Algorithms are now ubiquitous, including as components of algorithmic systems used within public administration. They have become a key instrument of administrative digitalization. Examples range from predictive policing and automated appointment allocation to risk management systems in tax administration. Yet the legal nature of the algorithms employed in such systems has remained largely unclear in legal scholarship. Since the requirements for legality and the available avenues of legal protection depend on how a legal nature is classified, and because some argue that algorithms may even constitute extra-legal implementation tools, there is a risk of creating an unchecked digital sphere of administrative secrecy.
To prevent such a legal deficiency, Tom Lüxmann proposes classifying certain algorithms as a novel type of administrative regulation: the algorithmic administrative directive. This classification makes it possible to address the specific characteristics of algorithms in an appropriate manner and thereby operationalizes the legal framework governing the state's use of algorithms. While these special characteristics neither justify regular direct external legal effect nor warrant the application of the requirements of Article 80 of the German Basic Law, which governs statutory instruments, the study places particular emphasis on the possibility of abstract judicial review for certain algorithmic administrative directives. To this end, Lüxmann argues that algorithmic administrative directives embedded in algorithmic systems with external effects can be subsumed under the concept of "legal provisions" within the meaning of Section 47(1) No. 2 of the German Code of Administrative Court Procedure (VwGO). He further advances a legal policy argument for extending the scope of Section 47(1) VwGO to include algorithmic administrative directives issued at the federal level. Such reviewability serves to prevent the emergence of the feared digital sphere of administrative secrecy that gives this book its title.