Position: AI's growing due process problem

Sunayana Rane

TL;DR: This paper takes the position that AI systems whose behavior cannot be fully explained are not only a threat to constitutional due process, they are fundamentally incompatible with it

Abstract: AI systems are now ubiquitous in real-world decision-making. However, their use is often invisible and almost always difficult to understand for the ordinary people who now come into contact with AI regularly. As these AI-driven decision-making systems increasingly replace human counterparts, our ability to understand the reasons behind a decision, and to contest that decision fairly, is quickly being eroded. In the United States legal system due process includes the right to understand the reasons for certain major decisions and the right to openly contest those decisions. Everyone is entitled to due process under the law, and human decision-makers have been required to adhere to due process when making many important decisions that are now slowly being relegated to AI systems. Using two recent court decisions as a foundation, this paper takes the position that AI in its current form cannot guarantee due process, and therefore cannot and (should not) be used to make decisions that should be subject to due process. The supporting legal analysis investigates how the current lack of technical answers about the interpretability and causality of AI decisions, coupled with extreme trade secret protections severely limiting any exercise of the small amount of technical knowledge we do have, serve as a fatal anti-due-process combination. Throughout the analysis, this paper explains why technical researchers' involvement is vital to informing the legal process and restoring due process protections.

Lay Summary: AI systems are now ubiquitous in real-world decision-making. However, their use is often invisible and almost always difficult to understand for the ordinary people who now come into contact with AI regularly. As these AI-driven decision-making systems increasingly replace human counterparts, our ability to understand the reasons behind a decision, and to contest that decision fairly, is quickly being eroded. In the United States legal system due process includes the right to understand the reasons for certain major decisions and the right to openly contest those decisions. Everyone is entitled to due process under the law, and human decision-makers have been required to adhere to due process when making many important decisions that are now slowly being relegated to AI systems. Using two recent court decisions as a foundation, this paper takes the position that AI in its current form cannot guarantee due process, and therefore cannot and (should not) be used to make decisions that should be subject to due process. The supporting legal analysis investigates how the current lack of technical answers about the interpretability and causality of AI decisions, coupled with extreme trade secret protections severely limiting any exercise of the small amount of technical knowledge we do have, serve as a fatal anti-due-process combination. Throughout the analysis, this paper explains why technical researchers' involvement is vital to informing the legal process and restoring due process protections.

Primary Area: Social, Ethical, and Environmental Impacts

Keywords: law, due process

Submission Number: 519