Artificial Intelligence (“AI”) and data protection

In the past few years, we have seen an increasing number of organisations developing or using AI solutions. Although the business case for the use AI is compelling, tensions can arise where its use is at odds with data protection laws.

These tensions between AI and data protection include the following:

  • Transparency – the GDPR requires you to provide individuals with notice setting out how you are using their personal data. Where there is an element of automated decision-making which results in legal effects or otherwise has a significant effect on an individual (as there often is with AI), the controller is required to provide affected individuals with “meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject”. Given the complexities with AI and the fact that some types of AI can develop in an unsupervised environment, without human intervention, it can sometimes be difficult to meet these requirements.
  • Purpose limitation, data minimisation and storage limitation – the GDPR requires that processing of personal data is carried out for specific purposes, no more personal data than is adequate to achieve those purposes is processed and that personal data is only processed for as long as necessary to achieve those purposes. There is often tension between these principles and AI, since the development of an AI system can often result in data being used for unexpected purposes, and often requires vast amounts of data to be inputted into the system in order for it to meaningfully detect patterns and trends.

In respect of the transparency issue, the ICO has developed draft guidance along with the Alan Turing Institute (the UK’s national institute for data science and artificial intelligence) dealing with explaining AI. The guidance provides detailed information on the different ways in which businesses can seek to explain the processing they undertake using AI to the individuals concerned and seeks to address some of the concerns businesses may have in providing such explanations.

In addition to the above, the ICO is also working on finalising its AI auditing framework which will address the following specific issues:

  • Accountability – which will discuss the measures that an organisation must have in place to be compliant with data protection law.
  • AI-specific risk areas – which will discuss the key risk areas the ICO has identified in relation to the use of AI in the field of data protection.

As the use of AI becomes more widespread, it is hoped that the guidance issued by the ICO will help businesses better understand and comply with their data protection obligations whilst still allowing them to develop AI systems which can benefit organisations and individuals alike as our knowledge in this area continues to grow.

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