Can Law Ever Be Code? Beyond Google’s Algorithmic Black Box and Towards a Right to Explanation

• Ano de defesa: 2021
• Autor(a) principal: Lucas Costa dos Anjos
• Orientador(a): Fabrício Bertini Pasquot Polido
• Banca de defesa: Emilio Peluso Neder Meyer, Andrée Puttemans, Ana de Oliveira Frazão, Alain Strowel
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: eng
• Instituição de defesa: Universidade Federal de Minas Gerais
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: DIREITO - FACULDADE DE DIREITO
• País: Brasil
• Palavras-chave em Português: Google; Explicação; Privacidade; Dados; Competição; Propriedade; Segredo; Algoritmo
• Link de acesso: http://hdl.handle.net/1843/38861; https://orcid.org/0000-0002-7878-3952

This thesis aims to analyze the legal relevance and forms of instrumentalization of the right to explanation of automated decisions in the context of European Union Law. Under the prisms of trade secret protection, privacy and data protection, competition and consumer law, the investigation identifies legal provisions of primary and secondary European law, as well as complementary sources, which support the existence of a right to explanation. Additionally, the proportionality in the weighing of fundamental rights can corroborate the legal and technical implementation of this right, for which this thesis proposes practical suggestions that are consistent with the Google Search platform, chosen as the object of study through which the analyzes would be carried out. Revisiting Lawrence Lessig's idea that (computational) code would shape society's behavior, accommodated by Shoshana Zuboff's recent contributions on surveillance capitalism, I propose that law (norms) can also be translated into (programming) code. Many steps in this direction have already been taken and continue to be in recently proposed legislation. Robust laws in the areas of data protection, trade secrets protection, competition and consumer law currently subsidize claims for explanation that can be filed with different administrative bodies and be examined by European courts. Competition authorities have already proven that there can be real consequences in the reformulation of some of these practices in the private sector, as seen in previous cases of Google within the scope of the European Commission. Since there is a large asymmetry of information between automated decision-making platforms and its users, by disclosing a portion of an algorithm’s inner functioning (purposes, reasoning, inputs and deciding parameters taken into consideration etc.), in an appropriate fashion to the average user for whom the explanation is aimed, it is possible to better enforce consumer welfare and safeguard competition standards. The substance of this study recognizes the importance of a right to explanation as a stepping stone for algorithmic governance, especially with regard to Google’s search engine and its applications.