C Explanatory memorandum
by Ms Bergamini, Rapporteur
1 Introduction
1.1 Procedure
1. On 9 April 2019, the Committee
on Political Affairs and Democracy initiated a motion for a resolution
on the “Need for democratic governance of artificial intelligence”.
Note Noting a growing consensus that
artificial intelligence (AI) will be a determining factor for the
future of humanity, the motion stresses how AI is already influencing
the functioning of democracy (for example interference in electoral
processes, personalised political targeting, shaping voters’ behaviours
and spreading misinformation to manipulate public opinion). The
motion also notes that concentration of power in the hands of a
few big private actors, beyond democratic oversight, is a cause
for concern. It thus calls for setting up national and international
regulatory frameworks to ensure democratic governance of AI and
prevent its misuse. The motion was referred to our Committee for
report on 12 April 2019 and I was appointed Rapporteur on 25 June
2019.
2. On 2 October 2019, the committee held a hearing with the participation
of Ms Birgit Schippers, Senior lecturer in Politics at St Mary’s
University College, Belfast; Mr Paul Nemitz, Principal Advisor,
Directorate-General for Justice and Consumers, European Commission;
and Mr Yannick Meneceur, Information Society and Action against
Crime Directorate, Directorate General Human Rights and Rule of
Law, Council of Europe. On 27 January 2020, the Committee held an
exchange of views with Mr Dario Fumagalli, legal expert in the field
of privacy protection.
3. In my capacity as rapporteur, I had the opportunity to represent
the Parliamentary Assembly in AI-related events, including the OECD
Global Parliamentary Network (Paris, 11 October 2019) where I spoke
at the session “How are countries approaching their AI strategies
and policies”. In May and June 2020, I held an exchange of views
(by videoconference) with Mr Steven Feldstein, Non-resident Fellow,
Democracy, Conflict and Governance, Carnegie Endowment for International
Peace; as well as three representatives from Facebook European headquarters
in Brussels: Ms Marisa Jiménez Martín, Deputy Director of EU Affairs
and Public Policy; Mr Janne Elvelid, Policy Manager EU affairs;
and Ms Michela Palladino, EU Public Policy officer. These meetings
focused on the ethical use of AI, the role of algorithms in social
media platforms and their possible implications for democracy, the
need for a regulatory framework which would establish a value- and principles-based
system, and for more co-operation between private companies and
international organisations.
1.2 Rationale
of the report
4. As the key driver of the Fourth
Industrial Revolution, AI’s effect can be seen everywhere and in
every aspect of our lives. In its embodied form of robots, it will
soon be driving cars, stocking warehouses and caring for the young
and elderly. Predictive algorithms, inherent to AI, surround us,
whether it is the auto play function on YouTube, a movie recommendation
on Netflix or an advertisement on Google search. These algorithms
are frequently deployed for loan decisions, university admissions
and recruitment but also for police work, at airports, borders or
in judicial decisions.
Note As all our societies
are struggling to fight the ongoing Covid-19 pandemic, AI is also
used to enhance pharmaceutical research and help analyse medical
data.
Note
5. AI holds the promise of solving some of society’s most pressing
issues, but also presents challenges such as inscrutable “black
box” algorithms,
Note potential bias and discrimination
in the modelling and outcome of data analysis-based tools, perpetuation
of biases through the use of historical data, potential job displacement, quasi-absence
of women in tech careers and unethical use of data. Having led to
unprecedented access to and exchange of information, AI has also
amplified some negative trends contributing to rising populism and the
polarisation of democratic societies.
6. In the last couple of years, governments, civil society, international
institutions and companies have been engaged in extensive talks
with a view to identifying a set of commonly accepted principles
on how to respond to the complex challenges posed by AI. The Council
of Europe, as a leading human rights organisation, has been actively
involved in these discussions on the future of AI and its governance.
In his last report as Secretary General, Thorbjørn Jagland called
for a strategic, transversal approach on AI, developed and applied
in line with European standards on human rights, democracy and the
rule of law.
