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Roger Clarke's ' Surveillance and Responsible AI?'

The Prospects of Achieving Responsible Application of AI in Surveillance

Abstract of 29 April 2021

Roger Clarke **

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The scope for harm arising from AI has been recognised by technology providers, user organisations, policy-makers and the public alike. On the other hand, action to risk-manage AI's application has been almost entirely absent. Many users of ICT for surveillance purposes have been successful in avoiding meaningful regulation of their activities. This article examines the prospects that AI's use for surveillance will be brought under control.

The article commences by mapping the applications of AI to the many categories of surveillance, utilising the framework for surveillance analysis in Clarke (2009). A review is then undertaken of the ways in which control might be exercised over AI applications in security, by applying the regulatory framework in Clarke (2021). It is noted, however, that recent decades have seen ongoing reductions in regulatory commitment in many jurisdictions and in many contexts.

In the private sector, factors include the de-regulation and 'better regulation' movements to ratchet back existing controls, the outsourcing of both activities and responsibilities, including the use of low-regulation havens, and jurisdictional arbitrage. In the public sector, key aspects include the drift from subcontracting, to comprehensive outsourcing, to public-private partnerships, and on towards the corporatised state. A particular feature that appears to have largely 'flown under the radar' to date is the conversion of software products to services, resulting in AI as a Service (AIaaS).

A summary is provided of the wave of publishing activity during the period 2015-21 in the area of 'Principles for Responsible AI', including both trivial public relations documents from ICT corporations and serious-minded proposals from policy agencies and public interest advocates. The analysis draws on a consolidated super-set of Principles published in Clarke (2019), and several evaluations that have been undertaken of particular proposals against that standard. The applicability of the super-set to AI applications to surveillance is considered, and the scope for articulating a more specific suite of requirements is investigated.

All of the publications to date have been 'Guidelines', lacking enforceability, and in most cases having little or no volitional power that might influence AI practice. A critique is provided of the proposals of 21 April 2021 of the European Commission (EC 2021), which appear to be a world-first initiative to establish formal regulation of a bespoke nature on AI applications.

The article concludes with a sober assessment of the prospects of effective control being achieved over AI applications to surveillance even by organisations with limited market and institutional power, let alone by large corporations and government agencies, and in the (flexibly-defined) area of 'national security'.

Ref erences

Clarke R. (2009) 'Framework for Surveillance Analysis' Xamax Consultancy Pty Ltd, August 2009, at

Clarke R. (2019) 'Principles and Business Processes for Responsible AI' Computer Law & Security Review 35, 4 (2019) 410-422, 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), Brussels, 27-29 January 2021, PrePrint at

EC (2021) 'Proposal for a Regulation on a European approach for Artificial Intelligence' European Commission, 21 April 2021, at

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor associated with the Allens Hub for Technology, Law and Innovation in UNSW Law, and a Visiting Professor in the Research School of Computer Science at the Australian National University.

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