5 THE ITALIAN LAW JOURNAL NO. 1 (2019) Algorithms and Law by Erika Giorgini The paper moves from the idea that thanks to a technology, which was able to transmit data in a rapid and secure way, and the spread of (personal) computers, a globalised network of data users was created. They started to produce content which was then organized and interconnected. DOI 10.23815/2421-2156.ITALJ ISSN 2421-2156
This essay outlines the role of the law in this process. It notes that the law of states was not interested at first in the regulation of this network, which was at first used only used by its inventors-designers. They created and established the technical norms through which it existed, ie ‘the original code’. Little by little, the participants with ownership rights to this technology, and the market, added to these non-legal norms.
In this regard, theory has been elaborated which claims that the network is regulated by the existence of autonomous legal systems which are made ‘by communities of choice clustering around shared interests’.
The work criticizes this approach because, in the era of digitalism, not even the most articulated and precise legal system allows to calculate the law, so that, a fortiori, also the respect of fundamental human right could be threatened.
The essay also highlights that the obscure nature of legal systems in which norms are formulated by algorithms is amplified by the current function of the data that is being considered somewhat akin to natural resources, as ‘data in the wild’. This phenomenon appears in the so-called ‘deep learning’ phenomenon, in which is not possible to know ex ante the data that are the inputs of the algorithmic procedure. Thus, the data are not provided by humans, but they are learned from the algorithm itself.
In conclusion, algorithmic mathematical design needs to be considered in more detail in order to understand its real function. Indeed, it is only through the investigation of this function that the possible regulation of decisions based on algorithms and the role of the law within the machine-internet-web system can be analyzed.
