Social Sciences in China (Chinese Edition)

No.12, 2020

On the Legal Regulation of Algorithms

(Abstract)

Ding Xiaodong

The rise of algorithms poses challenges to their legal regulation as they may challenge people’s right to know and to have individual privacy and freedom and equal protection. As algorithmic decision-making mechanisms involving human-computer interaction, algorithms are not value-neutral and can be regulated. Algorithm disclosure, personal data empowerment, and anti-algorithmic discrimination are traditional methods of regulating algorithms, but the mechanical application of these methods encounters difficulties with feasibility and desirability. Algorithm disclosure faces problems such as technical non-feasibility, meaningless disclosure, user calculations and infringement of intellectual property rights; personal data empowerment faces the problems of individuals being unable to exercise data rights and of excessive personal data empowerment which impedes the effective operation of big data and algorithms; and anti-algorithmic discrimination faces the problems of non-machine algorithmic discrimination, the fact that one’s status cannot be completely neutral, the difficulty in achieving social equality, etc. The fundamental reason for the dilemma of traditional pathways for the regulation of algorithms lies in ignoring their context. Depending on their subjects, objects, and the different problems they involve, algorithms’ properties may vary. Therefore, algorithm regulation should adopt a scenario-based regulatory path and should employ varying regulatory methods depending on the type of scenario, with the aim of achieving responsible algorithms. The principle of scenario-based algorithm regulation can guide construction of specific regulatory systems such as algorithm disclosure, data empowerment and anti-algorithmic discrimination.