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Terms-we-Serve-with: Five dimensions for anticipating and repairing algorithmic harm

Bogdana Rakova
Megan Ma
Big Data & Society, vol. 10(2) (2023), pp. 14


Power and information asymmetries between people and developers are further legitimized through contractual agreements that fail to provide meaningful consent and contestability. In particular, the Terms-of-Service (ToS) agreement, is a contract of adhesion where companies effectively set the terms and conditions of the contract. Whereas, ToS reinforce existing structural inequalities, we seek to enable an intersectional accountability mechanism grounded in the practice of algorithmic reparation. Building on existing critiques of ToS in the context of algorithmic systems, we return to the roots of contract theory by recentering notions of agency and mutual assent. We evolve a multipronged intervention we frame as the Terms-we-Serve-with (TwSw) social, computational, and legal framework. The TwSw is a new social imaginary centered on: (1) co-constitution of user agreements, through participatory mechanisms; (2) addressing friction, leveraging the fields of design justice and critical design in the production and resolution of conflict; (3) enabling refusal mechanisms, reflecting the need for a sufficient level of human oversight and agency including opting out; (4) complaint, through a feminist studies lens and open-sourced computational tools; and (5) disclosure-centered mediation, to disclose, acknowledge, and take responsibility for harm, drawing on the field of medical law. We further inform our analysis through an exploratory design workshop with a South African gender-based violence reporting AI startup. We derive practical strategies for communities, technologists, and policy-makers to leverage a relational approach to algorithmic reparation and propose there is a need for a radical restructuring of the “take-it-or-leave-it” ToS agreement.

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