The rule of law and algorithmization of decision-making in Russia, China, and Europe: prospects for the personalization of legal regulation
Algorithmization and automation of decision-making have recently spread more widely and are becoming more autonomous. At the same time, the principle of the rule of law, the main components of which in various legal systems are called transparency and accountability, predictability and consistency, equality before the law, is under pressure from the personalization of decisions. The algorithmization of state functions leads to the personalization of legal regulation to the detriment of equality of citizens and legal entities, which is confirmed by the introduction of credit systems that form a society of trust: social in China, environmental in Italy and Austria.
Keywords: rule of law, automated decision-making, artificial intelligence, social credit system, China.
Supremacy of Law and Development of Decision Making Algorithms in Russia, China, Europe: Legal Regulation Personalization Prospects
Introduction
Automated decision support algorithms are used in situations where a formalized description of this process is possible <1>. At the same time, the effectiveness of the introduction of so-called intelligent decision support systems is justified in the theory of automatic control <2>.
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<1> An example of formalizing the decision-making process can be the provisions of customs legislation when it is necessary to estimate the amount of customs payments based on the assignment of imported goods to a particular group based on digital codes (Resolution of the Arbitration Court of the Moscow District of September 9, 2021 N F05-21112/2021 in case N A40-265208/2020.
<2> Tikhanychev O.V. Theory and practice of automation of decision support: monograph. M.: Editus, cop. 2018. 75 p.
Intelligent decision support systems are widely used in public administration and business. They appeared quite a long time ago and are the heirs of transaction processing systems in databases from the 1960s of the XX century. <3>. Initially, such systems were built as databases equipped with an add-on with a numerical modeling function. However, with the development of the industry, they have acquired sufficient autonomy to make decisions instead of a person. At the same time, special legal regulation in this area is primarily focused on the processing of personal data. In this regard, we have drawn attention to the fact that the introduction of intelligent automated decision-making systems leads to a rethinking of the doctrine of the rule of law.
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<3> Garcia-Molina H. Using semantic knowledge for transaction processing in a distributed database // ACM Transactions on Database Systems (TODS). 1983. Vol. 8. Iss. 2. P. 186 - 213.
We found that the creation of common rules and the universal standardization of decision-making processes, leading to legal consequences for specific subjects of law, combined with the use of artificial intelligence algorithms and data analysis, led to the personalization of legal regulation. Using the example of personal data regulation, let's consider the legal effects of automating decision-making on rethinking the doctrine of the rule of law, taking into account the legislation and practice of different countries.
The main elements of the doctrine of the rule of law
The rule of law as a legal doctrine is not clearly enshrined in legislation, but has a comprehensive character. According to the brief definition of Black's Law Dictionary, the term Rule of Law refers to a legal principle that has a general application, is authorized by the recognition of the authorities and is usually expressed in the form of a maxim or a legitimate statement. It is called a rule because in doubtful or unforeseen cases it is a guide or norm for solving them <4>. Including the concept of the rule of law in the broader definition of the rule of law as a "common unifying principle" for the constitutional system, V.D. Zorkin pointed out that the concept of the rule of law, along with the rule of law, includes various elements, including: a legal system based on legal equality; human rights and fundamental freedoms that determine the meaning, content and the application of laws; stability of law, ensuring the orderly and predictable behavior of participants in legal relations, the ability to plan and coordinate actions over a certain period; the presence of independent, impartial, fair justice <5>.
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<4>
<5> Zorkin V.D. The rule of law and the meeting of civilizations // Journal of Constitutional Justice. 2008. N 1. p. 2 - 9.
The main components of the doctrine of the rule of law in all legal systems include transparency and accountability, predictability and consistency, equality before the law <6>.
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<6> Bingham L. The rule of law // The Cambridge Law Journal. 2007. Vol. 66. Iss. 1. P. 67 - 85.
Transparency and accountability presuppose that the authorities comply with the requirements of the publicity of their decisions and are responsible for them to the public. Transparency in public administration guarantees legal certainty and increases the level of legitimacy in the decision-making process <7>. Transparency of the decision-making process and system ensures accountability of decision makers.
