Kat Hefter (same) have posted “From Negative to Positive Algorithm Rights” (Wm. & Mary Bill Rts. J., forthcoming) on SSRN. Here is the abstract:
Artificial intelligence, or “AI,” is raising alarm bells. Advocates and scholars propose policies to constrain or even prohibit certain AI uses by governmental entities. These efforts to establish a negative right to be free from AI stem from an understandable motivation to protect the public from arbitrary, biased, or unjust applications of algorithms. This movement to enshrine protective rights follows a familiar pattern of suspicion that has accompanied the introduction of other technologies into governmental processes. Sometimes this initial suspicion of a new technology later transforms into widespread acceptance and even a demand for its use. In this paper, we show how three now-accepted technologies—DNA analysis, breathalyzers, and radar speed detectors—traversed a path from initial resistance to a positive right that demands their use. We argue that current calls for a negative right to be free from digital algorithms may dissipate over time, with the public and the legal system eventually embracing, if not even demanding, the use of AI. Increased recognition that the human-based status quo itself leads to unacceptable errors and biases may contribute to this transformation. A negative rights approach, after all, may only hamper the development of technologies that could lead to improved governmental performance. If AI tools are allowed to mature and become more standardized, they may also be accompanied by greater reliance on qualified personnel, robust audits and assessments, and meaningful oversight. Such maturation in the use of AI tools may lead to demonstrable improvements over the status quo, which eventually might well justify assigning a positive right to their use in the performance of governmental tasks.