Regulating the Risks of AI
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Regulating the Risks of AI
Forthcoming, Boston University Law Review, Vol. 103, 2023
85 Pages Posted: 23 Aug 2022
See all articles by Margot E. KaminskiMargot E. KaminskiUniversity of Colorado Law School; Yale University - Yale Information Society Project; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship
Date Written: August 19, 2022
Abstract
Companies and governments now use Artificial Intelligence (AI) in a wide range of settings. But using AI leads to well-known risks—that is, not yet realized but potentially catastrophic future harms that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (EU) have turned to the tools of risk regulation for governing AI systems.
This Article observes that constructing AI harms as risks is a choice with consequences. Risk regulation comes with its own policy baggage: a set of tools and troubles that have emerged in other fields. Moreover, there are at least four models for risk regulation, each with divergent goals and methods. Emerging conflicts over AI risk regulation illustrate the tensions that emerge when regulators employ one model of risk regulation, while stakeholders call for another.
This Article is the first to examine and compare a number of recently proposed and enacted AI risk regulation regimes. It asks whether risk regulation is, in fact, the right approach. It closes with suggestions for addressing two types of shortcomings: failures to consider other tools in the risk regulation toolkit (including conditional licensing, liability, and design mandates), and shortcomings that stem from the nature of risk regulation itself (including the inherent difficulties of non-quantifiable harms, and the dearth of mechanisms for public or stakeholder input).
Keywords: AI, data privacy, regulation, governance, risk regulation, risks, artificial intelligence
Suggested Citation: Suggested Citation
Kaminski, Margot E., Regulating the Risks of AI (August 19, 2022). Forthcoming, Boston University Law Review, Vol. 103, 2023, Available at SSRN: https://ssrn.com/abstract=4195066 or http://dx.doi.org/10.2139/ssrn.4195066
Margot E. Kaminski (Contact Author)
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
Yale University - Yale Information Society Project ( email )
127 Wall Street
New Haven, CT 06511
United States
University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )
Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States
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