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Data Protection in the new world of Artificial Intelligence


Artificial Intelligence may pose new challenges that do not fit in under the EU Data Protection Regulation. Nicola Fulford and Gemma Lockyer explore the issues.

A quick online search of “what is AI?” does not provide you with an easy answer; this is because artificial intelligence can have different meanings to different people. For our purposes, it is a computer system which is able to perform tasks which would normally require human intelligence.

To date, as lawyers, we have needed to deal with computers and machines which are capable of numerous and speedy computations and calculations – but these actions have all been governed by the direction of the programmer. Artificial intelligence, on the other hand, is the machine intelligently thinking, learning and making decisions and actions based on this thought and knowledge. From a legal perspective this phenomenon challenges many key legal concepts and means that we need to address how we apply core principles of personality and liability onto something the law is not yet ready to deal with.

Could an AI be a data subject?

A data subject is defined as any individual who is the subject of personal data. Typically we think of data subjects as employees, contractors, customers or individuals on a marketing database etc. A limited liability company is not a data subject for the purposes of the Data Protection Act 1998 (the DP Act) and neither is a computer system. An AI is capable of performing tasks which would normally require human intelligence and so could it be argued that an AI should be given some of the same protections given to humans?

The current DP Act’s definitions means that there is not going to be any personal data recorded in relation to an AI data subject because personal data relates to “a living individual” who can be identified from the data. Even if we can acknowledge that an AI has human intelligence and should be classed as an “individual”, and therefore a data subject, would we be able to go as far as to describe it as living? And, perhaps more importantly, should we? Given the new definition under the EU General Data Protection Regulation (GDPR) changes this to a “natural person”, that does not seem to be the direction of travel.

Processing data using Artificial intelligence

A much more real concern for businesses is the use of AI in the processing of personal data. Processing is very broadly defined and includes “obtaining, recording or holding information or data or carrying out any operation or set of operations on the information or data”. The first data protection principle, which requires fair and lawful processing, is often met through the use of consent. The individual will consent to the processing of their personal data and this will enable the processing to be fair. How can we obtain informed consent when the processing of the data is no longer a predictable response to a set of pre-defined instructions given to a computer programme by a programmer but is now the result of an autonomous machine which is learning and thinking for itself? The programmer no longer knows what the next processing operation might be because that is a decision taken by the AI. Consent is not mandatory in the UK for the processing of personal data, although it is often the easiest way to justify the processing. Without consent the data controller will (generally) need to show that the processing is necessary for a contract or is for legitimate reasons, provided these reasons are not outweighed by the privacy implications for the individuals concerned. However, given that we don’t know exactly what processing the AI might undertake in relation to the data it is given, how can we know that the processing is necessary? Similarly, without understanding the processing and what the privacy implications may be, how can that balance be understood and documented?

Impact of the GDPR

The current EU data protection regime is due to be replaced by the GDPR. There are several key changes in the GDPR which will affect those working within the sphere of AI.

The first is the requirement to implement Privacy by Design and by default. Businesses will be required to take data protection requirements into account from the inception of any new technology that involves the processing of personal data. An AI works because of its ability to process large volumes of data and quickly. IBM’s Watson – a computer capable of answering questions framed in natural language thanks to the vast database of information it has access to – is an example of this. If the AI is given access to personal data as part of that database, then the AI will be processing personal data and data protection requirements will need to be taken into account as part of its design. This may not always be possible when the machine itself is evolving as it thinks and learns for itself.

Thanks to the increased computing power of AI it may be possible that data which might previously not have been considered personal data, because from the data alone you could not identify a living individual, might become personal data because the AI has access to other information which, when processed together with that data, could be used to identify a living individual. This potentially increases the scope of personal data which might be available relating to a data subject.

The GDPR also restricts profiling which is the automated processing of personal data and the use of personal data to evaluate certain personal aspects relating  to a natural person,for example analysing or predicting aspects concerning a natural person’s economic situation or personal preferences. Pursuant to Article 14(1) of the GDPR, data subjects have a right not necessarily to avoid profiling itself, but rather to avoid being “subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.” Recital 58 provides as examples the “automatic refusal of an on-line credit application or e-recruiting practices without any human inter- vention”. Consent to this profiling will need to be obtained and this will need to be considered well in advance of implementing these kinds of AI.

Are we ready?

Artificial Intelligence is a reality and with “big data” becoming “bigger data” all the time, is the legal data protection landscape ready for AI machines? The emphasis, we believe is going to be on ensuring the data con- trollers are able to build in parameters around privacy into the AI, and also in trying to obtain the necessary consents before transferring data to an AI. Consent can be tricky today, but with the GDPR, consent will become even harder to obtain.

As with other new technologies, the law inevitably plays catch-up and AI will surely throw up new situations that do not “fit” what was in contemplation for the GDPR. For example, whether the AI is capable of being a data controller itself, making its own decisions in relation to the processing of the data, or how we might impose any liability on the AI for anything it did in breach of the DP Act or the GDPR. Given the power of the technology, this is a field likely to see an emphasis on ethics as well as law.

This article was previously published in Privacy Laws & Business.

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