The Dangers of Automation in Administrative Law

Administrative law is with you with every single step you take. If you have a baby you want to register, you need administrative law. You want to get married, you also need administrative law. But actually, the citizens said notice the most the price of administrative law are those who actually need to apply for benefits. Those who are in need.

And for these citizens administrative law has a different face. It is a face of bureaucracy. It is also the face of the grumpy caseworker that doesn’t want to help them. French administrative law was the first to emerge, and it was basically created to organize and to limit the powers of government. But it was basically an organizational model.

Germany administrative law came later, and was basically meant to limit the powers of government and limit the abuses of government against citizens. It was basically regarded as a field of law aimed to protect citizens against abuses. Nowadays, most civil law countries have a mix of French and German law. The relationship between government and citizens is one of imbalance.

Governments can define your position. They decide unilaterally if you get a right or not. And citizens cannot really fight it back. They can go to court, of course, but when you have the discretion to decide on rights, basically there’s very little citizens can do against it. Think, for example, of low-income citizens or migrants who need to apply for a visa.

These citizens only have one provider for these services for those benefits. Right now we see that administrative law is becoming increasingly automated. This is a positive development for many countries because this means that there are fewer delays. You can fill in a form online. You have access to government 24-7. At the same time, this is also problematic because many citizens who don’t have digital skills are not able to fill in forms by themselves.

And this actually means that their rights may be denied. Government is using automation mostly in their favor to cut costs. One area where this is happening is social welfare fraud enforcement. So, for example, if they believe that some citizens are committing a fraud, for example, like they are claiming benefits they are really not entitled to. They can use algorithms to flag the citizens.

They do that by building risk profiles. These risk profiles target, for example, ethnic minorities. This is problematic because once the algorithm has delivered the result, the caseworkers in charge of the investigation will very often trust blindly the results of the algorithm where citizens feel that there is no room to defend themselves. Imagine a single mother that has two children and she has to work full time, but her income varies from month to month.

Social Security institutions may actually think that she is lying about how much she makes. The algorithms are blind to the circumstances that this mother can have, and might flag her as a potential fraudster. Once the flagging has been done, Social Security caseworkers will probably have very little empathy for the situation of this single mother and initiate an investigation that actually is very much focused on the data delivered by the algorithm, by the system, rather than actually the data that the single mother could provide.

You are like a housekeeper. You may not make the same amount of money every month, and actually they usually don’t. The system is built for people who have contracts, just stable contracts. Every deviation of the contract flags the algorithm, especially when combined with individual circumstances, like being a woman. So women are actually more often targeted by social welfare fraud algorithms than men.

There is a historical reason because it’s the stereotype of the welfare queen.

In Chicago, they found a woman who holds the record. She used 80 names, 30 addresses, 15 telephone numbers to collect food stamps, Social Security, veterans benefits for four non-existent deceased veterans’ husbands.

Men don’t get so triggered only the only women because being a woman is a risk factor because there is an idea that women will commit fraud more easily than men. Men will commit crimes, other crimes. Being a woman, being a migrant, being a young mother, being a single mother, having children from different fathers.

All of these variables trigger the algorithms into thinking that you’re a potential fraudster. Administrative law needs to be rethought. We need to infuse the system with more empathy. We need to make sure that the individual circumstances of citizen are taken into account by caseworkers. We have to use the automation in favor of the citizen to make sure that there are fewer delays, because right now we have the system where governments are distrusted, especially distrusted by vulnerable citizens.

So we humanize administrative law means basically that both citizens and governments trust each other more and this mutual trust could actually mean that in the long run, governments and citizens can have a more peaceful and conflict-free relationship.

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