Tag: IT Law

European Parliament Advances Artificial Intelligence Act

In a significant development last week, the European Parliament adopted its negotiating position on the Artificial Intelligence (AI) Act. With a strong majority of 499 votes in favor, 28 against, and 93 abstentions, the Parliament has set the stage for discussions with EU member states to finalize the regulatory framework governing AI.

The proposed regulations aim to ensure that AI technologies developed and used within Europe align with EU rights and values, encompassing vital aspects such as human oversight, safety, privacy, transparency, non-discrimination, and social and environmental well-being.

The forthcoming rules adopt a risk-based approach and impose obligations on both AI providers and deployers based on the potential risks associated with the AI systems. More specifically, the legislation identifies specific AI practices that will be prohibited due to their unacceptable risks. These include social scoring, which involves categorizing individuals based on their social behavior or personal characteristics.

Moreover, MEPs expanded the list to incorporate bans on intrusive and discriminatory applications of AI, such as real-time remote biometric identification in public spaces and emotion recognition systems in law enforcement, border management, the workplace, and educational institutions.

Recognizing the need for enhanced precautions, the Parliament also emphasized the classification of high-risk AI applications. This category will now encompass AI systems that pose significant harm to people’s health, safety, fundamental rights, or the environment. Additionally, AI systems employed for voter influence, election outcomes, and recommender systems used by social media platforms with over 45 million users will be subject to the high-risk classification.

Furthermore, to ensure responsible use and accountability, providers of foundation models, a rapidly evolving area within AI, will be required to assess and mitigate potential risks related to health, safety, fundamental rights, the environment, democracy, and the rule of law. Before releasing their models in the EU market, these providers must register their models in the EU database. Generative AI systems based on such models, including ChatGPT, will need to comply with transparency requirements, disclose AI-generated content, and implement safeguards against generating illegal content. Additionally, detailed summaries of copyrighted data used for training purposes will need to be made publicly available.

Recognizing the importance of fostering AI innovation while safeguarding citizens’ rights, MEPs have also introduced exemptions for research activities and AI components provided under open-source licenses. Moreover, the legislation encourages the establishment of regulatory sandboxes, which are real-life environments created by public authorities to test AI technologies before their deployment.

The new regulations aim to empower citizens by granting them the right to file complaints regarding AI systems. Furthermore, individuals will have the right to receive explanations about decisions made by high-risk AI systems that significantly impact their fundamental rights. The role of the EU AI Office will also undergo reforms, equipping it with the responsibility to monitor the implementation of the AI rulebook.

In conclusion, the proposed regulations set clear boundaries for prohibited AI practices and establish obligations for high-risk AI applications. Moreover, they strike a balance by supporting innovation through exemptions and regulatory sandboxes while prioritizing citizen rights and accountability. As discussions continue with EU member states, the Parliament’s focus on protecting rights and enhancing AI’s regulatory framework paves the way for a future, where AI technologies align with EU values and contribute leaving a positive footprint on society.

The Moral Choice on Self Driving Vehicles

In March 2018, a self-driving Uber Volvo XC90 operating in autonomous mode struck and killed a woman named Elaine Herzberg in Tempe, Arizona. The crash raised a number of suddenly pressing questions about testing autonomous vehicles on public roads.

Actually, everytime a driver slams on the brakes to avoid hitting a pedestrian crossing the road illegally, he is actually taking a moral decision that shifts risk from the pedestrian to the people in his horseless carriage.

Self-driving cars might soon have to make such ethical judgments on their own. But pursuant to a remarkably large survey on machine ethics, which was recently published in Nature, setting a universal moral code for these  vehicles might be not easier than sailing rough seas.

Chatbots – Die Geister, die ich rief…

Back in 1966, MIT professor Joseph Weizenbaum developed a comparatively simple program called ELIZA, which performed natural language processing. ELIZA was initially published to show the superficiality of communication between man and machine but ended up surprising a considerable number of individuals, who attributed human-like feelings to the computer program.

Half a century later chatbots are technically advanced enough to appeal to a broader audience and are increasingly used to handle communications with customers, operating in absence of a clear legal framework for their use.

But, can a chatbot make a legally binding declaration of intent on behalf of a company, given that declarations under the law are to be performed only by natural persons or legal entities?

