Human Rights and Technology Discussion Paper December 2019
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Human Rights and Technology DISCUSSION PAPER • DECEMBER 2019 © Australian Human Rights Commission 2019. We encourage the dissemination and exchange of information presented in this publication and endorse the use of the Australian Governments Open Access and Licensing Framework (AusGOAL). All material presented in this publication is licensed under the Creative Commons Attribution 4.0 International Licence, with the exception of: • photographs and images • the Commission’s logo, any branding or trademarks • where otherwise indicated. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/legalcode. In essence, you are free to copy, communicate and adapt the publication, as long as you attribute the Australian Human Rights Commission and abide by the other licence terms. Please give attribution to: © Australian Human Rights Commission. Human Rights and Technology • Discussion Paper • 2019 ISBN 978-1-925917-15-4 For further information about copyright in this publication, please contact: Communications Unit Australian Human Rights Commission GPO Box 5218 SYDNEY NSW 2001 Telephone: (02) 9284 9600 TTY: 1800 620 241 Email: [email protected] Design and layout: Dancingirl Designs Cover image: iStock Internal photography: iStock, Alamy, AAP, Disability Images The Australian Human Rights Commission is Australia’s National Human Rights Institution. It is an independent statutory organisation with responsibility for leading the promotion and protection of human rights in Australia. Further information about the Commission can be found at www.humanrights.gov.au/ about-commission. Authors: Sophie Farthing, John Howell, Katerina Lecchi, Zoe Paleologos, Phoebe Saintilan and Edward Santow. Acknowledgements: • President Rosalind Croucher, National Children’s Rights Commissioner Megan Mitchell and Disability Discrimination Commissioner Ben Gauntlett. • Australian Human Rights Commission staff: Partha Bapari, Darren Dick, Connie Kwan, Lauren Perry, Liz Stephens and Leon Wild. • Consultant editor: Bruce Alston. • Expert Reference Group for their peer review and advice in the preparation of this Paper: Amanda Alford, Her Excellency The Honourable Margaret Beazley AO AC, Professor Genevieve Bell, Peter Dunne, Dr Tobias Feakin, Dr Alan Finkel AO, Verity Firth, Peter Leonard, Brooke Massender, Sean Murphy, Kwok Tang, Myfanwy Wallwork and Professor Toby Walsh. • Major project partners for contributing expertise and resources: the Australian Government Department of Foreign Affairs and Trade, Herbert Smith Freehills, LexisNexis, The University of Technology Sydney. • The Australian Government Digital Transformation Agency and Lisa Webber Corr; World Economic Forum. Major project partners Human Rights and Technology Discussion Paper December 2019 Australian Human Rights Commission Contents Commissioner’s foreword 7 PART A : INTRODUCTION AND FRAMEWORK 9 Chapter 1: Introduction 9 1.1 Background to the Project 11 1.2 Public consultation 11 1.3 Other issues 13 Chapter 2: Human rights framework 15 2.1 Introduction 15 2.2 What are human rights? 16 2.3 How are human rights engaged by new and emerging technologies? 22 2.4 Applying a human rights approach 25 2.5 Accountability and responsibility 29 2.6 The Commission’s preliminary view 31 Chapter 3: Regulation 33 3.1 Introduction 33 3.2 Regulation and new technologies 34 3.3 The Commission’s preliminary view 38 3.4 National regulation and governance 42 3.5 The Commission’s preliminary view 45 Chapter 4: Ethical frameworks 47 4.1 Introduction 47 4.2 Emergence of ethical frameworks 48 4.3 Impact of ethical frameworks 52 4.4 The Commission’s preliminary view 55 PART B: ARTIFICIAL INTELLIGENCE 59 Chapter 5: AI-informed decision making 59 5.1 Introduction 59 5.2 What is Artificial intelligence? 60 5.3 What is AI-informed decision making? 61 5.4 How human rights are engaged by the use of AI 65 5.5 AI and regulation 68 5.6 The Commission’s preliminary view 71 Chapter 6: Accountable AI-informed decision making 75 6.1 Introduction 75 6.2 The elements of accountability 76 6.3 Lawfulness 76 6.4 Transparency 82 6.5 Explainability 82 6.6 Responsibility and liability 86 6.7 Human intervention in AI-informed decision making 89 6.8 The Commission’s preliminary view 89 4 Human Rights and Technology Discussion Paper • 2019 • 5 Chapter 7: Co- and self-regulatory measures for AI-informed decision making 107 7.1 Introduction 107 7.2 Design, standards and impact assessments 109 7.3 The Commission’s preliminary view 114 7.4 Regulatory sandboxes 118 7.5 The Commission’s preliminary view 119 7.6 Education and training 121 7.7 The Commission’s preliminary view 123 7.8 Oversight of government use of AI 124 7.9 The Commission’s preliminary view 128 PART C: NATIONAL LEADERSHIP ON AI 131 Chapter 8: National leadership on AI 131 8.1 Introduction 131 8.2 Is there a need for leadership? 