One of the hot topics of our time is artificial intelligence (AI) and its impacts in all spheres of life. Europe should take an active stand to initiate both discussion and action to enhance the use of new technologies in fundamental rights consistent manner. Also, in the field of rule of law, it is required to openly analyze both positive and negative consequences of AI for the legal systems.
The Finnish Ministry for Foreign Affairs and the Ministry of Justice organized in cooperation with the Council of Europe a high-level expert conference on the impacts of artificial intelligence (AI) on human rights, democracy, and the rule of law in Helsinki at the end of the February. As the conclusions of the conference noted, the technological developments have great potential to contribute to creating optimal conditions for the exercise of human rights. Nonetheless, there are broader implications from its use and likely misuse for the core values of democratic societies.
In the justice institutions, the use of artificial intelligence can potentially ease the workload of judges and ensure the uniform application in similar cases. AI tools can support trained judges, but it is still essential for humans still to govern the legal systems as equality before the law should not be compromised by algorithmic calculation or biased data. How to then provide responsible and transparent responses to the opportunities and challenges of the use of AI? Ethical questions related to the data and algorithms raise concerns, among other things, on how to succeed in preventing the development or intensification of any discrimination between individuals or groups of individuals or make sure that the algorithms and data used are transparent, impartial and fair.
AI requires timely and thoughtful policy responses. When digital services are developed for the rule of law sector, special attention must be paid to ensuring the independence of the system and safeguarding everyone’s legal protection The European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe has adopted a Charter setting out ethical principles relating to the use of artificial intelligence in judicial systems in November 2018. The aim is to give guidelines for the national entities when they apply AI in judicial processes. The basis of the Charter is the respect of fundamental rights. In other words, design and implementation of artificial intelligence tools and services should always be compatible with fundamental rights, including non-discrimination.
[bctt tweet=”The EU has already managed to take a leading role in defining rules for privacy. So why not initiate concrete decision-making processes for a regulatory framework protecting rule of law while promoting the use of AI?”]
The European Commission focused in its communication on the AI for Europe on more development and investment orientated view to implement AI strategies which would ensure the EU to be the leading developer and user of AI applications. The Commission also set up a High-Level Expert Group on AI, which consists of 52 independent experts representing academia, industry, and civil society to establish Ethics Guidelines for the development and use of AI. The first draft of the guidelines was presented in April 2018 and after the public consultation comments the expert group is expected to deliver the revised version to the European Commission. The draft Ethics Guidelines are not sector specific for justice or rule of law institutions, but they offer a great starting point for the discussions regarding application of trustworthy AI tools which would respect rule of law and human rights.
The roundtables and conferences are a great beginning for discussions. However, more concrete steps need to be taken to ensure that the rule of law institutions are able to function in a transparent, legitimate manner, and the technological developments are used to build the good of the rule of law, human rights and democracy. Soft law instruments like guidelines or optional codes of conduct cannot be left as the gatekeepers to protect the foundations of democratic societies and legal systems. Therefore, proactive regulatory frameworks are needed and those cannot be left waiting for the first problems arise.
Fundamental rights, democracy and the rule of law are the core values which should be included more centrally within the discussions and decisions concerning the technological developments and application of AI. The European Union has already managed to take a leading role in defining rules for privacy. So why not bravely initiate real discussion and decision-making processes to provide a regulatory framework protecting rule of law and fundamental rights while using the new technologies for good in our societies? Taking the role of a responsible leader is also the way to ensure people’s trust and legitimacy of the rule of law institutions and legal systems.
TEXT Emmi Kemppainen
PICTURE European Commission
The author works for a UN rule of law programme in the Middle East and holds a master’s degrees in law and undergrad studies in international development. Combined with work experience within the Finnish public sector, the European Union and UN agencies, she has a keen interest in international law and human rights with a strong rule of law perspective.