Note The Committee of Ministers has on several
occasions stressed the potential need to set up a regulatory framework
for AI.
Note Similarly, the Assembly has stated
in a number of texts the importance of adopting a holistic approach
and considering challenges and opportunities related to AI in diversity.
Note In
that same spirit, the Assembly initiated a number of reports relating
to AI’s impact in various fields.
7. This report focuses on how AI influences and impacts the functioning
of democracy, and how multiple stakeholders can engage in and contribute
to the dialogue on AI. Above all, it makes a case for creating a common
ground where institutions and private companies can establish an
open, clear and willing co-operation to build a common democratic
AI governance framework.
2 Artificial intelligence, definition
and ethical principles
8. Discussions on AI have created
a certain amount of unease by those who fear that it will evolve
from being a benefit to humanity, to taking it over. However, not
everybody is operating from the same definition of the term and
while the basic elements are generally the same, the focus of AI
shifts depending on the entity that provides the definition. On
the other hand, ethical issues associated with AI are proliferating
and rising to popular attention as intelligent machines become omnipresent.
For example, AI can and do model aspects essential to moral agency,
namely the ability of individuals or collective entities to make
moral judgments, to take ethical decisions based on notions of right
or wrong, and to be held accountable for these actions. Therefore,
it is essential to be aware of the danger of using AI in order to
replace human intelligence in decision-making processes. In fact,
machine learning generates algorithms that seem to be very good
at making previsions but not in understanding why things happen.
The lack of causal thinking is one of the main issues that should
lead us to bind AI with strong ethical principles.
Note
9. Several international organisations have attempted to define
the concept. According to the Council of Europe glossary, AI is
“a set of sciences, theories and techniques whose purpose is to
reproduce by a machine the cognitive abilities of a human being”.
Note The European Commission defines
it as “systems that display intelligent behaviour by analysing their
environment and taking actions – with some degree of autonomy –
to achieve specific goals”.
Note As for the Organisation
for Economic Co-operation and Development (OECD), “an AI system
is a machine-based system that can, for a given set of human-defined
objectives, make predictions, recommendations, or decisions influencing
real or virtual environments.AI systems
are designed to operate with varying levels of autonomy”.
Note Finally,
UNESCO notes that “while there is no definition of AI, debate tends to
focus on machines capable of imitating certain functionalities of
human intelligence, including such features as perception, learning,
reasoning, problem solving, language interaction, and even producing
creative work”.
Note
10. Similarly, while there is an apparent agreement that AI should
be ethical, there is a continuing debate about what constitutes
ethical AI. In the past five years, private companies, research
institutions and public sector organisations have issued numerous
sets of principles and guidelines for ethical AI.
Note These guidelines tend to agree on some
generic principles like transparency, justice, responsibility and
privacy, but they seem to sharply disagree over details of what
should be done in practice. Also, other principles such as sustainability, dignity
and solidarity are significantly underrepresented, suggesting that
these issues are currently flying under the radar of the mainstream
ethics debate on AI.
11. For the purposes of all Assembly reports on AI, the concept
of AI and ethical principles that should apply to AI systems should
be understood as described in Appendix I to this document.
3 The
impact of artificial intelligence on Democracy
12. In this section, largely drawing
from studies by Kevin Körner (Deutsche Bank Research, quoted in footnote
5) and Catelijne Muller,
Note as
well as from contributions made by experts and committee members,
I would like to provide a mapping of the various ways in which the
use of AI-based technologies may, and already does, affect the functioning
of democratic institutions and processes, and the social and political
behaviour of citizens.
13. Democracy is government of the people by the people for the
people. It provides checks against the concentration of power in
the hands of a few and can function properly only if based on sound
institutions which enjoy confidence of an active, committed and
informed citizenry and are able to provide for dynamic balance of
interests of constituents. The crisis of modern democracies touches
almost all elements of democratic order, including erosion of, and
loss of confidence in institutions, mis- and disinformation of the
public, break-up of cohesion and polarisation of society. Modern
technologies, including AI-based systems may both help resolve and
aggravate this crisis.
