Algorithmic enforcement tools: governing opacity with due process

This chapter explores the complex interplay between Artificial Intelligence (AI), algorithmic enforcement tools and digital forensics in the context of online content moderation. As AI-driven algorithms increasingly perform roles traditionally reserved for human experts, questions of transparency, accountability and due process take centre stage. The allure of automated efficiency often clashes with the imperative for transparency, particularly when algorithms function as opaque ‘black boxes,’ unamenable to public scrutiny or legal review. Instead, algorithmic enforcement tools for online moderation need to meet both technical and legal standards, akin to DNA tools in forensics. These algorithms require transparent decision-making logs and must withstand scrutiny for accuracy and bias. Failure to do so may lead to inability to lawfully implement algorithmic enforcement tools. This chapter critically analyses the rising phenomenon of ‘private ordering,’ where online intermediaries take on roles akin to law enforcement agencies, embedding policy decisions into algorithms and affecting online behaviour beyond mere legal compliance. Shifting the liability to online intermediaries has sparked a new form of private law enforcement but also raises concerns about ‘machine-made justice’, thereby necessitating a careful examination under frameworks such as the European Convention of Human Rights. The chapter also critically evaluates the ethical and legal challenges this presents, including the potential for over-enforcement and the erosion of fundamental human rights like due process, privacy, freedom of speech, and freedom to conduct a business. It interrogates existing and emerging regulatory frameworks such as the Digital Services Act (DSA). The DSA, with its emphasis on algorithmic transparency, accountability, and risk assessment, offers a potential pathway to balance technological advancements with fundamental human rights.