Second European AI Alliance

Second European AI Alliance Assembly overview

The second European AI Alliance Assembly was hosted online due to the COVID-19 pandemic, on Friday 9th October.

The second edition of the European AI Alliance Assembly took place last Friday 9th in a full day event which was hosted online due to the COVID-19 pandemic. The Assembly gathered together more than 1,400 viewers who followed the sessions live and were also given the option to submit their questions to panellists.

The event

This year’s edition had a particular focus on the European initiative to build an Ecosystem of Excellence and Trust in Artificial Intelligence. The sessions were broken into plenaries, parallel workshops and breakout sessions. 

The following topics were addressed:

As a member of the European AI Alliance, Aphaia was pleased to join the event and enjoy some of the sessions addressing topics which are crucial in the development and implementation of AI in Europe, such as “Requirements for trustworthy AI” and “AI and liability”.

Requirements for trustworthy AI

The speakers shared their views on the risks brought by AI systems and the approaches that should be taken to enable the widespread use of AI in the society.

Hugues Bersini, Computer Science Professor at Free University of Brussels, considered that there is a cost function whenever AI is used, and optimizing it is the actual goal: “Whenever you can align social cost with individual cost there are no real issues”.

Haydn Belfield, Academic Project Manager at CSER Cambridge University, claimed that the high risk AI systems may imply for people life chances and their fundamental rights demand a framework of regulation including mandatory requirements that should, at the same time, be  flexible, adaptable and practical. 

For Francesca Rossi, IBM fellow and the IBM AI Ethics Global Leader, transparency and explainability are key. She explained that AI should be used to support the decision making capabilities of human beings, who have to make informed decisions. This purpose cannot be achieved if AI systems are a black box.

As response to the audience questions, the speakers discussed together how many risk levels would be necessary for AI. The main conclusion was that considering that only defining high risk is already a challenge, having two risk levels (high risk and not high risk) would be a good start on which further developments may be built in the future.

The speakers briefly talked about each of the requirements highlighted by the AI-HLEG for trustworthy AI, namely: human agency and oversight, technical robustness and safety, privacy and data governance, transparency, diversity, non-discrimination and fairness, societal and environmental well-being and accountability. 

In our view the discussions on AI and biases and human oversight where especially relevant:

AI and biases

Paul Lukowicz, Scientific Director and Head of the Research Unit “Embedded Intelligence” at the German Research Center for Artificial Intelligence defined machine learning as giving the computer methods with which it can extract procedures and information from data and stated that it is the core of the current success of AI. The challenge is that a lot of biases and discrimination in AI system come from giving data in which there are biases and discrimination. The challenge is that it is not that the developers somehow fail in giving data which is not per se representative: they actually use data that is representative and because there are discrimination and bias in our everyday life, this is what the systems learn and empathize. Linked to this issue, he considers that another pitfall is  the uncertainty, as there is no data set that covers the entire world. “We always have a level of uncertainty in life, so we have in AI systems”. 

Human oversight

Aimee Van Wynsberghe, Associate Professor in Ethics and Technology at TU Delft, raised some obstacles to human oversight:

  1. She challenged the fact that the output of an AI system is not valid until it has been reviewed and validated by an human. In her view, this can be quite difficult because there are biases that threaten human autonomy: automation bias, simulation bias, confirmation bias. Humans have a tendency to favor suggestions from automated decision-making system and ignore contradictory information that is made without automation. The other challenge in this regard is that having an AI system creating output and the human overviewing and validating is very time and resources consuming.
  2. As for the alternative based on the fact that the outputs of the AI system would become immediately effective but only if human overview is ensured afterwards, Aimee pointed out the issue of allocating the responsibility of ensuring human intervention:  “Who is going to ensure that human intervention happens? The company? Is the customer who would approach the company otherwise? Is it fair to assume that customers would have the time, the knowledge and the ability to do this?
  3. The monitoring of the AI system while in operation and the ability to intervene in real time and deactivate it would be difficult too because of human psychology: “there is lack of situational awareness that does not allow for the ability to take over”.

AI an liability

Corinna Schulze, Director of EU Government Affairs at SAP; Marco Bona, PEOPIL’s General Board Member for Italy and International Personal Injury Expert; Bernhard Koch, Professor of Civil and Comparative Law and Member of the New Technologies Formation of the EU Expert Group on liability for new technologies; Jean-Sébastien Borghetti, Private Law Professor at Université Paris II Panthéon-Assas and Dirk Staudenmaier, Head of Unit and Contract Law in the Department of Justice of the European Commission discussed the most important shortcomings on AI liability and put it in connection with the Product Liability Directive.