14. The use of AI by humans is not neutral. It can be used to
strengthen government accountability and can produce many benefits
for democratic action, participation and pluralism, making democracy
more direct and responsive. However, it can also be used to strengthen
repressive capabilities and for manipulation purposes. Indeed, the
rapid integration of AI technologies into modern communication tools
and social media platforms provides unique opportunities for targeted,
personalised and often unnoticed influence on individuals and social
groups, which different political actors may be tempted to use to
their own benefit.
15. The experience of the last few years helps to identify some
key areas where the use of AI-based technology can threaten to undermine
and destabilise democracy, including,
inter
alia:
a access to information
(misinformation, “echo chambers” and erosion of critical thinking);
b targeted manipulation of citizens;
c interference in electoral processes;
d erosion of civil rights;
e shifts of financial and political power in the data economy.
16. Moreover, the broad use by States of AI-based technologies
to control citizens such as automated filtering of information amounting
to censorship, and mass surveillance using smartphones and closed-circuit television
coupled with vast integrated databases, may lead to the erosion
of political freedoms and the emergence of digital authoritarianism
– a new social order competing with democracy.
3.1 Access
to information - Misinformation, “echo chambers” and erosion of
critical thinking
17. A well-functioning democracy
requires a well-informed citizenry and implies that people with
different views come together to discuss in order to find common
solutions through dialogue. By determining which information is
shown and consumed (a website algorithm can selectively guess what
information a user would like to see based on information about
the user), AI-based technologies used in online media can contribute
to advancing misinformation and hate speech, create “echo chambers”
Note and
“filter bubbles” which lead individuals into a state of intellectual
isolation where there is no place for dialogue, thus eroding critical
thinking and disrupting democracy. Also, by prioritising the news
and information which users like, algorithms tend to reinforce their
opinions, tastes and habits, and limit access to diverging views,
thus reducing users’ free choice.
18. When it comes to the role of algorithms in advancing misinformation
and hateful speech, most of the focus has been on content moderation,
namely to what extent algorithms are able to identify and suppress posts
that break community standards and cross the line when it comes
to spreading bad/false information. However, an equally important
and more troubling use of algorithms by companies like Facebook
are “content shaping” algorithms. Actually, several AI-based platforms
exercise automated censorship (by algorithms defined by owners)
of content published on social media by private persons, political
actors and even State institutions, and deny, or take off-line,
information and views that the owners of platforms dislike, thus
restricting freedom of expression.
19. In fact, content shaping algorithms determine what individual
users “see online, including user- generated or organic posts and
paid advertisements. Some of the most visible examples of content-shaping algorithms
include Facebook’s News Feed, Twitter’s Timeline, and YouTube’s
recommendation engine. Algorithms also determine which users should
be shown a given advertisement. The advertiser usually sets the
targeting parameters (such as demographics and presumed interests),
but the platform’s algorithmic systems pick the specific individuals
who will see the advertisement and determine its placement within
the platform.”
Note
20. Facebook’s internal research reinforces this view. Their team
concluded that “64% of all extremist group joins are due to [their]
recommendation tools” and that the majority came from Facebook’s
“Groups You Should Join” and “Discover” algorithms, thus recognising
that their “recommendation systems grow the problem.”
Note In other words,
despite many technology platforms arguing that they are pursuing
a hands-off policy regarding content by simply allowing users to
say what they would like and not interfering with their free speech
rights, in reality they are silently putting their hands on the
scale to determine which posts will be viewed and read by millions,
namely which posts will go viral. Thus, their algorithms are very
much shaping what users see and what users react to. At present,
considering that the overriding incentive that Facebook and other
platforms follow is revenue and profit, it can be assumed that even
when content spreads misinformation, the algorithm will bump up
its visibility, as long as it increases user engagement on the site.
