# Governing Artificial Intelligence and Algorithmic Decision Making: Human Rights and Beyond

Vasiliki Koniakou

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Vasiliki Koniakou. Governing Artificial Intelligence and Algorithmic Decision Making: Human Rights and Beyond. 20th Conference on e-Business, e-Services and e-Society (I3E), Sep 2021, Galway, Ireland. pp.173-184, 10.1007/978-3-030-85447-8_16 . hal-03648108

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# Governing Artificial Intelligence and Algorithmic Decision Making: Human Rights and Beyond

Vasiliki Koniakou

Doctoral Candidate of Law, University of Turku, Faculty of Law, Caloniankuja 3, FI-20014 Turku, Finland – Research Fellow at ELTRUN Research Center and ISTLab, Department of Management Science & Technology, Athens University of Economics and Business, Evelpidon 47A, 11362, Athens, Greece

vaskon@utu.fi, koniakou@eltrun.gr

(https://orcid.org/0000-0001-7316-7723)

**Abstract.** In the context of Artificial Intelligence Ethics, human rights have been commonly invoked as a promising basis for an ethical framework. They have been also promoted as guidelines for Artificial Intelligence and Automatic Decision-making governance, or as engineering principles that may be turned into design requirements. Since literature so far engages only partially with the relevance and suitability of the extension of human rights in the realm of proprietary algorithms and privately owned Artificial Intelligence systems, this paper offers the necessary background and justification, building upon international human rights law theory and the concept of radiance of human rights. It aims to contribute to the scholarship promoting the human rights not only as ethical values but also as governance principles for Artificial Intelligence and algorithms. It also stresses the significance of concretizing and implementing the values of transparency, accountability, and explicability. Moreover, it suggests that for the ethically sound and societally beneficial employment of Artificial Intelligence and algorithms, useful insights may be derived from the field of technology governance. Stemming from that, it emphasizes the necessity to embrace the role of designers, and the need of conscious democratic control.

**Keywords:** Algorithms, Algorithmic decision-making (ADM), Artificial Intelligence (AI), Human Rights, AI Ethics, AI governance, Science and Technology Studies (STS), Technology Theory

## 1 Introduction

The last two decades we have witnessed impressive advances in Artificial Intelligence (AI) and algorithmic decision-making (ADM). AIs and various forms of ADM are increasingly employed, permeating several aspects of contemporary society[1]. Enabling data-driven, automatic decision-making, they have rapidly become integral for numerous sectors and industries, ranging from healthcare, taxation and policy-making to pricing, products, processes, and services innovation[2], [3]. Additionally, bearing the promise of effective and efficient decision-making, they are considered as providing
new opportunities for people, and the society at large, to improve and augment their
capabilities and wellbeing[4], [5]. They are also expected to contribute to global produc-
tivity[6], [7], the achievement of sustainable development goals[7], [8], and broader en-
vironmental objectives[9], [10].

However, instances of discrimination and bias[11]–[13], disinformation and opinion
manipulation [14, Ch. 4], [15], private censorship [16], [17] pervasive monitoring or
surveillance [18]–[20], as well as adverse job market effects [6], [21] have raised seri-
ous concerns, attracting attention to the negative implications of automated ‘intelligent’
processes. Moreover, as ADM and AIs are increasingly implemented to inform critical
decisions in the legal system, or to define individuals’ eligibility or entitlement to crit-
ical opportunities and/or benefits, it is apparent that they relate and may also interfere
with human rights [2], [22]–[25]. Hence, whereas the significance and impactful role
of algorithms and AIs is not in question, whether and to what extent their impact will
be positive or negative is hotly contested.[4] Furthermore, as reliance on AIs and ADMs
deepens, the ethical questions and concerns amplify. Numerous researchers have en-
gaged with the ethical aspects of AIs and algorithms, seeking to offer insights and create
a road map towards their socially beneficial and ethically sound employment [3], [26]–
[30].

