Article by Landyn Wm. Rookard
We are running out of time to strengthen our walls against harmful algorithmic governance. For one potential framework to strengthen these walls, this Article looks to analogous federal law prohibiting agencies from outsourcing ““inherently governmental functions.” Just as agencies should not outsource functions that are “so intimately related to the public interest as to require performance by Federal Government employees” (as provided by statute and regulations), so too should algorithmization be off limits for certain “inherently human functions.” Unfortunately, decades of practices and guidance regarding inherently governmental functions have often vexed and frustrated agencies attempting to comply with the law. Despite the shortcomings of the inherently governmental functions framework, this Article argues that Congress and the executive branch should establish a similar designation for inherently human functions to combat inappropriate governmental algorithmization and guarantee that humans make certain, high-impact decisions.
Despite some suggestions in the literature that the inherently governmental functions designation was inspired by the constitutional prohibition on private delegation, the historical record shows that the political branches developed the designation to address policy concerns about the effect that outsourcing can have on the independence, accountability, and capacity of the federal government. Algorithmic governance poses similar threats and warrants similar safeguards.
The proposed inherently human function designation should learn from the shortcomings of the inherently governmental function designation. Specifically, it should embrace a bottom-up process for filling in the details of the framework, one that prioritizes the voices of groups most directly impacted by algorithmization. The definition should focus on protecting against algorithmization of functions that could cause lasting, difficult-to-remediate harm to individuals' well-being. Finally, the inherently human functions designation should be backed by robust public and private enforcement mechanisms, such as agency ombuds offices and inspectors general and a private right of action for individuals directly harmed by inappropriate algorithmization.
About the Author
Landyn Wm. Rookard, Assistant Professor of Law, Loyola University New Orleans College of Law.
Citation
100 Tul. L. Rev. 777