3.2 Targeted
manipulation of citizens and interference in electoral processes
21. Although propaganda and manipulation
of information are not new instruments in the political toolbox, AI-based
communication technologies have tremendously amplified their scale
and outreach. Thanks to AI- based technology, online and social
media play an increasingly important role in the political process
in order to influence people and to favour or reject/deny partisan
interests. Some trends reported by political experts include large
scale co-ordinated misinformation, including through “deep fakes;
Note micro-targeting of voters; polarisation
of public debate; undermining confidence in democratic institutions,
political parties and politicians, as well as public trust in the
reliability of information; control of information flow and public
opinion.
22. During elections, AI can be effectively used to engage the
voters on an individual level along the entire election process.
Chatbots and discussion forums on social media platforms encouraging
people to leave comments/feedback/brickbats at the end are all various
ways in which the public mood can be gauged. Moreover, AI can help
collect all this data in real time and enable party campaigners
to alter their campaigns, accordingly, depending on what the public
feels about them. In addition, AI can be used to manipulate individual
voters. By analysing the unique psychographic and behavioural user
profiles of voters, AI is being used to persuade people to vote
for a specific candidate or even create a bias against that candidate’s opponent,
and to strengthen the certainty about their choice.
23. While micro-targeting for political campaigns may simply be
seen as commercial advertising, it may threaten democracy, public
debate and voters' choices substantially when the related practices
rely on the collection and manipulation of users' data (big data
analytics) to anticipate and influence their political opinions and
election results (computational propaganda).
24. The most significant cases of alleged AI-based interference
in democratic process relate to the 2016 presidential elections
in the United States of America. While the political consulting
firm Cambridge Analytica (now defunct), was accused of helping Donald
Trump win the election by promoting anti-Hillary Clinton content among
voters, some major news aggregators and “mainstream media” outlets
were reported to favour news and video positively covering Clinton
and negatively portraying Trump.
3.3 Erosion
of civil rights
25. Data availability and rapid
progress in AI systems will see an increased use of predictive analytics,
not only by companies, banks and recruiters, but also by government
institutions and authorities. If the related shortcomings and risks
are not addressed adequately, the technology-based amplification
of bias and prejudice, as well as statistical flaws and errors,
could lead to an entrenchment of historical inequity. This could undermine
protection from discrimination and guarantees of equal treatment,
which are enshrined in the constitutions of modern democratic societies
as well as the European Convention on Human Rights (ETS No. 005,
Article 14) and other Council of Europe instruments.
Note
26. AI systems’ use to profile, track and identify people and
screen, sort and even nudge their behaviour can have a chilling
effect on the freedom of expression and the freedom of assembly
and association (guaranteed by Articles 10 and 11 of European Convention
on Human Rights). Using facial recognition in public areas may interfere
with a person’s freedom of opinion and expression, simply because
of the fact that the protection of ‘group anonymity’ no longer exists.
This could discourage people to attend demonstrations and join in
peaceful assembly, which is one of the most important elements of
democratic society. Individuals may also prefer to refrain from
expressing certain points of view and accessing some sources of
information if they fear that the data collected on their activities
may be used by AI-powered tools designed to take decisions on them
(for example recruitment or promotion to a new position).
3.4 Concentration
of power in the hands of digital companies
27. One of the more general concerns
about AI technologies in terms of democracy is an unprecedented and
un-checked concentration of data, information and power in the hands
of a small group of major digital companies which develop and own
the algorithms, as well as the centralisation of the internet itself.
These big companies no longer serve as simple channels of communication
between individuals and institutions but play an increasingly prominent
role on their own, setting the agenda and shaping and transforming
social and political models. If too much political power is concentrated
in a few private hands which prioritise shareholder value over the
common good, this can threaten the authority of democratic States.
Thus, there is a clear need to reduce the influence of major private
companies on democratic decision-making. Moreover, public-private collaborations
in AI and its use in sensitive fields, such as public order; security
and intelligence; border control, but also in research and development,
blur the boundaries between the responsibilities, processes and institutions
of democratic States, and the interests of private corporations
Note.
3.5 Mass
surveillance and the strengthening of authoritarianism
28. AI may facilitate abuses of
power by States and State agencies: as a dual-usage technology,
it can be deployed to undermine important human rights that are
integral to the functioning of democracies.
