On April 21, 2021, the European Commission unveiled its long-awaited proposal for a regulation laying down harmonized rules on artificial intelligence and amending certain union legislative acts. The proposal is the result of several years of preparatory work by the commission and its advisers, including the publication of a “White Paper on Artificial Intelligence.” The proposal is a key piece in the commission’s ambitious European Strategy for data.
The regulation applies to (1) providers that place on the market or put into service AI systems, irrespective of whether those providers are established in the European Union or in a third country; (2) users of AI systems in the EU; and (3) providers and users of AI systems that are located in a third country where the output produced by the system is used in the EU.
The term “AI system” is broadly defined as “software that is developed with one or more of the techniques and approaches listed in Annex I and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing environments they interact with.”
The commission takes a risk-based but overall cautious approach to AI and recognizes the potential of AI and the many benefits it presents, but at the same time is keenly aware of the dangers these new technologies present to the European values and fundamental rights and principles.
This explains why the proposal starts with listing four types of AI practices that are prohibited:
- Placing on the market, putting into service or using an AI system that deploys subliminal techniques beyond a person’s consciousness to materially distort a person’s behavior in a manner that causes that person or another person physical or psychological harm.
- Placing on the market, putting into service or using an AI system that exploits vulnerabilities of a specific group of persons due to their age, physical or mental disability to materially distort the behavior of a person pertaining to the group in a manner that causes that person or another person physical or psychological harm.
- Placing on the market, putting into service or using an AI system by public authorities or on their behalf for the evaluation or classification of the trustworthiness of natural persons with the social score leading to detrimental or unfavorable treatment that is either unrelated to the contexts in which the data was originally generated or unjustified or disproportionate.
- Use of “real-time” remote biometric identification (read: facial recognition) systems in publicly accessible spaces for law enforcement purposes, subject however to broad exemptions that, in turn, are subject to additional requirements, including prior authorization for each individual use to be granted by a judicial authority or an independent administrative body in the member state where the system is used.
Unlike an earlier leaked draft of the proposal, which was widely commented on in the trade press, the use of facial recognition systems in public spaces for law enforcement purposes is now ranged under the prohibited AI practices. Countries, like France and Italy, that already impose restrictions on the use of facial recognition will need to align their national laws with the new EU-wide rules.
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