“the privatization of public functions”

An emerging theme from the conference on Trade Secrets and Algorithmic Systems was that legal scholars have become concerned about the privatization of public functions. For example, the use of proprietary risk assessment tools instead of the discretion of judges who are supposed to be publicly accountable is a problem. More generally, use of “trade secrecy” in court settings to prevent inquiry into software systems is bogus and moves more societal control into the realm of private ordering.

Many remedies were proposed. Most involved some kind of disclosure and audit to experts. The most extreme form of disclosure is making the software and, where it’s a matter of public record, training data publicly available.

It is striking to me to be encountering the call for government use of open source systems because…this is not a new issue. The conversation about federal use of open source software was alive and well over five years ago. Then, the arguments were about vendor lock-in; now, they are about accountability of AI. But the essential problem of whether core governing logic should be available to public scrutiny, and the effects of its privatization, have been the same.

If we are concerned with the reliability of a closed and large-scale decision-making process of any kind, we are dealing with problems of credibility, opacity, and complexity. The prospects of an efficient market for these kinds of systems are dim. These market conditions are the conditions of sustainability of open source infrastructure. Failures in sustainability are manifest as software vulnerabilities, which are one of the key reasons why governments are warned against OSS now, though the process of measurement and evaluation of OSS software vulnerability versus proprietary vulnerabilities is methodologically highly fraught.

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