Regulating Facial Processing Technologies: Tensions Between Legal and Technical Considerations in the Application of Illinois BIPA

Harms resulting from the development and deployment of facial processing technologies (FPT) have been met with increasing controversy. Several states and cities in the U.S. have banned the use of facial recognition by law enforcement and governments, but FPT are still being developed and used in a wide variety of contexts where they primarily are regulated by state biometric information privacy laws. Among these laws, the 2008 Illinois Biometric Information Privacy Act (BIPA) has generated a significant amount of litigation. Yet, with most BIPA lawsuits reaching settlements before there have been meaningful clarifications of relevant technical intricacies and legal definitions, there remains a great degree of uncertainty as to how exactly this law applies to FPT. What we have found through applications of BIPA in FPT litigation so far, however, points to potential disconnects between technical and legal communities. This paper analyzes what we know based on BIPA court proceedings and highlights these points of tension: areas where the technical operationalization of BIPA may create unintended and undesirable incentives for FPT development, as well as areas where BIPA litigation can bring to light the limitations of solely technical methods in achieving legal privacy values. These factors are relevant for (i) reasoning about biometric information privacy laws as a governing mechanism for FPT, (ii) assessing the potential harms of FPT, and (iii) providing incentives for the mitigation of these harms. By illuminating these considerations, we hope to empower courts and lawmakers to take a more nuanced approach to regulating FPT and developers to better understand privacy values in the current U.S. legal landscape.

Promises and Challenges of Causality for Ethical Machine Learning

In recent years, there has been increasing interest in causal reasoning for designing fair decision-making systems due to its compatibility with legal frameworks, interpretability for human stakeholders, and robustness to spurious correlations inherent in observational data, among other factors. The recent attention to causal fairness, however, has been accompanied with great skepticism due to practical and epistemological challenges with applying current causal fairness approaches in the literature. Motivated by the long-standing empirical work on causality in econometrics, social sciences, and biomedical sciences, in this paper we lay out the conditions for appropriate application of causal fairness under the "potential outcomes framework." We highlight key aspects of causal inference that are often ignored in the causal fairness literature. In particular, we discuss the importance of specifying the nature and timing of interventions on social categories such as race or gender. Precisely, instead of postulating an intervention on immutable attributes, we propose a shift in focus to their perceptions and discuss the implications for fairness evaluation. We argue that such conceptualization of the intervention is key in evaluating the validity of causal assumptions and conducting sound causal analysis including avoiding post-treatment bias. Subsequently, we illustrate how causality can address the limitations of existing fairness metrics, including those that depend upon statistical correlations. Specifically, we introduce causal variants of common statistical notions of fairness, and we make a novel observation that under the causal framework there is no fundamental disagreement between different notions of fairness. Finally, we conduct extensive experiments where we demonstrate our approach for evaluating and mitigating unfairness, specially when post-treatment variables are present.

Affirmative Algorithms: The Legal Grounds for Fairness as Awareness

While there has been a flurry of research in algorithmic fairness, what is less recognized is that modern antidiscrimination law may prohibit the adoption of such techniques. We make three contributions. First, we discuss how such approaches will likely be deemed "algorithmic affirmative action," posing serious legal risks of violating equal protection, particularly under the higher education jurisprudence. Such cases have increasingly turned toward anticlassification, demanding "individualized consideration" and barring formal, quantitative weights for race regardless of purpose. This case law is hence fundamentally incompatible with fairness in machine learning. Second, we argue that the government-contracting cases offer an alternative grounding for algorithmic fairness, as these cases permit explicit and quantitative race-based remedies based on historical discrimination by the actor. Third, while limited, this doctrinal approach also guides the future of algorithmic fairness, mandating that adjustments be calibrated to the entity's responsibility for historical discrimination causing present-day disparities. The contractor cases provide a legally viable path for algorithmic fairness under current constitutional doctrine but call for more research at the intersection of algorithmic fairness and causal inference to ensure that bias mitigation is tailored to specific causes and mechanisms of bias.

