Getting The Future Right – Artificial Intelligence And .
REPORTGETTING THEFUTURE RIGHT―ARTIFICIALINTELLIGENCE ANDFUNDAMENTALRIGHTS
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ForewordDid you know that artificial intelligence already plays a role in decidingwhat unemployment benefits someone gets, where a burglary is likely totake place, whether someone is at risk of cancer, or who sees that catchyadvertisement for low mortgage rates?We speak of artificial intelligence (AI) when machines do the kind of thingsthat only people used to be able to do. Today, AI is more present in our livesthan we realise – and its use keeps growing. The possibilities seem endless.But how can we fully uphold fundamental rights standards when using AI?This report presents concrete examples of how companies and publicadministrations in the EU are using, or trying to use, AI. It discusses thepotential implications for fundamental rights and shows whether and howthose using AI are taking rights into account.FRA interviewed just over a hundred public administration officials, privatecompany staff, as well as diverse experts – including from supervisory andoversight authorities, non-governmental organisations and lawyers – whovariously work in the AI field.Based on these interviews, the report analyses how fundamental rights aretaken into consideration when using or developing AI applications. It focuseson four core areas – social benefits, predictive policing, health services andtargeted advertising. The AI uses differ in terms of how complex they are,how much automation is involved, their potential impact on people, and howwidely they are being applied.The findings underscore that a lot of work lies ahead – for everyone.One way to foster rights protection is to ensure that people can seek remedieswhen something goes awry. To do so, they need to know that AI is beingused. It also means that organisations using AI need to be able to explaintheir AI systems and how they deliver decisions based on them.Yet the systems at issue can be truly complex. Both those using AI systems,and those responsible for regulating their use, acknowledge that they do notalways fully understand them. Hiring staff with technical expertise is key.Awareness of potential rights implications is also lacking. Most know thatdata protection can be a concern, and some refer to non-discrimination. Theyare less aware that other rights – such as human dignity, access to justice andconsumer protection, among others – can also be at risk. Not surprisingly,when developers review the potential impact of AI systems, they tend tofocus on technical aspects.To tackle these challenges, let’s encourage those working on human rightsprotection and those working on AI to cooperate and share much-neededknowledge – about tech and about rights.1
Those who develop and use AI also need to have the right tools to assesscomprehensively its fundamental rights implications, many of which may notbe immediately obvious. Accessible fundamental rights impact assessmentscan encourage such reflection and help ensure that AI uses comply withlegal standards.The interviews suggest that AI use in the EU, while growing, is still in itsinfancy. But technology moves quicker than the law. We need to seize thechance now to ensure that the future EU regulatory framework for AI is firmlygrounded in respect for human and fundamental rights.We hope the empirical evidence and analysis presented in this report spurspolicymakers to embrace that challenge.Michael O’FlahertyDirector2
ContentsForeword 1Key findings and FRA opinions 51AI AND FUNDAMENTAL RIGHTS – WHY IT IS RELEVANT FOR POLICYMAKING 151.1.WHY THIS REPORT? 171.2.WHAT DO WE MEAN BY ARTIFICIAL INTELLIGENCE? 191.3. AI AND FUNDAMENTAL RIGHTS IN THE EU POLICY FRAMEWORK: MOVINGTOWARDS REGULATION 21ENDNOTES 242PUTTING FUNDAMENTAL RIGHTS IN CONTEXT – SELECTED USE CASES OF AI IN THE EU 252.1.EXAMPLES OF AI USE IN PUBLIC ADMINISTRATION 302.2. EXAMPLES OF AI USE IN THE PRIVATE SECTOR 37ENDNOTES 453FUNDAMENTAL RIGHTS FRAMEWORK APPLICABLE TO AI 473.1.FUNDAMENTAL RIGHTS FRAMEWORK GOVERNING THE USE OF AI 473.2.‘USE CASE’ EXAMPLES 503.3.REQUIREMENTS FOR JUSTIFIED INTERFERENCES WITH FUNDAMENTAL RIGHTS 52ENDNOTES 544IMPACT OF CURRENT USE OF AI ON SELECTED FUNDAMENTAL RIGHTS 574.1.PERCEIVED RISKS 574.2.GENERAL AWARENESS OF FUNDAMENTAL RIGHTS AND LEGAL FRAMEWORKS INTHE AI CONTEXT 584.3.HUMAN DIGNITY 604.4.RIGHT TO PRIVACY AND DATA PROTECTION – SELECTED CHALLENGES 614.5.EQUALITY AND NON-DISCRIMINATION 684.6.ACCESS TO JUSTICE 754.7.RIGHT TO SOCIAL SECURITY AND SOCIAL ASSISTANCE 794.8.CONSUMER PROTECTION 794.9.RIGHT TO GOOD ADMINISTRATION 81ENDNOTES 835FUNDAMENTAL RIGHTS IMPACT ASSESSMENT – A PRACTICAL TOOL FOR PROTECTINGFUNDAMENTAL RIGHTS 875.1.CALLING FOR A FUNDAMENTAL RIGHTS IMPACT ASSESSMENT – AVAILABLEGUIDANCE AND TOOLS 875.2.IMPACT ASSESSMENTS AND TESTING IN PRACTICE 915.3.FUNDAMENTAL RIGHTS IMPACT ASSESSMENT IN PRACTICE 96ENDNOTES 996MOVING FORWARD: CHALLENGES AND OPPORTUNITIES 1013
