An FDA for Algorithms

Tutt, Andrew
Administrative Law Review

The rise of increasingly complex algorithms calls for critical thought about how best to prevent, deter, and compensate for the harms that they cause. This paper argues that the criminal law and tort regulatory systems will prove no match for the difficult regulatory puzzles algorithms pose. Algorithmic regulation will require federal uniformity, expert judgment, political independence, and pre-market review to prevent - without stifling innovation - the introduction of unacceptably dangerous algorithms into the market. This paper proposes that a new specialist regulatory agency should be created to regulate algorithmic safety. An FDA for algorithms.
Such a federal consumer protection agency should have three powers. First, it should have the power to organize and classify algorithms into regulatory categories by their design, complexity, and potential for harm (in both ordinary use and through misuse). Second, it should have the power to prevent the introduction of algorithms into the market until their safety and efficacy has been proven through evidence-based pre-market trials. Third, the agency should have broad authority to impose disclosure requirements and usage restrictions to prevent algorithms’ harmful misuse.