AI Ethics is a broad interdisciplinary field of research, reflecting a wide range of
value-based and societal concerns related to AI applications and the extensive employ-
ment of algorithms.[22, p. 78]. In this discourse, human rights have been invoked from
various aspects. They have been proposed by scholars, policy-makers and civil society
organizations as offering a promising set of ethical standards for AIs [2], [22, Ch. 4].
Researchers have also suggested ways of translating human rights into design require-
ments through various methodologies[3]. Additionally, they have been suggested as
governance principles for AIs, to “underlie, guide and fortify” an AIs governance
model[31]. The distinction between human rights as ethical standards, and human rights
as governance principles and legal requirements is a meaningful one, particularly re-
garding the binding effects of legal requirements and the actual reach human rights may
have in each case. It is also particularly relevant as a significant portion of algorithms
and AIs are proprietary, privately designed, owned, and operated, whereas human rights
as legal obligations are in principle vertical in nature.[32]

So far, the literature has not addressed the question whether human rights are more
relevant and appropriate as ethical standards, as formal obligations and governance
principles for AIs and ADM, or both. Additionally, it has only partially engaged with
the suitability of extending the application of human rights to the private sphere. The
argumentation is mostly premised on their relevance for AIs and ADMs as ethical prin-
ciples, and the effects AIs and algorithms may have on human rights[22], [31]. More-
over, the discussion regarding the steering of new and disruptive technologies towards
ethical and societally beneficial ends is hardly new nor unique to AIs and ADM. On the
contrary, it is part of a broader discourse on the relationship between technology and
society, centered around human-centric design and the necessity to humanize technol-
ogy governance and to allow the development, employment and governance of tech-
nologies in a socially beneficial way[33]–[35]. In that context, human rights are an
essential part of a broader strategy towards technology governance that involves addi-
tional elements, values, and principles.

Stemming from these observations, this article wishes to offer additional argumen-
tation on the relevance and suitability of human rights as governance principles for AIs
and ADM based on international human rights theory. It argues that human rights, apart
from ethical standards, ought to be applied as guiding governance principles, and their
respect in terms of AIs and algorithms should be legally required. Furthermore, it
stresses the significance of concretizing and implementing the values of transparency,
accountability, and explicability and argues for the need to examine AI governance
within the broader context of technology governance, under the light of Technology
Theory and Science and Technology Studies (STS). More specifically, it emphasizes
the necessity to embrace the decisive and ethically important role of designers and in-
vest in ethics education, as well as the need of conscious democratic governance of AIs.

2 Human Rights, AIs and ADM

## 2.1 Human rights as guidelines for AI Ethics

Human rights constitute a rare set of values recognized internationally by the majority of societies[36, pp. 53–54], [37]. Even though they are not uncontroversial[38], nor universally applied[39], they represent a sum of principles and norms that are widely shared and institutionalized globally. Serving as the basic moral entitlements of every human being, they are deeply rooted in contemporary politics and law, recognized in political practice and legal institutions globally[40, pp. 2–3]. Hence, human rights, both in their strictly legal sense, and as norms encapsulating and reflecting moral and social values, are considerably comprehensive and widespread. Furthermore, the international human rights system includes a well-established institutional framework comprised by dedicated monitoring bodies and agencies, as well as conflict and tensions resolution mechanisms. It also involves a rich theoretical background and ample discursive tools aimed to protect and promote human rights, as well as monitor, and ensure compliance with human rights principles globally.

Contrary to human rights, currently in AI Ethics there is no commonly agreed upon set of ethical standards that may serve as governance principles[22, p. 80], [41]. The industry-driven self-governance model is largely premised on a variety of voluntarily adopted codes and self-commitments. Such codes are usually rather abstract and largely vague, while they often lack the necessary mechanisms and frameworks to ensure the enforcement of the norms and handle disputes, conflict and tensions[42]. Thus, the lack of binding effects, and their questionable enforceability combined with the absence of conflict resolution mechanisms hamper their effectiveness and normative function. Additionally, such self-commitments may be in fact proclamatory, invoked for ‘ethics washing’[22, p. 84], [43], [44] or simply to avoid direct regulatory interference, in the form of binding legislation[42], [45]. Therefore, considering the ineffectiveness of self-commitments, literature suggests that human rights offer a substantially better
alternative, promoting human rights as a more rich and elaborated set of principles that
can serve as ethical standards for AIs and ADM.

