Right to a Human in the Loop: Political Constructions of Computer Automation Personhood from Data Banks to Algorithms
Building on recent scholarship investigating the governance of algorithms, this Article is an exploration of the role of dignity in data protection law addressing automated decision making. Delving into the historical roots of contemporary disputes between information societies, notably European Union and Council of Europe countries and the United States, reveals that the regulation of algorithms has a rich, culturally entrenched, politically relevant backstory. Methodologically, the Article compares the making of law in the area of data protection and privacy, where algorithmic decision making has thus far been housed, focusing on the role automation has played in the two regimes as they have confronted computing technologies. By situating diverse policy treatments within the cultural contexts from which they emerged, the Article uncovers and examines two different legal constructions of automated data processing, one that has furnished a right to a human in the loop that is intended to protect the dignity of the data subject and the other that promotes and fosters the fully automated to establish and celebrate the fairness and objectivity of computers. The existence of this right across European countries and its absence in the U.S. will no doubt continue to be relevant to international technology policy as smart technologies are introduced in more and more areas of society.