The fundamental value of the right of access of article 105 b) of the spanish constitution and its relationship with algorithmic transparency

Abstract

It is not hidden from anyone that the standardized use of artificial intelligence and algorithms have generally had a positive impact on the lives of human beings. They represent a plus of effectiveness and efficiency in the work carried out by both public and private entities. Its growing capacity in terms of prediction, analysis and evaluation in different sectors of life are undeniable insofar as they imply an improvement in individual and collective well-being as indicated by the Constitution. In this context, the fallacious selfreferentiality of technological processes is insisted on, thus avoiding any type of value control over them, and therefore the possibility of subjecting them to public scrutiny. Functional or useful argument in pragmatic terms since it can have effects before the actual or potential interlocutors, but it cannot be considered as rational at all since it annuls any condition of the communication itself and consequently of the argument. The right of access to the algorithm and its source code has ample support in the fundamental norm. Given the legislator’s delay in fully regulating the use of this technology, recognizing new rights, the interpretative work that can be carried out in judicial and/or doctrinal venues would not, in our opinion, be lacking in reason or devoid of antecedents that support it. A finalist interpretation of the right of access makes it possible to sustain the possible connection between the right of access to algorithms and the right to freedom of information insofar as its exercise would make the State more transparent.