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Roger Clarke's 'Regulation for AI and Robotics'

Regulatory Alternatives for AI and Robotics

Version of 11 May 2024

Outline for an LLM Seminar on 'AI, Law & Society'
at the ANU College of Law, on 15 May 2024

Roger Clarke **

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AI embodies errors of inference, decision and action arising from the independent operation of artefacts, for which no rational explanation is available. This results in inferences, decisions and actions that are incapable of investigation, correction and reparation. Delegation to artefacts is gaining momentum, which compounds the problems arising from AI because of the loss of explainability, auditability and accountability that is a byproduct of abandonment of rational decision-making.

This seminar commences by reviewing the nature of regulation. Alternative regulatory mechanisms are then considered, working up a hierarchy from those that are less formal and voluntary towards formal and mandated controls. Natural regulation is noted as a foundation that is usefully built on, and the scope for designing dis/incentives into the institutional infrastructure is discussed.

The wide range of 'self-regulatory' approaches is convassed, with particular reference to 'ethical guidelines', and 'codes'. Reference is made to the authoritative '50 Principles for Responsible AI', and to the many, seriously deficient mini-sets of guidelines published by self-interested corporations and associations, and by governments with more interest in promoting business and sheltering government than in protecting public interests.

Particular attention is then paid to the mainstream business process of Risk Assessment. It is shown how AI/ML could be risk-managed by refining internal project processes to apply Principles for Responsible Data Analytics. The failure of the 'self-regulation' mantra is argued to arise from inappropriate features of the political economy of industry regulation, with weak regulators continually outwitted and captured by regulatees.

Industry lobbying and manoeuvring has been successful in variously undermining and avoiding Formal Regulation. A review of the modalities of the law, and the complexities of statutory language, identifies a rich palette of opportunity for legislative drafters to give statutes the appearance of teeth without much actual impact on the nominal regulatees.

Regulatory avoidance manoeuvres have resulted in a further layer of the hierarchy emerging. Meta-Regulation nominally involves a government requiring industries and corporations to self-regulate. On the other hand, the key conditions for this mechanism to succeed -- in particular the stipulation of standards, compliance-testing, and enforcement actions -- are seldom seen.

The somewhat different half-way house of Co-Regulation involves Codes being negotiated and then enforced. As with Meta-Regulation, almost all schemes are failures, most often because the authorities fail to ensure that power-imbalances between regulatees and the nominal beneficiaries of regulation are corrected for -- and in any case the promised Code-enforcement seldom materialises.

The AI arena is evidencing the same patterns as have occurred in so many other contexts, with self-regulation an abject failure, formal regulation initially kept at bay and when it does eventuate, neutered, or pseudo-co-regulation substituted for effective processes for managing abuses. The impacts of AI and Robotics may be particularly savage, public disenchantment with them may turn into Luddite behaviour, and a further AI Winter precipitated.

Reference List

Clarke R. (1993) 'Asimov's Laws of Robotics: Implications for Information Technology' IEEE Computer 26,12 (December 1993) pp.53-61 and 27,1 (January 1994), pp.57-66, PrePrint at

Clarke R. & Bennett Moses L. (2014c) 'The Regulation of Civilian Drones' Impacts on Public Safety' Computer Law & Security Review 30, 3 (June 2014) 263-285, PrePrint at

Clarke R. (2014d) 'The Regulation of Civilian Drones' Impacts on Behavioural Privacy' Computer Law & Security Review 30, 3 (June 2014) 286-305, PrePrint at

Clarke R. (2015) 'The Prospects of Easier Security for SMEs and Consumers' Computer Law & Security Review 31, 4 (August 2015) 538-552, PrePrint at

Clarke R. & Taylor K. (2018) 'Towards Responsible Data Analytics: A Process Approach' Proc. Bled eConference, 17-20 June 2018, PrePrint at

Clarke R. (2019a)  'Why the World Wants Controls over Artificial Intelligence'  Computer Law & Security Review 35, 4 (Jul-Aug 2019) 423-433, at, PrePrint at

Clarke R. (2019b)  'Principles and Business Processes for Responsible AI' Computer Law & Security Review 35, 4 (Jul-Aug 2019) 410-422, at PrePrint at

Clarke R. (2019c)  'Regulatory Alternatives for AI'  Computer Law & Security Review 35, 4 (Jul-Aug 2019) 398-409, PrePrint at

Clarke R. (2019d) 'Responsible AI Technologies, Artefacts, Systems and Applications: 50 Principles' Xamax Consultancy Pty Ltd, August 2019, PrePrint at

Clarke R. (2020) 'Do Ethical Guidelines have a Role to Play in Relation to Data Analytics and AI/ML?' Proc. 9th AiCE, Adelaide, December 2020, pp.40-58, PrePrint at

Clarke R. (2021) 'A Comprehensive Framework for Regulatory Regimes as a Basis for Effective Privacy Protection' Proc. 14th Computers, Privacy and Data Protection Conference (CPDP'21)PrePrint at

Clarke R. (2022a) 'Research Opportunities in the Regulatory Aspects of Electronic Markets' Electronic Markets 32, 1 (Jan-Mar 2022) 179-200, PrePrint at

Clarke R. (2022b) 'Responsible Application of Artificial Intelligence to Surveillance: What Prospects?' Information Polity 27, 2 (Jun 2022) 175-191, Special Issue on 'Questioning Modern Surveillance Technologies', PrePrint at

Clarke R. (2022c) 'Evaluating the Impact of Digital Interventions into Social Systems: How to Balance Stakeholder Interests' Proc. International Digital Security Forum (IDSF22), Vienna, 1 June 2022, PrePrint at

Drahos P. (ed.) 'Regulatory theory: Foundations and applications` ANU Press, 2017

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professorial Fellow associated with UNSW Law & Justice, and a Visiting Professor in the Research School of Computer Science at the Australian National University.

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