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<7> Jashari M., Pepaj I. The role of the principle of transparency and accountability in Public Administration // Acta Universitatis Danubius. Administratio. 2018. Vol. 10. Iss. 1.
Predictability and consistency serve to increase the confidence of all those to whom the law is addressed and the effectiveness of the application of the law, including the uniformity of judicial practice.
Equality before the law is enshrined in many basic laws of States. In Russian law, it is established that everyone is equal before the law and the court. Article 19 of the Constitution of the Russian Federation <8> provides that the State guarantees equality of human and civil rights and freedoms regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances.
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<8> The Constitution of the Russian Federation (adopted by popular vote on 12.12.1993 with amendments approved during the all-Russian vote on 07/01/2020).
All the indicated components are interconnected and overlap with each other. At the same time, all of them were somehow touched upon when discussing the use of artificial intelligence for algorithmization of decision support systems. Thus, according to the National Strategy for the Development of Artificial Intelligence for the period up to 2030. The main principles of the development and use of artificial intelligence technologies in Russia, among others, are: protection of human rights and freedoms, security, transparency and explainability of artificial intelligence and the process of achieving results, including non-discriminatory access of product users to information about artificial intelligence algorithms used in these products.
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<9> Decree of the President of the Russian Federation No. 490 dated October 10, 2019 "On the development of artificial intelligence in the Russian Federation" (together with the National Strategy for the Development of Artificial Intelligence for the period up to 2030).
In the "zero draft" of the European Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law published in January 2023, Article 7 describes the requirements for respect for democratic institutions and the rule of law: "Each party takes all necessary measures to preserve the integrity of democratic institutions and processes and ensure respect for the rule of law and proper administration justice in the context of the application of an artificial intelligence system. To this end, a thorough assessment of the necessity, proportionality and potential risks should be carried out by the competent national authority, both before and during the application of the artificial intelligence system in the development or revision of laws and policies governing the respective roles of the executive branch, other democratic institutions and the judiciary" <10>.
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<10> Revised Zero Draft [Framework] Convention on Artificial Intelligence, Human Rights, Democracy and The Rule of Law.
Against the background of the general concern of legislators about the observance of the principles of the rule of law and law as a broader concept, it is justified in the literature that it is necessary to coordinate automated algorithmic government decision-making with the values of the rule of law <11>. S.A. Gracheva correctly points out: "Despite the fact that the requirements for the approval and observance of the principle of the rule of law are enshrined in many relevant acts (international treaties, agreements, declarations and charters, charters and documents of leading interstate organizations), such regulation of the rule of law is of particular importance, the effectiveness of which is ensured by special mechanisms to guarantee it" <12>.
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<11> Zalnieriute M., Moses L.B., Williams G. The rule of law and automation of government decision-making // The Modern Law Review. 2019. Vol. 82. Iss. 3. P. 425 - 455.
<12> Gracheva S.A. The doctrine of the rule of law and judicial legal positions // Journal of Russian Law. 2014. N 4. pp. 33-45.
Algorithmization of solutions and automated processing of personal data
The mechanism for ensuring the rule of law in all countries is based today on the introduction of algorithmization systems for the work of government agencies.
Algorithmization can have varying degrees of autonomy. The independent significance of system decisions varies depending on the spectrum (from partial to full automation) from decision support (a computer helps people make decisions) to human participation in the cycle (decisions are made with some human participation) and to the disappearance of people from the decision-making process completely. Decision support tools are used as the simplest to find a possible solution in a particular situation by a decision maker. More complex are systems that automatically determine some facts relevant to the decision, for example, that a person meets the age criterion, leaving the rest of the decision-making elements to authorized persons. Further, a more sophisticated automated system may provide information related to an assessment rather than a purely fact-based criterion, such as assessing the likelihood that a person will be dangerous or unlikely to comply with a payment plan. Automation may also recommend that the decision maker make a decision on the case in a certain way, in which case the decision maker may consider such a recommendation as more or less decisive for the outcome. Finally, the system can identify the relevant information and then make a decision based on that information without involving the decision maker <13>. Therefore, it is so important to eliminate the influence of the algorithm and the conditional categoricality inherent in their application on legal relations in order to ensure the operation of the principle of the rule of law, and not the rules of the algorithm <14>. The introduction of profiling systems in different jurisdictions makes it possible to clearly see how automation of decision-making affects human rights.
