Artificial Intelligence is developing in several fields such as the energetic, the educational, and the financial services. One of its most interesting applications is within sanitary services for the diagnosis of pathologies or the treatment of chronic diseases[1]. These technologies are reshaping our world, like a real human revolution. The way we will regulate them will certainly change our way of living. Therefore, it is not surprising that approaches to realize this regulation have been highly debated. Indeed, the regulation would give us more control over the evolution of this enormous (yet fascinating) unknown world called technology. However, there is no shortage of interventions arguing that it is impossible to rule a phenomenon of this magnitude. Even though also these people acknowledge that it is typical of the human nature to try, to question, to make predictions and keep safe from the future. The European Commission also stated that a reflection over new technologies and how to proceed with their regulation cannot be postponed[2] any longer. Some aspects of it need an immediate regulatory action. As a matter of fact, some fundamental rights are at stake; rights that are protected not only by member State constitutions but also protected by the Charter of Fundamental Rights of the European Union[3].
Among these fundamental rights, the most discussed is the one concerning the access to these technologies. The access to the Internet can allow an individual to join public life, to get and broadcast information, as well as to vote and to get access to Public Administration services; so to say, it would allow to use all those rights and freedom included in many Constitutions. Therefore, it is important to grant the access to every person and to avoid any discrimination between those who can have access to these technologies and those who cannot have it.
Let’s suppose that a person does not have the financial means to purchase the necessary equipment to access the network or does not have the basic skills for a correct usage of the technology (for example, let’s think of many elderly people), in this case s-/he would find himself discriminated in the exercise of many of his or her rights. This would result in a huge gap within the population: in fact, only a part of it would be able to exercise the freedoms connected to the new technologies[4]. For example, supposing the vote switch to an online modality, it would be allowed, only some citizens would be able express their opinion.
What are the proposals concerning the regulation of these new technologies?
The main proposals presented so far in Europe can be easily found in the Resolution of the European Parliament of 16 February 2017. A first step should be the extension of the current existing legislation to Artificial Intelligence. In addition, it is necessary to accompany it with specific adjustments related to this sector[5]. For example, the directive on liability for defective products could be extended[6]. This legislation, already in force in Europe could regulate the Artificial Intelligence System when it is considered as a “product”. However, it would be appropriate a priori to clarify complex notions such as defect, product, robot, to understand “how” and “in what terms” to extend the directive to the technological sector. These notions still pose numerous and unsolved questions at both jurisprudential and doctrinal stages.
Another possible solution concerns the creation of an ad hoc insurance system that could cover and conduct the entire technological development, a sort of lex generalis for new technologies[7]. It would consist of a universal law valid only for the entire technological sector: to date, there are only theoretical proposals in this regard.
A third solution presented at European level is to introduce an “electronic personality”, that is a real new legal entity in the regulatory system. Nevertheless, this solution is still very vague and the effect that it could have in disciplining the phenomenon is not clear. Although the solutions analysed are all different one from another, they all need a careful and accurate analysis before their implementation takes place . For this reason, specific studies to be carried out sector by sector must be encouraged[8]. They must be appropriately initiated to avoid that the answer to these questions arrives “too late” and that future interventions become a mere attempt to repair – and not to prevent – problematic situations in which enormous damage could occur.
A preferable solution is still to be found, but what we can do at this initial stage is to outline the primary elements for the legislation that will come. For certain, a careful regulatory intervention should not stifle the technological development and it should flexible. Otherwise, the risk is to have rules that either require to be continually reviewed or that end with being always in delay with technological development. Besides, the intervention of the legislator must reflect the fundamental rights declared in various constitutional papers and by national and European jurisprudence. Just think of the aspects relating to security, privacy, bioethical issues. On the last aspect, the European Parliament in the 2007 Resolution pointed out that an ethical-legal framework of orientation is necessary both in the production or programming phase and for the usage of the Artificial Intelligence System in question.
Whatever the choice will be, the regulatory solution to be adopted must ensure a fair balance between technological progress and respect for fundamental human rights.
written by Martina Gualtieri
[1] N. Musacchio, G. Guaita, A. Ozzello, M.A. Pellegrini, P. Ponzani, R. Zilich, A. De Micheli, Intelligenza Artificiale e Big Data in ambito medico: prospettive, opportunità, criticità, “The Journal of AMD”, 2018, vol. 21-3, pp. 4-5
[2] Communication of the European Commission “Artificial Intelligence in Europe”, Brussels, 25.4.2018 COM(2018), p. 1.
[3] The Chart of the Fundamental Rights of the European Union also called the Cart of Nice, gathers and fix in a unique text, a series of civil, politic, economic and social rights, recognized in the constitutional traditions and by international obligations among member states.
[4] Indeed, at the European level, there is talk of “AI responsible”. To this point, the Commission promotes the area “Responsible Research and Innovation”. To go further, take a look at the RRI dedicated website https://ec.europa.eu/programmes/horizon2020/en/h2020-section/responsible-research-innovation, 15 December 2018.
[5] Resolution of the European Parliament of 16 of February 2017, providing recommendations to the Commission concerning civic rights norms on robotics, in http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2017-0051+0+DOC+PDF+V0//IT.
[6] Directive n. 85/374/EEC, implemented in Italy with the D.P.R. n. 224/1988, then merged in D.Lgs. n. 206/2005 and successive modifications, otherwise known as the Consumer Code (artt 114-127 del Titolo II, Parte IV).
[7] U. Pagallo, Intelligenza artificiale e diritto. Linee guida per un oculato intervento normativo, “Sistemi Intelligenti”, vol. XXIX, 3, 2017, p. 624.
[8] It is not a case that in Japan created an area called “Tokku – Special Zone for Robotics Empirical Testing and Development”. Back in 2002, the Japanese Government has adopted a law which provides a specific regimentation in several areas to allow experimentation of Artificial Intelligence in specific areas. In detail, experimentation on public streets is encouraged.