The following issues of the Directive were pointed out by the experts:

  • Time limit of 10 years: in the view of most of the speakers this may be an issue because it concerns producers only, which could be difficult whenever operators, users, owners and other stakeholders are involved. Furthermore 10 years is fine with  traditional products but it may not work in terms of protection of victims in relation to some AI artefacts and systems.
  • Scope: it concerns the protection of the consumers while it not address the protection of victims. Consumers and victims sometimes overlap but not always.
  • Notion of defect: it may cause some troubles with the distinction between product and services. The Directive covers only product, not services which may rise some concerns in relation to internet of things and software.

 

The Commission has made available the links of the sessions for all those who did not manage to attend the event or would like to see one or more session again.

Do you need assistance with AI Ethics? We can help you. Our comprehensive services cover both Data Protection Impact Assessments and AI Ethics Assessments.

BCR Changes for Brexit

BCR Changes for Brexit: EDPB releases statement guiding enterprises.

The European Data Protection Board (EDPB) released a statement of guidance on Binding Corporate Rules (BCRs), for groups of undertakings, or enterprises which have the UK ICO as their lead supervisory authority (BCR Lead SA).

 

The EDPB released a statement of guidance on Binding Corporate Rules (BCRs), for groups of undertakings, or enterprises which have the UK ICO as their lead supervisory authority (BCR Lead SA). As shifts are made towards the official implementation of Brexit, many structural and procedural changes are being made for businesses. One such change, adopted on July 22, 2020, based on the analysis currently undertaken by the EDBP on the consequences of the CJEU judgment,  Data Protection Commissioner v Facebook Ireland, and Schrems, regarding BCRs as transfer tools. The EDPB recently released a statement outlining BCR changes for Brexit implementation, complete with a table guide regarding the criteria for a BCR Lead SA change, how and why, and referencing the legislation for each criteria. 

 

Procedural Changes for Authorized BCR Holders

 

Enterprise holders with the ICO as their competent Supervisory Authority (BCR Lead SA) will need to arrange for a new BCR Lead in the EEA, according to Article 29 Working Party, Working Document Setting Forth a Co-Operation Procedure for the approval of BCRs for controllers and processors under the GDPR, WP263 rev.01, endorsed by the EDPB. This change in BCR Lead will need to take place before the end of the Brexit transition period. For BCRs already approved under the GDPR, the new BCR Lead SA in the EEA will have to issue a new approval decision following an opinion from the EDPB. However, no approval by the new BCR Lead SA is necessary for BCRs for which the ICO acted as their BCR Lead SA under Directive 95/46/EC. 

 

Content Changes for Authorized BCR Holders.

 

Before the end of the Brexit transition period, BCR holders with the UK’s ICO as their BCR Lead SA will need to amend their BCRs, referencing the EEA legal order. Without these changes (or a new approval, where applicable), by the end of the transition period, these enterprises or groups of undertakings will no longer be able to use their BCRs for transfers of data outside the EEA beyond the transition period.

 

Procedural Changes for BCR Applications Before the ICO.

 

Any groups of undertakings of enterprises with BCRs at the review stage with the ICO are encouraged to identify a new BCR Lead SA according to the guidance of the WP263 rev.01 before the end of the Brexit transition period. They will need to contact the new SA and provide the necessary information to apply to have the SA considered as the new BCR Lead SA. The new BCR Lead SA will then take over the application process and begin the aproval procedure, subject to an opinion of the EDPB. 

 

Groups of undertakings or enterprises may choose to transfer their application to a new BCR Lead SA after approval by the ICO, in which case, the new BCR Lead SA will need to approve this new application before the end of the transition period, as the new competent SA, according to Article 47.1 GDPR.

 

Content Changes for BCR Applications Before the ICO.

 

Groups of undertakings or enterprises with BCRs in the process of approval by the ICO must make sure that their BCRs refer to the EEA legal order with information on expected changes, before the end of the Brexit transition period. 

 

General Changes for BCR Applications 

 

Any Supervisory Authority in the EEA, approached to act as the new BCR Lead SA, will consider whether it is indeed the appropriate SA on a case by case basis, based on the criteria of the WP263 and in collaboration with any other concerned Supervisory Authorities. The EDPB has provided a checklist of elements for Controller and Processor BCRs which need to be changed due to Brexit, as part of this statement released last month. 

