Giulia G. Cusenza (U Udine) has posted “Litigating Governmental use of AI” on SSRN. Here is the abstract:
In the last decade US courts have ruled cases related to the use of AI by governmental bodies. But while legal disputes have served as trailblazer for relevant policy documents and have been used by scholars to support specific arguments, this litigation has not been the subject of a systematic analysis. This paper fills this gap and provides a quantitative and qualitative study of how courts deal with litigation on the use of AI by governmental bodies. The analysis leads to an overarching conclusion, namely that judicial decisions almost exclusively rely on procedural grounds – specifically those concerning due process infringements – thus suggesting that substantial issues are typically addressed through procedural solutions. In turn, these procedural issues consist of six violations: lack of adequate notice and explanation, lack of contestability, lack of human oversight, lack of notice and comment procedures, lack of assessment procedures, and denial of the right to access information. By revealing this tendency and by identifying the six procedural violations, the analysis ultimately provides a taxonomy of the minimum requirements that any governmental body should comply with to shield their use of algorithmic systems from judicial review.