From Procedural Fetishism to Substantive Due Process in AI Governance and Digital Constitutionalism
摘要
As both states and private actors increasingly defer to artificial intelligence (AI) tools, the concept of due process is gaining new significant in the automated state. In this chapter, I argue that while due process and procedural safeguards are useful in managing abuse of power, nonetheless, due process is not a panacea that can alone temper power in the age of AI. I suggest that even if states and companies follow due process safeguards, such safeguards alone are not sufficient to address the power imbalance between individuals and citizens on the one hand, and the state and companies on the other. In fact, an obsession with due process in digital constitutionalist discourse is part of procedural fetishism—an overemphasis on the ability of procedural safeguards to limit state and corporate power. Procedural fetishism distracts the public from substantive questions as to the appropriateness and concentration of state and corporate power, and redirects them to the micro-issues, such as checklists and audits. I argue that an overemphasis on due process reinforces procedural fetishism and distracts from the significant dangers that AI tools, digital technologies, and tech companies pose to constitutional values, fundamental rights, and the rule of law, as well as our environment and social equality. To counter procedural fetishism, digital constitutionalism must revive the substantive conceptions of due process, which focus on limits of—and not just procedures for—power in the digital age.