EU AI Regulations
AI Liability Act
Over the past few weeks we have seem a number of new Artificial Intelligence (AI) Acts or Laws, either being proposed or are at an advanced stage of enactment. One of these is the EU AI Liability Act (also), and is supposed be be enacted and work hand-in-hand with the EU AI Act.
There are different view or focus perspectives between these two EU AI acts. For the EU AI Act, the focus is from the technical perspective and those who develop AI solutions. On the other side of things is the EU AI Liability Act whose perspective is from the end-user/consumer point.
The aim of the EU AI Liability Act is to create a framework for trust in AI technology, and when a person has been harmed by the use of the AI, provides a structure to claim compensation. Just like other EU laws to protect the consumers from defective or harmful products, the AI Liability Act looks to do similar for when a person is harmed in some way by the use or application of AI.
Most of the examples given for how AI might harm a person includes the use of robotics, drones, and when AI is used in the recruitment process, where is automatically selects a candidate based on the AI algorithms. Some other examples include data loss from tech products or caused by tech products, smart-home systems, cyber security, products where people are selected or excluded based on algorithms.
Harm can be difficult to define, and although some attempt has been done to define this in the Act, additional work is needed to by the good people refining the Act, to provide clarifications on this and how its definition can evolve post enactment to ensure additional scenarios can be included without the need for updates to the Act, which can be a lengthy process. A similar task is being performed on the list of high-risk AI in the EU AI Act, where they are proposing to maintain a webpages listing such.
Vice-president for values and transparency, Věra Jourová, said that for AI tech to thrive in the EU, it is important for people to trust digital innovation. She added that the new proposals would give customers “tools for remedies in case of damage caused by AI so that they have the same level of protection as with traditional technologies”
Didier Reynders, the EU’s justice commissioner says, “The new rules apply when a product that functions thanks to AI technology causes damage and that this damage is the result of an error made by manufacturers, developers or users of this technology.
The EU defines “an error” in this case to include not just mistakes in how the A.I. is crafted, trained, deployed, or functions, but also if the “error” is the company failing to comply with a lot of the process and governance requirements stipulated in the bloc’s new A.I. Act. The new liability rules say that if an organization has not complied with their “duty of care” under the new A.I. Act—such as failing to conduct appropriate risk assessments, testing, and monitoring—and a liability claim later arises, there will be a presumption that the A.I. was at fault. This creates an additional way of forcing compliance with the EU AI Act.
The EU Liability Act says that a court can now order a company using a high-risk A.I. system to turn over evidence of how the software works. A balancing test will be applied to ensure that trade secrets and other confidential information is not needlessly disclosed. The EU warns that if a company or organization fails to comply with a court-ordered disclosure, the courts will be free to presume the entity using the A.I. software is liable.
The EU Liability Act will go through some changes and refinement with the aim for it to be enacted at the same time as the EU AI Act. How long will this process that is a little up in the air, considering the EU AI Act should have been adopted by now and we could be in the 2 year process for enactment. But the EU AI Act is still working its way through the different groups in the EU. There has been some indications these might conclude in 2023, but lets wait and see. If the EU Liability Act is only starting the process now, there could be some additional details if the EU wants both Acts to be effective at the same time.
AI Categories in EU AI Regulations
The EU AI Regulations aims to provide a framework for addressing obligations for the use of AI applications in EU. These applications can be created, operated by or procured by companies both inside the EU and outside the EU, on data/people within the EU. In a previous post I get a fuller outline of the EU AI Regulations.
In this post I will look at proposed categorisation of AI applications, what type of applications fall into each category and what potential impact this may have on the operators of the AI application. The following diagram illustrates the categories detailed in the EU AI Regulations. These will be detailed below.
Let’s have a closer look at each of these categories
Unacceptable Risk (Red section)
The proposed legislation sets out a regulatory structure that bans some uses of AI, heavily regulates high-risk uses and lightly regulates less risky AI systems. The regulations intends to prohibit certain uses of AI which are deemed to be unacceptable because of the risks they pose. These would include deploying subliminal techniques or exploit vulnerabilities of specific groups of persons due to their age or disability, in order to materially distort a person’s behavior in a manner that causes physical or psychological harm; Lead to ‘social scoring’ by public authorities; Conduct ‘real time’ biometric identification in publicly available spaces. A more detailed version of this is:
- Designed or used in a manner that manipulates human behavior, opinions or decisions through choice architectures or other elements of user interfaces, causing a person to behave, form an opinion or take a decision to their detriment.
- Designed or used in a manner that exploits information or prediction about a person or group of persons in order to target their vulnerabilities or special circumstances, causing a person to behave, form an opinion or take a decision to their detriment.
- Indiscriminate surveillance applied in a generalised manner to all natural persons without differentiation. The methods of surveillance may include large scale use of AI systems for monitoring or tracking of natural persons through direct interception or gaining access to communication, location, meta data or other personal data collected in digital and/or physical environments or through automated aggregation and analysis of such data from various sources.
- General purpose social scoring of natural persons, including online. General purpose social scoring consists in the large scale evaluation or classification of the trustworthiness of natural persons [over certain period of time] based on their social behavior in multiple contexts and/or known or predicted personality characteristics, with the social score leading to detrimental treatment to natural person or groups.
There are some exemptions to these when such practices are authorised by law and are carried out [by public authorities or on behalf of public 25 authorities] in order to safeguard public security and are subject to appropriate safeguards for the rights and freedoms of third parties in compliance with Union law.