## 2.2 Human rights as principles for AI and ADM governance and the extension of human rights to the private realm

Going a step further, some scholars promote human rights not merely as ethical guide-
lines, but as governance principles, suggesting a governance approach anchored in hu-
man rights [22, p. 85]. Essentially, they argue that instead of simply internalizing hu-
man rights in AI Ethics, human rights-premised obligations should be turned into con-
crete legal requirements in the field of AIs and ADM, and human rights should inform
and shape AI and ADM governance [22, Ch. 4]. From a similar point of view, the High-
Level Expert Group on Artificial Intelligence (AI HLEG) that the EU Commission
tasked to offer input for the development and deployment of AI, stressed that "respect
for fundamental rights, [...], provides the most promising foundations for identifying
abstract ethical principles and values" [46]. In its recommendations, human rights are
identified as the foundational principles for a normative framework that may safeguard
the development and deployment of AIs in a societally beneficial way. This suggestion
progressively gains momentum in literature and policy discourse for various reasons,
mainly related to the merits of the international human rights system and its potentials
to prevent socially harmful uses of technology.

The rights enshrined in the Universal Declaration of Human Rights (UDHR), the
Charter of Fundamental Rights of the European Union (EU Charter), as well as in the
European Convention on Human Rights (ECHR) are arguably the most broadly em-
braced set of values and ethical principles, closely related to rule of law and the demo-
cratic polity. Hence, human rights, both in their strictly legal sense, and as norms en-
capsulating and reflecting moral and social values, are considerably comprehensive and
widespread. Instead of fragmentary, abstract, or conflicting principles, premised on var-
ious views or aspirations, human rights can serve as common framework to address the
majority of not only ethical but also normative concerns related to AIs and algorithmic
decision-making. Simultaneously, the international human rights law system can pro-
vide guidance also in terms of the procedural aspects, offering a solid and tested tension
and dispute resolution mechanisms and the necessary theoretical and discursive tools
[22, Ch. 4], [31].

Finally as AIs, ADM and algorithms increasingly define opportunities and risks[47],
having an often mediating role regarding human rights, the international human rights
law system is not only suitable but also highly relevant. As AI applications become
ubiquitous and pervasive, routinely relied upon to carry a wide range of tasks, they
increasingly affect a wide variety of human rights, from freedom of expression and
privacy to access to health care. From this angle, the extension of human rights to the
private realm, in the form of concrete principles and specific obligations, and their in-
tegration to AI and ADM governance mechanisms is critical "to maintain the character
of our political communities as constitutional democratic orders." [22, p. 81] Thus, hu-
man right should serve both as ethical guidelines, and as governance principles, while
they should be extended to regulate the development and deployment of AIs and ADM,
informing and shaping their processes and procedures also from the design and tech-
nology-in-the-making point of view[3]. Nevertheless, a significant portion of algo-
rithms and AIs are privately designed, owned, and operated, while human rights are in
principle vertical in nature, [32] which makes their extension to the private sphere far
from self-evident or uncontroversial.

2.3 The challenge of applying vertical rights in the private realm

The turn to human rights as a source of governance principles, and the necessity of
extending human rights obligations to the private realm to achieve socially important
ends are not new within the technology governance discourse[37], [48]–[50]. However,
according to international human rights law it is the states and not private entities that
are bound by them[40]. This means that while the application of human rights as ethical
guidelines is largely unproblematic, their adoption as governance principles, as well as
the extension of human rights-premised obligations to private actors, such as the owners
and operators of AI systems and proprietary algorithms, is relatively challenging. More
specifically, the suitability and appropriateness of the extension of human rights-related
obligations to the private realm is a hotly contested topic. Practically, the scope and
application of international human rights law in the private sphere constitutes one of
the most topical issues in constitutional law and human rights discourse[51].

