Gaming the system or exercising agency? Algorithmic risk, welfare automation, and the paradox of fairness

Abstract

Abstract Automated decision-making (ADM) systems are increasingly used in welfare, insurance, and workplace governance, often justified as efficient and fair. Yet these systems embed opacity, discrimination, and pre-emptive suspicion, denying individuals the ability to adapt or resist. This article reframes “gaming the system” not as fraud but as a potential civic right to contestation. Using a speculative legal design approach, it combines McLuhan’s Tetrad of media effects with contestation maps to evaluate the ethics of gaming in three cases: telematics car insurance, the Dutch SyRI welfare fraud detection system, and mouse-jiggler devices resisting workplace surveillance. The analysis identifies three dimensions of fairness: systemic legitimacy, substantive justice versus procedural compliance, and scale and solidarity, and highlights the limits of existing EU contestability frameworks. It concludes by advancing contestation as a structural right, positioning resistance as a civic practice essential to democratic governance in algorithmic societies.