Ngozi Okidegbe
Boston University
Rethinking the Place of the Public in Algorithm Governance
Abstract
The use of artificially intelligent algorithms in local public decision-making is under immense scrutiny. Policymakers, activists, and scholars increasingly question why agencies and courts should have unfettered discretion to deploy privately developed algorithms that affect citizens’ rights, liberties, and opportunities without adequate democratic accountability. In recent years, the injustices faced by those subjected to inaccurate, biased, or procedurally unfair algorithmic predictions have captured the media, igniting a nationwide movement to govern the state’s use of algorithms in the public sphere. Many jurisdictions have begun heeding to public pressure by passing regulations governing how the state procures, constructs, implements, and oversees algorithms in public sector decision-making – algorithm governance. But as consensus to limit the massive power that courts and agencies have over algorithmic use grows, one contentious piece of this puzzle remains: What should be the place of the public in governing algorithms? Current and proposed legal frameworks and institutional practices embrace an indirect democratic accountability approach that envisions their place only as voters, litigants, or stakeholders.
This Article’s central claim is that the indirect democratic accountability approach as the sole approach is neither inevitable, neutral, nor without consequence. It surfaces a different accountability approach which consists of giving the public direct decision-making power over key aspects of algorithm governance that is shared with the state and private industry. In moving beyond the indirect democratic accountability approach, it offers a path to formally recognize and empower the public as coauthors in the ongoing project of creating a more inclusive, responsive, and democratic iteration of algorithm governance.
About
Ngozi Okidegbe is a Moorman-Simon Interdisciplinary Career Development Associate Professor of Law and Assistant Professor of Computing & Data Sciences. Her focus is in the areas of law and technology, evidence, criminal procedure, and racial justice. Her work examines how the use of predictive technologies in the criminal justice system impacts racially marginalized communities.
Professor Okidegbe is a Faculty Associate at the Berkman Klein Center for Internet & Society at Harvard University and an Affiliated Fellow at Information Society Project at Yale Law School. She is also on the program committee of the Privacy Law Scholars’ Conference and serves on the advisory board for the Electronic Privacy Information Center.
Prior to joining Boston University, Professor Okidegbe was an Assistant Professor of Law at Cardozo School of Law, where she first joined as the inaugural Harold A. Stevens Visiting Assistant Professor in 2019. Before joining Cardozo, Professor Okidegbe served as a law clerk for Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa and for the Justices of the Court of Appeal for Ontario. She also practiced at CaleyWray, a labor law boutique in Toronto. Professor Okidegbe holds a Bachelor of Civil Law and a Bachelor of Laws from McGill University’s Faculty of Law. She subsequently earned her Master of Laws from Columbia Law School, where she graduated as a James Kent Scholar.