Private Involvement in Autonomous Decision-Making Exercising Public Tasks and the Good Administration: a need for further research
The use of algorithms by public administration is nothing new on the horizon. In 2019, Algorithm Watch started the project ‘Automating Society’, which has resulted in two annual reports mapping the usage of ADM operations by Member States throughout the European Union (EU). These public ADM processes are now widely spread. In social care they flag young adults at risk for social exclusion and identify associated risks (Eksote, Finland). In taxes they rank ‘risky’ citizens who may evade taxes (fraud detection, Slovenia), and in health care they monitor children’s growth and signal disparities that may be the consequence of diseases or child abuse potentially resulting in removing children from their families (Growth Watch, the Netherlands). Even the EU has acknowledged the potential of ADM procedures and established the European Travel Information and Authorisation System, which issues a travel authorisation to non-European citizens without a visa obligation to travel to the Schengen Member States. Applicants fill in an online application, after which the system will either issue the travel authorisation or determine that further examination is required. Another example includes iBorderCtrl, a lie detection system that screened third country nationals at the borders of the EU. An avatar conducted interviews with these citizens – and when necessary marked them as potentially lying – during a pre-screening. The EU ceased using iBorderCtrl in 2019.
Despite the potential of increasing involvement of private parties in ADM systems performing public tasks, such involvement equally bears the risk to negatively affect the duty to state reasons and the right to be heard under the right to good administration of Article 41 Charter of Fundamental Rights of the European Union (EU Charter). It is in this light that this blog post will firstly discuss the involvement of private parties in ADM systems executing public tasks. Secondly, it outlines the legal framework of the right to good administration under the EU Charter and the European Convention on Human Rights (ECHR). This right is embedded in Article 41 EU Charter, which correlates to Article 6(1) ECHR. As a result, the degree of protection of this corresponding right may not fall below the protection provided by the ECHR. Lastly, the post assesses potential violations due to the private involvement in ADM operations carrying out public tasks. Continue reading