Note Advances in
AI-based surveillance technology, such as facial, voice and motion
recognition, together with a web of surveillance cameras in public
places, allow the tracking of individuals in the real world. These
AI capacities have come to the forefront during the Covid-19 pandemic
(see footnote 6). As with progress in other technologies, tools
for surveillance together with predictive analytics can both be
used to increase security, safety or traffic control, as well as
enable governments to control large crowds and predict the formation
of protest and riots.
Note Thus, AI-driven blanket
surveillance measures threaten our right to privacy and to freedom of
expression.
3.6 AI
and political decision-making
29. Over the last decades, one
has witnessed a certain degree of de-politisation of decision-making.
A 2019 survey on Europeans’ attitudes towards technology found that
a quarter of people would prefer it if policy decisions were made
by AI instead of politicians, regardless of the fact that AI decisions
are based on statistical correlation of available data and not on
a causal relation between an event and a decision.
Note This
mindset probably reflects the growing mistrust of citizens towards
governments and politicians, and underlines a questioning of the
Western model of representative democracy.
30. This approach can engender passivity amongst voters, rather
than encouraging them to question the reasons for the choices made
and to be aware of the fact that such choices are rooted in interests
(in the noble sense) or values which need not necessarily be unobjectionable,
absolute or “scientific” in order to be considered to be valid.
This phenomenon is often taken to extremes and ends up exploiting,
on a rhetorical level, a form of contemporary
ipse
dixit. Machine-generated decision-making is difficult,
even impossible for humans to trace or reconstruct. When unaccountable,
black-boxed algorithms take decisions that affect people’s lives,
especially in sensitive areas, there is a serious danger to the
democratic values of transparency, accountability and equality,
and to the principle of democratic legitimacy. Automation bias,
which is the acceptance of machine-generated decisions, either without
or with limited human control, undermines transparency and accountability.
AI systems can produce profoundly unjust, unfair and even discriminatory outcomes
that undermine democratic processes and institutions, and that impact
negatively on individuals, especially on individuals from vulnerable
communities.
Note
31. Accustoming society to accepting choices not on the basis
of critical reasoning but according to the dictates of authority
is extremely unjust, and therefore harmful, given that it is impossible
to establish incontrovertibly who should be regarded by public opinion
as an authoritative source. AI-assisted technologies may make people
believe that they are making their own choices, whereas in reality
they are merely following patterns. In this way, AI may be used
as an instrument to abuse direct democracy. More broadly, AI-assisted political
decision-making may ultimately lead to establishing a form of automated
democracy and depriving humans of autonomy over political processes.
Defining political goals may not be left to algorithms and must remain
with humans enjoying democratic legitimacy and assuming political
and legal responsibility.
32. Summing up, AI-based technology provides the tools to interfere
with the procedures and processes of democracies and undermine democratic
institutions. The use of AI, and its potential for abuse by States
and State agencies, and by private corporations, poses a real threat
to the institutions, processes, and norms of our rights-based democracies.
Note In
order to prevent this threat, “We need a framework which ensures
that this technology is developed and deployed in full respect not
only of our values but also of our written law, fundamental rights,
rule of law, democracy and the full body of secondary law … The
principle must be that nothing can be legal if carried out by AI
as an automation process if it would be illegal if it is carried
out by human.”
Note
4 Ongoing
efforts to create a regulatory framework for artificial intelligence
33. As mentioned above, national
and international organisations are trying to respond to the concerns related
to AI use. This section presents an overview of the actions taken
by major international organisations, as well as some national initiatives,
aimed at setting up a regulatory framework for AI.
4.1 United
Nations
34. UNESCO
Note is preparing the first global standard-setting
instrument on ethics of artificial intelligence, following the decision
of UNESCO’s General Conference at its 40th session
in November 2019. This inclusive and multidisciplinary process is
expected to include consultations with a wide range of stakeholders,
including the scientific community, people of different cultural
backgrounds and ethical perspectives, minority groups, civil society,
government and the private sector. The first version of the draft
text of the recommendation has been published online and open for
consultation. Inclusiveness, trustworthiness, the protection of
the environment and privacy are amongst the principles included
in this Recommendation.
