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Undermining Human Agency and Democratic Infrastructures? The Algorithmic Challenge to The Universal Declaration of Human Rights

  • Helmut Philipp Aust (a1)

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“Digital technology is transforming what it means to be a subject.” The increase in the use of big data, self-learning algorithms, and fully automated decision-making processes calls into question the concept of human agency that is at the basis of much of modern human rights law. Already today, it is possible to imagine a form of “algorithmic authority,” i.e., the exercise of authority over individuals based on the more or less automated use of algorithms. What would this development mean for human rights law and its central categories? What does the Universal Declaration of Human Rights (UDHR), adopted seventy years ago as a founding document of the human rights movement at the international level, have to say about this?

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Andreas Reckwitz, Die Gesellschaft der Singularitäten 244 (2017).

2 Deborah Lupton, Digital Sociology 49–50 (2015).

3 For an overview in the context of the European Convention on Human Rrights, see Algorithms and Human Rights, (Council of Europe Study DGI(2017)12, Mar. 2018).

4 Lupton, supra note 2, at 11.

5 Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, 55 B.C. L. Rev. 93, 96 (2014).

6 Mireille Hildebrandt, Smart Technologies and the End(s) of Law 73 (2015).

7 See Lynn Hunt, Inventing Human Rights: A History 39–40 (2008) (describing the processes of learning empathy from an early age onwards).

8 Hildebrandt, supra note 6, at 125; see also Susan Sontag, Regarding the Pain of Others (2003) (discussing the visual production of empathy); Itamar Mann, Humanity at Sea – Maritime Migration and the Foundations of International Law 12, 187 (2016) (identifying the human encounter as a formative basis for human rights law).

9 See China Invents the Digital Totalitarian State, Economist (Dec. 17, 2016).

10 Stefan Brehm & Nicholas Loubere, China's dystopian social credit system is a harbinger of the global age of the algorithm, Conversation (Jan. 15, 2018).

11 Hildebrandt, supra note 6, at xi.

12 See generally Andrea Bianchi, On Power and Illusion: The Concept of Transparency in International Law, in Transparency in International Law 1, 6–10 (Andrea Bianchi & Anne Peters eds., 2013).

13 Fleur Johns, Global Governance Through the Pairing of List and Algorithm, 34 Env't & Plan. D: Soc'y & Space 126, 140 (2016).

15 Fleur Johns, Data, Detection, and the Redistribution of the Sensible, 111 AJIL 57, 84 (2017).

16 See Bianchi, supra note 12, at 15–19.

17 Jose Antonio Vargas, Spring Awakening, N.Y. Times (Feb. 17, 2012).

18 Mike Isaac & Daisuke Wakabayashi, Russian Influence Reached 126 Million Through Facebook Alone, N.Y. Times (Oct. 30, 2017).

20 Max Fisher & Katrin Bennhold, As Germans Seek News, YouTube Delivers Far-Right Tirades, N.Y. Times (Sept. 7, 2018).

22 On the “right to democracy,” see Tom Ginsburg, Introduction to the Symposium on Thomas Franck's “Emerging Right to Democratic Governance” at 25, 112 AJIL Unbound 64 (2018) and the contributions to that symposium.

23 Aldous Huxley, The Rights of Man and the Facts of the Human Situation, in Letters to the Contrary – A Curated History of the UNESCO Human Rights Survey 207, 211 (Mark Goodale ed., 2018).

24 Anne-Marie Slaughter, A New World Order (2005).

25 Lawrence Lessig, Code and other Laws of Cyberspace (1999).

26 On the Snowden revelations see Helmut Philipp Aust, Spionage im Zeitalter von Big Data? Globale Überwachung und der Schutz der Privatsphäre im Völkerrecht, 52 Archiv des Völkerrechts 375 (2014).

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