The Research Group “Algorithmic State, Society and Market – Constitutional Dimensions” promotes the debate in the field of law and technology, and primarily regarding the new constitutional challenges raised by the development of algorithms and new automated technologies.
New technologies have always challenged, if not disrupted, the social, economic legal and, to an extent, the ideological status quo. Such transformations influence constitutionalism, as the State formulates its legal response to the new technologies being developed and applied by the market, and as it considers its own use of the technologies.
The development of big data, data mining, and algorithmic analysis, resulting in predictive profiling presents unique challenges to rule of law, sovereignty, and democracy both at a doctrinal and theoretical level.
In that respect, our “legal technologies” of constitutional and administrative review – as a matter of doctrine, procedures and institutions – which were developed largely in the 19th and 20th century, are not necessarily adept to protect the liberty and equality values threatened by the new algorithmic capabilities.
Historically, liberal constitutionalism has been built on a vertical dimension where the power to limit liberty is only the public one, only in given jurisdictional territory, and therefore should be constrained by the national constitution. The technologies for infringing liberty or equality were thought to be containable by the exercise of concrete judicial review (either constitutional or administrative), abstract judicial review, or a combination of the above.
In recent years, the rise of the algorithmic society has led to a paradigmatic change where the public power is no longer the only source of concern for the respect of fundamental rights and the protection of democracy where jurisdictional boundaries are in flux, and where doctrines and procedures developed in the pre-cybernetic age – such as the distinction between public and private law – do not necessarily capture, rights violations in an appropriate time-frame.
Today, constitutional law is confronting with a novel scenario, which requires going beyond the classic dilemmas of horizontal versus vertical application of fundamental rights. The relative low level of transparency and accountability of algorithms which are programmed and developed according to the economic incentives, ethical framework and private law tools of corporate actors (intellectual property regimes) is salient.
Since information and data are the new sources of power in the algorithmic society, patterns of market consolidation risk generating technological asymmetry which gravitates to a handful of multinational private players.
The state then finds itself in a peculiar position, as it becomes partly dependent on the technologies of these players while vying for a similar position with respect to the data it collects and analyses, while at the same time retaining the power (and legal responsibility) to regulate the industry and guarantee protection of constitutional rights.
The time has come to critically examine the emergence of new substantive and procedural rights in order to allow individuals to be effectively aware of the logic behind an automated decision-making process (by public and private entities alike).
These are only some of the main issues which the Research Group in question will intend to address. In particular, this Group will focus on the following research questions: how should the Constitutional State deal with new forms of private power in the algorithmic society? What are the new substantive and procedural rights which need to be recognised, and how to ensure their enforcement? How to balance innovation (and the legal incentives for business to pursue innovation) with the need to ensure transparency and protect those subjects to the cybernetic complex? To what extent should new forms of public or private law tools be developed to address the challenges posed by the shift to the algorithmic society? Can transnational or comparative constitutional law (including the processes of borrowing and migration of doctrine, procedure or theory) assist in addressing these challenges.