Algorithms are everywhere. Applied to systems like personal assistants, financial exchanges, and self-driving cars, computers now permeate almost every aspect of modern life. But how far should this algorithmic revolution extend into the law? Should contracts, judgement, and litigation strategies follow suit?

These questions are at the forefront of  Professor Frank Pasquale’s research and were the topic of discussion at his recent talk as part of the IP Osgoode Speaks Series.  Prof. Pasquale brought with him a simple message to his talk: the law ought to be “A Rule of Persons, Not Machines.”

Correcting Bias with Bias

To begin, take the pinnacle actor of our legal system: the judge. Judges are human, after all, and they bring human biases with them to the court room. Studies demonstrate that judicial outcomes can depend on variables such as the performance of the judge’s favourite football team or whether the decision was made before or after the judge’s lunch break. In contrast, computer algorithms can produce more consistent legal outcomes across a given set of cases. Humans are biased, after all, so why not replace them?

Algorithms have biases too, answers Prof. Pasquale. Their outcomes depend on the humans that develop their code. Which factors should be given heavier weight in a computer’s decision? How much room should be carved for the protection of constitutional rights? What if the software contains undiscovered errors? How should the system import contemporary societal values into its decision? In considering these questions, Prof. Pasquale shows that greater consistency does not equate to fewer biases.

In addition to these coding difficulties, computer algorithms are much better at evaluating backward-looking inputs than solving forward-looking problems. They may therefore be unable to effectively replace the law-making role of the judiciary. Take, for example, a situation where a computer must decide if constitutional rights should be extended to novel situations. Analysing historical data to determine the likelihood of a human judge allowing such an extension is not difficult, but fully predicting the extension’s effects on society is. It’s almost near-impossible: there are simply too many variables to consider, many of which, such as personal values, cannot be reduced to simple metrics.

Finally, Prof. Pasquale contends that algorithms lack transparency. Human-made judgments reduce legal logic into an intelligible, written form. This writing may be applied, built upon, or criticized by subsequent thinkers in the legal system. Algorithmic judgments do no such thing. Perhaps the coding and mathematics used to process inputs are intelligible, but they provide no guidance as to how the law is, was or ought to be applied.

Blockchain and Property Law: A Legal “Wild West”

Prof. Pasquale turns to Grimmelmann and Narayanan’s concerns with emerging blockchain technologies like Bitcoin to demonstrate the real-world legal problems that arise when cold, efficient machines replace human judgement.

Institutions operated by human beings have traditionally been responsible for tracking and facilitating the exchange of goods and services for currency, at least for big-ticket items. If X purchased a car from Y, the bank would ensure a precise number of dollars transfer from X’s account to Y’s account, and the vehicle would be registered with the state in X’s name. Money is traded for ownership, and each step is traceable.

This is not the case with blockchain.

Instead of relying on trusted, human-run institutions to maintain the records, blockchain technology relies on its users – the public at large – to track one-another’s balances on their computers. A transfer’s legitimacy is verifiable because each user holds a secret digital key that they use to authorize the movement of their funds or property. This key is nothing more than a sequence of numbers – it has no name attached to it, and the only requirement to use it is knowledge of its sequence.

Although blockchain is revolutionizing transactions by cutting out the “middle man” and making them instantaneous and secure, they cause some serious legal headache. First, losing your authentication key means that you lose access to its value stored on the blockchain. If your car title is recorded on the blockchain in association with your digital key, losing your key means you’ve lost the only proof you have that you own the car. Compare this to losing your paper title to the car: you’d simply need to stop by your local registry with identification and pick up a new one.

Second, imagine your digital key gets stolen by a hacker who hops in your car and drives off into the sunset. Not only do you lack proof that he stole it, but, for all intents and purposes, the blockchain now considers him the true owner. The law cannot help you.

Finally, consider the law’s benefits and protections conferred on you by virtue of you owning your car. If the car is defective, you can return it to the seller. If your friend doesn’t return the car after you lend it to them, the law can force them to give it back. Consumer protections like these and many others are simply unavailable to you if the law does not recognize your ownership.

Prof. Pasquale makes it clear that although blockchain may become useful for certain applications, it illustrates the danger of replacing human-run systems with purely algorithmic ones. Blockchain is not going to make property law go away.

Algorithmic Accountability

It is a grim future, argues Prof. Pasquale, where machines replace the role of human judgement in its entirety. What role, then, does he see computers filling in the legal world? Artificial intelligence should enrich professional judgement, he suggests, not replace it. What constitutes a “better way” to do law must be decided with a broad, social understanding of the systems that the law serves; not through applying technology for the sole sake of efficiency. There is massive room for computers to improve the way that we do law, but it must be approached through a critical lens.

Principles of algorithmic accountability must be interwoven into these systems. Models must be transparent, data must be unbiased and algorithms must be applied to appropriate tasks. Leading thinkers and the public alike must be able to critique these systems and lend their voices to the software’s development. Technology is strengthened when subjected to an open and free exchange of ideas and criticisms, so legal innovation must evolve with public accountability.

Prof. Pasquale left the room with a parting thought: the legal profession needs to carefully shape the algorithmic systems it deploys, or else those systems will shape the legal profession. Using the words of Douglas Rushkoff, Prof. Pasquale warns,

“Program or be programmed.”

 

Mike Noel is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.