The horizontal application of human rights, namely the extension of human rights to
relationships otherwise regulated under private law, is challenging both theoretically
and practically. Enforcing the same duties as public bodies to private actors could affect
the very core of private law and liberal autonomy having adverse effects for both private
law and international human rights law. Nevertheless, the vertical nature of human
rights is premised upon the "*far greater imbalance of power between the state and
individuals*,"[52, p. 16] which is rapidly challenged in the context of the modern soci-
ety, in which individuals' rights commonly depend on private entities' actions and de-
cisions, business and revenue models, corporate policies and rules. The indubitable
power of private actors to negatively affect human rights brings to the forefront the
change in the global balance of power between state and non-state actors. It also high-
lights the distance between the human rights doctrine and the reality of several almost
omnipotent non-state actors in contemporary society.[53, p. 192] Thus, there is an ever-
growing volume of literature exploring the ways to protect human rights from non-state
actors, through the extension of human rights to private relationships, allowing them to
have *horizontal effects*. [54] In that context, the question over the so-called horizontal
application of human rights is of considerable practical importance and political rele-
vance.[52, p. 3]

2.4 Horizontality, the radiance of human rights and the human rights gap

As it is progressively becoming apparent that individuals' rights and freedoms as well
as a wide array of societal and constitutional principles are threatened or restrained
more frequently or severely in terms of private relationships[52, p. 20], the discussion
regarding the positive duties of private actors comes to the forefront. The sharp distinc-
tion between the public and private spheres seems increasingly obsolete[55]. Moreover,
as we are rapidly moving from technologies of pervasive effects towards technologies
that are themselves pervasive, or as Susan Brenner puts it, from ‘dumb’ to ‘smart’ tech-
nologies[56], the majority of which are privately owned, designed and/or operated, the
role and placement of human rights is a critical discussion.

Looking beyond the question of vertical nature or horizontal effects, stemming from
the German constitutional tradition, and the concept of "Drittwirkung"<fnref n="1" /> we may per-
ceive human rights as "radiating" over the legal order, serving as a "fundamental and
objective system of values, which provides a blueprint for society as a whole."[52, p.
129] From that angle, they have both an interpretative and guiding effect towards pri-
vate law, without necessarily applying directly. They may inform the work of legisla-
tors and the decisions of judiciary, forming an indivisible, interdependent and interre-
lated whole which unites the legal order. This view, acknowledging that human rights
and private law "no longer exist in isolation from each other"[57] is valuable for ap-
proaching and framing the role of human rights in the context of AIs and ADM gov-
ernance. It allows them to be employed in AIs and ADM governance, enabling the
extension of human rights-premised duties to private actors, as well as the employment
of human rights and human rights due-diligence as a basis of assessment for private
policies and governing structures in the field of AIs. Simultaneously, it does not absolve
the states from their positive obligations to protect human rights, nor allows them to
outsource this duty to private actors. Furthermore, the extension of human rights to the
private sphere via the concept of radiance allows us to interpret the existing framework
under the light of human rights, offering a much-needed time window to prepare the
rules without the risk of a normative vacuum.

Finally, such an extension is also necessary to prevent a *“human rights gap”* in the
governance of AIs and ADM. Given the increasingly relevant role of AIs and algo-
rithms for human rights, keeping human rights strictly public (in the sense that only the
states are obligation holders) and not extending them to the governance of AIs and
ADM may result into a *“human rights gap.”* This ‘gap’ is essentially the void created
by the fact that although human rights are impactfully affected, mediated or even gov-
erned by non-state actors, these actors and technologies remain shielded from human
rights obligations, leading to a vacuum of human rights protection. However, specific
technologies, particularly those that penetrate the *“lifeworld”* producing consequential
impacts that shape and affect individuals’ options and choices, rights, and freedoms,
should not be left outside the human rights discourse and system[53, p. 71].

