Dear Legal Academics, Please Stop Misusing The Word ‘Algorithms’

Everyone is concerned about ‘algorithms.’ Especially legal academics; law review articles, conferences, symposia all bear testimony to this claim. Algorithms and transparency; the tyranny of algorithms; how algorithms can deprive you of your rights; and so on. Algorithmic decision making is problematic; so is algorithmic credit scoring; or algorithmic stock trading. You get the picture; something new and dangerous called the ‘algorithm’ has entered the world, and it is causing havoc. Legal academics are on the case (and they might even occasionally invite philosophers and computer scientists to pitch in with this relief effort.)

There is a problem with this picture. ‘Algorithms’ is the wrong word to describe the object of legal academics’ concern. An algorithm is “an unambiguous specification of how to solve a class of problems” or a step-by-step procedure which terminates with a solution to a given problem. These problems can be of many kinds: mathematical or logical ones are not the only ones, for a cake-baking recipe is also an algorithm, as are instructions for crossing a street. Algorithms can be deterministic or non-deterministic; they can be exact or approximate; and so on. But, and this is their especial feature, algorithms are abstract specifications; they lack concrete implementations.

Computer programs are one kind of implementation of algorithms; but not the only one. The algorithm for long division can be implemented by pencil and paper; it can also be automated on a hand-held calculator; and of course, you can write a program in C or Python or any other language of your choice and then run the program on a hardware platform of your choice. The algorithm to implement the TCP protocol can be programmed to run over an Ethernet network; in principle, it could also be implemented by carrier pigeon. Different implementation, different ‘program,’ different material substrate. For the same algorithm: there are good implementations and bad implementations (the algorithm might give you the right answer for any particular input but its flawed implementation incorporates some errors and does not); some implementations are incomplete; some are more efficient and effective than others. Human beings can implement algorithms; so can well-trained animals. Which brings us to computers and the programs they run.

The reason automation and the computers that deliver it to us are interesting and challenging–conceptually and materially–is because they implement algorithms in interestingly different ways via programs on machines. They are faster; much faster. The code that runs on computers can be obscured–because human-readable text programs are transformed into machine-readable binary code before execution–thus making study, analysis, and critique of the algorithm in question well nigh impossible. Especially when protected by a legal regime as proprietary information. They are relatively permanent; they can be easily copied. This kind of implementation of an algorithm is shared and distributed; its digital outputs can be stored indefinitely. These affordances are not present in other non-automated implementations of algorithms.

The use of ‘algorithm’ in the context of the debate over the legal regulation of automation is misleading. It is the ‘automation’ and ‘computerized implementation’ of an algorithm for credit scoring that is problematic; it is so because of specific features of its implementation. The credit scoring algorithm is, of course, proprietary; moreover, its programmed implementation is proprietary too, a trade secret. The credit scoring algorithm might be a complex mathematical algorithm readable by a few humans; its machine code is only readable by a machine. Had the same algorithm been implemented by hand, by human clerks sitting in an open office, carrying out their calculations by pencil and paper, we would not have the same concerns. (This process could also be made opaque but that would be harder to accomplish.) Conversely, a non-algorithmic, non-machinic–like, a human–process would be subject to the same normative constraints.

None of the concerns currently expressed about ‘the rule/tyranny of algorithms’ would be as salient were the algorithms not being automated on computing systems; our concerns about them would be significantly attenuated. It is not the step-by-step solution–the ‘algorithm’–to a credit scoring problem that is the problem; it is its obscurity, its speed, its placement on a platform supposed to be infallible, a jewel of a socially respected ‘high technology.’

Of course, the claim is often made that algorithmic processes are replacing non-algorithmic–‘intuitive, heuristic, human, inexact’–solutions and processes; that is true, but again, the concern over this replacement would not be the same, qualitatively or quantitatively, were these algorithmic processes not being computerized and automated. It is the ‘disappearance’ into the machine of the algorithm that is the genuine issue at hand here.

Ken Englehart’s Exceedingly Lame Argument Against Net Neutrality

Over at the New York Times, Ken Englehart, “a lawyer specializing in communications law, is a senior adviser for StrategyCorp, an adjunct professor at Osgoode Hall Law School and a senior fellow at the C. D. Howe Institute” offers us an astonishing argument suggesting we not worry about the FCC’s move to repeal Net Neutrality. It roughly consists of saying “Don’t worry, corporations will do right by you.” Englehart accepts that the concerns raised by opponents of the FCC–” getting rid of neutrality regulation will lead to a “two-tier” internet: Internet service providers will start charging fees to websites and apps, and slow down or block the sites that don’t pay up…users will have unfettered access to only part of the internet, with the rest either inaccessible or slow”–have some merit for he makes note  of abuses by ISPs that confirm just those fears. But he just does not think we need worry that ISPs will abuse their new powers:

[T]hese are rare examples, for a reason: The public blowback was fierce, scaring other providers from following suit. Second, blocking competitors to protect your own services is anticompetitive conduct that might well be stopped by antitrust laws without any need for network neutrality regulations.

How reassuring. “Public blowback” seems unlikely to have any effect on the behavior of folks who run quasi-monopolies. Moreover, the idea that we might should trust our ISPs to not indulge in behavior that “might well be stopped by antitrust laws” also sounds unlikely to assuage any concerns pertaining to the abuse of ISP powers. It gets better, of course:

Net-neutrality defenders also worry that some service providers could slow down high-data peer-to-peer traffic, like BitTorrent. And again, it has happened, most notably in 2007, when Comcast throttled some peer-to-peer file sharing.

But it’s still good:

So why am I not worried? I worked for a telecommunications company for 25 years, and whatever one may think about corporate control over the internet, I know that it simply is not in service providers’ interests to throttle access to what consumers want to see. Neutral broadband access is a cash cow; why would they kill it?

Because service providers will make all the money they need by providing faster services to premium customers and not give a damn about the plebes?

But don’t worry:

[T]here’s still competition: Some markets may have just one cable provider, but phone companies offer increasingly comparable internet access — so if the cable provider slowed down or blocked some sites, the phone company could soak up the affected customers simply by promising not to do so.

Or they could collude, with both charging high prices because they know customers have nowhere to go?

Is this the best defenders of the FCC can do? The old ‘market pressures will make corporations behave’ pony trick? Englehart’s cleverest trick, I will admit, is the aside that “the current net neutrality rule was put in place by the Obama administration.” That’s a good dog-whistle to blow. Anything done by the Obama administration is worth repealing by anyone connected with this administration. And their cronies, like Englehart.