Put Dialectics into the Machine: Protection against Automatic-decision-making through a Deeper Understanding of Contestability by Design

Abstract

This paper endorses the idea that the right to contest provided for by art. 22, § 3 GDPR, actually is the apex of a progressive set of tools the data subject has at his disposal to cope with automatic decisions and it should work as an architectural principle to create contestable systems. But in order to achieve that important role, it cannot be reduce to the right of human intervention, also provided for by art.22, § 3, nor to a generic opposition to the outcome of the automatic processing. Thus, drawing from a thorough analysis of the relationships among the rights included in art. 22, § 3 GDPR as well as from the juridical proper meaning of “contestatio”, it is concluded that the right to contest has its own proper nature as a hybrid substantial-processual right that is able to give concrete shape to all the other rights indicated in art. 22, § 3, included the much discussed right to explanation.

Contestable AI by Design: Towards a Framework

“…A growing number of scholars argue for contestability of AI systems in general, and in automated decision-making specifically (Almada, 2019;Hirsch et al, 2017;Sarra, 2020;Vaccaro et al, 2019). Hirsch et al (2017) describe contestability as "humans challenging machine predictions".…”

“…A small but growing body of research explores the concept of contestable AI (Almada, 2019;Henin & Le Métayer, 2021;Hirsch et al, 2017;Lyons et al, 2021;Sarra, 2020;Vaccaro et al, 2019Vaccaro et al, , 2021. However, although many do make practical recommendations, very little of this research is presented in a format readily usable in design practice.…”

Conceptualising Contestability: Perspectives on Contesting Algorithmic Decisions

“…In recent research interpreting Article 22 (3), it is suggested that the ability to contest an outcome will be aided by algorithmic systems being designed to support contestability [5,8,55]. There is acknowledgment that not just the final decision should be rendered contestable, but the entire decision-making process [8].…”

“…In our view, contestability is a broader concept than recourse and appeal as described by Venkatasubramanian and Alfano [64]. Beyond the need for an explanation, contestability requires avenues through which decision subjects can elect to contest a decision [5], and processes that could be used to review algorithmic decisions [5,39,52,55,59,66].…”

“…Opacity, in its various forms, results in limited information being provided to decision subjects, which makes it difficult to understand why a decision has been made, and consequently, to contest it in any meaningful way [1, 13,55,62,67].…”