Uncertainty as a Form of Transparency: Measuring, Communicating, and Using Uncertainty

Transparency of algorithmic systems entails exposing system properties to various stakeholders for purposes that include understanding, improving, and/or contesting predictions. The machine learning (ML) community has mostly considered explainability as a proxy for transparency. With this work, we seek to encourage researchers to study uncertainty as a form of transparency and practitioners to communicate uncertainty estimates to stakeholders. First, we discuss methods for assessing uncertainty. Then, we describe the utility of uncertainty for mitigating model unfairness, augmenting decision-making, and building trustworthy systems. We also review methods for displaying uncertainty to stakeholders and discuss how to collect information required for incorporating uncertainty into existing ML pipelines. Our contribution is an interdisciplinary review to inform how to measure, communicate, and use uncertainty as a form of transparency.

"What We Can't Measure, We Can't Understand": Challenges to Demographic Data Procurement in the Pursuit of Fairness

As calls for fair and unbiased algorithmic systems increase, so too does the number of individuals working on algorithmic fairness in industry. However, these practitioners often do not have access to the demographic data they feel they need to detect bias in practice. Even with the growing variety of toolkits and strategies for working towards algorithmic fairness, they almost invariably require access to demographic attributes or proxies. We investigated this dilemma through semi-structured interviews with 38 practitioners and professionals either working in or adjacent to algorithmic fairness. Participants painted a complex picture of what demographic data availability and use look like on the ground, ranging from not having access to personal data of any kind to being legally required to collect and use demographic data for discrimination assessments. In many domains, demographic data collection raises a host of difficult questions, including how to balance privacy and fairness, how to define relevant social categories, how to ensure meaningful consent, and whether it is appropriate for private companies to infer someone's demographics. Our research suggests challenges that must be considered by businesses, regulators, researchers, and community groups in order to enable practitioners to address algorithmic bias in practice. Critically, we do not propose that the overall goal of future work should be to simply lower the barriers to collecting demographic data. Rather, our study surfaces a swath of normative questions about how, when, and even whether this data should be collected.

Machine Learning Explainability for External Stakeholders

As machine learning is increasingly deployed in high-stakes contexts affecting people's livelihoods, there have been growing calls to open the black box and to make machine learning algorithms more explainable. Providing useful explanations requires careful consideration of the needs of stakeholders, including end-users, regulators, and domain experts. Despite this need, little work has been done to facilitate inter-stakeholder conversation around explainable machine learning. To help address this gap, we conducted a closed-door, day-long workshop between academics, industry experts, legal scholars, and policymakers to develop a shared language around explainability and to understand the current shortcomings of and potential solutions for deploying explainable machine learning in service of transparency goals. We also asked participants to share case studies in deploying explainable machine learning at scale. In this paper, we provide a short summary of various case studies of explainable machine learning, lessons from those studies, and discuss open challenges.

On the Legal Compatibility of Fairness Definitions

Past literature has been effective in demonstrating ideological gaps in machine learning (ML) fairness definitions when considering their use in complex socio-technical systems. However, we go further to demonstrate that these definitions often misunderstand the legal concepts from which they purport to be inspired, and consequently inappropriately co-opt legal language. In this paper, we demonstrate examples of this misalignment and discuss the differences in ML terminology and their legal counterparts, as well as what both the legal and ML fairness communities can learn from these tensions. We focus this paper on U.S. anti-discrimination law since the ML fairness research community regularly references terms from this body of law.

Explainable Machine Learning in Deployment

Explainable machine learning seeks to provide various stakeholders with insights into model behavior via feature importance scores, counterfactual explanations, and influential samples, among other techniques. Recent advances in this line of work, however, have gone without surveys of how organizations are using these techniques in practice. This study explores how organizations view and use explainability for stakeholder consumption. We find that the majority of deployments are not for end users affected by the model but for machine learning engineers, who use explainability to debug the model itself. There is a gap between explainability in practice and the goal of public transparency, since explanations primarily serve internal stakeholders rather than external ones. Our study synthesizes the limitations with current explainability techniques that hamper their use for end users. To facilitate end user interaction, we develop a framework for establishing clear goals for explainability, including a focus on normative desiderata.