With the increasingly widespread application of digital technology, algorithms are gradually playing an increasingly important role in social production and daily life. We are gradually entering a world where “algorithms are everywhere.” Algorithms are not only bridges that allow people to obtain useful information in the ever-expanding Internet information ocean, but also the keys to making data and hardware resources better serve their functions. They are of great significance in the construction of digital China. However, at the same time, with the continuous increase in social digitization and intelligence, many issues such as algorithm security, algorithm black boxes, algorithm discrimination, and information cocoons (信息茧房) have received a high level of attention worldwide. Countries are actively exploring how to better respond and solve these issues. On December 31, 2021, the Cyberspace Administration of China, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the State Administration for Market Regulation jointly issued the Provisions on the Administration of Algorithm-generated Recommendations for Internet Information Services (hereinafter referred to as the Provisions) to be implemented from March 1, 2022. The Provisions aim to regulate the algorithm recommendation activities of Internet information services, safeguard national security and the public interest, protect the legitimate rights and interests of citizens, legal persons, and other organizations, and promote the healthy development of Internet information services. The publication and implementation of the Provisions is a positive response to algorithm recommendation, a prominent issue of widespread concern in China’s network governance field. It is a specific legal norm established for the recommendations of Internet information service algorithms, the first of its kind in the world. It is a useful supplement to the legal order system of an intelligent society and an important exploration for the in-depth integration and development of the construction of “Digital China” and “China under the Rule of Law.” The specific normative measures in the Regulations reflect China’s exploration, development, and implementation of science and technology (S&T) legal theory in S&T development and application. In particular, it embodies the following principles:
I. The Principle of Combining Ethics with the Rule of Law
The Provisions adopt a rule-setting model that combines overall principles with ethical rules in specific fields and links S&T ethics with entity responsibility, combining ethics and the rule of law in a more organic and scientific manner. In recent years, many countries, regions, organizations, and enterprises have successively issued ethical guidelines for artificial intelligence (AI) and automated systems. These guidelines received great interest from China. For example, the Governance Principles for a New Generation of Artificial Intelligence: Developing Responsible Artificial Intelligence published by the National New Generation Artificial Intelligence Governance Specialist Committee achieved a high degree of consensus on the values of putting people first, promoting innovation, ensuring security, protecting privacy, and clarifying responsibilities. Article 4 of the Provisions stipulates that we “respect social morality and ethics, abide by business ethics and professional ethics, and follow the principles of fairness, openness, transparency, scientific rationality, and good faith.” Some important ethical principles in this field are absorbed as general principles to be followed by algorithm recommendation activities. At the same time, it also implemented specific targeted regulations for some key areas. For example, Article 8 stipulates that “it is prohibited to set up algorithm models that violate public order and good manners, such as inducing users to indulge in addiction or excessive consumption.” This two-level embedding of ethics in legal norms reflects that, in the stage of rapid technological development and changes and the ongoing exploration of the legal order for an intelligent society, we must rely to a certain extent on the idea of linking the rule of law with ethics. At the same time, in order to better guide enterprises to pay attention to S&T ethics and take corresponding measures, compared with the draft for comment released in August 2021, requirements for the establishment of management systems and technical measures such as “S&T ethics review” were specifically added in Article 7 of the Provisions as an important area for enterprises to implement their responsibilities as algorithm security entities.
II. The Principle of Mutual Construction, Mutual Governance, and Mutual Enjoyment
Ideas and theories such as “mutual construction, mutual governance, and mutual enjoyment” and building a “community of social governance” have pointed out an important development direction for social governance in the new era, and also laid a local theoretical foundation for the pluralistic mutual governance of algorithms. The Provisions focus on establishing specific norms for government supervision and management, the promotion of enterprise self-governance, the encouragement of industry self-discipline, the development of industry standards, and the facilitation of citizen rights protection. It is conducive to promoting the joint participation of diverse entities in algorithm governance, It is the specific implementation of the idea and basic theory of “mutual construction, mutual governance, and mutual enjoyment” in the field of algorithm governance.
III. The Principle of Hierarchical and Classified Algorithm Governance
Cyberspace is hierarchically divided and all-encompassing. Hierarchical and classified governance is a common principle in the rule of law for networks and information. This is embodied in the Cybersecurity Law, the Data Security Law, and the Personal Information Protection Law. Article 19 of the Provisions specifically stipulates that the cybersecurity and informatization departments, in conjunction with telecommunications, public security, market supervision, and other relevant departments, shall establish a hierarchical and classified security management system for algorithms, which is the concentrated embodiment of the principle of hierarchical and classified governance. In addition, currently, the principle of hierarchical and classified governance is mainly reflected in two aspects in the Provisions: First, for “algorithm recommendation services with public opinion attributes or social mobilization capabilities,” because they involve national security risks, in addition to the general rules in the Provisions, special obligations for “algorithm filing” and “self-assessment” are also established. Second, targeted regulations are established for some specific categories of services, such as the provision of services to minors (Article 18), the provision of services to the elderly (Article 19), the provision of work scheduling services to workers (Article 20), and the sale of goods or provision of services to consumers (Article 21). Hierarchical and classified governance avoids coarse-grained “one-size-fits-all” legislation and is conducive to enhancing the pertinence, scientific nature, and effectiveness of legal norms.
IV. The Principle of Equal Emphasis on Security and Development
Resolving the conflicts between security and development, between order and vitality, is the difficulty and focus of the field of S&T rule of law. The formulation of the Provisions fully embodied the basic principle of giving equal emphasis to security and development. For example, the Provisions require that users be provided with a function to “select or delete” user labels, which reflects the comprehensive consideration of the interests of multiple parties and the scientific nature of the system. Another example is the establishment of the algorithm filing system, which embodies the characteristics of flexible governance and provides a variety of complex functions, including information collection functions, information publicity functions, and enterprise self-government incentive functions. Going forward, systems such as algorithm filing still need to be further refined. In the process of refinement, we must adhere to the principle of giving equal emphasis to security and development. China has some world-leading advantages in the new round of industrial revolution. To properly leverage these advantages and ensure the healthy development of the digital economy, it is urgently necessary to explore an effective path for algorithm governance. The promulgation and implementation of the Provisions not only provide a systematic governance path for algorithm issues that arise in practice, but also implement the legal principles summarized and developed in the practice of S&T rule of law in China. It has also made useful innovations and explorations in the construction of specific norms, providing an important foundation for the construction of a more comprehensive and deeper S&T legal system for the future.