Why the world wants controls over Artificial Intelligence

This article reviews the nature, the current state and possible future of Artificial Intelligence (AI). AI is described both in the abstract and in four forms that are currently evident not only in laboratories but also in real-world applications. Clarity about the public's concerns is sought by articulating the threats that are inherent within AI. It is proposed that AI needs to be re-conceived as `complementary artefact intelligence', and that the robotics notion of `machines that think' needs to give way to the idea of `intellectics', with the focus on `computers that do'. This article lays a foundation for two further articles on how organisations can adopt a responsible approach to AI, and how an appropriate regulatory scheme for AI can be structured.     

Promises and limits of law for a human-centric artificial intelligence

While the concept of human-centric artificial intelligence (AI) has emerged as a key principle to govern AI systems, two obstacles for its implementation remain largely understated. First, the excessive focus on accountability at the design stage of AI systems, overshadowing the fact that human values can be affected at different stages across the AI life cycle. Second, the market-driven approach of current regulatory initiatives, limited in their ability to actively promote human values. In this article, we argue for a twofold approach to tackle these limitations. On one hand, we propose a co-evolutionary and life cycle approach to tackle the lack of accountability of AI systems, showing that this approach can help ensure accountability beyond the design stage by enabling meaningful human control and human-AI interaction across the entire lifecycle of the system. On the other hand, we propose that regulatory initiatives should balance the market-driven approach by giving a more predominant role to human rights and by introducing explicitly the notion of proportionality test. This rebalancing would serve to handle conflicts between the objectives pursued by AI systems circulating in the markets and the need for an effective protection of human rights.     

Principles and business processes for responsible AI

The first article in this series examined why the world wants controls over Artificial Intelligence (AI). This second article discusses how an organisation can manage AI responsibly, in order to protect its own interests, but also those of its stakeholders and society as a whole. A limited amount of guidance is provided by ethical analysis. A much more effective approach is to apply adapted forms of the established techniques of risk assessment and risk management. Critically, risk assessment needs to be undertaken not only with the organisation's own interests in focus, but also from the perspectives of other stakeholders. To underpin this new form of business process, a set of Principles for Responsible AI is presented, consolidating proposals put forward by a diverse collection of 30 organisations.     

Humans in the GDPR and AIA governance of automated and algorithmic systems. Essential pre-requisites against abdicating responsibilities

The GDPR mandates humans to intervene in different ways in automated decision-making (ADM). Similar human intervention mechanisms can be found amongst the human oversight requirements in the future regulation of AI in the EU. However, Article 22 GDPR has become an unenforceable second-class right, following the fate of its direct precedent -Article 15 of the 1995 Data Protection Directive-. Then, why should European policymakers rely on mandatory human intervention as a governance mechanism for ADM systems? Our approach aims to move away from a view of human intervention as an individual right towards a procedural right that is part of the culture of accountability in the GDPR. The core idea to make humans meaningfully intervene in ADM is to help controllers comply with regulation and to demonstrate compliance. Yet, human intervention alone is not sufficient to achieve appropriate human oversight for these systems. Human intervention will not work without human governance. This is why DPIAs should play a key role before introducing it and throughout the life-cycle of the system. This approach fits better with the governance model proposed in the Artificial Intelligence Act. Human intervention is not a panacea, but we claim that it should be better understood and integrated into the regulatory ecosystem to achieve appropriate oversight over ADM systems.     

Does police size matter? A review of the evidence regarding restructuring police organisations

Restructuring and merging public sector organisations is often seen as a way to enhance efficiency and efficacy. There is ongoing debate about the impact of police force sizes, structures and mergers as police organisations attempt to adapt to reductions in their budgets and changes in patterns of criminality. The article reviews the evidence regarding key aspects of police reform: finding mixed evidence regarding the links between size and performance, while noting risks that mergers may impair local policing. The article discusses the impact of mergers on protective services, governance and accountability, while also discussing potential risks and opportunities associated with the merger process itself. The review finds significant gaps in the available evidence, and significant opportunities to expand the evidence base on this topic. Given current gaps in the evidence regarding size, efficacy and efficiency, it is important to give due consideration to symbolic and rhetorical aspects of mergers.     

Is the European Medical Products Authorisation Regulation Equipped to Cope with the Challenges of Nanomedicines?