131 8.3 The Commission’s preliminary view 136 8.4 What should the AI Safety Commissioner look like? 137 8.5 The Commission’s preliminary view 143 PART D: ACCESSIBLE TECHNOLOGY 147 Chapter 9: The right to access technology 147 9.1 Introduction 147 9.2 Right to access technology as an enabling right 153 9.3 The Commission’s preliminary view—functional accessibility 160 9.4 Obtaining Digital Technologies 164 9.5 The Commission’s preliminary view—obtaining Digital Technologies 166 Chapter 10: Design, education and capacity building 169 10.1 Introduction 169 10.2 Human rights by design 170 10.3 The Commission’s preliminary view 175 Chapter 11: Legal protections 181 11.1 Introduction 181 11.2 Submissions and consultations 181 11.3 The Commission’s preliminary view 184 PART E: CONSULTATION 189 Chapter 12: Proposals and questions 189 Chapter 13: Making a submission 195 Appendices Appendix A – List of submissions 197 Appendix B – Acronyms 202 4 Human Rights and Technology Discussion Paper • 2019 • 5 6 Human Rights and Technology Discussion Paper • 2019 • 7 Edward Santow Human Rights Commissioner Australian Human Rights Commission Commissioner’s foreword Foreword from the Australian Human Rights Commissioner This Discussion Paper sets out the Australian Human Rights Commission’s preliminary views on protecting and promoting human rights amid the rise of new technologies. New technologies are changing our lives profoundly—sometimes for the better, and sometimes not. We have asked a fundamental question: how can we ensure these new technologies deliver what Australians need and want, not what we fear? We recently completed the first phase of the Commission’s public consultation. We heard how Australian innovators are building our economy, revolutionising how health care and other services are delivered, and using data to make smarter decisions. But we also saw how artificial intelligence (AI) and other new technologies can threaten our human rights. Time and again people told us, ‘I’m starting to realise that my personal information can be used against me’. For example, AI is being used to make decisions that unfairly disadvantage people on the basis of their race, age, gender or other characteristic. This problem arises in high-stakes decision making, such as social security, policing and home loans. These risks affect all of us, but not equally. We saw how new technologies are often ‘beta tested’ on vulnerable or disadvantaged members of our community. So, how should we respond? Australia should innovate in accordance with our liberal democratic values. We propose a National Strategy on New and Emerging Technologies that helps us seize the new economic and other opportunities, while guarding against the very real threats to equality and human rights. The strongest community response related to AI. The Commission proposes three key goals: 1. AI should be used in ways that comply with human rights law 2. AI should be used in ways that minimise harm 3. AI should be accountable in how it is used. 6 Human Rights and Technology Discussion Paper • 2019 • 7 Commissioner's foreword Sometimes it’s said that the world of new technology is unregulated space; that we need to dream up entirely new rules for this new era. However, our laws apply to the use of AI, as they do in every other context. The challenge is that AI can cause old problems—like unlawful discrimination—to appear in new forms. We propose modernising our regulatory approach for AI. We need to apply the foundational principles of our democracy, such as accountability and the rule of law, more effectively to the use and development of AI. Where there are problematic gaps in the law, we propose targeted reform. We focus most on areas where the risk of harm is particularly high. For example, the use of facial recognition warrants a regulatory response that addresses legitimate community concern about our privacy and other rights. Government should lead the way. The Discussion Paper proposes strengthening the accountability protections for how it uses AI to make decisions. But the law cannot be the only answer. We set out a series of measures to help industry, researchers, civil society and government to work towards our collective goal of human-centred AI. Education and training will be critical to how Australia transitions to a world that is increasingly powered by AI. The Discussion Paper makes a number of proposals in this area. We also propose the creation of a new AI Safety Commissioner to monitor the use of AI, coordinate and build capacity among regulators and other key bodies. Finally, innovations like real-time live captioning and smart home assistants can improve the lives of people with disability. But as technology becomes essential for all aspects of life, we also heard how inaccessible technology can lock people with disability out of everything from education, to government services and even a job. The Commission makes a number of proposals to ensure that products and services, especially those that use digital communications technologies, are designed inclusively.