The Urgent but Difficult Task of Regulating Artificial Intelligence  

By David Nolan, Hajira Maryam & Michael Kleinman, Amnesty Tech

The year 2023 marked a new era of “AI hype”, rapidly steering policy makers towards discussions on the safety and regulation of new artificial intelligence (AI) technologies. The feverish year in tech started with the launch of ChatGPT in late 2022 and ended with a landmark agreement on the EU AI Act being reached. Whilst the final text is still being ironed out in technical meetings over the coming weeks, early signs indicate the western world’s first “AI rulebook” goes someway to protecting people from the harms of AI but still falls short in a number of crucial areas, failing to ensure human rights protections especially for the most marginalised. This came soon after the UK Government hosted an inaugural AI Safety Summit in November 2023, where global leaders, key industry players, and select civil society groups gathered to discuss the risks of AI. Although the growing momentum and debate on AI governance is welcomed and urgently needed, the key question for 2024 is whether these discussions will generate concrete commitments and focus on the most important present-day AI risks, and critically whether it will translate into further substantive action in other jurisdictions.

Whilst AI developments do present new opportunities and benefits, we must not ignore the documented dangers posed by AI tools when they are used as a means of societal control, mass surveillance and discrimination. All too often, AI systems are trained on massive amounts of private and public data–data which reflects societal injustices, often leading to biased outcomes and exacerbating inequalities. From predictive policing tools, to automated systems used in public sector decision-making to determine who can access healthcare and social assistance, to monitoring the movement of migrants and refugees, AI has flagrantly and consistently undermined the human rights of the most marginalised in society. Other forms of AI, such as fraud detection algorithms, have also disproportionately impacted ethnic minorities, who have endured devastating financial problems as Amnesty International has already documented, while facial recognition technology has been used by the police and security forces to target racialised communities and entrench Israel’s system of apartheid.

So, what makes regulation of AI complex and challenging? First, there is the vague nature of the term AI itself, making efforts to regulate this technology more cumbersome. There is no widespread consensus on the definition of AI because the term does not refer to a singular technology and rather encapsulates a myriad technological applications and methods. The use of AI systems in many different domains across the public and private sector, means a large number of varied stakeholders are involved in its development and deployment, meaning such systems are a product of labour, data, software and financial inputs and any regulation must grapple with upstream and downstream harms. Further, these systems cannot be strictly considered as hardware or software, but rather their impact comes down to the context in which they are developed and implemented and regulation must take this into account.

As we enter 2024, now is the time to not only ensure that AI systems are rights respecting by design, but also to guarantee that those who are impacted by these technologies are not only meaningfully involved in decision-making on how AI technology should be regulated, but also that their experiences are continually surfaced and are centred within these discussions.

Alongside the EU legislative process, the UK, US, and others, have set out their distinct roadmaps and approach to identifying the key risks AI technologies present, and how they intend to mitigate these. Whilst there are many complexities of these legislative processes, this should not delay any efforts to protect people from the present and future harms of AI, and there are crucial elements that we, at Amnesty, know any proposed regulatory approach must contain. Regulation must be legally binding and center the already documented harms to people subject to these systems. Commitments and principles on the “responsible” development and use of AI–the core of the current pro-innovation regulatory framework being pursued by the UK—do not offer an adequate protection against the risks of emerging technology and must be put on statutory footing.

Similarly, any regulation must include broader accountability mechanisms over and above technical evaluations that are being pushed by industry. Whilst these may be a useful string within any regulatory toolkit’s bow, particularly in testing for algorithmic bias, bans and prohibitions cannot be off the table for systems fundamentally incompatible with human rights, no matter how accurate or technically efficacious they purport to be. 

Others must learn from the EU process and ensure there are not loopholes for public and private sector players to circumvent regulatory obligations, and removing any exemptions for AI used within national security or law enforcement is critical to achieving this. It is also important that where future regulation limits or prohibits the use of certain AI systems in one jurisdiction, no loopholes or regulatory gaps allow the same systems to be exported to other countries where they could be used to harm the human rights of marginalized groups. This remains a glaring gap in the UK, US, and EU approaches, as they fail to take into account the global power imbalances of these technologies, especially their impact on communities in the Global Majority whose voices are not represented in these discussions. There have already been documented cases of outsourced workers being exploited in Kenya and Pakistan by companies developing AI tools.

As we enter 2024, now is the time to not only ensure that AI systems are rights-respecting by design, but also to guarantee that those who are impacted by these technologies are not only meaningfully involved in decision-making on how AI technology should be regulated, but also that their experiences are continually surfaced and are centred within these discussions. More than lip service by lawmakers, we need binding regulation that holds companies and other key industry players to account — and ensures that profits do not come at the expense of human rights protections. International, regional and national governance efforts must complement and catalyse each other, and global discussions must not come at the expense of meaningful national regulation or binding regulatory standards – these are not mutually exclusive. This is the level at which accountability is served—we must learn from past attempts to regulate tech, which means ensuring robust mechanisms are introduced to allow victims of AI-inflicted rights violations to seek justice.