This article analyses the emerging European regulatory activities in relation to nanopharmaceuticals. The central question is whether the regulatory responses are appropriate to cope with the regulatory problems nanomedicinal development is posing. The article explores whether the medical product regulations are robust enough, whether there are certain regulatory gaps, and whether the competent bodies have the expertise to evaluate nanomedicinal products when approval is applied for. Based on a social‐constructive approach, the article identifies significant regulatory actors, their ideas on regulatory problems, and preliminary governance responses to them. It finds that the current dynamic regulatory structure appears robust enough to adapt to some of the technological challenges posed by nanomedicines. It concludes that regulators have not yet responded adequately to regulatory gaps related to definitions, classification and specific safety, quality, and efficacy standards that nanopharmaceutical development seems to require. As a consequence of these deficiencies legal certainty, a principle of high priority in European medical regulation policy, cannot be sufficiently provided.     

International Whale Conservation in a Changing Climate: The Ecosystem Approach,Marine Protected Areas,and the International Whaling Commission

Abstract

Whale populations are exposed to a suite of contemporary threats, including by-catch, ship strikes, habitat degradation, and climate change. Of these threats, climate change presents the most challenging management dilemma because it pressures whale populations directly (e.g., by altering habitat suitability) and indirectly (e.g., by increasing disease transmission and exposure to toxicants, by affecting prey abundance, and by exacerbating other threats). There is also an emerging scientific understanding of how healthy whale populations constitute an important biological component of the climate system and contribute to climate change mitigation. The International Whaling Commission (“IWC”), which is the primary international organization dedicated to whale conservation and management, has investigated and studied climate change but has failed to develop a commensurate management response. Conversely, parallel developments in international wildlife conservation and management evince support for an integrated and holistic ecosystem approach (“EA”) and urge the immediate development of climate-adaptive measures. The EA has been operationalized in prominent legal instruments and through various management techniques, including marine protected areas (“MPAs”). In view of observed and predicted effects of climate change on whales, this article proposes a new approach to designating and protecting whale sanctuaries at the IWC that better aligns with a contemporary understanding of the EA and MPAs, and that can advance the IWC’s institutional transition towards climate-informed modernized management. This proposed innovation is tested for its legal permissibility and political feasibility, and the analysis concludes that improving the IWC’s regulatory functionality remains a crucial conservation objective.     

Tensions in private health insurance regulation

This article provides an analysis of the regulatory framework of Australian private health insurance linked to four major implicit regulatory objectives: promoting access to health insurance for consumers; promoting financial solvency and industry viability of registered health benefits organisations; promoting competition between registered health benefits organisations; and promoting accountability to consumers. Through an analysis of regulatory changes, case law and policy documents on the performance of the health insurance industry, it is argued that existing health insurance regulation exhibits inevitable tensions due to shifting and often conflicting government objectives about the role of private health insurance.     

Metadata Retention as a Means of Combatting Terrorism and Organised Crime: A Perspective from Australia

On October 13, 2015, new laws came into force in Australia requiring telecommunications service providers to retain and store their ‘metadata’ for 2 years so that it remains available for analysis by anti-terrorism strategists and organised crime fighters. But there are ongoing issues associated with this legislative approach, including the threats to privacy thereby, and concerns that the retention system can be circumvented entirely. This paper will outline the legal and criminological questions that need to be explored in order to help policymakers work through these issues so that an appropriate balance can be struck between forestalling crime and terrorism using all available electronic means, and not unduly curtailing the legitimate rights to privacy that citizens in modern democracies currently expect to enjoy.     

Internal strategies against corruption: Guidelines for preventing and combating corruption in police authorities

While corruption is not an entirely new phenomenon in Germany, the number of cases suggests that proactive measures should be taken to strengthen prevention and detection. This article proposes a number of measures which, used separately and in combination, aid prevention and detection. It then proposes a wider management approach to dealing with corruption which ranges from general to specific strategies and actions that are intended to prevent corruption, to design out the circumstances in which it may occur and to provide means of detecting areas of risk and vulnerability. The article particularly focuses on police organisations but has applied relevance to all public sector organisations. This revised version was published online in July 2006 with corrections to the Cover Date.     

Delegation Dilemmas: Coalition Size,Electoral Risk,and Regulatory Governance in New Democracies

This article addresses the determinants of regulatory agency design in multiparty‐coalition governments. Previous research has mainly focused on U.S. institutions, producing context‐specific findings. We found electoral uncertainty, government turnover, and coalition size to be key factors explaining the bureaucratic autonomy of 31 state regulatory agencies recently created at the subnational level in Brazil. The legislative support that chief executives enjoy only acquires explanatory power when it is interacted with government turnover. Because Brazilian governors have great ability to build oversized majority coalitions, coalition strength influences the governor's strategy when the governor faces credible threats from rival elite groups.     

