10 September 2022
Frontex and ‘Algorithmic Discretion’ (Part II)
Part I of this contribution explains how the regulatory design of the European Travel Information and Authorisation System (ETIAS) raises issues in relation to the rule of law principle of legality. Essentially, the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness. Part II reflects on how these legality issues affect other rule of law principles, including the principle of effective judicial protection. In turn, it raises three accountability issues and calls into question the assumption that the safeguard of manual processing in case of a ‘hit’ is a panacea for all rule of law challenges stemming from this semi-automated decision-making. Continue reading >>
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10 September 2022
Frontex and ‘Algorithmic Discretion’ (Part I)
This contribution, presented in two parts, offers a predictive glimpse into future rule of law challenges due to the European Border and Coast Guard Agency’s (Frontex) primary responsibility for the automated processing and screening rules of the soon-to-be-operational European Travel Information and Authorisation System (ETIAS) at the EU’s external borders. . In Part I on legality, I argue that the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness – which I refer to as ‘algorithmic discretion’. This can be defined as a situation where the exercise of power and discretion and their limitations are not sufficiently specified at the legislative level but are delegated to an algorithm instead. Continue reading >>
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