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69 Fla. L. Rev. 181 (2017)
Black Box Tinkering: Beyond Disclosure in Algorithmic Enforcement

handle is hein.journals/uflr69 and id is 187 raw text is: BLACK BOX TINKERING: BEYOND DISCLOSURE IN ALGORITHMIC ENFORCEMENT Maayan Perel* & Niva Elkin-Koren** Abstract The pervasive growth of algorithmic enforcement magnifies current debates regarding the virtues of transparency. Using codes to conduct robust online enforcement not only amplifies the settled problem of magnitude, or too-much-information, often associated with present- day disclosures, but it also imposes practical difficulties on relying on transparency as an adequate check for algorithmic enforcement. Algorithms are non-transparent by nature; their decision-making criteria are concealed behind a veil of code that we cannot easily read and comprehend. Additionally, these algorithms are dynamic in their ability to evolve according to different data patterns. This further makes them unpredictable. Moreover, algorithms that enforce online activity are mostly implemented by private, profit-maximizing entities, operating under minimal transparency obligations. As a result, generating proper accountability through traditional, passive observation of publicly available disclosures becomes impossible. Alternative means must therefore be ready to allow the public a meaningful and active interaction with the hidden algorithms that regulate its behavior. This Essay explores the virtues of black box tinkering as means of generating accountability in algorithmic systems of online enforcement. Given the far-reaching implications of algorithmic enforcement of online content for public discourse and fundamental rights, this Essay advocates active public engagement in checking the practices of automatic enforcement systems. Using the test case of algorithmic online enforcement of copyright law, this Essay demonstrates the inadequacy of transparency in generating public oversight. This Essay further * Dr. Maayan Perel, Post-doctoral Fellow, Haifa Center for Law & Technology, University of Haifa Faculty of Law; S.J.D., University of Pennsylvania Law School. ** Professor Niva Elkin-Koren, Director, Haifa Center for Law & Technology, University of Haifa Faculty of Law. We thank Oren Bracha, Miriam Bitton, Jane Ginsberg, Ellen Goodman, Eldar Haber, Lital Helman, Joe Karaganis, Ethan Katsh, Shelly Kreiczer-Levy, Edward Lee, Neil Netanel, Gideon Pharchomovsky, Orna Rabinovitich-Einy, Tal Zarsky, as well as the participants of the 2015 Trust and Empirical Evidence in Law Making and Legal Process conference, University of Oxford, and the participants of the 2015 Conference on Empirical Research on Copyright Issues in Chicago- Kent College of Law, for their insightful comments and suggestions. Special thanks are due to the participants of the 2013-14 Law & Technology clinic, University of Haifa, for conducting the empirical study reported in this Essay, and to Nati Perel for the original design of the study. We are further grateful to Dalit Kan-Dror, Esq. for her academic assistance. This research was supported by the I-CORE Program of the Planning and Budgeting Committee and The Israel Science Foundation. 181

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