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Roger Clarke's 'Evaluation of EC's AI Regulation'

Would the European Commission's Proposed Artificial Intelligence Act
Deliver the Necessary Protections?

Annex 2: 'Certain AI Systems', and The 50 Principles

It is an Annex to the article of the above name

Version of 31 August 2021

Roger Clarke **

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This Annex contains extracts from (EC 2021), interpretive comment, and [ cross-references to the corresponding elements of The 50 Principles inside square-brackets ]

Note that this applies only to those 'Certain AI Systems' that do not enjoy an exemption, including by virtue of any of Arts. 2.1(a), 2.1(b), 2.3 and 2.4

A very limited transparency requirement applies to 'certain systems'. The requirement applies irrespective of whether the AI system in question is or is not also a 'high-risk AI system' as defined in Art. 6 and Annex III (Art. 52.4. See Table1).

Category 1, 'interaction systems', are to be "designed and developed in such a way that natural persons are informed that they are interacting with an AI system, unless this is obvious from the circumstances and the context of use" (Art. 52.1).

However, "This obligation shall not apply to AI systems authorised by law to detect, prevent, investigate and prosecute criminal offences, unless those systems are available for the public to report a criminal offence" (Art. 52.1).

[ This makes a small contribution to P6.1 ("Ensure that the fact that a process is AI-based is transparent to all stakeholders"). The implementation is very limited because it only applies to the relatively small proportion of AI systems that interact directly with humans, and does not apply to those that impact humans without any direct interaction.

[ It fails to make any contribution to P6.3 ("Ensure that people are aware of inferences, decisions and actions that affect them, and have access to humanly-understandable explanations of how they came about"), because the rights accruing to affected people are no more than knowing that is the case, i.e. the EC Proposal authorises the suppression from those affected by it of what the AIS system does, how it does it, and what its impacts are. ]

[ In addition, the absence of any other provisions has the effect of authorising AI systems that breach all of the many other 48 Principles that are not adequately protected under existing heads of law. ]

Categories 2, 'emotion recognition systems' and 3, ' biometric categorisation systems', are subject to the requirement "shall inform of the operation of the system the natural persons exposed thereto" (Art. 52.2).

Category 4, 'deep fake systems', are subject to the requirement "shall disclose that the content has been artificially generated or manipulated" (Art. 52.3).

[ These implement P6.1 ("Ensure that the fact that a process is AI-based is transparent to all stakeholders"), and make contributions to P6.3 whose effectiveness in unclear because of the vague expression "inform of the operation of the system" and the limitation to the fact of artificiality, not the nature or extent of artificiality, nor the means whereby the artificiality was achieved. ]


[ It is remarkable that, in all four categories of AI system, only a single 1 of 50 Principles is addressed, and the many other Principles affected by them have been ignored, including:

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in Cyberspace Law & Policy at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.

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