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39 Santa Clara High Tech. L. J. 1 (2022-2023)

handle is hein.journals/sccj39 and id is 1 raw text is: DARK SYSTEMS: REPROGRAMMING ARTIFICIAL INTELLIGENCE REGULATIONS TO PROMOTE FAIRNESS AND EMPLOYMENT NONDISCRIMINATION Robert Wennagel* Automated decision-making (ADM) systems, whether deploying artificial intelligence, machine learning, or other algorithmic processes, have become ubiquitous in modern life, but their use is often unnoticed or invisible to society at large. Currently no federal laws require notice or disclosure to individuals when an ADM is used to collect their data, evaluate them, or make determinations about their lives. This is particularly concerning for the employment relationship because notice and transparency are essential for personal privacy, and the surreptitious use of ADM systems deprives applicants and employees of the ability to understand employers' decision-making processes and to seek redress under applicable antidiscrimination laws. Some state and local governments have recognized this danger and have taken initial steps to protect applicants and employees, while the European Union has proposed a sweeping AI regulation that would govern all phases of development of such systems there. This article proposes a system of regulations based on notice and transparency that takes into consideration existing laws governing the employment relationship and complements those laws in order to produce a legal framework that promotes applicant and employee rights, while also allowing flexibility for the development of ADM systems that benefits employees, employers, and society. * LL.M., Drexel School of Law (2022); J.D., UCLA School of Law (2005). I owe a debt of gratitude to Professor Neal Wiley at Drexel, who provided patient and wise guidance throughout the process of drafting this Article. Special thanks to Janelle Barbier and the staff of Santa Clara High Technology Law Journal for their consideration, editing acumen, and providing a home for this work.

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