Gene Koo of the Berkman Center blogs about a paper by Danielle Citron titled Technological Due Process, a topic Gene has been studying for a while. Writes Gene:

Professor Citron describes how software code increasingly executes our public laws. Decision support systems, she convincingly argues, quickly become decision making systems. And invariably, the vagaries of the legislative and administrative processes leave large gaps in the specifics of how a given law should be executed. Without firmer guidance from proper governmental bodies, the programmers charged with translating legal code into software code essentially wind up creating law to fill the gaps. (I describe this as “shoving analog pegs into digital slots”). From a procedural – even a Constitutional – perspective, this is a grievously inappropriate delegation of governmental functions to the private sector, not unlike the hiring of Blackwater mercenaries to achieve military objectives. Professor Citron finds, therefore, the need for “technological due process”: safeguards to ensure that software is literally up to code.

Gene adds his own example of how letting software administer law can go wrong: the distribution of food stamps.

This is a big deal…all part of the squeezing out of human judgment and the leeway it enables in the name of efficiency.

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