In the winter of 2016, the home automation manager (the systems that automate smart buildings) Google Nest made a software update to its thermostats that caused damage to the batteries. A large number of users were left offline, though many can change batteries, buy a new thermostat, or wait for Google to fix it. The company indicated that the failure would have been caused by the Artificial Intelligence (AI) system that managed these updates.
What would have happened if the majority of the population used one of those thermostats and the failure left half a country exposed to the cold for days? A technical problem would have become a social emergency that would have required state intervention. All because of a faulty artificial intelligence system.
No jurisdiction in the world has developed a comprehensive and specific regulation for the problems generated by artificial intelligence. That is not to say that there is a complete legislative vacuum: many of the damages that artificial intelligence can cause have other ways of responding.
For example:
- For accidents caused by autonomous cars, insurance will continue to be the first recipient of claims.
- Companies that use artificial intelligence systems for their job selection processes may be sued in case of engaging in discriminatory practices.
- Insurers that engage in anti-consumer practices derived from the analysis generated by their artificial intelligence models to set prices and decide who to insure will continue to have to answer as companies.
In general, other regulations that already exist –such as contract law, transportation, damages, consumer law, even human rights protection regulations– will adequately cover many of the regulatory needs of artificial intelligence.
Generally doesn’t seem like enough. There is a certain consensus that the use of these systems will generate problems that do not have easy solutions in our legal systems. From the spread of liability between developers and professional users to the scalability of damage, AI systems defy our logic.
For example, if an artificial intelligence finds illegal information on the deep web and makes investment decisions based on it, should the bank that manages the pension funds or the company that creates the automated investment system be held accountable for those illegal investment practices? ?
If an autonomous community decides to incorporate a co-payment in medical prescriptions managed by an artificial intelligence system and that system makes small errors (for example, a few cents on each prescription), but that almost the entire population learns, who is responsible for the lack of initial control? The administration? The contractor installing the system?
Towards a European (and global) regulatory system
Since the presentation in April 2021 of the proposed European Union regulation for the regulation of artificial intelligence, the so-called AI Act, the slow legislative process has been launched that should lead the community to a regulatory system for everything. the European Economic Area and, perhaps, Switzerland, in 2025. The first steps are already being made with state agencies, which will exercise part of the control over the systems.
Who else wants to regulate Artificial Intelligence besides the European Union?
On these issues we tend to look at the United States, China and Japan, and we often assume that legislation is a matter of degrees: more or less environmental protection, more or less consumer protection. However, in the context of artificial intelligence, it is surprising how different the visions of legislators are.
United States: The core AI legislation is a rule of limited substantive content, more concerned with cybersecurity, which instead refers to other indirect regulatory techniques, such as rulemaking. The underlying idea is that the standards developed to control the risk of artificial intelligence systems will be voluntarily accepted by companies and will become their de facto standards.
The United States is thus immersed in a process open to industry, consumers, and users to create standards. This is now accompanied by a White House draft for an AI Bill of Rights, also on a voluntary basis. At the same time, many states are trying to develop specific legislation for certain specific contexts, such as the use of artificial intelligence in job selection processes.
China: A complex plan has been developed there to not only lead the development of artificial intelligence, but also its regulation.
To do this, combine:
- Regulatory experimentation (certain provinces may develop their own regulations to, for example, facilitate the development of autonomous driving).
- Development of standards (with a complex plan that covers more than thirty subsectors).
- Hard regulation (for example, of recommendation mechanisms on the Internet to avoid recommendations that could alter the social order).
For all these reasons, China is committed to regulatory control of artificial intelligence that does not impede its development.
Japan: on the island, on the other hand, they do not seem particularly concerned about the need to regulate Artificial Intelligence.
Instead, they trust that their tradition of partnership between the state, companies, workers and users prevents the worst problems that artificial intelligence can cause. At the moment they focus their policies on the development of society 5.0.
Canada: perhaps the most advanced country from a regulatory point of view is this North American nation. There, for two years, every Artificial Intelligence system used in the public sector must undergo an impact analysis that anticipates its risks.
For the private sector, the Canadian legislature is now discussing a standard similar (although much more simplified) to the European one. A similar process was started last year in Brazil. Although it seemed to have lost momentum, it can now be rescued after the elections.
From Australia to India: Other countries, from Mexico to Australia, via Singapore and India, are on hold.
These countries seem confident that their current rules can be adapted to prevent the worst damage that artificial intelligence can cause and allow themselves to wait and see what happens with other initiatives.
Two parties with different visions
Within this legislative diversity, two parties are being played. The first, among those who affirm that it is too soon to regulate a disruptive technology –and not well understood-– such as Artificial Intelligence; and those who prefer to have a clear regulatory framework that addresses the main problems and at the same time creates legal certainty for developers and users.
The second game, and perhaps the most interesting, is a competition to be the global de facto regulator of artificial intelligence.
The commitment of the European Union is clear: first create rules that bind anyone who wants to sell their products in their territory. The success of the General Data Protection Regulation, which is today the global reference for technology companies, encourages the European institutions to follow this model.
Faced with them, China and the United States have chosen to avoid detailed regulations, hoping that their companies can develop without excessive restrictions and that their standards, even voluntary, become the reference for other countries and companies.
In this, time plays against Europe. The United States will publish the first version of its standards in the coming months. The European Union will not have applicable legislation for another two years. Perhaps the excess of European ambition is going to have a cost, inside and outside the continent, creating rules that when they come into force have already been surpassed by other regulations.
Originally posted on The conversation
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