Against Transparency

Society and many legal scholars regard transparency as a universal solution to the opacity of AI systems. Sunlight is viewed as “the best disinfectant” for systems enveloped in secrecy and thus a trust-enhancing mechanism that needs to be promoted. Drawing on multidisciplinary literature on the legal principle of transparency, management of visibilities, explainable and accountable AI, this paper argues against these traditional perceptions of transparency in automated systems. Instead, it posits that transparency obligations should be rethought in order to protect the rule of law meaningfully. This new perspective is needed for several reasons. For example, while some tech-savvy stakeholders can easily “game” the system; others overwhelm legal actors with immense amounts of information. In both cases, there is sufficient transparency in the sense of information disclosure but the exercise of procedural rights may be rendered meaningless.