Gone are the days when artificial intelligence was simply viewed as self-driving cars and talking robots. The Cambridge Analytica scandal, where personal data was improperly collected for political advertising, alerted the world to the fact that AI is deeply embedded into our day-to-day lives. AI is the imitation of human intelligence by machines. It has the potential to have a revolutionary effect on society and, notably, how our justice system operates. Despite its benefits, AI has long been shrouded by legal issues. Legislators have struggled to find the balance between promoting innovation and safeguarding moral and ethical considerations.
The EU has been at the forefront of the discussion on ethical AI usage. In 2019, the High-Level Expert Group on AI produced the Ethics Guidelines for Trustworthy Artificial Intelligence. This contains a list of principles to be complied with when developing AI structures. One of the main legal issues surrounding AI is the protection of privacy. AI is based on data collection and is therefore subject to the General Data Protection Regulation (GDPR), the EU law which protects citizens’ personal data. Significantly, Article 22 GDPR ensures that automated decision-making cannot be used alone in decisions affecting individuals’ legal rights.
The US is the dominant force in the development of AI internationally. In State v Loomis, an automated risk-assessment tool used to sentence the accused was found not to be in violation of his fundamental rights. The algorithm’s decision-making process was not made available for assessment by the court or the defendant, potentially undermining due process and transparency. This judgement has raised concerns over the morality of using machines to deliver justice.
An AI based application called Fagougou draws from precedent and case prediction to provide legal assistance in China. Internet courts, where virtual judges oversee digital hearings, were introduced in 2017. AI development in China has led to the use of facial recognition technology as a means of law enforcement. Recently, the Chinese government was condemned for using facial recognition technology to persecute the Uighurs, a Muslim minority group. This demonstrates how unrestrained AI can threaten democracy and the rule of law.
There is currently no Irish law pertaining to the regulation of AI and any legislation will likely derive its basis from EU guidelines. The workload of Irish lawyers decreased significantly when the Court of Appeal approved the use of Technology Assisted Review (TAR), an AI based system that identifies which documents are relevant to particular cases. However, Ireland appears to be lagging behind its international counterparts when it comes to AI development. It remains to be seen how AI will impact the Irish judicial landscape and how regulators will find an equilibrium between cutting edge technology and human rights.
Deirbhile O’Neill – Law Writer