Fair and unfair algorithms: What to take into account when developing AI systems to fight COVID-19; JD Supra, April 17, 2020

Fabia Cairoli and Giangiacomo Olivi, JD Supra; Fair and unfair algorithms: What to take into account when developing AI systems to fight COVID-19

"The regulatory framework includes a number of sources from which to draw inspiration when developing AI technology. One of the most recent ones, the White Paper on Artificial Intelligence of the European Commission, is aimed at defining the risks associated with the implementation of AI systems, as well as determining the key features that should be implemented to ensure that data subjects’ rights are complied with (please see our articles The EU White Paper on Artificial Intelligence: the five requirements and Shaping EU regulations on Artificial Intelligence: the five improvements for a more detailed analysis).

It is worth noting that, particularly in relation to the development of AI technologies to fight the pandemic, the legislator is required to pay great attention to the principles and security systems. Risks associated to AI relate both to rights and technical functionalities. EU member states intending to use AI against COVID-19 will also need to ensure that any AI technology is ethical and is construed and operates in a safe way.

With regards to ethics, it is worth noting that the European Commission issued Ethics Guidelines for Trustworthy AI in April 2019. Those guidelines stressed the need for AI systems to be lawful, ethical and robust (more particularly, AI should comply with all applicable laws and regulations, as well as ensure adherence to ethical principles / values and be designed in a way that does not cause unintentional harm).

With the aim of ensuring that fundamental rights are complied with, the legislator should consider whether an AI system will maintain respect for human dignity, equality, non-discrimination and solidarity. Some of these rights may be restricted for extraordinary and overriding reasons – such as fighting against a pandemic – but this should take place under specific legal provisions and only so far as is necessary to achieve the main purpose. Indeed, the use of tracking apps and systems that profile citizens in order to determine which ones may suffer from COVID-19 entails the risk that an individual’s freedom and democratic rights could be seriously restricted."