Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation

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Introduction

In recent months, researchers,¹ government bodies,² and the media³ have claimed that a ‘right to explanation’ of decisions made by automated and artificially intelligent algorithmic systems is legally mandated by the forthcoming European Union General Data Protection Regulation⁴ 2016/679 (GDPR). The right to explanation is viewed as a promising mechanism in the broader pursuit by government and industry for accountability and transparency in algorithms, artificial intelligence, robotics, and other automated systems.⁵ Automated systems can have many unintended and unexpected effects.⁶ Public assessment of the extent and source of these problems is often difficult,⁷ owing to the use of complex and opaque algorithmic mechanisms.⁸ The alleged right to explanation would require data controllers to explain how such mechanisms reach decisions. Significant hype has been mounting over the empowering effects of such a legally enforceable right for data subjects, and the disruption of data intensive industries, which would be forced to explain how complex and perhaps inscrutable automated methods work in practice.