Freedom, authority and knowledge on line: the dictatorship of the algorithm

Autor:Gianluigi Fioriglio
Cargo:University of Rome 'Sapienza'
Páginas:395-410
RESUMEN

Web search engines are a very important mean to fight information overload’s consequences, but this makes them the gate to digital information of any type and purpose. The cyberspace is accessed through such complex and automated tools: software agents execute secret and complex algorithms and make information easily reachable or hidden, but anomalies and bugs may have serious consequences.... (ver resumen completo)

 
EXTRACTO GRATUITO
Revista inteRnacional de Pensamiento Político - i ÉPoca - vol. 10 - 2015 - [395-410] - issn 1885-589X
395
FREEDOM, AUTHORITY AND
KNOWLEDGE ON LINE: THE
DICTATORSHIP OF THE ALGORITHM
1
Gianluigi Fioriglio
University of Rome “Sapienza”
gianluigi.origlio@uniroma1.it
Recibido: octubre de 2015
Aceptado: noviembre de 2015
Keywords: Search engine, search neutrality, web neutrality, search algorithm, liability.
Abstract: Web search engines are a very important mean to ght infor-
mation overload’s consequences, but this makes them the gate to digital
information of any type and purpose. The cyberspace is accessed through
such complex and automated tools: software agents execute secret and
complex algorithms and make information easily reachable or hidden, but
anomalies and bugs may have serious consequences. Private entities provi-
de such services, on a global (e.g. Google), or local but relevant scale (e.g.
Baidu). After the Google Spain case, literature on the right to be forgotten is
growing. This paper aims at go further, investigating both the right to access
on line information and to be correctly and neutrally indexed by web search
engines. The law must regulate this topic, making them work in a neutral
and non-discriminatory way, even if they work cross-borders and are private
subjects. Otherwise, the Information Society will even more controlled by
the dictatorship of the algorithm.
1. Introduction
Legal literature on web search engines2 is growing, especially after a landmark decision
by the European Court of Justice: the judgement in “Google Spain SL and Google Inc.
v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González” (13
May 2014, “Google Spain case”; European Court of Justice 2014). It held that the
right to be forgotten applies to search engines; in particular, in the European Union it
is possible to ask for delisting of web site links from the SERP (Search Engine Results
Page). Thus, even if a web page is on line and cannot be legally shut down, it may not
be indexed if certain conditions are met. The ECJ judgement is a landmark decision
because it makes a division among what can be easily found on the web, on the one
1. This is the revised version of the paper presented at XXVII World Congress of the IVR - International
Association for the Philosophy of Law and Social Philosophy (Special Workshop on “From Net
Neutrality to Net Protability? Law, Politics and the Internet”), Washington DC, July 2015.
2. This paper uses the expression “search engine” to indicate automated web search engines.
Revista inteRnacional de Pensamiento Político - i ÉPoca - vol. 10 - 2015 - [395-410] - issn 1885-589X
396
hand, and what can hardly be found, on
the other hand. A web content may be pu-
blished, but it does not necessarily imply
that everyone may rapidly nd it, answe-
ring to a reasonable expectation of privacy.
This aspect is crucial in the Information
Society, because search engines are the
primary gatekeepers to digital information.
Another aspect is perhaps even more im-
portant, but it needs deeper investigation:
is there a legal obligation related to web
site indexing? In other words, is there a
right to be indexed?
In fact, if we take into account only what
happens when a search engine responds
to a query (as in the case of the right to be
forgotten), we forget what happens before:
how does a search engine build its SERP?
How does it decide what pages can be
shown and their ranking?
This is not only an antitrust matter, because
it relates to all subjects whose content is
published on the web and indexed auto-
matically by search engines. “In an envi-
ronment where consumers are no longer
passive receivers of information, but in-
creasingly active contributors to the infor-
mation ecosystem, access also concerns
the (controversial) debate about the entit-
lement of users (as creators) to be integra-
ted into search indexes and ranking lists,
or at least the possible remedies against
discrimination in the indexing or ranking
processes” (Gasser 2006: 232).
Today, a search engine can decide what
can be accessed on the web; it can hide
and/or rank information making it hardly
be found (“By controlling the communi-
cation infrastructure of the Internet, they
have become information gatekeepers”;
Laidlaw 2008: 1143). It is fair: everybody
3. Moreover, “Users have become dependent on
search engines, viewing them as authoritative and
uses a search engine to nd something.
Nevertheless, it is also fair to ask for search
(or web) neutrality.
Before investigating this aspect, it is
useful to make some preliminary observa-
tions also from the methodological point
of view in order to clarify the perspective
of this paper. Search engines are the key
information retrieval systems of the Infor-
mation Society and this eld is not new
for legal informatics4. By adopting such
approach, law can be a meta-technology,
as argued by Ugo Pagallo with reference
to the “laws of robots”. In particular, he
proposes “to approach the laws of the law
establishing the conditions of legitimacy
for the design, production, and use of
robots, conceiving the law as meta-tech-
nology, i.e., as a means to govern other
technological means” (Pagallo 2013:
10). Thus, “once such tecnique regula-
tes other techniques and, moreover, the
process of technological innovation, we
may accordingly conceive the law as a
meta-technology” (Pagallo 2013: 11).
With particular reference to search
engines, it has to be considered that the
cyberspace actually is a complex digital
maze in which it is possible to retrieve
any information stored. As the library of
Babel, it may contain the solution to many
problems (Amato Mangiameli 2000: 36).
A search engine plays a key role: it is not
just an information retrieval system, but
reliable. Search engines have become the tools
through which the democratic potential of the
Internet can be advanced or hindered” (Laidlaw
2008: 145).
4. Legal informatics always studied information
retrieval systems and their legal issues.
Technological advancements led to growing
studies in the eld of articial intelligence in the
legal eld (including, but not limited to, legal
reasoning and automated application of the law).

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