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CRITICAL CRIMINOLOGICAL PERSPECTIVES Artificial Intelligence, Social Harms and Human Rights Edited by Aleš Završnik · Katja Simončič Critical Criminological Perspectives Series Editors Reece Walters, Faculty of Law, Deakin University, Burwood, VIC, Australia Deborah H. Drake, Department of Social Policy & Criminology, The Open University, Milton Keynes, UK The Palgrave Critical Criminological Perspectives book series aims to showcase the importance of critical criminological thinking when exam- ining problems of crime, social harm and criminal and social justice. Critical perspectives have been instrumental in creating new research agendas and areas of criminological interest. By challenging state defined concepts of crime and rejecting positive analyses of criminality, critical criminological approaches continually push the boundaries and scope of criminology, creating new areas of focus and developing new ways of thinking about, and responding to, issues of social concern at local, national and global levels. Recent years have witnessed a flourishing of critical criminological narratives and this series seeks to capture the original and innovative ways that these discourses are engaging with contemporary issues of crime and justice. For further information on the series and to submit a proposal for consideration, please get in touch with the Editor: Josephine Taylor, [email protected]. ˇ ˇ · ˇ ˇ Ales Zavrsnik Katja Simoncic Editors Artificial Intelligence, Social Harms and Human Rights Editors Aleš Završnik Katja Simoncˇicˇ Institute of Criminology at the Faculty Ministry of Labour, Social Affairs of Law and Equal Opportunities of the Republic Ljubljana, Slovenia of Slovenia Ljubljana, Slovenia ISSN 2731-0604 ISSN 2731-0612 (electronic) Critical Criminological Perspectives ISBN 978-3-031-19148-0 ISBN 978-3-031-19149-7 (eBook) https://doi.org/10.1007/978-3-031-19149-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Preface Artificial Intelligence (AI) brings numerous benefits to individuals, businesses, and countries, for example, when social networks recommend friends, when algorithms perform transactions on stock exchanges, when AI helps law enforcement agencies predict crime or the military search for potential terrorists. However, all these examples demonstrate how these AI systems may violate fundamental human rights codified in constitutions and binding international rules. This is in addition to the violation of ethical commitments, for example when algorithms cause “flash crashes” as a result of non-transparent “black-boxed” high- frequency trading; or when minority communities are disproportionally more policed than others due to the “vicious circle” effects of predictive police software, or a false target recognition of military targets in the so- called “signature strikes” based on the presumed resemblances of mobile phone movement records of targets to the records of known terrorists. The threats may be specific to a single domain of use of AI, such as in insurance, banking, the judiciary, or law enforcement, but several common threats exist in all domains. Examples of AI usage suggest that the new presumably objective tools, often presented as “pure” math, v vi Preface raise many legal and ethical challenges: at the micro level, AI used in decision-making systems regarding individuals’ rights and obligations may interfere with individual human rights, such as privacy and personal data protection, the principle of equality and social justice, and the individual’s autonomy and dignity. On the meso and macro levels, AI influences the functioning of democracy, exacerbates global social and economic inequalities, and increases the social sorting of the population. The book’s initial premise is that AI inevitably enters a specific social, cultural, and political space. It is the product of a particular socioeco- nomic and cultural milieu that the tools in turn help reshape. Therefore, AI can be used to enhance “negative” social changes, for example, by increasing economic inequality at a global level, expanding socially disruptive and hostile policies, or as a means to prevent such social changes. This book’s overall objective is to critically explore to what extent and how AI can infringe on human rights in various domains and may lead to individual, social, and ecological harmful consequences. Seeing that the European Union has outlined its efforts to use big data, machine learning, and AI to tackle several inherently social problems, such as poverty, climate change, social inequality, and criminality, this book advocates that the developments in AI must take place in an appro- priate ethical and legal framework. It also offers recommendations in various fields of law, especially international human rights law, personal data protection law, anti-discrimination law and even space law, and indicates the direction for such a framework should take in order to increase the existing levels of respect for human rights and fundamental freedoms of individuals, consolidate legitimate democratic processes and ensure economic and political stability. The first part of the book addresses human rights violations and harms that may occur in