Can legitimate interest be an appropriate lawful basis for processing Artificial Intelligence training datasets?

Precision and effectiveness of Artificial Intelligence (AI) models are highly dependent on the availability of genuine, relevant, and representative training data. AI systems tested and validated on poor-quality datasets can produce inaccurate, erroneous, skewed, or harmful outcomes (actions, behaviors, or decisions), with far-reaching effects on individuals' rights and freedoms.Appropriate data governance for AI development poses manifold regulatory challenges, especially regarding personal data protection. An area of concern is compliance with rules for lawful collection and processing of personal data, which implies, inter alia, that using databases for AI design and development should be based on a clear and precise legal ground: the prior consent of the data subject or another specific valid legal basis.Faced with this challenge, the European Union's personal data protection legal framework does not provide a preferred, one-size-fits-all answer, and the best option will depend on the circumstances of each case. Although there is no hierarchy among the different legal bases for data processing, in doubtful cases, consent is generally understood by data controllers as a preferred or default choice for lawful data processing. Notwithstanding this perception, obtaining data subjects' consent is not without drawbacks for AI developers or AI-data controllers, as they must meet (and demonstrate) various requirements for the validity of consent. As a result, data subjects' consent could not be a suitable and realistic option to serve AI development purposes. In view of this, it is necessary to explore the possibility of basing this type of personal data processing on lawful grounds other than the data subject's consent, specifically, the legitimate interest of the data controller or third parties. Given its features, legitimate interests could help to meet the challenge of quality, quantity, and relevance of data curation for AI training.The aim of this article is to provide an initial conceptual approach to support the debate about data governance for AI development in the European Union (EU), as well as in non-EU jurisdictions with European-like data protection laws. Based on the rules set by the EU General Data Protection Regulation (GDPR), this paper starts by referring to the relevance of adequate data curation and processing for designing trustworthy AI systems, followed by a legal analysis and conceptualization of some difficulties data controllers face for lawful processing of personal data. After reflecting on the legal standards for obtaining data subject's valid consent, the paper argues that legitimate interests (if certain criteria are met) may better match the purpose of building AI training datasets.     

Researching safety and cost-effectiveness in the life cycle of nanomedicine

Nanotechnology is rapidly emerging as a transformational influence on many industry sectors. This is particularly true of medicines and medical devices. This article argues that, as policy interest in devising an appropriate regulatory framework for nanotherapeutics escalates, it will be important for public health to ensure that a broad life-cycle approach to both safety and cost-effectiveness is adopted. It charts some of the most important issues likely to be faced and begins to map how they can best be addressed.     

Prohibited artificial intelligence practices in the proposed EU artificial intelligence act (AIA)

Artificial intelligence (AI) now forms a more and more important part of human lives. After years focussed on the development of AI, the initial hype about its many expected benefits has gradually given way to rising ethical concerns about its inherent risks and dangers. Efforts to confront and contain the most serious risks related to AI have now prompted a number of legislative or regulatory proposals at the national, regional and global level. One of the most comprehensive regulatory initiatives is the European Union's proposal for an Artificial Intelligence Act (AIA), which was released in April 2021 with a view towards establishing a legal framework for trustworthy AI. To this end, the draft AIA pursues a proportionate horizontal and risk-based regulatory approach to AI, broadly classifying AI into the categories of unacceptable risks, high risks and low or minimal risks. The unacceptable risks are those that are deemed to contravene European Union values, and therefore, they are considered to be ‘prohibited AI practices’ by Article 5 AIA. The prohibited AI practices are classified into four categories, namely 1) AI systems deploying subliminal techniques; 2) AI practices exploiting vulnerabilities; 3) social scoring systems; and 4) ‘real-time’ remote biometric identification systems. The proposed regulatory approach, however, appears problematic given the four categories’ inherent interrelatedness and the numerous possibilities for their mutual combination and entwinement. It is also problematic from the perspective of the human mind, as each of the four categories alone allows for the manipulation of human thought and behaviour, thereby endangering freedom of thought and other fundamental rights. In the context of the proposed AIA, both aspects give rise to unknown and unsolved conundrums that create difficult regulatory challenges that raise the necessity to also look at the wider implications of these technologies for the entire legal system. As these conundrums often find their expression in paradoxes and oxymora, this article calls for a wider interdisciplinary debate and advocates a different regulatory strategy using these concepts to transcend the limitations inherent in dualistic or dichotomous modes of legal thinking.     

