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Institutional and Technological Design Development Through Use Of Institutional and Technological Design Development Through Use of Case Based Discussion Arindrajit Basu, Elonnai Hickok and Regulatory Amber Sinha Interventions For Emerging Economies Governing The Use Of Artificial Intelligence In Public Functions Regulatory Interventions For Emerging Economies Governing The Use Of Artificial Intelligence In Public Functions Introduction Background and Scope The use of artificial intelligence (AI) driven decision making in public functions has been touted around the world as a means of augmenting human capacities, removing bureaucratic fetters, and benefiting society. Yet, with concerns over bias, fairness, and a lack of algorithmic accountability, it is being increasingly recognized that algorithms have the potential to exacerbate entrenched structural inequality and threaten core constitutional values. While these concerns are applicable to both the private and public sector, this paper focuses on recommendations for public sector use, as standards of comparative constitutional law dictate that the state must abide by the full scope of fundamental rights articulated both in municipal and international law. For example, as per Article 13 of the Indian Constitution, whenever the government is exercising a “public function”, it is bound by the entire range of fundamental rights articulated in Part III of the Constitution. However, the definition and scope of “public function” is yet to be clearly defined in any jurisdiction, and certainly has no uniformity across countries. This poses a unique challenge to the regulation of AI projects in emerging economies. Due to a lack of government capacity to implement these projects in their entirety, many private sector organizations are involved in functions which were traditionally identified in India as public functions, such as policing, education, and banking. The extent of their role in any public sector project poses a set of important regulatory questions: to what extent can the state delegate the implementation of AI in public functions to the private sector?; and to what extent and how can both state and private sector actors be held accountable in such cases?. 107 Institutional and technological design development through use cases based discussion AI-driven solutions are never “one-size-fits-all” and the second section, we expand on the use cases we exist in symbiosis with the socio-economic context chose to study in detail and the policy. In the third in which they are devised and implemented. As such, section, we identify core constitutional values that any it is difficult to create a single overarching regulatory regulatory framework on AI in the public sector should framework for the development and use of AI in any look to protect. In this section, we also highlight key country, especially in countries with diverse socio- regulatory interventions that need to be made to economic demographics like India. Configuring the protect these values by developing a set of guiding appropriate regulatory framework for AI correctly is questions. important. Heavy-handed regulation or regulatory uncertainty might act as a disincentive for innovation We chose to work on the Indian ecosystem for three due to compliance fatigue or fear of liability. Similarly, substantive reasons, apart from the convenience of regulatory laxity or forbearance might result in the geographic proximity, which allowed us to conduct dilution of safeguards, resulting in a violation of our primary research. First, in terms of public constitutional rights and human dignity. Therefore, policy advancement, we feel that working in India we have sought to conceptualize optimal regulatory is important, as the technology and its governance interventions based on key constitutional values and frameworks are both in their nascent stages and human rights that the state should seek to protect the potential for the use of these technologies when creating a regulatory framework for AI. To devise and their impact on the populace, especially those these interventions, we identify a decision-making emerging technologically, is immense. Second, the framework consisting of a set of core questions that constitutional framework in India on key issues such can be used to determine the extent of regulatory as privacy, discrimination, and exclusion has both a intervention required to protect these values and legacy of jurisprudence and is at a critical juncture, rights. as they evolve and adapt with respect to emerging technologies. Finally, we believe that focusing on India We have arrived at the framework by identifying key allows us to make a unique contribution to the existing values and rights, and analyzing AI use cases to literature, as it charts out a potential regulatory model understand how different uses and configurations of for other similarly placed emerging economies. AI can challenge these values and rights. Specifically, the paper examines: Our framework limits itself to decision making by a regulator when designing or deploying the AI 1. Use of AI in predictive policing by law enforcement; solution. It does not delve into the adaptive regulatory 2. Use of AI in credit rating by means of establishment strategy that needs to be devised as the AI project is of the Public Credit Registry (PCR) in India; and implemented. It is also not an exhaustive framework, 3. Use of AI in improving crop yields for farmers. as many context-specific questions will alter its application. The objective is limited to framing This paper is divided into three sections. In the first broad questions that can guide specific regulatory section, we look at various models of regulation. In interventions as decision makers choose to adopt AI. 108 Regulatory Interventions For Emerging Economies Governing The Use Of Artificial Intelligence In Public Functions Methodology Section I: From the outset, we realize that the term “artificial Regulatory Models for AI intelligence” is used in multiple ways, and its definition is often contested. For the purposes of this paper, Privatizing Public Functions we define AI as a dynamic learning system where Across the world, activities traditionally undertaken by a certain level of decision-making power is being the state, including running prisons, policing, solving delegated to the machine (Basu & Hickok, 2018). In disputes, and providing housing and health services, doing so, we distinguish AI from automation, where a are increasingly being delegated to private actors, machine is being made to perform a repetitive task. often either private firms operating transnationally (Palmer, 2008) or quasi-governmental actors (Scott, The first stage of our research involved studying 2017a). It is not only a shift in the extent of legislative three applications of AI in public functions. Through discretion but the creation of formal and rule-based primary interviews and desk research, we sought to arrangements that were not needed in the welfare understand: state model, where the state delivered all services directly (Scott, 2017a). Braithwaite’s conception of • How the decision was arrived at to devise an AI- a regulatory state combines state oversight with based solution the commodification of service provision, where • Relevant policy or political enablers or detractors the citizen is treated as a consumer (Braithwaite, • What preparatory research or field work was done 2000). Businesses must deliver services with state before implementing the solution oversight, but the extent of oversight and the modes • How the data was gathered and collected of regulation must be determined contextually (Scott, • Impact assessment frameworks or evaluation 2017b). metrics used to determine the success of the project by the developers and implementers The increasing privatization of public functions • External assessments of the impact throws up two key constitutional questions. First, to what extent can public functions be delegated to a Using what was learnt from these case studies, we private actor? Little jurisprudence exists on this, as created a decision-making framework that relied on there have been very few challenges to privatization key threshold questions, as well as possible regulatory across jurisdictions. The Indian Supreme Court tools that could be applied. in Nandini Sundar and Ors vs State of Chattisgarh (2011), which banned the state designated private police organization, Salwa Judum, held that “modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetuate state’s violence… unchecked by law, and notions of 109 Institutional and technological design development through use cases based discussion innate human dignity of every individual” (Sundar and human dignity instead of undermine it.2 This is a valid Ors v State of Chattisgarh, 2011). The Court went concern for emerging economies as there are various on to criticize the state of Chattisgarh’s “policy of circumstances, including AI deployment, where private privatization” that was the cause of income disparity actors can deliver services more efficiently than an and non-allocation of adequate financial resources overstretched state. However, given the implications in the region, which in turn was responsible for the for human rights and dignity, it is conceptually difficult Maoist/Naxalite insurgency. However, there was no to draw an objective line on delegation. The Court clarification on what services are “governmental” and “assumed there is no constitutional impediment to
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