Constitutional Law in the Algorithmic Society

Technologies have always led to turning points for social development. Different technologies have opened the doors towards new phase of growth and change while influencing social values and principles. Algorithmic technologies fit within this framework. Although these technologies have positive effects for society by enhancing rights and freedoms, they have also led to new constitutional challenges. The opportunities of new algorithmic technologies clash with the troubling opacity and lack of accountability. We believe that constitutional law plays a crucial role to address these challenges. New technologies have always challenged, if not disrupted, the social, economic legal and status quo. Such transformations impact constitutional values, as the state formulates legal response to the new technologies based on constitutional principles which meet market dynamics, and as it considers its own use of technologies in light of the limitation imposed by constitutional safeguards.

Fundamental Rights and the Rule of Law in the Algorithmic Society

This presentation starts by recalling the old prophecy of Herbert Marcuse of 'one-dimensional man.' We outline pitfalls of the prevailing dominance of algorithmic-decision-making on the pillars of Constitutional law and analyse how the fast-growing use of algorithms in the fields of justice, policing, public welfare, etc., could end in biased and erroneous decisions, boosting inequality, discrimination, unfair consequences, and undermining constitutional rights, such as privacy, freedom of expression, and equality.

Fairness in Automated Predictions and Decisions

Machine learning classifiers are increasingly used to inform, or even directly to make, decisions having the potential to significantly affect human lives. Fairness concerns have spawned a number of contributions aimed at both identifying and avoiding unfairness in algorithmic decisions, in particular with regard to different groups. Many of these contributions have focused on how the accuracy of a predictive system is affected, by input data that do not reflect the statistical composition of the population and the corresponding base rates. Other scholars have rather focused on statistical differences in classifications concerning different groups, independently of how such differences are generated. The presentation addresses the second kind of concerns, and critically discuss those “fairness metrics”, which require the equalisation of statistics between groups (e.g., demographic parity, equality of opportunity, treatment equality).

Algorithms and Regulation

Technological progress could constitute a huge benefit for law enforcement: greater efficiency, effectiveness and speed of operations as well as more precise risk analyses, including the discovery of unexpected correlations, which could feed nourish profiles. A number of new tools entail new scenarios for information gathering, as well as the monitoring, profiling and prediction of individual behaviours, thus allegedly facilitating crime prevention: algorithms, artificial intelligence, machine learning and data mining. Law enforcement authorities have already embraced the assumed benefits of big data. However, there is great need for an in-depth debate about the appropriateness of using algorithms in machine-learning techniques in in criminal justice, assessing how the substance of legal protection may be weakened.

The Tension between Collective Action of Gig Workers and Competition Law: Can Constitutional Law Offer a Way out?

The rise of sharing economy platforms has provided new opportunities to individuals to sell their labour in a flexible way over these platforms. At the same time, there are increasing concerns that gig work fosters the growth of underpaid or even precarious work. Most gig workers are self-employed and receive little or no protection under labour law. One solution to this problem would be for workers to organize collectively in order to bargain about their working conditions with the platforms. After all, the right to collective action for workers is a fundamental right. At the same time, however, self-employed qualify as undertakings for the purposes of competition law. Agreements between self-employed on the prices they charge (i.e. wages in the case of gig workers) are hard-core restrictions of competition (cartels). The fundamental right to collective action and competition law are thus in tension.