“Let the algorithm decide”: is human dignity at stake?

Abstract

The goal of this article is to argue that the debate regarding algorithmic decision-making and its impact on fundamental rights is not well-addressed and should be reframed in order to allow for adequate regulatory policies regarding recent technological developments in automation. A review of the literature on algorithms and an analysis of Articles 6, IX and 20 of the Brazilian Federal Law n° 13.709/2018 (LGPD) lead to the conclusion that claims that algorithmic decisions are unlawful because of profiling or because they replace human analysis are imprecise and do not identify the real issues at hand. Profiles are nothing more than generalizations, largely accepted in legal systems, and there are many kinds of decisions based on generalizations which algorithms can adequately make with no human intervention. In this context, this article restates the debate about automated decisions and fundamental rights focusing on two main obstacles: (i) the potential for discrimination by algorithmic systems and (ii) accountability of their decision-making processes. Lastly, the arguments put forward are applied to the current case of the covid-19 pandemic to illustrate the challenges ahead.

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