Figures4Figure 1:Companies using AI in 2020, by Member State (%) 26Figure 2:Examples of different automation and complexity levels in use cases covered 27Figure 3:Words interviewees most often used to describe the AI ‘use cases’ 29Figure 4:Awareness of GDPR right to opt out from direct marketing, in the EU and United Kingdom, by country andregion (%) 65Figure 5:Awareness of right to have a say when decisions are automated, by age, gender and difficulty in paying bills (%) 67Figure 6:Awareness about the risks of discrimination when using AI, by country (%) 73Figure 7:Correlations of words respondents most often mention when discussing future plans to use AI 102
Key findings and FRA opinionsNew technologies have profoundly changed how we organise and liveour lives. In particular, new data-driven technologies have spurred thedevelopment of artificial intelligence (AI), including increased automation oftasks usually carried out by humans. The COVID-19 health crisis has boostedAI adoption and data sharing – creating new opportunities, but also challengesand threats to human and fundamental rights.Developments in AI have received wide attention by the media, civilsociety, academia, human rights bodies and policymakers. Much of thatattention focuses on its potential to support economic growth. How differenttechnologies can affect fundamental rights has received less attention. Todate, we do not yet have a large body of empirical evidence about the widerange of rights AI implicates, or about the safeguards needed to ensure thatthe use of AI complies with fundamental rights in practice.On 19 February 2020, the European Commission published a White Paper onArtificial Intelligence – A European approach to excellence and trust. It outlinesthe main principles of a future EU regulatory framework for AI in Europe.The White Paper notes that it is vital that such a framework is grounded inthe EU’s fundamental values, including respect for human rights – Article 2of the Treaty on European Union (TEU).This report supports that goal by analysing fundamental rights implicationswhen using artificial intelligence. Based on concrete ‘use cases’ of AIin selected areas, it focuses on the situation on the ground in terms offundamental rights challenges and opportunities when using AI.5
LegalframeworkThe overarching fundamental rights framework* that applies to the use of AI in theEU consists of the Charter of Fundamental Rights of the EU (the Charter) as well as theEuropean Convention on Human Rights.Multiple other Council of Europe and international human rights instruments are relevant.These include the 1948 Universal Declaration of Human Rights and the major UN humanrights conventions.**In addition, sector-specific secondary EU law, notably the EU data protection acquis andEU non-discrimination legislation, helps safeguard fundamental rights in the context of AI.Finally, the national laws of EU Member States also apply.*For more, see FRA (2012), Bringing rights to life: The fundamental rights landscape of theEuropean Union, Luxembourg, Publications Office of the European Union.** These major conventions include: the 1966 International Covenant on Civil and Political Rights;the 1966 International Covenant on Economic, Social and Cultural Rights; the 1965 InternationalConvention on the Elimination of All Forms of Racial Discrimination; the 1979 Convention on theElimination of All Forms of Discrimination against Women; the 1984 Convention against Torture;the 1989 Convention on the Rights of the Child; the 2006 Convention on the Rights of Persons withDisabilities; and the 2006 International Convention for the Protection of All Persons from EnforcedDisappearance.For more on the universal international human rights law framework, including their enforcementmechanisms, see e.g. De Schutter, O. (2015), International Human Rights Law: Cases, Materials,Commentary, Cambridge, Cambridge University Press, 2nd edition.The report is based on 91 interviews with officials in public administrationand staff in private companies, in selected EU Member States. They wereasked about their use of AI, their awareness of fundamental rights issuesinvolved, and practices in terms of assessing and mitigating risks linked tothe use of AI.Moreover, 10 interviews were conducted with experts who deal, in variousways, with the potential fundamental rights challenges of AI. This groupincluded public bodies (such as supervisory and oversight authorities), nongovernmental organisations and lawyers.6
