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Trust But Verify: A Guide to Algorithms and the Law

Deven R. Desai & Joshua A. Kroll

The call for algorithmic transparency as a way to manage the power of new data-driven decision-making techniques misunderstands the nature of the processes at issue. Part of the problem is that the term, algorithm, is broad. It encompasses various important concepts in mathematics and computer science, which is where the term applies. Matters worsen in law and policy. Law is driven by an image of a linear, almost Newtonian, view of cause and effect where inputs and defined process lead to...

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Federal Circuit Flash – Advanced Video v. HTC: Federal Circuit Affirms Decision that Plaintiff Lacks Standing Because Co-Owner of Patent-In-Suit Was Not Party

By Kevin Chu – Edited by Reshma Lutfiali

Advanced Video Techs LLC v. HTC Corp., No. 2016-2309, 2018 WL 357609 (Fed. Cir. Jan. 11, 2018). In Advanced Video Techs LLC v. HTC Corp., Advanced Video Techs LLC (“Advanced Video”) sued HTC America, Inc., Blackberry LTD, Blackberry Corporation, and Motorola Mobility LLC for patent infringement in the District Court for the Southern District of New York.  The district court dismissed the suit for lack of standing because a co-owner of the patent was not a party to the actions and...

Trust But Verify: A Guide to Algorithms and the Law

The call for algorithmic transparency as a way to manage the power of new data-driven decision-making techniques misunderstands the nature of the processes at issue. Part of the problem is that the term, algorithm, is broad. It encompasses various important concepts in mathematics and computer science, which is where the term applies. Matters worsen in law and policy. Law is driven by an image of a linear, almost Newtonian, view of cause and effect where inputs and defined process lead to clear output. In that world, a call for transparency makes some sense and has the potential to work. The reality is quite different. At a deep and mathematically provable level, certain things, including the exact behavior of an algorithm, can sometimes not be tested or analyzed. From a technical perspective, current attempts to expose algorithms to the sun will not only fail to deliver critics’ desired results but also may create the illusion of clarity in cases where clarity is not possible.

At a high-level, the recent calls for algorithmic transparency follow a pattern that this paper seeks to correct. Policy makers and technologists often talk past each other about the realities of technology and the demands of policy. Policy makers may identify good concerns but offer solutions that misunderstand the nature and limits of the technology at issue. This misunderstanding can lead to calls for regulation that make little to no sense to technologists. Both sides think the other simply “does not get it,” and so progress on important problems is slowed or halted.  By setting out the core concerns over the use of algorithms, offering a primer on the nature of algorithms, and a guide on the way in which computer scientists deal with the inherent limits of their field, this paper shows that there are coherent ways to manage algorithms and the law.