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The constitution of the algorithm

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30 November 2021
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Eurac Research/Fundación Giménez Abad - Josh Calabrese/Unsplash

The digital world is an uncharted and difficult territory for the constitution. Not only because the format has changed and its tracks are no longer adapted to our previous conceptual equipment, but also because the power factors of the digital world do not conform to constitutional provisions. For various reasons, "the constitution of the algorithm" (understood in the double sense of constitutionalizing the algorithm and digitalizing the constitution) will have to start from new bases if it wants to control these factors of power.

The constitution regulates a world that no longer exists in part or is socially irrelevant, especially in relation to digital natives. Some of the constitutional precepts that affect the areas in which life takes place today are a relic. Not because the norms they contain should not be preserved and their effectiveness guaranteed, but because, in the digital world, the state power that the constitution regulates is unable to do so.

The problem is not only that the constitution addresses itself to a part of reality that practically no longer exists (the analogue) but that it does not regulate the reality that has been imposed and that shapes a new type of society living in a digital world. This, of course, does not only have to do with the transformation of the fundamental rights established in the constitution, but also with the emergence of new rights that must be regulated in order to offer conditions of legal security and protection against the global agents that are currently massively damaging them.

The algorithm plays an essential role in the digital society as an instrument for shaping the new reality that is spreading throughout the physical and virtual world. Algorithms are used to process data to order reality. Sometimes this ordering is carried out directly, on physical formats. In these cases, the legal problems that may arise usually have to do with the activity itself, not with the prior regulation carried out by the algorithm, which does not have a normative configuration, but expresses an action of the computer processor previously defined by human beings. If inappropriate instructions are incorporated in that definition that cause damage, the responsibility will lie with those who have designed those instructions.

A different issue is that of algorithms that have a normative configuration and that move within the scheme of the sources of law, as they are inserted in public decision-making processes or condition regulations that affect constitutional rights. In these cases, it is necessary to consider the constitutional dimension of the algorithm from a double perspective. On the one hand, in relation to the system of sources of law and to the need to preserve the fundamental principles of the legal system, which do not allow for leaving areas of regulation that affect rights outside the representative circuit of pluralist democracy.

On the other hand, the constitutional dimension of the algorithm must also be addressed in relation to the system of constitutional rights, which cannot renounce the guarantee of rights by virtue of the fact that their infringement occurs through computer procedures using algorithms. The algorithm is no less an instrument intended for a specific purpose and used to improve processes and obtain returns of various kinds (even if they are ultimately essentially economic). That purpose must be compatible with the constitution, as must the algorithms designed to achieve it.

The civilizational change that the transformation towards the digital society is bringing about leaves the constitution in a very difficult position vis-à-vis the power factors that are taking shape in the new global order. It is not only about new structures, procedures, and techniques in the digital society, which we can symbolically represent through the algorithm, increasingly present in our lives. It is also about new paradigms, cultural patterns that are changing the way we think and the values that inspire our societies.

These transformations are not the product of chance or of a mere technological development at the service of the progress of societies in order to contribute to general well-being. On the contrary, they are new factors of power that are generating a progressive destruction of politics and an extreme weakening of values and constitutional rights. Algorithms do not design themselves: even within the framework of machine learning, someone has to think about what they are going to be used for other than to fulfil their ultimate purpose, which is generally to bring economic benefits.

The growing incompatibility between the constitution and algorithms is not a technical issue, but a complex ideological construction that generates narratives aimed at promoting greater profit for the big global players of our time. Rebuilding order requires a "constitution of the algorithm" in the sense not only of a digitalization of the constitution, but also of a constitutionalization of technology, including artificial intelligence, which puts it at the service of society and controls the economic interests of large companies.

This constitution of the algorithm will have to reconfigure the position that the new procedures should have in the system of the sources of law. It will also have to rearrange the entire system of fundamental rights in order to establish a direct connection between constitutional rights and the new digital techniques. This will prevent fundamental rights from being massively violated or becoming a mere accessory to market-related rights. The algorithm cannot be an enabling title for the massive infringement of rights. The constitution cannot continue to turn its back on a reality such as the digital world, in which a large part of economic activity and people's lives already take place.

This article was first published on the blog of the Fundación Giménez Abad in Spanish.

Francisco Balaguer Callejón

Francisco Balaguer Callejón is Professor of Constitutional Law at the University of Granada.

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Citation

https://doi.org/10.57708/b80372145
Balaguer Callejón, F. The constitution of the algorithm. https://doi.org/10.57708/B80372145

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