Searchlights across the black box: Trade secrecy versus access to information

This article challenges the commonly held view that private companies and public authorities who use algorithms to make vital decisions about the lives of individuals can lawfully refuse to disclose those algorithms and information about them by claiming trade secret protection. Article 1(2)(b) of the EU Trade Secret Directive permits disclosures on public interest grounds when EU or national rules require as such. Focusing on EU and national caselaw, this article shows how an individual's right to access information can be – and indeed, has been – used successfully to disclose algorithms and algorithmic information. Some form of disclosure is therefore plausible, lawful and desirable. But disclosures must be meaningful. Even though revealing an algorithm may not be useful to everyone by itself, there are ways to make it meaningful. Namely, by sharing different information to public authorities, regulators, society and individuals. Not only do context-dependant disclosure requirements help balance the competing interests which algorithmic disclosures give rise to, but it will help achieve a greater understanding of algorithms. All in all, this article shows that what is currently being disclosed does not come close to what can and should be disclosed.