relation to AI tools in the criminal justice and law enforcement domain, modern warfare, and horizontal private law rela- tionships, such as in employment. It analyses the impacts AI has in these selected domains on specific human rights. The book offers insights into the effects on legal rights and also goes beyond legally defined rights to support positive values such as increasing well-being and the socially beneficial development and use of AI. Preface vii The second part of the book offers insights into the governance of AI, spanning from ethics to international human rights law, together with an analysis of the private business responsibilities de lege lata and critical reflections on the collision of politics, academia, and the AI industry in “surveillance capitalism”. Here, the contributions propose ways in which AI development, implementation, and use can be governed by various types and strands of ethics and law. One aspect of the ethical implications of AI is also technological, which refers to an analysis of the “computabil- ity” of different ethical frameworks, a commonly used analytical tool in computer analysis. The book finally situates the development of AI in a specific capitalist constellation of power that generates social harm and offers a reflection of the embeddedness of AI in the social-economic constellations of power. The aspects of this book that make it distinctive are, firstly, the fact that it covers a broad range of subjects related to AI and human rights and ethics on one hand, and secondly, its solution-oriented contributions to the discussion of the governance of AI, on the other. It does so by diving into existing legal rules, such as regarding businesses’ responsibilities under international human rights law; the existing general guidelines and space law provisions governing the prevention of harm that can serve as an example for governing the use of AI also on Earth, and the rules on the processing of personal data in the computer vision domain. The book outlines the direction of the development and use of AI tools to avoid harm and human rights violations, which is particularly important for raising awareness about the issue and educating future generations, as well as for researchers and practitioners, such as computer science engineers, who play a role in policy making and in developing AI tools. The book is of interest to academics, students, and practitioners in law, criminology, sociology, anthropology, political science, computer science, and emerging AI studies. It appeals to researchers and practitioners analysing technology and its societal and legal ramifications and the implications of AI for society, law, and ethics. These can be sociolo- gists, scholars in STS studies, security studies scholars, criminologists, and legal scholars. The book is also of interest to the general public viii Preface because it provides an easy-to-read analysis of the risks AI poses for individuals and their rights and points to measures necessary to prevent or remedy harm that already exists in law, such as antidiscrimination law, international human rights law, and personal data protection law. The book aims at counter-balancing AI scholarly articles and books perme- ated with techno-enthusiastic sentiments and adding to the more critical voices about AI’s consequences for society, individuals, and the environ- ment. The advantage of the book is that it offers new insights into how to avoid potential human rights violations and social harm by using existing laws and human rights regimes and not only resorting to self-regulatory regimes which are difficult to enforce.1 Ljubljana, Slovenia Aleš Završnik 1 Part of the research leading to this book was funded by the Slovenian Research Agency, research project “Human Rights and Regulation of Trustworthy Artificial Intelligence” (no. V5- 1930, 2019–2021), led by Professor Aleš Završnik. In case contributors of individual chapters conducted their research in the context of other research projects, this fact is indicated in their respective chapters or the acknowledgment to the Agency left out. Acknowledgements We would like to express our gratitude to all the authors who supported the initial idea for the book. They were ready to write their chapters, format and revise them after the reviews, and engage in the peer- reviewing process for the other chapters. The writing of their chapters and their reviews are most appreciated! We are extremely grateful to the book reviewers, who made helpful comments and encouraged our discussion on how to focus our book more precisely. Much appreciation goes to editor Ms Josie Taylor and Ms Abarna Antonyraj and their team at Palgrave Macmillan, Springer Nature, for their patience and big support in the process. We would like to express our gratitude to all attendees of the confer- ence “Artificial Intelligence, Human Rights and Social Harm” held in Ljubljana on 15 June 2021 and attendees of the Autumn School “Law and Challenges of Digital (R)evolution” in October 2020 and 2021 for their stimulating talks and discussions that impacted our line of thought and development of arguments for our book. We would also like to express our gratitude to our colleagues at the Institute of Criminology ix