Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person’s eligibility for public benefits. Computer systems store sensitive personal information. These systems’ closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program’s source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, and distort policy embedded in automated public benefits systems. Neither senior officials nor the public can provide feedback on agency decisions embedded in code. Interested programmers have no opportunity to collaborate on a system’s design or security. In short, these systems’ closed architecture impairs the administrative state’s accountability, denies the public the opportunity to participate in its policymaking, and ignores the availability of valuable expertise. This Essay proposes opening up these black boxes to democratize agencies’ automated decision-making. In revealing the programmer’s instructions to the computer, open code shines light on important regulatory choices currently hidden from both elected policy-makers and the public at large. It creates new opportunities for participation by a broad network of programmers, who can contribute to the development of accurate and secure systems. Such feedback would exert pressure on agencies to fix problems at the margins that agencies might be inclined to ignore. Open code makes programming and system design expertise relevant and available to the administrative state. In short, open code governance provides a means to make agency decisions bound up in information systems more transparent, democratic, and legitimate.
Science and Technology Law
2008 University of Chicago Legal Forum 355 (2008).