Revisão de decisões automatizadas na Lei Geral de Proteção de Dados Pessoais

• Autor(a) principal: Korkmaz, Maria Regina Detoni Cavalcanti Rigolon
• Data de Publicação: 2022
• Outros Autores: [e-mail]
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/18276
• topic: Automated decision-making; Right to review; Right to explanation; Human intervention; Collective dimension of privacy and personal data protection; Fundamental right to the protection of personal data; Decisões automatizadas; Direito à revisão; Direito à explicação; Intervenção humana; Dimensão coletiva da privacidade e da proteção de dados pessoais; Direito fundamental à proteção de dados pessoais; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This Ph.D. dissertation aims to analyze, in a functional perspective, the legal regime of the review of automated decision-making, provided by the Brazilian General Data Protection Law (Law n. 13,709 of 2018, acronym “LGPD”). A deductive method of qualitative matter was adopted based on Stefano Rodotà, notably on the diagnosis of the "dictatorship of algorithms", with the need to develop prerogatives for the protection of the person. This was done in attention to the premises of civil-constitutional law to investigate whether the review of automated decision-making, as conceived in the LGPD, holds normative bases of a substantial protection mechanism. The evolution of privacy up to the conception of personal data protection as an autonomous fundamental right was addressed. In addition, the need to apprehend the phenomenon from a collective perspective was presented from the collective dimension of privacy and the protection of personal data. This perspective considered the scenario of opacity and asymmetry of information and power between data subjects and processing agents. The protection of the individual, in the field of automated decision-making, demands progressive scrutiny not only of the data input, but, above all, of its processing and output, which must go beyond the categories historically associated with discrimination. To demonstrate that, the insufficiency of the category of sensitive data was presented. Certain topics in the field of artificial intelligence, its applications, and the conception of algorithms were outlined to identify their interface with the regulatory perspective. To summarize the problems posed by the automation of decisions, we used, as an investigative guideline, a map of ethical problems structured based on the following challenges: inconclusive evidence; inscrutable evidence; misguided evidence; discriminatory results; transformative effects; and traceability. Additionally, contributions from the philosophy of language were presented, especially to identify the underlying limits of an automated decision process. The legal regime of automated decision-making in the LGPD was analyzed. The objectives and fundamentals of the law were presented, and its principiology was analyzed in interface with the field of automated decision-making. Aspects of other rights of data subjects were presented, especially those with direct repercussions on the automated decision-making regime. The assumptions for the qualification of a decision as totally automated were examined in comparison with the European model on the theme, as well as the right to explanation, as an assumption for the exercise of the review and for the protection of fundamental rights. The review of an automated decision was analyzed, in light of constitutional legality, concluding with the presentation of three proposals to extract the substantial exercise of the LGPD review: (i) the importance of human intervention for the substantiality of the review; (ii) the conditioning of the review to a systemic regime of responsibility and accountability with the establishment of parameters; and (iii) the association of the review to a comprehensive regime of the physiology of legal situations, as well as to a collective paradigm of protection beyond the individual perspective.