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66 UCLA L. Rev. 54 (2019)
Private Accountability in the Age of Artificial Intelligence

handle is hein.journals/uclalr66 and id is 64 raw text is: 

Private Accountability in the Age of Artificial Intelligence

Sonia  K. Katyal


In this Article, I explore the impending conflict between the protection of civil rights and artificial
intelligence (AI). While both areas of law have amassed rich and well-developed areas of scholarly
work and doctrinal support, a growing body of scholars are interrogating the intersection between
them.  This Article argues that the issues surrounding algorithmic accountability demonstrate a
deeper, more structural tension within a new generation of disputes regarding law and technology.
As I argue, the true promise of Al does not lie in the information we reveal to one another, but
rather in the questions it raises about the interaction of technology, property, and civil rights.

For this reason, I argue that we are looking in the wrong place if we look only to the state to
address issues of algorithmic accountability. Instead, given the state's reluctance to address the
issue, we must turn to other ways to ensure more transparency and accountability that stem
from private industry, rather than public regulation. The issue of algorithmic bias represents a
crucial new world of civil rights concerns, one that is distinct in nature from the ones that
preceded it. Since we are in a world where the activities of private corporations, rather than the
state, are raising concerns about privacy, due process, and discrimination, we must focus on the
role of private corporations in addressing the issue. Towards this end, I discuss a variety of tools to
help eliminate the opacity of Al, including codes of conduct, impact statements, and whistleblower
protection, which I argue carries the potential to encourage greater endogeneity in civil rights
enforcement. Ultimately, by examining the relationship between private industry and civil rights,
we can perhaps develop a new generation of forms of accountability in the process.


Haas  Distinguished Chair, University of California at Berkeley, and Co-director, Berkeley
Center for Law  and Technology.   Many,  many  thanks to the following for conversation and
suggestions: Bob Berring, Ash Bhagwat, Andrew Bradt, Ryan Calo, Robert Cooter, Jim Dempsey,
Deven  Desai, Bill Dodge, Dan Farber, Malcolm  Feeley, Andrea Freeman, Sue Glueck, Gautam
Hans, Woodrow   Hartzog, Chris Hoofnagle, Molly van Houweling, Margaret Hu,  Gordon  Hull,
Sang  Jo Jong, Neal  Katyal, Craig Konnoth,  Prasad Krishnamurthy,  Joshua Kroll, Amanda
Levendowski, David Levine, Mark MacCarthy, Peter Menell, Cal Morrill, Deirdre Mulligan, Tejas
Narechania, Claudia Polsky, Julia Powles, Joel Reidenberg, Mark Roark, Bertrall Ross, Simone Ross,
Andrea  Roth, Pam  Samuelson, Jason Schultz, Paul Schwartz, Andrew Selbst, Jonathan Simon,
Katherine Strandburg, Joseph Turow, Rebecca Wexler, Felix Wu, and John Yoo. I am tremendously

66 UCLA L. REV. 54 (2019)

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