Big Data’s Disparate Impact | Barocas, Selbst

Solon Barocas (Princeton University), Andrew D. Selbst (U.S. Court of Appeals); Big Data’s Disparate Impact; California Law Review, Vol. 104, 2016 (to appear); 62 pages; ssrn:2477899; 2015-08-14.

Abstract

Big data claims to be neutral. It isn’t.

Advocates of algorithmic techniques like data mining argue that they eliminate human biases from the decision-making process. But an algorithm is only as good as the data it works with. Data mining can inherit the prejudices of prior decision-makers or reflect the widespread biases that persist in society at large. Often, the “patterns” it discovers are simply preexisting societal patterns of inequality and exclusion. Unthinking reliance on data mining can deny members of vulnerable groups full participation in society. Worse still, because the resulting discrimination is almost always an unintentional emergent property of the algorithm’s use rather than a conscious choice by its programmers, it can be unusually hard to identify the source of the problem or to explain it to a court.

This Article examines these concerns through the lens of American anti-discrimination law — more particularly, through Title VII’s prohibition on discrimination in employment. In the absence of a demonstrable intent to discriminate, the best doctrinal hope for data mining’s victims would seem to lie in disparate impact doctrine. Case law and the EEOC’s Uniform Guidelines, though, hold that a practice can be justified as a business necessity where its outcomes are predictive of future employment outcomes, and data mining is specifically designed to find such statistical correlations. As a result, Title VII would appear to bless its use, even though the correlations it discovers will often reflect historic patterns of prejudice, others’ discrimination against members of vulnerable groups, or flaws in the underlying data.

Addressing the sources of this unintentional discrimination and remedying the corresponding deficiencies in the law will be difficult technically, difficult legally, and difficult politically. There are a number of practical limits to what can be accomplished computationally. For example, where the discrimination occurs because the data being mined is itself a result of past intentional discrimination, there is frequently no obvious method to adjust historical data to rid it of this taint. Corrective measures that alter the results of the data mining after it is complete would tread on legally and politically disputed terrain. These challenges for reform throw into stark relief the tension between the two major theories underlying anti-discrimination law: nondiscrimination and anti-subordination. Finding a solution to big data’s disparate impact will require more than best efforts to stamp out prejudice and bias; it will require wholesale reexamination of the meanings of “discrimination” and “fairness.”

Table of Contents

  1. INTRODUCTION
  2. HOW DATA MINING DISCRIMINATES
    1. Defining the “Target Variable” and “Class Labels”
    2. Training Data
      1. Labeling Examples
      2. Data Collection
    3. Feature Selection
    4. Proxies
    5. Masking
  3. TITLE VII LIABILITY FOR DISCRIMINATORY DATA MINING
    1. Disparate Treatment
    2. Disparate Impact
    3. Masking and Problems of Proof
  4. III. THE DIFFICULTY FOR REFORMS
    1. Internal Difficulties
      1. Defining the Target Variable
      2. Training Data
      3. Feature Selection
      4. Proxies
    2. External Difficulties
  5. CONCLUSION

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