Algorithmic Speech and Freedom of Expression.

• Author: Sears, Alan M.

TABLE OF CONTENTS I. INTRODUCTION 1328 A. Background 1328 B. What is Algorithmic Speech? 1331 II. ALGORITHMIC SPEECH AND THE SUBSTANTIVE SCOPE OF FREEDOM OF EXPRESSION 1335 A. Frameworks for Freedom of Expression 1335 1. The International Framework 1335 2. The United States' Framework and Algorithmic Speech 1337 B. How Might Algorithmic Speech Fit into the International Framework 1341 1. Attribution of Algorithmic Speech and Status as a Content Provider or Intermediary 1341 2. Liability for Algorithmic Speech 1349 a. The European Framework 1350 b. The United States and Elsewhere 1356 c. Limited Liability Generally 1359 III. TO WHAT EXTENT IS ALGORITHMIC SPEECH WORTHY OF PROTECTION UNDER INTERNATIONAL STANDARDS OF FREEDOM OF EXPRESSION? 1360 A. Interferences with Algorithmic Speech 1360 B. Under What Circumstances Would Interferences with Algorithmic Speech be Justified? 1363 1. Prescribed by Law 1364 2. Pursuit of a Legitimate Aim 1365 3. Necessary in Pursuit of that Aim 1367 a. Other Rights and Interests at Play 1369 b. Issues Going Forward 1370 IV. CONCLUSION 1373 I. INTRODUCTION

1. Background

   Algorithms have become ubiquitous in our modern, technology-driven society. They are used in Global Position Systems (GPS), as well as in many different aspects of mobile phones and personal computers. Algorithms also assist planes in flying and cars in driving--particularly those of the self-driving variety. Despite the fact that algorithms have become a part of daily life in many ways, their operation is usually behind the scenes, and their usage goes unnoticed.

   An increasing number of algorithms work to produce outputs that may be considered speech, such as automatically generated news stories, search results and their autocomplete function, as well as chat bots, such as Amazon's Alexa, Apple's Siri, Google's Assistant, and Microsoft's Cortana. There is also an untold number of bots operating on Twitter, (1) some of which Twitter has begun to prune more aggressively because of disinformation campaigns. (2) However, few are as infamous as Microsoft's Tay Artificial Intelligence, which was designed to mimic the speech patterns of a 19-year-old American girl. (3) Within a day of its release, it was taught by users to make racist tweets; in this short time, the bot went from saying "Humans are super cool!" to "Hitler was right." (4) These outputs were obviously not intended by the programmers.

   The issues surrounding such algorithmically generated speech will only increase in importance as algorithms are developed to create more "intelligent" and complex speech, (5) which may include unforeseen utterances. While we may not have quite reached the age where it is necessary to question whether robots should be afforded rights, we have arrived at the time when it is necessary to examine the extent to which the developers or controllers of algorithms that produce speech are protected by the right to freedom of expression. (6)

   This Article aims to provide an analysis of algorithmic speech within the context of the international framework for freedom of expression. Previous literature has largely focused on certain forms of algorithmic speech, particularly search engine results and a search engine's autocomplete function. The former has been the subject of multiple cases in the United States, and thus the focus has primarily been on where such speech lies within the First Amendment doctrine--and thus the extent to which it is protected by the Constitution. The latter has been scrutinized by various national courts across Europe. Thus, there is an apparent gap in having a more comprehensive international approach to algorithmic speech, and hence the primary research question this Article addresses is the extent to which algorithmic speech is protected under international standards of freedom of expression.

   Further issues arise as well: whether algorithmically generated content should be considered speech, whether the controllers of algorithms are content providers or intermediaries, when might liability be imposed for infringing algorithmic speech, the extent to which algorithmically generated content is afforded freedom of expression protection, under what circumstances would interferences be justified, and the implications of having the freedom of expression framework apply to algorithmically generated speech.