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<13> Zalnieriute M., Moses L.B., Williams G. Op. cit. P. 425 - 455.
<14> Lessig L. Code is law // Harvard magazine. 2000. Vol. 1.
In China, the government uses information technology to implement decentralized public administration <15>. It was the People's Republic of China that became the first state in which citizen profiling began to be used to algorithmize government decisions. The Chinese Communist Party has deployed a powerful social credit system. Launched at the national level in 2014, this system is designed to assess the trustworthiness of Chinese citizens in terms of fulfilling their promises and complying with legal norms, moral norms, professional and ethical standards <16>.
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<15> Ma L., Chung J., Thorson S. E-government in China: Bringing economic development through administrative reform // Government Information Quarterly. 2005. Vol. 22. Iss. 1. P. 20 - 37.
<16> Planning Outline for the Construction of the Social Credit System (2014 - 2020) (2014 - 2020 )] (adopted by St. Council and effective on June 14, 2014) (SCS Outline hereafter).
Social credit in China is a personal data processing system that manifests itself in a comprehensive study, collection and widespread use of personal data of both individuals and organizations to solve the tasks of "encouraging trustworthiness and punishing unreliability" <17>. The researchers report that the idea of "social credit" was originally introduced in the early 2000s to guide economic reforms that enhance the financial creditworthiness of businesses and individuals. Gradually, this concept expanded to include their integrity or reliability in relation to the fulfillment of contractual and legal obligations. And since 2011, the directives of the Communist Party of China and the policy of the central government have used "social credit" as a complex concept closely related to both market regulation and social management. A program has been launched that awards points for good behavior and deducts points for bad behavior, such as violating traffic rules and illegally seeking help from higher authorities. Points are counted in the electronic wallet of the popular messenger. The incentives include accelerated promotion or consideration of applications for public housing <18>.
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<17> Guidelines of the State Council on Establishing and Improving the System of Joint Rewarding for Trustworthiness and Joint Punishment for Untrustworthiness and Accelerating the Construction of Trustworthiness in the Society (issued by the St. Council on May 30, 2016). "Notice of the National Development and Reform Commission, the Supreme People's Court, the People's Bank of China, and Other Departments on Issuing the Memorandum of Understanding on Taking Joint Disciplinary Actions against Untrustworthy Persons Subject to Enforcement", January 20, 2016.
<18> Chen Y., Cheung A.S. The transparent self under big data profiling: Privacy and Chinese legislation on the social credit system // The Journal of Comparative Law. 2018. Vol. 12. Iss. 2. P. 356 - 378.
This system has been repeatedly and very sharply criticized by scientists as an instrument of total control <19>.
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<19> Clover Ch. China: When Big Data Meets Big Brother // Financial Times. 2016. 20 January.
However, later European countries introduced analogues of the Chinese social credit system. In Bologna (Italy), since the autumn of 2022, a pilot is being tested to encourage citizens - the "Portfolio of a Virtuous Citizen" (Il portafoglio del cittadino virtuoso) - who support the global environmental agenda. The authorities should be encouraged to take a responsible attitude to garbage recycling and public transport trips, and to use electricity economically. The Smart Citizen Wallet application is filled with reward points that can be spent at local stores.
The collection and processing of data on the encouraged behavior of citizens "will allow the municipality to develop traffic simulations both from the point of view of the weather and for the maintenance of the territory, saving a lot of resources, for example, to withstand the after-the-fact consequences of the same adverse climatic events of recent years or pollution of the Po valley," the city authorities report <20>. In the development of this project, the Bologna authorities came to the conclusion that it is possible to "provide services to citizens based on their needs." According to the mayor of the city, "this will allow us to personalize their experience" <21>.