High Risk (Orange section)
AI systems identified as high-risk include AI technology used in:
- Critical infrastructures (e.g. transport), that could put the life and health of citizens at risk;
- Educational or vocational training, that may determine the access to education and professional course of someone’s life (e.g. scoring of exams);
- Safety components of products (e.g. AI application in robot-assisted surgery);
- Employment, workers management and access to self-employment (e.g. CV-sorting software for recruitment procedures);
- Essential private and public services (e.g. credit scoring denying citizens opportunity to obtain a loan);
- Law enforcement that may interfere with people’s fundamental rights (e.g. evaluation of the reliability of evidence);
- Migration, asylum and border control management (e.g. verification of authenticity of travel documents);
- Administration of justice and democratic processes (e.g. applying the law to a concrete set of facts).
All High risk AI applications will be subject to strict obligations before they can be put on the market:
- Adequate risk assessment and mitigation systems;
- High quality of the datasets feeding the system to minimise risks and discriminatory outcomes;
- Logging of activity to ensure traceability of results
- Detailed documentation providing all information necessary on the system and its purpose for authorities to assess its compliance;
- Clear and adequate information to the user;
- Appropriate human oversight measures to minimise risk;
- High level of robustness, security and accuracy.
These can also be categorised as (i) Risk management; (ii) Data governance; (iii) Technical documentation; (iv) Record keeping (traceability); (v) Transparency and provision of information to users; (vi) Human oversight; (vii) Accuracy; (viii) Cybersecurity robustness.
There will be some exceptions to this when the AI application is required by governmental and law enforcement agencies in certain circumstances.
Limited Risk (Yellow section)
“non-high-risk” AI systems should be encouraged to develop codes of conduct intended to foster the voluntary application of the mandatory requirements applicable to high-risk AI systems.
AI application within this Limited Risk category pose a limited risk, transparency requirements are imposed. For example, AI systems which are intended to interact with natural persons must be designed and developed in such a way that users are informed they are interacting with an AI system, unless it is “obvious from the circumstances and the context of use.”
Minimal Risk (Green section)
The Minimal Risk category a allows for all other AI systems can be developed and used in the EU without additional legal obligations than existing legislation For example, AI-enabled video games or spam filters. Some discussion suggest the vast majority of AI systems currently used in the EU fall into this category, where they represent minimal or no risk.
EU AI Regulations – An Introduction and Overview
In May this year (2021) the EU released a draft version of their EU Artificial Intelligence (AI) Regulations. It was released in May to allow all countries to have some time to consider it before having more detailed discussions on refinements towards the end of 2021, with a planned enactment during 2022.
The regulatory proposal aims to provide AI developers, deployers and users with clear requirements and obligations regarding specific uses of AI. One of the primary aims to ensure people can trust AI and to provide a framework for all to ensure the categorization, use and controls on the safe use of AI.
The draft EU AI Regulations consists of 81 papes, including 18 pages of introduction and background materials, 69 Articles and 92 Recitals (Recitals are the introductory statements in a written agreement or deed, generally appearing at the beginning, and similar to the preamble. They set out a précis of the parties’ intentions; what the contract is for, who the parties are and so on). It isn’t an easy read
One of the interesting things about the EU AI Regulations, and this will have the biggest and widest impact, is their definition of Artificial Intelligence.
Artificial Intelligence System or AI system’ means software that is developed with one or more of the approaches and techniques listed in Annex I and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing real or virtual environments. Influencing (real or virtual) environments they interact with. AI systems are designed to operate with varying levels of autonomy. An AI system can be used as a component of a product, also when not embedded therein, or on a stand-alone basis and its outputs may serve to partially or fully automate certain activities, including the provision of a service, the management of a process, the making of a decision or the taking of an action;
When you examine each part of this definition you will start to see how far reaching this regulation are. Most people assume it only affect the IT or AI industry, but it goes much further than that. It affects nearly all industries. This becomes clearer when you look at the techniques listed in Annex I.
ARTIFICIAL INTELLIGENCE TECHNIQUES AND APPROACHES (a) Machine learning approaches, including supervised, unsupervised and reinforcement learning, using a wide variety of methods including deep learning; (b) Logic- and knowledge-based approaches, including knowledge representation, inductive (logic) programming, knowledge bases, inference/deductive engines, (symbolic) reasoning and expert systems; (c)
Statistical approaches, Bayesian estimation, search and optimization methods.
It is (c) that will causes the widest application of the regulations. Statistical approaches to making decisions. But part of the problem with this is what do they mean by Statistical approaches. Could adding two number together be considered statistical, or by performing some simple comparison. This part of the definition will need some clarification, and they do say in the regulations, this list may get expanded over time without needing to update the Articles. This needs to be carefully watched and monitored by all.
At a simple level the regulations gives a framework for defining or categorizing AI systems and what controls need to be put in place to support this. This image below is typically used to represent these categories.
The regulations will require companies to invest a lot of time and money into ensure compliance. These will involve training, supports, audits, oversights, assessments, etc not just initially but also on an annual basis, with some reports estimating an annual cost of several tens of thousands of euro per model per year. Again we can expect some clarifications of this, as the costs of compliance may far exceed the use or financial benefit of using the AI.
At the same time there are many other countries who are looking at introducing similar regulations or laws. Many of these are complementary to each other and perhaps there is a degree of watching each each other are doing. This is to ensure there is a common playing field around the globe. This in turn will make it easier for companies to assess the compliance, to reduce their workload and to ensure they are complying with all requirements.
Most countries within the EU are creating their own AI Strategies, to support development and job creation, all within the boundaries set by the EU AI Regulations. Here are details of Ireland’s AI Strategy.
Watch this space to for more posts and details about the EU AI Regulations.
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