Thursday, November 19, 2020
Francesca Palmiotto (European University Institute) has posted Regulating Algorithmic Opacity in Criminal Proceedings: an opportunity for the EU Legislator? (Maastricht Law, Faculty of Law WP 2020/01) on SSRN. Here is the abstract:
Algorithms are increasingly used in criminal proceedings worldwide for evidentiary purposes and for supporting decision-making. In a worrying trend, these tools are still concealed in secrecy and opacity preventing us from understanding how their specific output has been generated. Many cases demonstrated that software can be biased and that they should not be presumed reliable. The main concern relates to their opacity, as the defence cannot challenge the use of software in criminal proceedings without further insight into their inner workings. This requires an appropriate legal framework creating procedural rules to balance transparency with other legitimate purposes of the criminal process. The paper questions whether the EU legal response on data protection is up to the challenge and which role, if any, the EU legislator should play in regulating algorithmic opacity in criminal proceedings.