SAFEGUARDING FUNDAMENTAL RIGHTS – SCOPE,IMPACT ASSESSMENTS AND ACCOUNTABILITYConsidering the full scope of fundamental rightswith respect to AIUsing AI systems engages a wide range of fundamentalrights, regardless of the field of application. Theseinclude – but also go beyond – privacy, data protection,non-discrimination and access to justice.The EU Charter of Fundamental Rights (the Charter)became legally binding in December 2009 and has thesame legal value as the EU treaties. It brings togethercivil, political, economic and social rights in a single text.Pursuant to Article 51 (1) of the Charter, the institutions,bodies, offices and agencies of the Union have to respectall the rights as embodied in the Charter. EU MemberStates have to do so when they are implementing Unionlaw. This applies equally to AI as to any other field.The fieldwork of this research shows that a largevariety of systems are used under the heading of AI.The technologies analysed entail different levels ofautomation and complexity. They also vary in terms ofthe scale and potential impact on people.FRA’s findings show that using AI systems implicate awide spectrum of fundamental rights, regardless of thefield of application. These include, but also go beyond,privacy and data protection, non-discrimination andaccess to justice. Yet, when addressing the impact of AIwith respect to fundamental rights, the interviews show,the scope is often delimited to specific rights.A wider range of rights need to be considered whenusing AI, depending on the technology and area of use. Inaddition to rights concerning privacy and data protection,equality and non-discrimination, and access to justice,other rights could be considered. These include, forexample, human dignity, the right to social security andsocial assistance, the right to good administration (mostlyrelevant for the public sector) and consumer protection(particularly important for businesses). Depending onthe context of the AI use, any other right protected inthe Charter needs consideration.FRA OPINION 1When introducing new policies andadopting new legislation on AI, theEU legislator and the Member States,acting within the scope of EU law,must ensure that respect for the fullspectrum of fundamental rights, asenshrined in the Charter and the EUTreaties, is taken into account. Specificfundamental rights safeguards need toaccompany relevant policies and laws.In doing so, the EU and its MemberStates should rely on robust evidenceconcerning AI’s impact on fundamentalrights to ensure that any restrictionsof certain fundamental rights respectthe principles of necessity andproportionality.Relevant safeguards need to beprovided for by law to effectivelyprotect against arbitrary interferencewith fundamental rights and to givelegal certainty to both AI developersand users. Voluntary schemesfor observing and safeguardingfundamental rights in the developmentand use of AI can further help mitigaterights violations. In line with theminimum requirements of legal clarity– as a basic principle of the rule oflaw and a prerequisite for securingfundamental rights – the legislator hasto take due care when defining thescope of any such AI law.Given the variety of technologysubsumed under the term AI andthe lack of knowledge about the fullscope of its potential fundamentalrights impact, the legal definition ofAI-related terms might need to beassessed on a regular basis.7
Using effective impact assessments to preventnegative effectsFRA OPINION 2The EU legislator should consider makingmandatory impact assessments thatcover the full spectrum of fundamentalrights. These should cover the privateand public sectors, and be appliedbefore any AI-system is used. Theimpact assessments should take intoaccount the varying nature and scopeof AI technologies, including the level ofautomation and complexity, as well asthe potential harm. They should includebasic screening requirements that canalso serve to raise awareness of potentialfundamental rights implications.Impact assessments should draw onestablished good practice from otherfields and be regularly repeated duringdeployment, where appropriate. Theseassessments should be conducted in atransparent manner. Their outcomesand recommendations should be in thepublic domain, to the extent possible.To aid the impact assessment process,companies and public administrationshould be required to collect theinformation needed for thoroughlyassessing the potential fundamentalrights impact.The EU and Member States shouldconsider targeted actions to supportthose developing, using or planningto use AI systems, to ensure effectivecompliance with their fundamentalrights impact assessment obligations.Such actions could include funding,guidelines, training or awarenessraising. They should particularly – butnot exclusively – target the privatesector.The EU and Member States shouldconsider using existing tools, such aschecklists or self-evaluation tools,developed at European and internationallevel. These include those developed bythe EU High-Level Group on ArtificialIntelligence.Prior impact assessments mainly focus on technicalissues. They rarely address potential effects onfundamental rights. This is because knowledge on howAI affects such rights is lacking.Deploying AI systems engages a wide spect
Artificial Intelligence – A European approach to excellence and trust. It outlines the main principles of a future EU regulatory framework for AI in Europe. The White Paper notes that it is vital that such a framework is grounded in the EU’s fundamental values, including respect for human rights – Article 2 of the Treaty on European Union (TEU). This report supports that goal by .
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