This is a draft chapter/article. The final version will be available in EE Research Handbook on Law and Technology edited by Bartosz Brożek, Olia Kanevskaia and Przemysław Pałka, forthcoming 2023, Edward Elgar Publishing Ltd.
The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
Riikka Koulu, Suvi Sankari, Hanne Hirvonen, Tatjaana Heikkinen:
Artificial intelligence and the law: Can and should we regulate AI systems?
Abstract
What exactly is artificial intelligence and how does it change society? How is artificial intelligence (AI) challenging law? Can and should we regulate AI? These are the questions legislators and legal scholars are currently asking. AI deployment across society has raised legal concerns (e.g., fundamental rights, legal protection) and led to several regulatory attempts. One of the most prominent of these is the EU Commission’s proposal for Artificial Intelligence Act (AIA) in spring 2021, which introduces harmonized rules for the use of AI systems within the EU. In this book chapter, we hope to challenge the notion of AI as a novel, new technology by contextualising the contemporary debate in relation to earlier traditions of law and technology research. In addition to documenting the current phase of legal scholarly and regulatory development for posterity, we provide a historical context for the emerging European technology regulation. We ground our analysis on the observation that AI is not a novelty for legal scholarship. Instead, scholars have discussed AI-related questions for decades, dating all the way back to 1940s, when Lee Loevinger introduced his idea of jurimetrics i.e. statistical analysis of law. First, we draw on what the past can teach us of law and technology as well as AI: to what extent is AI a novel problem for law? Second, we conduct a literature review, asking the material: how legal scholars have defined AI and where they locate AI-related problems that require new regulation? Third, we assess the EU’s new AIA proposal to find out to which extent the regulatory proposal matches viewpoints discussed in legal scholarship. We study the AIA proposal here as an example of technology being used as justification for new regulatory policies, where the mixed rationales for regulating have nothing or little to do with the technology itself. Finally, we draw conclusions on the relationship between artificial intelligence and the law, as well as the question can or should AI be regulated.