On The Legal Regulation Of Algorithmic Power

In the era of big data,from presidential elections to predictive crime,from credit loans to personalized recommendation services,big data and algorithms as the dominant force,with the attitude of power increasingly permeated into people's economic and social life.As a result,the "algorithmic power" based on big data and algorithms came into being.In commercial activities,large Internet enterprises,based on their technological and capital advantages,tend to be the owners of massive data and advanced algorithms.Undoubtedly,they are also the owners of algorithmic power.However,for consumers who are opposite to enterprises,they are in a weak position.Therefore,from the perspective of protecting consumers' personal data rights,this paper focuses on the relationship between rights and obligations of enterprises with algorithmic power and ordinary consumers in the era of big data in the field of private law.It is divided into five parts.The first part is an overview of the algorithmic power.In this paper,algorithmic power is defined as a kind of power and restriction ability embodied in the actual social operation process in order to achieve a certain benefit or principle by relying on big data and algorithm technology.In essence,algorithmic power is a kind of knowledge power,including both big data and algorithm.The two are inseparable and constitute the basic elements of algorithmic power.The second part points out a series of practical problems caused by the expansion of the current enterprise algorithmic power,demonstrates the necessity and theoretical legitimacy of the legal regulation of algorithmic power from the basic principles of private law,and provides a theoretical basis for the legal regulation of enterprise algorithmic power.The society of the big data age is more like a one-way mirror.With increasingly intelligent algorithms to analyze and process our data,Internet enterprises have mastered the details of our daily life.While bringing more and more convenience to our life,they are also influencing our choices and decisions.However,it is difficult for us to find out whether our rights are violated.The change of the relationship between enterprises and consumers from equal civil subjects to rule and domination has caused some practical problems,such as the imbalance of the interest pattern of relevant market subjects,the absence of legal liability distribution system and even the monopoly of algorithm.In business activities,these "data upstarts"determine the distribution of social benefits and responsibilities.Therefore,the legal regulation of algorithmic power is essentially the correction of the power disparity between enterprises and consumers.The third part points out the present situation and insufficiency of the legal regulation of algorithmic power in our country from two aspects of personal data protection and enterprise algorithm responsibility system.In the aspect of personal data protection,although our country has the corresponding legal provisions,there are still the following problems:firstly,the legal system is not perfect,the supervision subject is confused;secondly,the legal provisions are general and vague,the maneuverability is not strong;thirdly,there is a lack of industry self-discipline.In the aspect of enterprise algorithm liability,currently only the article 18 and article 40 of the E-Commerce Law of the People's Republic of China have made relatively specific provisions on the liability of enterprise algorithm,which is not enough to solve the current complex problems.The fourth part has sorted out the European Union and the United States regarding the personal data protection and the enterprise algorithm responsibility system related stipulation.The EU adopts the model of unified legislation.The general data protection regulation(GDPR),which comes into effect in May 2018,endows data subjects with a series of corresponding data rights and clarifies the obligations and responsibilities of data processors and data controllers for personal data protection.The"algorithm interpretation right"is established,which requires the data controller to be able to prove the correctness of the automated decision-making algorithm,which is progressive significance.The United States adopts decentralized legislation,which not only strengthens the"inform and consent"framework in personal data protection,but also emphasizes the security responsibility of enterprises in ensuring data security,accuracy and collection control.In addition,it also adds the provisions of accountability system.In the fifth part,based on the advanced experience and current situation of foreign countries,the author puts forward some Suggestions on how to regulate the algorithmic power.On the one hand,starting from the protection of consumers' personal data,the new right of "personal data right"should be established,clarify the right attribute of"personal data right",regulate the obligations and responsibilities of enterprises in the field of consumers'personal data,and strengthen industry self-discipline to protect consumers'personal data rights.On the other hand,it is necessary to improve the enterprise's algorithm responsibility system,starting from the two aspects of pre-intervention in algorithm design and post-accountability.In the aspect of pre-intervention,we can strengthen the value guidance to the enterprise,increase the transparency of the algorithm or introduce a third party to strengthen the supervision of the algorithm.In terms of post-accountability,a reasonable corporate algorithmic responsibility system can be established to promote the healthy and stable development of the socialist market economy in the era of big data.