4.2 European
Union
35. As it is described in the European
Union AI strategy, the European Commission is taking a three-step approach:
setting-out the key requirements for trustworthy AI; launching a
large-scale pilot phase for feedback from stakeholders; and working
on international consensus building for human-centric AI. The Commission
has introduced seven key requirements for a trustworthy AI:
- human agency and oversight:
AI systems should enable equitable societies by supporting human agency
and fundamental rights, and not decrease, limit or misguide human
autonomy;
- robustness and safety: trustworthy AI requires algorithms
to be secure, reliable and robust enough to deal with errors or
inconsistencies during all life cycle phases of AI systems;
- privacy and data governance: citizens should have full
control over their own data, while data concerning them will not
be used to harm or discriminate against them;
- transparency: the traceability of AI systems should be
ensured;
- diversity, non-discrimination and fairness: AI systems
should consider the whole range of human abilities, skills and requirements,
and ensure accessibility;
- societal and environmental well-being: AI systems should
be used to enhance positive social change and enhance sustainability
and ecological responsibility;
- accountability: mechanisms should be put in place to ensure
responsibility and accountability for AI systems and their outcomes.
36. Finally, in its White Paper
Note presented on 19 February 2020,
the European Commission envisages a framework for trustworthy AI,
based on excellence and trust. In partnership with the private and
the public sector, the aim is to mobilise resources along the entire
value chain and to create the right incentives to accelerate deployment
of AI, including by smaller and medium-sized enterprises. This includes
working with member States and the research community to attract
and keep talent. As AI systems can be complex and bear significant
risks in certain contexts, building trust is essential. Clear rules
need to address high-risk AI systems without putting too much burden
on less risky ones.
4.3 OECD
37. In May 2019, the OECD adopted
the Recommendation on Artificial Intelligence.
Note The Recommendation identifies
five complementary values-based principles for the responsible stewardship
of trustworthy AI:
- AI should
benefit people and the planet by driving inclusive growth, sustainable
development and well-being;
- AI systems should be designed in a way that respects the
rule of law, human rights, democratic values and diversity, and
they should include appropriate safeguards – for example, enabling
human intervention where necessary – to ensure a fair and just society;
- There should be transparency and responsible disclosure
around AI systems to ensure that people understand AI-based outcomes
and can challenge them;
- AI systems must function in a robust, secure and safe
way throughout their life cycles and potential risks should be continually
assessed and managed;
- Organisations and individuals developing, deploying or
operating AI systems should be held accountable for their proper
functioning in line with the above principles.
4.4 Actions
at national level
38. National authorities in many
countries have also developed strategies and policies to promote
and regulate AI. I will quote only a few examples:
- Finland: a dedicated governmental
steering group published a national AI strategyNote in 2017 (the first country in the European
Union to do so), containing, inter alia,
a section on AI ethics;
- Germany published an AI strategy in
2018,Note focusing
on the need to boost research and development while ensuring that
AI development is socially responsible;
- Russian Federation: The Duma has recently adopted the
national strategy for the development of AI until 2030. It refers, inter alia, to the principles on
which the development and use of AI is based upon (protection of
human rights and freedoms, security and transparency). Emphasis
is also given to raising public awareness, as well as creating an
integrated system for regulating social relations with the development
and use of AI technologies;Note
- United Kingdom: the AI Sector DealNote and the House of
Lords’ report on AINote(both
published in April 2018) emphasise the importance of robust thinking
and policy around AI ethics.
5 The
work of the Council of Europe
39. The Council of Europe, as a
leading human rights organisation, plays a significant role in promoting human
rights compliant AI. On 13 February 2019, the Committee of Ministers
adopted an important Declaration on the manipulative capabilities
of algorithmic processes.
