A proteção de dados pessoais e inteligência artificial: tratamento automatizado e o direito à explicação

Abstract

The use of Artificial Intelligence systems is common in many countries, including Brazil, encompassing various applications, including the legal field, such as supporting judicial decision-making. However, even when the decision is generated with the assistance of Artificial Intelligence, the obligation to justify this decision still exists. Since judicial processes involve personal data, the General Data Protection Law (Law No. 13,709 of 2018) applies, ensuring that parties, as data subjects, have the right to receive an explanation for these automated decisions. However, the Artificial Intelligence models used to assist in decision-making are often opaque, making it difficult to understand their functioning, potentially harming the parties by restricting and violating rights. The main objective of this work is to identify the framework for the realization of the right to an explanation of automated decisions applied to the motivation of judicial decisions made with the assistance of Artificial Intelligence. To achieve this, analyses of normative and technical documents relevant to the research problem were carried out, and the resulting data from this procedure were compared and evaluated with the results from the literature. Thus, it is observed that transparency and meaningful information form the pillars of an effective explanation, from which data subjects, as part of the process, can rely on to understand a decision created with automation’s assistance, ensuring whether or not there has been a violation of rights. Another important factor is the disclosure of algorithms, necessary for the maintenance of procedural fairness when Artificial Intelligence is used, as intelligent systems are not accessible in their source code. Therefore, the impossibility of explaining the treatment of data by Artificial Intelligence, due to the opacity of these systems, results in the impracticability of exercising the full right to an explanation of automated decisions endorsed by the judiciary, compromising the realization of the motivation of judicial decisions.