<footnote n="1">¹ BVerfGE 7, 198 ff of 15 January 1958.</footnote>
# 3 Looking beyond human rights

## 3.1 Transparency, accountability, explicability

As mentioned in the introduction, for the ethically sound and socially beneficial devel-
opment and deployment of AIs and ADM, human rights ought to be part of a larger
governance strategy. In this context, values and principles derived from the self-
adopted ethical codes in private sector, along with insights from various Recommenda-
tions, Declarations and Ethical Principles suggested by several organizations, think
tanks and institutions [42], [58]–[60], can also have a role. Particularly the commonly
recurring values of “transparency”, “accountability” and “intelligibility” or “explica-
bility”, shared among most of these recommendations [4], [42], should be concretized
into rules and turned into specific and viable governance guidelines. Jointly these three
values are essential for the meaningful scrutiny, and integral for good governance in
the field of technology. Thus, they are also particularly relevant for AIs and ADM gov-
ernance, especially as they constitute new and powerful forms of smart agency.

Transparency about the input and outcomes of algorithmic decision-making criteria
is crucial, given that algorithms, as forms of automatic decision-making, control or sig-
nificantly influence key aspects of daily life, affecting eligibility to life-changing op-
portunities, defining access to goods and services [22, Ch. 4]. Simultaneously, they
increasingly penetrate the judicial system and law enforcement [47], [61]. However,
ADM is “essentially concealed behind a veil of code”[62] often protected by intellec-
tual property rights (IPR). This means that although algorithms may reach decisions
with major impact for individuals’ lives, the way they reached upon these decisions and
the data they acted upon is opaque to the affected individual.[44] In turn, the lack of
transparency significantly obscures both explicability and accountability. AI systems
and algorithms are largely presented as back boxes, too complex and difficult to be
explained and/or understood. Yet the lack of explicability rises serious about due pro-
cess, and the possibility of meaningful human control and scrutiny [63], [64]. Simulta-
neously, the question “who is responsible for the way it works?” is close to impossible
to be answered if transparency is absent and no one can answer “how it works?” for
reasons of allegedly complexity or IPR protection.

Nonetheless, if we are indeed entering an era of omnipresent smart agents, wherein
algorithms largely determine and shape the exercise of power, affecting public policy,
and human rights, we need to find meaningful ways to ensure transparency, accounta-
bility, and explicability, rejecting the black box approach and realigning private rights
with public interest [62], [65]. Law and regulatory intervention have here a significant
part to play. The EU has taken a number of regulatory initiatives towards this direction,
most prominently through the General Data Protection Regulation (GDPR), that em-
phasizes the principles of transparency and accountability, while stresses the need of
explainability in case of automated processes, such as automated profiling. Yet, this
also entails finding new ways to balance private interests and IPRs with the require-
ments of transparency, accountability, and explicability, without risking the malicious
exploitation of algorithmic transparency, or hampering innovation.
## 3.2 From AI and ADM governance to technology governance

These challenges are not unique for AIs and ADM governance [13]. Some of the key questions for the future of smart agents governance are inherent in the field of technology governance and have been thoroughly discussed in terms of Technology Theory[66], [67] and STS[68]. From that angle, it may be insightful to examine AIs and ADM governance under the light of Technology Theory and STS, building upon the rich literature of technology governance. In that context, a necessary first step towards establishing a governance model that will contribute to the ethically sound and socially beneficial employment of AIs and ADM would be demystifying them. Regardless their opacity and the “veil of mystery” that covers their processes, they are both human constructs, in the sense that they are designed, programmed, applied by human beings. Hence, those creating them have both considerable control over how they function[2], and the responsibility to ensure that they are employed within a sound ethical framework. However, responsibility here is not to be perceived narrowly, in terms of liability or accountability in the legal sense, but as the moral and social virtue of steering intellectual creations towards the public good.

