Access to Algorithms

March 8, 2020

Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed.

Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to government records and proceedings. This Article fills this gap in the literature, recognizing that the Freedom of Information Act, its state equivalents, and the First Amendment provide unappreciated legal support for algorithmic transparency.

The law of access performs three critical functions in promoting algorithmic accountability and transparency. First, by enabling any individual to challenge algorithmic opacity in government records and proceedings, the law of access can relieve some of the burden otherwise borne by parties who are often poor and underresourced. Second, access law calls into question government’s procurement of algorithmic decision- making technologies from private vendors, subject to contracts that include sweeping protections for trade secrets and intellectual property rights. Finally, the law of access can promote an urgently needed public debate on
algorithmic governance in the public sector.

March 2020

No. 4

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