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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.

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