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<20>
<21> Bologna, la "patente digitale" per i cittadini virtuosi: punti e premi. E un'app con tutti i servizi. 29 marzo 2022.
In Russia, profiling of citizens is also a recent trend. On the Unified portal of state and municipal services, depending on the confirmation of individual status, several levels of users differ, and therefore it is possible to access a certain set of electronic services. A system of mobile applications for digital counterparts of basic personal storage documents is being launched <22>.
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<22>
Austria's experience is also aimed at shaping the profile of a good citizen through the prism of the environmental agenda <23>. Since the autumn of 2022, every resident of Vienna has been offered an application that rewards his behavior with "Vienna tokens". Anyone who saves CO2 gets points.
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<23> Wien als Labor Sozialkreditsystem.
Personalization of legal regulation as the reverse side of the concept of a "trustworthy society"
Consumer financial credit ratings are known in many countries <24>, and in recent years there has also been a proliferation of rating systems for online platforms and the "sharing economy" such as eBay, Uber and Airbnb. However, according to many Western observers, the emerging Chinese social credit system indicates a paradigm shift compared to these previous rating systems, as it aims at a comprehensive and uniform social rating based on punishment and reward mechanisms.
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<24> Razumov E. Digital dictatorship: features of the social credit system in the People's Republic of China. Education, 2022.
The main means of implementing a social credit rating is the use of a digital identity card, a central bank digital currency, and mass surveillance so that the government can track purchases and interactions and restrict access to means to compel behavior <25>. The EU has previously recognized the risk of mass surveillance and planned to ban facial recognition, especially in the context of social credit systems <26>. It is obvious that these systems, which have received the name "trustworthy society" in China, are dangerous not by rewards as such, although their choice can also have a significant impact on what is supported in society and the state, but by punishments. Rather, those restrictions that will follow in connection with the disapproval of society and the state of certain activities evaluated by the algorithm.
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<25> Kasl F. Surveillance in digitalized society: The Chinese social credit system from a European perspective // Lawyer Quarterly. 2019. Vol. 4. Iss. 9. P. 349 - 358.
<26> Pabisiak J. Dangerous, Yet Not So Unique. Characteristics of the Chinese Social Credit System // Polish Political Science Yearbook. 2020. Vol. 49. Iss. 3. P. 30.
In this way, transparency and predictability in the role of components of the rule of law lead to risks of unjustified prosecution, demotion of status in the application and ultimately to violation of the principle of equality. Minbaleev notes that "the functioning of a digital profile also raises problems of reliable assessment of real users - owners of certain profiles, as well as their protection from unfair use by third parties of data from such profiles, carrying out a number of actions, including property-oriented ones on behalf of such digital characters without their consent" <27>.
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<27> Minbaleev A.V. Problems of civil protection of personal non-property rights in the process of digital profiling of citizens // Civil law. 2022. N 2. pp. 9-11.
There is no need to prove: whoever owns the information and the algorithm that processes it determines how personalized rules, which are increasingly becoming normative, will be combined with the rule of law.
The digital revolution has created databases with rich personal information that are used to personalize other sectors and other treatments that used to be uniform. Can jurisprudence become individual and bring such huge social benefits as personalizing the treatment of different people without violating equality and overthrowing the rule of law?
In essence, big data can regulate and refine the development of legal norms. Lawyers should already develop norms regulating situations where autonomous algorithms can complement and replace human discretion in determining optimal legal norms and will be able to find appropriate differences between people and use them to personalize sanctions, rights and obligations. This belief is based on the conclusions of a large study, the authors of which proved that "impersonal information responsibilities and standardized notifications can be replaced by granular legal norms that provide personalized disclosure of information based on a person's information needs and personal preferences" <28>. Personalized entitlement is a timely, almost inevitable request. The technology that allows the implementation of personalization may well provide the benefits of personalized law, provided that the necessary restrictions and guarantees are established.
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<28> Ben-Shahar O., Porat A. Personalized law: Different rules for different people. Oxford University Press, 2021.