 

Does your company have the UK ICO as their lead supervisory authority? If so, you may be required to make significant changes before the end of the Brexit transition period. Aphaia’s data protection impact assessments, GDPR and Data Protection Act 2018 consultancy services and Data Protection Officer outsourcing will assist you with ensuring compliance.

European Commission on Transition

European Commission Released Communication on transition between EU and UK.

The European Commission released a statement detailing the implications of the transition between the EU and UK. 

 

As the UK comes to the end of its transitory period from the EU to the end of this year, the European Commission has released communication assessing the country’s readiness for separation from the region. The withdrawal agreement which was entered into on February 1st, 2020 secured the UK’s departure, and stated that the laws of the Union would continue to apply until the end of the transition period ending on December 31st, 2020. The UK continues to participate in Union programmes, the EU’s single market and Customs Union and to abide by Union policies and any international agreements which include the EU. All of this is due to change come January 1st, 2021 when the transition period has ended and the Withdrawal Agreement comes into effect. The transition period therefore serves as a period of continuity to ensure readiness for the implementation of all necessary measures and arrangements and to facilitate negotiation of a new partnership between the EU and the UK by January 1st, 2021. 

 

Negotiations pick up momentum this summer as the EU and the UK seek to reach an agreement on a future partnership before the January 1st 20201 implementation date.

 

While negotiations have been slow in moving during the earlier part of this year, as of June they have picked up, as the UK’s government has made a decision not to extend the transition period. The aim is to reach an agreement on an ambitious partnership covering all areas agreed with the United Kingdom in the Political Declaration by the end of 2020. The resulting agreement would create a relationship very different from the current UK participation in the EU single market and Customs Union, and in the VAT and excise duty area. It is expected that there will be resulting barriers to trade in goods and services and to cross-border mobility and exchanges. All this, compounded by the pressure that businesses are already under due to the COVID-19 pandemic, are expected to cause some disruptions as of January 1st 2021. 

 

Businesses are advised to revisit their existing preparedness plans which were drawn up in the event that the UK’s withdrawal from the Union happened without a withdrawal agreement. While negotiations are still underway, those preparedness plans may still be relevant for the changes at the end of the transition period.

The European Commission released information on the effects of those changes specific to various industries, and implores companies to implement actions to ensure readiness.

 

The European Commission communicated an outline of changes to be expected whether there is an agreement on a future partnership between the EU and the UK or not. As of 1 January 2021, the transition period allowing for the temporary participation of the United Kingdom in the EU Single Market and Customs Union will end, thereby putting a stop to the free movement of persons, goods and services. As a result there will be several automatic changes 

 

The European Commission, since March 2020, has been publishing notices of readiness specific to various industries. To date, there are 59 notices spanning a wide range of industries, and this list will be updated on a regular basis as new notices become available. The Commission calls on all national and European consumer, business and trade associations to ensure that their members are fully aware of the expected changes. The changes being implemented as of January 1st 2020 will be automatic, far reaching and unavoidable. Both logistical and legal changes are to be expected, the effects of which should not be underestimated. Ultimately, businesses still need to undergo their own risk assessments and implement actions to ensure their own readiness. 

 

What does this mean for data protection?

 

As we published in our blog in January, the ICO released an statement on the implications of Brexit on data protection, where they provided some guidance on this matter. That is:

 

During the transition period

  • The GDPR continues to apply in the UK.
  • There is no need for a European representative.
  • ICO GDPR guidance is still relevant.
  • Transfers of data from the UK to the EU and from the EU to the UK are not restricted.

After the transition period

  • The GDPR will be brought into UK law as the ‘UK GDPR’ but the UK will have the independence to keep the framework under review.
  • A European representative may be necessary from the end of the transition period.
  • The ICO will not be the regulator for any European-specific activities caught by the EU version of the GDPR.
  • The DPA 2018 will continue to apply.
  • The ICO will remain the independent supervisory body regarding the UK’s data protection legislation.
  • Data transfers between the UK and the EU may be restricted and adequate safeguards may be necessary.

 

Does your company process  personal information in the UK or transfer personal information between the EU and the UK? If so, Brexit may affect the way you process personal data. Aphaia’s data protection impact assessments, GDPR and Data Protection Act 2018 consultancy services and Data Protection Officer outsourcing will assist you with ensuring compliance.