There is broad legal consensus that – at least for automated chatbots – this is practically a non-issue, as the declaration of a chatbot can be always attributed to its operator. With automated chatbots, declarations of intent are generated based on predefined settings, i.e. computer declarations which may not be explicitly regulated by law but are nevertheless legally binding.

Although the will to act, which is necessary for a legally binding declaration of intent, is not present at the time a computer declaration is generated, proof of intent is provided through the activation of the chatbot by the operator.

Legal scholars have in fact constructed the presence of all requirements necessary for a  declaration of intent to be legally binding: (a) awareness of intention and (b) the will to engage in a transaction. Due to the automation, both requirements may not present when a chatbot generates a declaration of intent; Ultimately, though, they are both satisfied, since they can be traced back to the human operator.

LIABILITY IN The Age of AUTONOMY

The Sorcerer’s Apprentice, Illustration of Ferdinand Barth, 1882.

The above construction of a computer declaration, however, presents certain limitations in regard to autonomous chatbots. In contrast to automated chatbots, autonomous chatbots make decisions using self-learning algorithms. Here, artificial intelligence is used and the chatbot operator no longer has any direct influence on the results and, as a rule, cannot even verify the decisions that are made.

Against this background, the correlation between the actions of the system operator and that of the chatbot does not seem satisfactory, and subsequently the principles of a computer declaration no longer apply.

At present, autonomous systems are still in an early phase of development, so that this restriction has little practical relevance. However, this is bound to change more sooner than later, and will require legislative adjustments.

One of the main issues to be addressed, here, is whether a tortuous act performed by the chatbot is due to human error, for example the incorrect programming of the chatbot. While with automated chatbots it seems possible to attribute the tortuous act to the actual cause, this becomes more difficult to prove with increasingly autonomous chatbots.

In questions of liability relating to the use of chatbots and similar systems, the injured party faces the problem of having to prove possible neglect of duty or system errors. With the increasing complexity of systems, this is a huge challenge and a considerable obstacle if the injured party wants to assert its claims successfully.

For this reason, some believe that the burden of proof should be carried by the manufacturer or operator of the system. This implies that a manufacturer or operator must prove that there was no misconduct on their part, and that they have exercised proper diligence in programming and operating the system.

A so-called objective liability is also being considered in connection with automated systems. The liability gap created by the complexity of automated systems, no longer allowing for “actions” to be easily attributed to a natural or legal entity, could be closed by holding operators liable for damages caused by their system, whether they are to blame or not.

Last comes the ground-breaking – yet distant – option for attributing a distinct legal personality to automated chatbots. In fact, the more self-learning systems become independent from the originally intended and programmed approach, the louder the demand is to grant them their own legal personality, at least in respect with liability issues. As a consequence, any damage caused by such a system would have to be compensated by the system itself. This could be done by means made available by the operator or the manufacturer.

An interim step, broadly contemplated by legal scholares, would be introducing a compulsory insurance policy, to cover damages caused by either automated or autonomous systems. This prerequisite is already a rule, when large market players contract with chatbot manufacturers.

As the case may be, chatbots are here to stay, to provide an enhanced user experience and give a new soul to daily interactions, or take what’s left of it. Chatbot manufacturers and operators should hence be well prepared, by drafting an inclusive End User’s License Agreement and having all necessary policies in place to ensure that their broom is timely stopped, before the floor is awash with water.

Free Software Licenses and Friends

Last week I participated in a workshop on Software Licenses, organized by the Open Technologies Alliance (ELLAK). The workshop was led by Mr. Alexios Zavras, Senior Open Source Compliance Engineer of Intel Corp., who has been involved with OSS since 1983. Mr. Zavras presented a brief overview of the most widely used open-source licenses, elaborated on software licensing issues, and worked on scenarios arising from the licensing of derivative products released under copyleft, permissive and proprietary licenses.

The workshop was of particular relevance, since in the last couple of years hundreds of creators and organizations choose to distribute their data and works with free licenses, rendering this way open-source applications an integral part of the operation of businesses and organizations, both public and private. This rapid rise in the use of free software and free licenses has resulted in an increased need for specialized legal support in a number of relevant subject areas.

If you are interested in finding out more about Open Source Software, or consider licensing your own work under a free software license, you can find out more at the introductory guide provided by the Open Source Initiative, or consult with your IT lawyer.