About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

69 Admin. L. Rev. 83 (2017)
An FDA for Algorithms

handle is hein.journals/admin69 and id is 95 raw text is: 










               AN FDA FOR ALGORITHMS


                                ANDREW TUTT*

    The rise of increasingly complex algorithms calls for critical thought about how best to
prevent, deter, and compensate for the harms that they cause. This Article argues that the
criminal law and tort regulatoy systems will prove no match for the difficult regulatogy
puzzles algorithms pose. Algorithmic regulation will require federal uniformity, expert
judgment, political independence, and pre-market review to prevent-without stifling
innovation-the introduction of unacceptably dangerous algorithms into the market. This
Article proposes that certain classes of new algorithms should not be permitted to be
distributed or sold without approval from a government agency designed along the lines of
the FDA. This FDA for Algorithms would approve certain complex and dangerous
algorithms when it could be shown that they would be safe and effective for their intended
use and that satisfactoy measures would be taken to prevent their harmful misuse.
Lastly, this Article proposes that the agency should serve as a centralized expert regulator
that develops guidance, standards, and expertise in partnership with industy to strike a
balance between innovation and safety.

                             TABLE OF CONTENTS

 Inroduction  .............................................................................................  84
 I. What Algorithms Are and Soon Will Be .......................................... 92
        A . T he B asics ................................................................................   92
        B. Trained  Algorithm  s .................................................................  94
        C. Predictability and  Explainability ................................................ 101
 II. Things an Agency Could Sort Out ....................................................... 104
        A. Acting as a Standards-Setting Body ........................................... 106



        *  Attorney-Adviser, Office of Legal Counsel, Department of Justice. The views
 expressed in this essay are the author's only and do not necessarily reflect the views of the
 Department of Justice or the Office of Legal Counsel. The author wishes to thank the
 participants in the 2016 Unlocking the Black Box conference at Yale Law School. Special
 thanks are owed to Jack Balkin, Frank Pasquale, and Jonathan Manes. The author also
 wishes to thank the editors of the Administrative Law Review, especially Ross Handler and
 Kimberly Koruba, for their dogged editing and inexhaustible patience.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most