The right to a human in the loop: Political constructions of computer automation and personhood

Abstract

Contributing to recent scholarship on the governance of algorithms, this article explores the role of dignity in data protection law addressing automated decision-making. Delving into the historical roots of contemporary disputes between information societies, notably European Union and Council of Europe countries and the United States, reveals that the regulation of algorithms has a rich, culturally entrenched, politically relevant backstory. The article compares the making of law concerning data protection and privacy, focusing on the role automation has played in the two regimes. By situating diverse policy treatments within the cultural contexts from which they emerged, the article uncovers and examines two different legal constructions of automated data processing, one that has furnished a right to a human in the loop that is intended to protect the dignity of the data subject and the other that promotes and fosters full automation to establish and celebrate the fairness and objectivity of computers. The existence of a subtle right across European countries and its absence in the US will no doubt continue to be relevant to international technology policy as smart technologies are introduced in more and more areas of society.