ETHICAL PURPOSE SOCIETAL BENEFIT ACCOUNTABILITY TRANSPARENCY EXPLAINABILITY FAIRNESS NON-DISCRIMINATION SAFETY RELIABILITY OPEN DATA FAIR COMPETITION PRIVACY INTELLECTUAL PROPERTY FIRST EDITION FIRST EDITION Responsible AI ETHICAL PURPOSE SOCIETAL BENEFIT ACCOUNTABILIT Y TRANSPARENCY EXPLAINABILIT Y FAIRNESS NON-DISCRIMINATION SAFET Y RELIABILIT Y OPEN DATA FAIFIRSTR COMPE EDITIONTITION PRIVACY INTELLECTUAL PROPERT Y FIRST EDITION Charles Morgan, Editor McLean, Virginia, USA This book does not provide legal advice. It is provided for informational purposes only. In the context of this book, significant efforts have been made to provide a range of views and opinions regarding the various topics discussed herein. The views and opinions in this book do not necessarily reflect the views and opinions of the individual authors. Moreover, each of the contributors to this book has participated in its drafting on a personal basis. Accordingly the views expressed in this book do not reflect the views of any of the law firms or other entities with which they may be affiliated. Firm names and logos, while used with permission, do not necessarily imply endorsement of any of the specific views and opinions set out herein. The authors have worked diligently to ensure that all information in this book is accurate as of the time of publication. The publisher will gladly receive information that will help, in subsequent editions, to rectify any inadvertent errors or omissions. International Technology Law Association 7918 Jones Branch Drive, Suite 300 McLean, Virginia 22102, United States Phone: (+1) 703-506-2895 Fax: (+1) 703-506-3266 Email: [email protected] itechlaw.org Cover and chapter title page designs by Stan Knight, MCI USA Text design by Troy Scott Parker, Cimarron Design This book is available at www.itechlaw.org. Copyright © 2019 by International Technology Law Association. All rights reserved. ISBN-13: 978-1-7339931-0-4 Permission to reproduce or transmit in any form or by any means, electronic or mechanical, including photocopying and recording, or by an information storage and retrieval system any portion of this work must be obtained in writing from the director of book publishing at the address or fax number above. Printed in the United States of America. Printing, last digit: 10 9 8 7 6 5 4 3 2 1 For Valérie, Chloé, Anaïs and Magalie Contents Acknowledgements 7 Foreword 9 Introduction 15 1 Ethical Purpose and Societal Benefit 31 2 Accountability 71 3 Transparency and Explainability 103 4 Fairness and Non-Discrimination 133 5 Safety and Reliability 159 6 Open Data and Fair Competition 195 7 Privacy 227 8 AI and Intellectual Property 257 Responsible AI Policy Framework 289 ITechLaw 5 Acknowledgements The publication of this Global Policy Framework for Responsible AI would not have been possible without the tireless efforts of a great number of participants. We would like to thank the following people who gen- erously contributed to the publication of this book: two of our core project team members, who chose to remain anonymous; Emily Reineke, CAE, Executive Director of ITechLaw and her team; Troy Scott Parker of Cimarron Design; Gabriela Kennedy of Mayer Brown; George Takach, Kristian Brabander, Gong Ming Zheng and Linda Modica of McCarthy Tétrault (as well as the contributing members of McCarthy’s docu- ment services group); Lindsay Morgan; and Dan Hunter, Swinburne University. ITechLaw 7 Foreword The inspiration for this book came to me a year ago, almost to the day. ITechLaw members were gathering in Seattle for ITechLaw’s annual World Technology Law Conference, held May 16-18, 2018. I was preparing for the association’s board and executive committee meetings held at the offices of a leading local law firm whose offices had majestic views overlooking the Puget Sound. Quite naturally, the agenda for the board and executive committee meetings included time devoted to thinking about the strategic objectives and priorities for the association. On the bedside table of my hotel room in Seattle were two publications that had captivated my attention. The first was a whitepaper entitled“The Future Computed: Artificial Intelligence and Its Role in Society” that had been published by Microsoft a couple of months earlier and that included a Foreword written by Brad Smith (President and Chief Legal Officer, Microsoft) and Harry Shum (Executive Vice President, Artificial Intelligence and Research, Microsoft). That whitepaper made a compelling argument: in the same way that the field of privacy law had grown dramatically over the previous 20 years, it was very likely that a new field of “AI law” would develop over the next 20 years. Moreover, just as many of the core principles that form the basis of privacy and data protection legislation around the world today can be traced back to the “Fair Information Practices” that were developed in the early 1970’s, the authors of