Shaping the Law of AI: Transatlantic Perspectives

Currently, the European Commission (EC) is drafting its Law of AI. This article gives 25 AI & data regulatory recommendations to the EC, in response to its Inception Impact Assessment on the “Artificial intelligence – ethical and legal requirements” legislative proposal. In addition to a set of fundamental, overarching core AI rules, this article suggests a differentiated industry-specific approach regarding incentives and risks. Besides shaping the Law of AI, the article explores how the upcoming European AI legal framework’s norms, standards, principles and values can be connected to the United States, from a transatlantic, comparative law perspective. In its 2019 "White Paper On Artificial Intelligence - A European approach to excellence and trust", the EC set out its mission to foster the development and uptake of safe and lawful AI that offers legal certainty, a favorable investment climate and an innovation optimum across the Digital Single Market, while respecting fundamental rights, ensuring inclusive societal outcomes, protecting citizen’s wellbeing and safeguarding our common Humanist moral values. The White Paper is the prelude to the European Law of AI. The overall goal of this legislative initiative is to stimulate the uptake of Trustworthy AI in the EU economy. Simultaneous to preparing its Law of AI, the EC is designing a legislative framework for data governance: The Data Act. This article argues that the EU should step up and take the lead to set global norms and standards that will shape the international Law of AI & Data system. The EU must provide a clear North Star to the world, determine direction and lead toward a purposeful destination. The time is now ripe to show ambition, leadership and guidance in building a global technology regulation framework -that will apply both on earth and in space- safeguarding human rights, the rule of law, democracy as well as social, economic and cultural rights. As it did before with the GDPR, that now has become the international standard for privacy, data sovereignty and data protection. The article maintains that the EU needs to adopt a holistic set of overarching core AI rules. Horizontal rules which apply across all industries. These universal core rules protect our democracy and our fundamental human rights & freedoms in the Information Age. Since both innovation incentive & reward mechanisms, as well as safety/security risks vary per industry and per technology, policy makers should differentiate more explicitly between economic sectors when they design their digital governance solutions. Besides implementing the horizontal core AI rules, the article recommends a differentiated risk-based approach that contains vertical, industry specific boundary setting requirements and sector-specific AI regimes. While it is critical that the EU considers AI as part of the European strategic autonomy, and a certain amount of strategic European digital autonomy is required to secure Europe’s culture, the article argues that it is crucial for the EU to work together with countries that share our European digital DNA, based on common interests and mutual values. Sovereignty will ensure strong partnerships amongst equals. Against this backdrop, it is essential to incentivize systematic, multilateral transatlantic cooperation and to jointly achieve inclusive, participative digitization. Transatlantic and geopolitical dialogue on disruptive technology, together with the development of globally accepted technology standards and benchmarks, must be enhanced. In addition, the article explores how the upcoming European AI & Data Legal-Ethical Framework’s norms, standards, principles and values could be effectively exported from the EU to the US. In general, comparison of legal systems is a rewarding source for legal development and legal reform. Comparative law methods can help facilitate the process of taking on (parts of) the EU framework in the US on state level or even federal level. Given the global nature of the interdisciplinary challenges to be addressed, progression-oriented comparative legal scholarship can play a central role. As the increased use of information and communication technology, including the design and roll-out of its accompanying infrastructure are global phenomena without territorial boundaries, macro level, transnational AI legislation is urgently needed. The article demonstrates that legal issues and legal uncertainty surrounding AI & data ask for urgent legislative intervention, both in the EU, in the US and beyond. Without legal intervention, these issues continue to cause legal uncertainty and lack of trust, conflict with fundamental human rights, disrupt the transatlantic markets and ultimately hinder AI infused sustainable innovation. The article concludes that the uncodified territory of AI & Law represents a once in a generation chance to harmonize the AI acquis internationally. The global nature of the identified challenges pertaining to AI, machine learning and data calls for a holistic, unified approach that does justice to ubiquitous nature of AI. An articulated, culturally sensitive global acquis creates a level playing field, supports healthy competition and endorses legal certainty and trust. In this light, it is important that our future AI regulatory frameworks promote “openness”, address risks and take into account the complex, intertwined legal, technical, social and ethical dimensions of our AI & dataversum. When shaping the Law of AI, we should have a clear vision in our minds of the type of society we want, and the things we care so deeply about in the Information Age, at both sides of the Ocean.