Note The Ministers called on member
States to tackle the risk that individuals may not be able to form
their opinions and take decisions independently of automated systems,
and that they may even be subjected to manipulation due to the use
of advanced digital technologies, micro-targeting techniques. Noting
that machine learning tools have the growing capacity not only to
predict choices but also to influence emotions and thoughts, sometimes
subliminally, the Committee of Ministers encouraged States to assume
their responsibility to address this growing threat by taking appropriate
and proportionate legislative measures against illegitimate interferences,
and empowering users by promoting critical digital literacy skills.
40. On 26 and 27 February 2019, the Helsinki conference on “Governing
the Game Changer – Impacts of artificial intelligence development
on human rights, democracy and the rule of law”, organised by the
Council of Europe and the Finnish Presidency of the Committee of
Ministers, stressed that “effective supervisory mechanisms and democratic
oversight structures regarding the design, development and deployment
of AI must be in place”, and that “the functioning democratic processes
require an independently informed public, and the encouragement
of open and inclusive debates. Public awareness of the potential
risks and benefits of AI must be enhanced, and necessary new competencies
and skills developed. Due public trust in the information environment
and AI applications must be fostered”.
Note
41. On 11 September 2019, the Committee of Ministers set up an
Ad hoc Committee on Artificial Intelligence (CAHAI), to examine
the feasibility and potential elements based on broad multi-stakeholder
consultations, of a legal framework for the development, design
and application of artificial intelligence, based on Council of Europe’s
standards on human rights, democracy and the rule of law.
42. The Recommendation CM/Rec(2020)1 of the Committee of Ministers
to member States on the human rights impacts of algorithmic systems,
adopted on 8 April 2020 in the context of the Covid-19 pandemic,
issued a set of guidelines calling on governments to ensure that
they do not breach human rights through their own use, development
or procurement of algorithmic systems. In addition, as regulators,
they should establish effective and predictable legislative, regulatory
and supervisory frameworks that prevent, detect, prohibit and remedy
human rights violations, whether stemming from public or private
actors.
6 Artificial
intelligence and big companies: accountability and ethics
43. Ethical initiatives help develop
a shared language to discuss and debate social and political concerns. They
provide developers, company employees, and other stakeholders a
set of high-level value statements or objectives against which actions
can be later judged. They are also educational, often doing the
work of raising awareness of particular risks of AI both within
a given institution and externally, amongst the broader concerned public.
But they are not appropriate tools to ensure accountability.
44. As stressed in a report published by AI Now Institute
Note at New York University in 2019,
companies creating AI-based solutions to everything, from grading
students to assessing immigrants for criminality, are bound by little
more than a few ethical statements they decided on themselves. Although
there have been some efforts by the companies, the authors argue
that “The frameworks presently governing AI are not capable of ensuring
accountability”. “As the pervasiveness, complexity, and scale of
these systems grow, the lack of meaningful accountability and oversight
– including basic safeguards of responsibility, liability, and due
process – is an increasingly urgent concern.”
45. In 2018, Google’s CEO Sundar Pichai released a public set
of seven “guiding principles” designed to ensure that the company’s
work on AI will be socially responsible. These ethical principles
include the commitment to “be socially beneficial” and to “avoid
creating or reinforcing unfair bias.” In an article for
Financial Times, Mr Pichai called
for AI to be regulated, but argued for a more sensible approach,
supporting that individual areas of AI development, like self-driving
cars and health tech, required tailored rules.
Note It
is also worth mentioning that Google launched its own independent
ethics board in 2019 but shut it down less than two weeks later
following controversy about who had been appointed to it.
46. Other companies, including Microsoft, Facebook, and police
body camera maker Axon, also assembled ethics boards, advisors,
and teams. Such developments are encouraging, and it is noteworthy
that those at the heart of AI development have declared they are
taking ethics seriously. However, as stated above, they do not provide
a solid basis to engage companies’ responsibility.
7 Conclusions
47. Democracy implies that people
with different views come together to find common solutions through dialogue.