Future Computed argued that the time had come to develop a set of core “responsible AI” principles that could provide the source of inspiration for policymakers considering the future regulation of artificial intel- ligence. In this context, Future Computed set out some preliminary thoughts regarding principles, policies and laws for the responsible use of AI. The second publication on my bedside table was a book written in 2016 by the New York Times colum- nist Thomas Friedman called Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations. In that book, Friedman argues that three disruptive forces—technological change, glo- balisation and climate change—are rapidly accelerating all at once and that they are transforming five fundamental spheres of our lives: the workplace, politics, geopolitics, ethics and community. His book offered stunning examples of the phenomenal rate of change in these areas, their impacts on society, as well as some thoughts on how best to embrace and shape these forces of change to positive effect. Although I’d seemingly placed a “tab” on every second page, there was one image that I found most arresting: ITechLaw 9 RESPONSIBLE AI: A GLOBAL POLICY FRAMEWORK We are here Human adaptability Rate of change Technology Time According to Friedman, the simple graph had been drawn for him on a notepad by Eric “Astro” Teller, the CEO of Google’s X research and development lab. As recounted in Thank You for Being Late, Teller explained that a thousand years ago, the curve representing scientific and technological progress rose so gradually that it could take about one hundred years for the world to look and feel dramatically differently. By contrast, “now, in 2016, that time window—having continued to shrink as each technology stood on the shoulders of past technologies—has become so short that it’s in the order of five to seven years from the time that something is introduced to being ubiquitous and the world being uncomfortably changed.” The fundamental point that Teller was eliciting was that, although humans are remarkably adaptable, we have now reached a point that the rate of technologi- cal change has progressed beyond human’s ability to keep up. As Friedman writes, citing Teller: “if the technology platform for society can now turn over in five to seven years, but it takes ten to fifteen years to adapt to it […] we will all feel out of control, because we can’t adapt to the world as fast as it is changing….” Teller concluded: “Without clear knowledge of the future potential or future unintended negative consequences of new technologies, it is nearly impossible to draft regulations that will pro- mote important advances—while still protecting ourselves from every bad side effect.” This latter thought resonated for me in particular because a third set of ideas were swirling in my head as I prepared for the ITechLaw board meeting: the ongoing revelations about Cambridge Analytica and its potential impact on the U.S. elections. As a technology lawyer who had explored privacy law issues in depth for the past twenty years, I thought I had a clear and nuanced understanding of the many ways in which personal information was collected and used in modern society. But, like many people, the Cambridge Analytica story sent me reeling. It impressed upon me just how unaware many of us are about how technology is being used and just how important the consequences can be to some of our most fundamental values and institutions. So … with these three ideas milling about, I attended the ITechLaw board meeting. And, when it came time to propose projects and priorities for the coming year, I suggested—with a good deal of trepidation, quite frankly—that we should consider preparing, as a group, a whitepaper to estab- lish a legal/policy framework for ethical AI. My trepidation stemmed from the fact that I was already deeply invested in the idea and I feared that others would not be. My fear turned out to be entirely unfounded. Within 15 minutes of making the initial suggestion at the Seattle ITechLaw board meet- ing, about fifteen members had joined the team. 10 ITechLaw FOREWORD Working with an initial core project team over the summer, we started to identify doctrinal sources and case studies and to sketch out the key principles that we would develop as part of our framework. In these initial efforts, I was greatly assisted by some remarkable students and young associates at my law firm who would ultimately join the project team and play a significant role in research and drafting. In the early stages of the project, our focus was on building out the team, ensuring we had appropriate geographic, gender, ethnic and industry diversity, and collecting key source mate- rials that would help us buttress our policy framework. Moreover, we wanted to expand the team beyond ourselves, to include members with industry experience and serious academic credentials.