Right not to use the Internet: Lessons to be learned from the right not to be subject to automated decisions

Abstract

It is widely acknowledged that new rights emerge when the existing legal framework fails to adequately protect the political and moral values of a society. Several factors can contribute to this inadequacy (Serna 2024: 19). Among these is the belief that current rights are insufficient to address new challenges (such as the digital ones); additionally, technological and scientific advancements, such as the use of “black boxes” in decision- making processes, further require the establishment of new rights. However, sometimes the best answer to deal with these defies are not new rights but a reinforced interpretation of existing rights (Serna 2024: 21).1 In this sense, the right not to use Internet can be conceptualized as an specific interpretation of the fundamental right of privacy (data protection); likewise, the right to be free from automated decisions may be considered a concretization of the right to judicial protection (and, ultimately, the Rule of Law). In particular, automated decision- making (ADM) systems are artificial intelligence technologies designed to assist or even replace human judgments. Applied in the legal domain, this technology is used by legal operators. The idea of a robot judge or machine judge is unsettling, though it has ceased to be a science fiction image, and national legislations, such as in Spain, already regulate AI- assisted judicial decisions.2 On the other hand, the use of ADM systems by the public authorities and governmental bodies is a well- established and widespread practice in all public services areas: health, education, contracting, transportation, etc. What is challenging is the use of ADM systems by public bodies to take decisions that have legal effects on citizens, so that it will be an algorithm that, via assistance or substitution, determines the sphere of rights and interests of those affected by the activity of governmental bodies. ADM systems present formidable challenges for the legal framework: transparency, accessibility, accountability, fairness, biases, and the delegation of legal powers to machines, among others. To confront these challenges and safeguard the rationality of legal systems, some scholars advocate for establishing a human right to not be subject to automated decisions. I will explore the necessity of this new right from both a functional perspective (do we require a new right?) and a normative standpoint (why is the creation of a new right imperative?). These functional right not to use the Internet, which is the main theme of this book. In addressing these inquiries, I will focus on the utilization of ADM by legal practitioners, particularly by public bodies whose decisions, whether partially or fully automated, directly impact individual rights. Do we truly need a new right not to be subjected to automated legal decisions? Are the “classic” rights providing us with sufficient protection?