Retrofitters, pragmatists and activists: Public interest litigation for accountable automated decision-making

Abstract

This paper examines the role of public interest litigation in promoting accountability for AI and automated decision-making (ADM) in Australia. Since ADM regulation faces political and geopolitical headwinds, effective governance will have to rely on the enforcement of existing laws. Drawing on interviews with Australian public interest litigators, technology policy activists, and technology law scholars, the paper positions public interest litigation as part of a larger ecosystem for transparency, accountability and justice with respect to ADM. The paper explores the tactics and strategies of what one participant described as 'retrofitting' old laws to ADM. These go beyond creative legal argumentation, to encompass practices of community-building, collaboration on theories of change, canny selection of clients and causes of action, and aligning the interests of stakeholders in litigation. Naturally, the paper also contends with the limits of these strategies, and of the Australian legal system. Where limits are capable of being overcome, the paper presents findings on urgent needs: the enabling institutional arrangements without which effective litigation and accountability will falter. The paper is relevant to law and technology scholars, individuals and groups harmed by ADM, public interest litigators and technology lawyers, civil society and advocacy organisations, and policymakers.