EU-US Privacy Shield invalidation

EU-US Privacy Shield invalidation business implications

On 16th July, the Court of Justice of the EU delivered a ruling in the case known as Schrems II by which it invalidated EU-US Privacy Shield and confirmed the validity of Standard Contractual Clauses, with caveats.

After the CJEU’s Advocate General Henrik Saugmandsgaardøe published his opinion in the so-called ‘Schrems II’ in January, now the CJEU has delivered their judgement, pursuant which Privacy Shield is declared invalid and SCC remain valid but can only be used under strict conditions.

What did the Court say?

Two important outcomes derive from the judgement issued by the CJEU:

1.The EU-US Privacy Shield is no longer a valid mechanism for international data transfers from the EU to the US.

It is important to note that it was invalidated with immediate effect. The main reason are US surveillance programmes. According to the CJEU, US surveillance programs are not limited to what is strictly necessary and proportional as required by EU law, plus there are no effective legal remedies in the US to ensure compliance with provisions of EU law when EU data subjects’ data is used for national surveillance programs.

2.SCC but with some important caveats.

It is no longer sufficient for a data exporter and data importer to just sign the agreement, the exporting party must do a factual assessment of whether the contract can actually be complied with in practice. Companies must verify, on a case-by-case basis, whether the law in the recipient country ensures adequate protection for personal data transferred under SCC. Where this is not the case, as it happens in the US, supplementary measures and additional safeguards should be implemented in order to attain the required level of protection; otherwise the transfer should be ceased. 

National Data Protection Authorities may suspend or prohibit transfers to third country if appropriate safeguards cannot be ensured. Based on the CJEU findings in respect of the Privacy Shield, it is difficult to see how supervisory authorities would be able to avoid such a conclusion in the case of transfers to the US. National Data Protection Authorities responses to this decision are yet to be seen.

What does the EDPS say?

On 17th July and following the CJEU ruling, the EDPS, which together with the EDPB had previously expressed their criticisms of the Privacy Shield, released their statement where they welcomed the Court reaffirmation of the importance of maintaining a high level of protection of personal data transferred from the European Union to third countries. However, they trust that “the United States will deploy all possible efforts and means to move towards a comprehensive data protection and privacy legal framework, which genuinely meets the requirements for adequate safeguards reaffirmed by the Court”.

What does the UK Government say?

The UK government intervened in the case, arguing in support of the validity of standard contractual clauses. In their response, they point out their commitment to ensuring “high data protection standards and supporting UK organisations on international data transfer issues”. They have announced that they are working alongside the ICO and international counterparts with the purpose of addressing the impacts of the judgment and ensuring that updated guidance on international data transfers will be provided soon.

EU Data Protection Authorities like Irish Data Protection Commissioner and three in Germany (Federal DPA, DPA of Hamburg and DPA of Rheinland-Pfalz) have also issued their statements. Other European DPAs are expected to do it soon.

What should I do now when transferring data from the EU to the US?

Where relying on the Privacy Shield:

  • Do not enter into any new agreement governed by the Privacy Shield.
  • Review all your current contracts, especially legacy ones, with your providers, clients or third-party processors and identify those that rely on the Privacy Shield. They should be amended to add SCC or any other valid safeguard covered by the GDPR for international data transfers.

Where relying on SCC:

Although the ICO and other national Data Protection Authorities are expected to produce detailed guidance soon, according to CJEU, when transferring personal data to third countries relying on SCC you should:

  • Make sure that security and technical measures which provide an adequate level of protection of personal data are actually implemented. You may need to review or at least ask for further information about the data importer’s technical and security measures plus consider whether additional measures should be specified to strengthen security, like tokenization and encryption.
  • Reinforce your accountability processes. Do not simply sign an appendix to your contracts including SCC, rather but have a closer look at the actual security measures and other mechanisms used by the importer, plus the actual situation in the importing country, especially regarding surveillance.

What can we expect in the near future?

It is expected that guidance will be issued from the European Commission as well as the European Data Protection Board. Apart from that, the EU may decide to renegotiate a new version of Privacy Shield that gives EU data subjects stronger privacy rights under US surveillance laws. Likewise the US came up with the Privacy Shield ten months after the Safe Harbor was declared invalid, so one could now hope for them to put in place a new mechanism which to address the CJEU’s concerns. On another note, SCC may be updated for GDPR soon.

Do you make international data transfers to third countries? Are you affected by Schrems II decision? We can help you. Aphaia provides both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We also offer CCPA compliance servicesContact us today.