Discrimination by Correlation

Obey shall be understood in two ways: first, humans must obey the
terms imposed by companies to use systems and second, the state can impose
regulation on companies they need to obey to. Dis-obey shall be understood
as humans dis-obeying in order to preserve their rights20, notably in the
absence of legal rules or if companies dis-obey regulatory attempts to pre-
serve their business model. The dis-obey approach could inspire consumers
to follow rights-preserving behavior, such as data poor approaches, favoring
data friendly companies, introducing “noise” into their data supply or avoid
digital services that potentially discriminate21. Considering this tension be-
tween obey and dis-obey, regulators have been reflecting on rules for fair and
non-discriminatory algorithms. The European Commission (EC) published
a draft Regulation (Artificial Intelligence Act)22 on 21 April 2021, following
the adoption of the Digital Services Act (DSA)23 and the Digital Markets Act
(DMA)24. Many international bodies have adopted standards on AI (OECD25,

Learning, Boston 2019, p. 6. ML can be subdivided into supervised and un-supervised

learning.
20 For example, by choosing alternative ways of using services offered by companies.
21 Consumers could use algorithms to detect discriminatory algorithms.
22 European Commission, Proposal for a Regulation of the European Parliament and the
Council laying down harmonized rules on artificial intelligence (Artificial Intelligence
Act) and amending certain Union legislative acts, COM (2021) 206 final.
23 The DSA tries to mitigate some of the risks for women: “Specific groups […] may be
vulnerable or disadvantaged in their use of online services because of their gender
[…] They can be disproportionately affected by restrictions […] following from (un-
conscious or conscious) biases potentially embedded in the notification systems by
users and third parties, as well as replicated in automated content moderation tools
used by platforms.”
24 The European Digital Strategy consist of the Digital Services Act (DSA) and the Digital
Markets Act (DMA):Proposal for a Regulation of the European Parliament and the
Council on a Single Market For Digital Services (Digital Services Act) and amending
Directive 2000/31/EC, COM/2020/825 final and Proposal for a Regulation of the Euro-
pean Parliament and the Council on contestable and fair markets in the digital sector
(Digital Markets Act), COM/2020/842 final.
25 OECD, Principles on Artificial Intelligence, https://www.oecd.org/science/for-
ty-two-countries-adopt-new-oecd-principles-on-artificial-intelligence.htm

253