Does AI invade your privacy?

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Artificial intelligence and privacy laws

European Union

AI processing makes use of vast amounts of data, and some of it could be sensitive personal information. Through analyses some of it could be used for identifying purposes. There is also the risk, where data has been anonymized, of it being deanonymized (possibly using AI) or not anonymized sufficiently to begin with. Which raises the legal and ethical question of how to establish and maintain user privacy while still obtaining and processing the data companies need to power AI usage. The European Union already has the General Data Protection Regulation (GDPR) to protect people’s privacy and data broadly. Article 15 addresses “right of access by the data subject”, and “automated decision-making” directly in point 1(h). Article 22 also addresses “automated individual decision-making, including profiling” directly, which would include AI use. “Automated decision-making” is probably the most common AI-related language to appear in privacy laws. In 2021 the European Commission proposed the Artificial Intelligence Act to govern the development, marketing and use of AI in the EU, to broadly “harmonize rules on artificial intelligence”. This law would have a significant impact on how AI is regulated and used within the EU, but also among trading partners (anywhere EU residents’ data may be processed). Like the GDPR, it would also provide the ability to severely penalize noncompliance. The proposed regulation has four sub-objectives: ensuring AI systems in the EU are safe and respect fundamental rights and values

fostering investment and innovation in AI

enhancing governance and enforcement

encouraging a single European market for AI

Overall, it aims to balance addressing risks without hindering innovation.

United States

The US does not yet have a federal privacy law. However, like the GDPR, California’s Consumer Privacy Act (CCPA) addresses data protection and user privacy broadly, but doesn’t specifically address AI or its use. Now, companies would need to disclose AI usage in their purposes for collecting and processing data, e.g. browser history to be used for decisions made using algorithms. Companies also need to make a significant effort at clarity and transparency regarding more complex uses and insights from AI that users may not readily understand, like psychological or behavioral insights that can be determined from the data analysis. Since AI needs a great deal of data, it is likely this data would come from a number of sources. This would mean a significant requirement for strong data protection and security practices when the data is collected, shared, and stored. If AI processing is done by a third party, they and the data controller for whom they’re working must also be careful to comply with regulatory requirements for the safeguarding and use of data for AI analysis.

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The California Privacy Rights Act (CPRA), which goes into effect in 2023, does more explicitly address technologies like AI and their use. Under the Act, consumers have the right to understand (and opt out of) automated decision-making technologies, which would include AI and machine learning. And again, data from multiple sources that may be harmonized must be handled very carefully. For example, if two people with very similar personal information, coming from more than one system, get merged into one record erroneously, not only could one person receive offers they’re not interested in, as a mild consequence, it could be a legal violation, as the person receiving the offers did not opt in. It could have been the other person who agreed to data collection and communications, but who, from the standpoint of the harmonized data, has ceased to exist. Also, untangling these records is not a simple matter, and may require even more third parties to access the data — who were not part of the original processing plan — in order to resolve the issue. Under the CPRA, the California Privacy Protection Agency (CPPA) is also being created, and part of its mandate is to issue “regulations governing access and opt-out rights with respect to businesses’ use of automated decision-making technology, including profiling and requiring businesses’ response to access requests to include meaningful information about the logic involved in such decision-making processes, as well as a description of the likely outcome of the process with respect to the consumer”.

Brazil

Brazil’s Lei Geral de Proteção de Dados (LGPD) addresses AI use in Article 20, referring to data subjects’ “right to request a review of decisions taken solely on the basis of automated processing of personal data affecting his/her interests, including decisions aimed at defining his/her personal, professional, consumer and credit profile or personality aspects.” This is in line with the GDPR and previously proposed legislation in Canada. It further requires controllers to provide, if requested, “clear and adequate information regarding the criteria and procedures used for the automated decision, in compliance with commercial and industrial secrets.” Where secrecy is invoked, the national data protection authority (ANPD) can perform an audit to verify if there are any discriminatory aspects of the automated data processing.

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South Africa

Chapter 8 of South Africa’s Protection of Personal Information Act (POPIA) directly addresses the “Rights of Data Subjects Regarding Direct Marketing by Means of Unsolicited Electronic Communications, Directories and Automated Decision Making”. Under that chapter, the third section, Section 71, is about automated decision-making. With exceptions (outlined in subsections 2 and 3), under POPIA “a data subject may not be subject to a decision which results in legal consequences for him, her or it, or which affects him, her or it to a substantial degree, which is based solely on the basis of the automated processing of personal information intended to provide a profile of such person including his or her performance at work, or his, her or its credit worthiness, reliability, location, health, personal preferences or conduct.” Section 57 may also be relevant, as it covers the requirement for prior authorization for processing. Particularly that prior authorization must be obtained before any data processing if the “responsible party” plans to process unique identifiers of data subjects, either for a purpose other than the only initially and specifically intended for the data collection, and/or with the plan to link unique identifier information together with other information the responsible party has processed. So basically without obtaining new consent from data subjects for the specific updated processing purpose or the linking of the data, this type of automated processing could well be noncompliant.

usercentrics.com - Artificial intelligence (AI) And Data Privacy For Companies - Usercentrics

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