Lowering the threshold for strategic litigation on AI and human rights

By Nani Jansen Reventlow, 8th November 2019

DFF commenced its operations in 2017 by starting a strategy process. This process, which is ongoing to this day, consisted of a consultation of all key stakeholders working on digital rights in Europe, asking them what their priorities were and how DFF could best support them. Following DFF’s first strategy meeting in February 2018, this process led to the formulation of three thematic focus areas for DFF’s work. First, advancing individuals’ ability to exercise their right to privacy; second, protecting and promoting the free flow of information online; and third, ensuring accountability, transparency and the adherence to human rights standards in the use and design of technology.

The debate about “AI” – also framed as one on machine learning or automated decision making – has become a hot topic for discussion over the recent period. As foreshadowed by developments in 2018, AI and human rights was a much-debated topic at our 2019 strategy meeting, which brought together 48 organisations from across Europe working on digital rights.

As had been the case during the Virtual Strategy Design Jam we hosted on the use of AI in law enforcement in the runup to the strategy meeting, the topic was actively debated, but we did not see a corresponding uptake of the issue when it came to litigation. In other words: there was a clear sense of urgency to address the potential negative impact the use of AI could have on human rights, and an interest in pursuing litigation to address this, but not many cases were brought. Following the discussions at our strategy meeting closely and listening to other input from the field, it became clear that many litigators had difficulty identifying the issues on which to litigate and suitable entry points to do so.

The development and use of technology in all aspects of our lives meanwhile is increasing, making the need to confront and challenge any negative human rights impacts that result from it ever more urgent. Strategic litigation can be an important instrument in this fight. In light of this, DFF is seeking to help lower the threshold for litigators to step into this space and help safeguard our human rights when AI is at play.

This November, DFF is hosting a litigators’ meeting together with the AI Now Institute, building on their “Litigating Algorithms” series (see here and here for the meeting reports) which brought together litigators, academics and technologists to share experiences in litigation on the impact of the use of AI across a variety of different contexts. The meeting, which will be hosted at Mozilla’s Berlin office, will bring together US and European litigators with experience in challenging algorithmic decision making through the courts as well as those with an interest in doing so. Besides sharing best practices, participants will brainstorm new case ideas and identify concrete plans for next steps.

In October, DFF’s Legal Adviser joined forces with technologist Aurum Linh, a Mozilla Fellow, to work on a set of guides to help build stronger litigation on AI and human rights that can help set precedents that ensure greater transparency, accountability and adherence to human rights standards in the design and use of AI. The first guide will be aimed at demystifying litigation for digital rights activists, technologists and data scientists, who will often be at the forefront of identifying the situations and fact patterns that are ripe for AI-related human rights challenges through litigation. The second guide will be aimed at lawyers working across different practice areas – such as criminal, employment, immigration or election law – who could have clients whose rights have been violated by the development and use of AI. The guide will provide these legal practitioners with the minimum viable information necessary to effectively identify and pursue legal claims challenging human rights violations caused by AI. The guides will be developed through regular consultation with the intended audiences and organisations already looking at litigating on AI to ensure the resources meet their needs. Watch this space for updates and learn how you can join the conversation.

Both strands of activities will build on each other and weave into DFF’s ongoing dialogue with the field. Following the November “European litigating algorithms” meeting, a report will be published in early Spring to share lessons learned with the field. In February 2020, a dedicated consultation will be held to test the concepts of the litigation guides. This all will feed into the publication of the guides in the second half of 2020 and an international meeting for litigators to share experiences on litigating on this topic across different regions.

… and, we hope, many exciting cases! We look forward to supporting some of the exciting work that will be developed over the coming months and are always happy to hear from you and discuss your ideas.