How AI Systems Threaten to Erode the Rule of Law
Artificial Intelligence (AI) systems are increasingly being recognized for their potential to create novel societal harms that undermine judicial independence, manipulate political opinion formation, and erode the rule of law. The opacity of algorithms and the lack of sufficient legal safeguards raise significant concerns regarding the integrity of democratic processes.
The Risks and Harms Concerning the Rule of Law
A pressing question arises: Are the novel societal harms caused by AI systems adequately addressed within existing legal frameworks? This inquiry is particularly relevant in light of the Council of Europe Framework Convention on AI, Human Rights, Democracy and the Rule of Law, concluded on September 5, 2024. The Convention aims to protect not only human rights but also democratic processes and the rule of law in the context of AI.
Article 4 of the Framework AI Convention emphasizes human rights, while Article 5(1) focuses on state parties’ obligations to ensure that AI systems do not undermine democratic integrity. The Convention seeks to address risks that could significantly erode democratic processes and the rule of law by safeguarding elements such as judicial independence, separation of powers, and access to justice.
Legality and Non-Arbitrariness in AI Deployment
The European Court of Human Rights and the English Court of Appeal have voiced concerns over the legal frameworks governing AI technologies. Cases such as Glukhin v Russia and Ed Bridges v South Wales Police highlight that the use of facial recognition technologies violates human rights and is often supported by deficient legal structures. Strong safeguards are essential to prevent biases inherent in AI systems and to confirm the validity of algorithmic assessments.
Algorithmic Opacity and Judicial Oversight
Algorithmic opacity poses significant challenges to access to justice and the right to an effective remedy. The lack of transparency surrounding privately developed AI systems used in the public sector prevents adequate scrutiny. The Loomis judgment illustrates this issue, where the proprietary nature of a risk assessment tool limited the challenge of its accuracy. The SyRI case further emphasizes the difficulties posed by a lack of information about AI systems deployed for social welfare fraud detection, hindering legal assessments regarding their nature and legality.
Impact on Democratic Processes
Article 5(2) of the Framework AI Convention links the ability to freely form opinions with democratic processes. The Convention highlights the implications of manipulating political opinions on a large scale through AI systems that utilize targeted advertising and recommendation algorithms. Such systems exacerbate the spread of misleading content and facilitate disinformation campaigns.
For instance, the effectiveness of platforms like X and TikTok in mitigating disinformation campaigns that manipulate voters is under scrutiny. Recent events, such as Romania’s canceled presidential elections, underscore the risks posed to electoral integrity by AI-driven content curation that can skew public opinion.
Democratic Environment and Civic Discourse
The concept of ‘democratic processes’ extends beyond electoral processes to encompass the overall environment that fosters political opinion formation. Elements such as civic discourse, political pluralism, and the nature of political content individuals encounter are vital. AI systems on social media platforms significantly influence the visibility of political content, as evidenced by ongoing investigations into Meta’s policies on political content visibility.
Moreover, certain AI systems may conflict with international human rights law and the rule of law. Critics have pointed out that Article 16(4) of the Framework AI Convention gives states excessive discretion in determining the necessity of banning harmful AI systems, whereas the EU AI Act explicitly prohibits systems that exploit human vulnerabilities.
In summary, the implications of AI systems on the rule of law demand urgent attention as they pose significant risks to judicial independence, democratic integrity, and the fundamental rights of individuals. The ongoing dialogue surrounding these challenges will be crucial in shaping future legal frameworks and safeguarding democratic processes in an increasingly AI-driven world.
