On 19 September 2019, the European Parliamentary Research Service (“EPRS”)—the European Parliament’s in-house research service—released a briefing paper that summarizes the current status of the EU’s approach to developing a regulatory framework for ethical AI.  Although not a policymaking body, the EPRS can provide useful insights into the direction of EU policy on an issue.  The paper summarises recent calls in the EU for adopting legally binding instruments to regulate AI, in particular to set common rules on AI transparency, set common requirements for fundamental rights impact assessments, and provide an adequate legal framework for facial recognition technology.

The briefing paper follows publication of the European Commission’s high-level expert group’s Ethics Guidelines for Trustworthy Artificial Intelligence (the “Guidelines”), and the announcement by incoming Commission President Ursula von der Leyen that she will put forward legislative proposals for a “coordinated European approach to the human and ethical implications of AI” within her first 100 days in office.

The paper starts by summarizing the Guidelines’ requirements for achieving “Trustworthy AI,” which we discuss in our previous blog post.  (See also our blog post on the pilot phase of the Guidelines and the related Policy and Investment Recommendations.)  The paper identifies several challenges that stakeholders have identified in implementing the Guidelines, including:

• lack of clarity in the wording of the Guidelines;
• lack of a hierarchy of principles in the Guidelines;
• lack of regulatory oversight to monitor the implementation and enforcement of the Guidelines; and
• potential fragmentation across Member States (noting in particular the separate national developments in France, Germany, Finland, and the UK).

The paper then discusses possible legislative actions the EU might take in the future, including: (1) further clarification of the Guidelines; (2) development of standards on ethical AI and certification frameworks for AI systems, based on industry initiatives; (3) and developing regulatory frameworks on AI.  On regulatory frameworks, the paper outlines a number of proposals on AI legislation that have been discussed, including legislation on transparency of decision-making systems (including the creation of a regulatory body for algorithmic decision-making), sector specific legislation in the health sector, and legislation on facial recognition technology.  The paper notes that “[a] number of legally binding instruments could be adopted to translate ethical rules into hard law, and make them mandatory for the most influential AI industry players in the EU”.  The paper concludes by reviewing the regulatory developments on AI ethics in the U.S., China, Canada, Australia and other countries focusing on government actions on the issue.