Opening the back box and perceiving AIs and algorithms as malleable, human creations, sheds light on the dilemmas, social processes, institutions and arrangements that affect the development of technology[69, p. 568]. From that angle, the design of technologies and technological artifacts involves more than technical skills or creative insight, as the final outcome reflects also the character, views, values and ethics of the designers and developers [70], [71]. Acknowledging that engineering practice involves choice, value straggles and value-informed decisions, highlights the fact that algorithms and AI design choices are not neutral[72]. Embracing the key role of the designers[69, p. 573], and the ethically important aspects of engineering, brings to the forefront the necessity to include ethics modules and courses in Higher Education Institutions, at least in fields of engineers and computer science[73], [74]. Thus, improving access to ethics modules and stand-alone courses related to ethical considerations in design, and responsible engineering,[58], [75], [76] which still remain relatively low[41], may be a vital to steer AIs and ADM towards socially beneficial and ethically sound ends.

Similarly, it is equally important to place AI governance within a framework of democratic scrutiny, and conscious democratic control, allowing policy and decision-making about such impactful and consequential technologies to reflect and adequately represent the views, considerations, values, fears, hopes and expectations of the citizens. Whereas in modern constitutional democracies such a request sounds self-evident or presumed already satisfied, in fact technology governance is commonly a non-democratic procedure[66], [77]. More specifically, as a reductionist way of thinking about the relationship between technology and society, technological determinism remains deeply rooted in our casual way of thinking about technologies[78]. As such, it has informed several socio-economic configurations [79], promoting non-democratic, technological arrangements, and preventing the conscious democratic control of technologies[77], or allowing for non-democratic practices to be accepted as inevitable[80].

From that aspect, identifying and rejecting technological determinism and its entailments from AIs and ADM governance may constitute a necessary and relatively
demanding step to ensure that their governance will not be an exception of democratic control. Considering the expanding role of AIs and ADM in contemporary society, as well as their far-ranging implications for individuals and human rights, it is of at most importance to premise their governance upon a democratic framework. To put it differently, although AIs may be privately owned, while algorithms are in their majority proprietary, their governance, how they are regulated and the larger policy framework about them should be subject to democratic steering. In turn, this is closely related with ensuring transparency, accountability, and explicability,[81], [82] as well as with rejecting technological determinism that leads to the decoupling of technology governance and democratic decision-making.

## 4 Concluding Thoughts

Algorithms and AI are not simply “another utility that needs to be regulated once it is mature.”[4] They comprise a powerful and disruptive new form of smart agency, that bears significant promises as well as risks. This paper argued that to steer this force towards the benefit of the society it is necessary to introduce human rights not only as guidelines for AI Ethics, but also as governance principles for AIs and ADM. Whereas the literature has already argued for the need to extend human rights obligations to AI governance, it largely tends to avoid engaging with the question of horizontality. Yet, without clearly articulating the relevance and the suitability of human rights as governance principles for AI, the proposed models may seem ill-grounded from an international human rights law point of view. Building on this observation, the paper sought to offer background and justification regarding the relevance of human rights and the suitability of extending them into the private sphere building upon the theory of *Drittwirkung* and the concept of human rights’ radiance. It also highlighted the risk of a “*human rights gab*” in case private actors are left to act outside the scope of human rights. Looking beyond human rights, it emphasized the need to concretize the values of transparency, accountability, and explicability and turn them to pillars of AI governance. Finally, it sought to bring to the forefront the valuable insights AI and ADM governance may derive from Technology Theory, technology governance and STS. Embracing the key role of engineers and developers it is critical to invest in their ethics education and take specific legislative and normative initiatives to address the black box approaches towards technology. Additionally, it is vital to ensure that governance of AIs will be a democratic procedure, rejecting technological determinism and exploring meaningful ways to align private interests with the public good.

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