Instead of creating a public common space and a common agenda, AI-based
communication platforms seem to favour individualistic and polarised
attitudes and lead to the emergence of closed Internet communities
sharing the same views, thus undermining social cohesion and democratic
debate and, in contrast, contributing to proliferation of hate speech,
compartmentation and segmentation of society. The fact that full
segments of the population are not using platforms due to various
gaps in the usage of information and communication technologies
(ICTs) (namely based on gender, age, social origin) also needs to
be factored in this reflection. In the European Union, for example,
there is a gender gap in digital skills of 11%, with a higher gap
for above basic skills and especially for those above 55 years.
Note Private
companies which apply the rules of the market and not those of democracy
are taking no responsibility for allowing the fuelling hate speech
and distributing violent content.
48. AI-based technologies interfere in the functioning of democratic
institutions and processes, and have an impact on social and political
behaviour of citizens. All machine learning algorithms work on a
classifier structure in which the machine learns to make a set of
assumptions about different strands of data. Like all iterative
learning processes, machine learning too can suffer from false negative
or positive reports. While these reports are common errors in any
such study, once such error margin is transferred to political decisions, it
can lead to the systematic repression of specific ethnic or social
groups, the wrongful implication of suspects or unnecessary systematic
profiling of citizens.
Note
49. There is an obvious gap between the pace of technological
development and the regulatory framework. Self-regulatory principles
and policies cannot be the only tools to regulate AI as they do
not lead to accountability. Europe needs to ensure that the power
of AI is regulated and used for common good. Therefore, there is
a need to create a regulatory framework for AI, with specific principles
based on the protection of human rights, democracy and rule of law.
Any work in this area needs to involve all stakeholders, including
in particular citizens and private companies. The work of CAHAI,
which should eventually lead to setting up a legal framework for
democratic governance of artificial intelligence, based on Council
of Europe’s standards, needs to be fully supported and encouraged.
50. In order to ensure accountability, the legal framework to
be put in place should provide for an independent oversight mechanism
that would guarantee effective compliance with its provisions. Without
such a mechanism, big ICT companies would simply continue business
as usual, and against the huge power and transnational nature of
these companies, most States would continue to close their eyes
to noncompliant behaviour as a necessary and acceptable cost for
pursuing a vital interest.
51. However, such an oversight mechanism can only be effective
if it can be proactive and engaged ex
ante. Indeed, while it would be important to introduce
sanctions for noncompliant behaviour, a mechanism that would limit
itself to ex post penalties
and fines - which are usually easily affordable by big private companies
no matter the amount - would not achieve the desired outcome. That
is because it is often very difficult, if not impossible, to restore
the previous situation or “erase the damage” after a given AI technology
has been introduced and used, as unethical and/or noncompliant with
human rights, democracy and rule of law as it may be.
52. A proactive oversight mechanism requires a highly competent
body (inter alia in technical,
legal and ethical terms), capable of following the new developments
on digital technology and evaluating accurately and authoritatively
its risks and consequences. It goes without saying that such a body
should involve all relevant stakeholders.
53. More critically, the role of AI in changing the power balance
between institutions, political actors, and executive organs needs
more structured research. Given the scale of legitimacy and sovereignty
problems relating to outsourcing political decisions to algorithms,
the role of constitutions, parliaments and the political elites
in relation to AI needs to be studied in-depth with a specific focus
on how political authority should be situated in the age of automated
decisions.
Note
54. This does not mean that AI cannot be a force for good, or
render politics more efficient, or more responsive to citizens’
needs. If used well, AI can broaden the space for democratic representation
by decentralising information systems and communication platforms.
It can bolster informational autonomy for citizens and improve the
way they collect information about political processes and help
them participate in these processes remotely. Just as AI can be
used to strengthen opaqueness and unaccountability, it can also improve
transparency and help establish greater trust between the State
and the society and between citizens themselves.
Note
55. For its part, the Council of Europe, as a leading international
standard-setting organisation in the field of democracy, should
play a pioneering role in designing ways and formats to ensure that
AI-based technologies are used to enhance democracy through citizens
assemblies, electronic agoras and other deliberative and participatory
forms of people’s involvement in democratic processes.
