Human choice is a foundational part of our social, economic and political institutions. This focus is about to be significantly challenged. Technological advances in data collection, data science, artificial intelligence, and communications systems are ushering in a new era in which digital agents, operated through algorithms, replace human choice with regard to many transactions and actions. While algorithms will be given assignments, they will autonomously determine how to carry them out. For example, self-driving cars, already on the road in some localities, make a full range of driving decisions, from what route to take and when to fill the gas tank. This digital revolution is now fast expanding in consumption markets. A washing machine, designed by Samsung and IBM, already detects when detergent levels are low and autonomously orders new detergent. Indeed, scientists envision a near future ‘where humans do less thinking when it comes to the small decisions that make up daily life.’  

This game-changing technological development goes to the heart of autonomous human choice. The user, voluntarily and willingly, removes himself from the decision-making process. He chooses which algorithm to employ and may set at least part of the decision parameters, and other choices then follow automatically, in which the algorithm exercises its own judgment. Furthermore, due to developments in deep learning, the user might have no information about which parameters underlie the algorithm’s choice, or how much weight is given to each parameter. It is therefore time to determine whether and, if so, under which conditions, we are willing to give up our autonomous choice. 

In a recent article, I attempt to meet this challenge. The article explores the rationales that stand at the basis of human choice and how they are affected by autonomous algorithmic assistants. It conscientiously contends with the ‘choice paradox’, which arises from the fact that the decision to turn over one’s choices to an algorithm is, itself, an act of choice.  To do so, the analysis focuses on three basic rationales for autonomous choice. As shown, while some rationales are not harmed – and might even be strengthened – by the use of autonomous algorithmic assistants, others require us to rethink the meaning and the role that choice plays in our lives. 

The first rationale explored is efficiency. As shown in a previous article, algorithmic assistants have much to offer in this respect. They offer speed, sophistication, lower transaction costs and efficiency in decision-making, thereby enabling the user to enjoy lower cost and higher quality products. Yet, as argued, algorithms cannot be relied upon to make efficient choices with regard to all decisions.  Also, should the ability to make decisions be likened to a muscle that needs exercising, the use of algorithms can create negative externalities on other spheres of our lives.  This also raises the question of whether an age minimum should be placed on the use of algorithmic assistants. 

The second examination focuses on psychological rationales, which center on the values inherent in the act of choice itself, such as the shaping of one’s identity through choices, creating personal meaning and responsibility. At the same time, choice can also create psychological burdens which result from internal dilemmas of whether we made the right choice, and from a cognitive overload arising from too many options or too much information. As explored in the article, algorithms affect such rationales. They raise questions such as who am I, if a machine makes most of the choices in my everyday life? And how do these choices affect our social interactions? 

Autonomous choice is also an important part of the liberal political tradition’s concept of human beings in control of their own life. Under this rationale, the act of choosing, in itself, is intrinsically valuable.  As explored in the article, algorithmic assistants may affect freedom (both positive and negative) and autonomy in different ways. Fundamental questions arise; for instance, while writing our own life story is of high value, do we have to color between the lines, or can we simply draw the bold ones and delegate some of our decision-making powers to others? Moreover, are there spheres of life in which choosing is more important than arriving at the optimal outcome, such as choosing one’s partner or political voting? 

The article then examines whether the existing legal framework is sufficiently potent to deal with this brave new world, or whether we need new regulatory tools. In particular, it identifies and analyzes three main areas which are based on choice: consent, intent and laws protecting negative freedom. Despite their importance and timeliness, these questions have not been dealt with in depth. This article seeks to fill this void. 

Michal S. Gal is Professor and Director of the Forum for Law and Markets, University of Haifa Faculty of Law, and President of the International Academic Society of Competition Law Scholars (ASCOLA).