The Emotional Dimension in Legal Regulation

This article argues that the study of legal regulation can be further developed through an analysis of emotions because it can bring into sharper focus the social nature of regulation. The article illustrates this point by discussing the notion of regulatory law as an emotional process. It then suggests various ways in which an analysis of emotions can promote understanding of a key issue in legal regulation, the role of structure and agency. The article concludes with a brief discussion of how existing social science research methods can be adapted to the study of emotions.     

AI regulation in Brazil: Advancements,flows, and need to learn from the data protection experience

Brazil has recently moved forward on two important developments in its regulatory framework for artificial intelligence: the creation of a national AI strategy and parliamentary discussions on an overarching AI law. These efforts follow considerable advances in AI regulation in foreign jurisdictions, and the country might be able to learn important lessons from these previous experiences. This article presents and analyses the nascent Brazilian AI regulatory framework, demonstrating its positive aspects and shortcomings.     

Integrating Management Systems and Occupational Health and Safety Regulation

'Best practice' in occupational health and safety (OHS) performance needs to recognize the declining emphasis that is being placed on the capacity of the regulatory state. This article argues that there are more appropriate forms of OHS regulation than direct command and control. The development of a systems-based approach acknowledges the importance of continuous improvement, benchmarking, and internal self-regulation. In order to encourage a systems-based approach, it is suggested that some form of persuasion by coercion by means of law remains a necessary condition for the establishment of an incentive-based 'voluntary' regime.     

The limitations of neoliberal logic in the anti-corruption industry: Lessons from Papua New Guinea

To acknowledge concerns about the rising power of the private sector, key international anti-corruption organisations have supported initiatives that emphasise the role that businesses play in corruption. Yet the way these initiatives have impacted the practices and perceptions of anti-corruption organisations in developing countries has received scant attention. As businesses can be key perpetrators of corruption, understanding the way anti-corruption organisations respond to the private sector can highlight the efficacy of anti-corruption efforts. Drawing on interviews with anti-corruption policy makers in Papua New Guinea (PNG) conducted between 2008 and 2009, this article shows how two international anti-corruption organisations perceived and worked with the private sector. It finds that there have been some initiatives designed to address, and raise awareness about private sector corruption in the country, reflecting international trends. At the same time the private sector is viewed, often uncritically, as an anti-corruption champion; this has affected the way anti-corruption organisations engage with businesses operating in the country. This article argues that despite a change in international discourse about the private sector’s role in corruption, in developing countries like PNG, neoliberal logic about the nature of the state still guide anti-corruption activity. These findings have implications for the efficacy of international anti-corruption efforts.     

Implications of genetic testing: discrimination in life insurance and future directions

This article examines the possibility of genetic discrimination in life insurance and discusses the inability of current Australian legislation to deal adequately with genetic test result information. Genetic information has certain features that distinguish it from other medical information and thus a specialist legislative package is required to regulate its use. This article outlines how current practices in the life insurance industry are inconsistent with notions of human rights. Several legislative options are suggested and examined. Given the negative and damaging impact that adverse selection is likely to have on the life insurance industry should the use of all genetic test results be prohibited, an approach which modifies the current regime is recommended. This includes a comprehensive review scheme and the introduction of additional insurance products tailored to individuals suffering from various genetic illnesses or predispositions to future disease.     

‘Multicolored’ green criminology and climate change’s achromatopsia

While green criminology may be an effective name or label for the sub-field or perspective within criminology that considers a wide range of environmental issues, it is, in reality, a ‘multicolored green’ – a criminology that engages a spectrum of issues, that reflects the interests of some racial groups more than others, that reveals and analyzes environmental harms which disproportionately impact some racial groups more than others, and that can be approached from a number of vantage points or that can be viewed with variously tinted lenses. This article begins with an overview of climate change, including a discussion of its anticipated impacts and indicators of its already-being-felt effects. It then offers some general comments on the disproportionate impact of environmental threats and harms before turning to a discussion of the present and anticipated distributional impacts of climate change. Here, this article argues that climate change is, in effect, achromatopsic – it is color-blind, in that it affects us all regardless of skin color – but that those impacts will be distributed unevenly/unequally and that various groups are and will continue to be in different positions to adapt to climate change. This article concludes by suggesting that while the environmental harms caused by climate change are real – and the risks and threats they pose tangible and serious – climate change presents an exciting challenge for our creative potential as humans. In the process of reducing our consumption of fossil fuels and stabilizing (or, better yet, reducing) our greenhouse gas emissions, we might better assist those geopolitical regions most at risk (i.e. poor, developing countries) to become more resilient – an approach that is necessary for both the physical health of the planet and the prospects for social justice.