   As this Article aims to address all of these issues within the current international framework for freedom of expression, international legislation and case law--particularly from the European and Inter-American systems--will be referenced where relevant. National case law and legislation will also be examined for purposes of comparisons and distinctions, and to provide further guidance as many of these issues have yet to be examined by international courts. Academic literature, as well as practical and sociological aspects relating to algorithmic speech, will be analyzed and incorporated in various areas. Recommendations will be made where it is apparent that the framework is ill-equipped to adequately deal with these issues.

   It should be noted that there are a number of ways that algorithms interact with freedom of expression, which abut the topic presented in this Article, that may also be cause for concern. For instance, the use of algorithms in how news and information is presented to users may have an impact on the right to receive information, in that they can result in "echo chambers" or "filter bubbles." (7) While aspects such as these are no doubt worthy of investigation, they are outside the scope of this Article.

   After defining algorithmic speech and introducing the variants that will form the basis of this Article, Part II will discuss algorithmic speech and the scope of internationally recognized freedom of expression standards, as well as where algorithmic speech fits within this framework. Part III will analyze the extent to which algorithmic speech is worthy of protection under these standards.

2. What is Algorithmic Speech?

   As seen above, algorithms can perform a multitude of functions in a wide range of industries and have been defined in a variety of ways over time. (8) In this Article, the usage of the term "algorithm" will be "a set of instructions designed to produce an output." (9) Further, as algorithms may exist outside of the computer-centric world we live in today, usage will only encompass the common understanding of the term, in that it will refer to the algorithms that are implemented by computers. (10)

   One may assume that if the definition of an algorithm is unsettled, (11) then there is likewise no single accepted definition of what constitutes algorithmic speech. Indeed, this is a vague and imprecise categorization.

   In some instances, the speech or expression of algorithms is quite apparent, especially when it mimics what a person would do. This is the case with chat bots such as those that provide technical support or Microsoft's Zo (the successor to Tay), (12) or algorithms that are fed data in order to piece together news stories.

   At the opposite end of the spectrum are algorithms that are clearly not speech, such as those that perform operations in programs with no visible output. An example of this would be the algorithms on a mobile phone that determine which Wi-Fi access point to connect to when there are multiple available. (13)

   Lying somewhere in between these two extremes are algorithms that could feasibly be considered speech, such as a search engine autocomplete function (14) or the search engine results themselves. The former has been the subject of court cases in Europe, (15) and the latter has been the subject of court cases and academic debate in the United States. (16)

   Regarding the autocomplete function, courts in France have held that it does not constitute speech. In one case, a narrow interpretation of the Convention was used to find that freedom of expression is a right that only applies to "persons," and thus it cannot be invoked in order to protect the output of an algorithm. (17) In another case, it was found that an autocomplete function's word associations are only a technical method to facilitate a search and are not expressions of opinion. (18) However, the German Federal Court of Justice--the court of last resort--found that word associations, such as those resulting from an autocomplete suggestion, impart meaning. (19)

   In the United States, courts have generally held that search engine results constitute speech, (20) even though search engine results merely present content provided by others. Academics have argued that algorithms are speech in that "algorithms themselves inherently incorporate the search engine company engineers' judgments about what material users are most likely to find responsive to their queries." (21) Others have contended that this algorithmic output does not constitute speech due to it containing a low degree of expressiveness, (22) or because it should be classified as a communicative tool under the First Amendment's functionality doctrine. (23)

   Regardless of the arguments made on both sides of the debate, (24) for present purposes, this Article presumes that a search engine's autocomplete function as well as a search engine's results are forms of speech.

   Algorithmic speech can take a number of different forms. The categories suggested below are by no means exclusionary, and there is certainly overlap between them--they may be more properly conceptualized as a sliding scale. However, having a conceptual understanding may aid in analyzing the issues at hand.

   Form of Algorithmic Example(s) Speech Curated production--these * News stories--more commonly used are fed data in sports news, but expanding to internally other areas as well, these algorithms are fed facts in order to produce stories that read as though they were written by a human (25) * Search engine results--using predefined criteria, search engines use...