Towards AI Regulation: EU vs. US

Elif Kiesow Cortez

This TTLF research project will offer a legal analysis of select legal cases regarding the use of AI technology for automated decisions involving personal data in the US and in the EU in light of the draft EU Artificial Intelligence Regulation. This paper aims to provide a comparative analysis of regulatory frameworks that affect this breakthrough technology in the US and EU. The project will bring to light which type of legal challenges can be expected when it comes to deploying AI based automated decision making in these jurisdictions by also highlighting the role of the risk-based approach and regulatory sandboxes. The information from the US and EU case studies offered in this paper will improve our understanding of legal hurdles for AI deployment, widen our knowledge on jurisdictional heterogeneity in legal treatment, and therefore contribute to reducing legal uncertainty around making AI work in practice.

The project will analyze the trade-offs and legal reasoning that potentially lay behind rulings in AI cases on each side of the Atlantic. Additionally, the legal reasoning behind the rulings that are part of the analysis will be compared to the principles set out in the draft EU regulation – which incidentally is intended to be extraterritorially applicable.

When a revolutionary technological innovation starts being utilized by economic actors, the legal systems start to process its potential ramifications and understand its operating principles to in turn offer a legal response. Naturally, how actors in the legal system in different jurisdictions perceive the risks and benefits from the use of AI will affect judicial decisions concerning this expanding new technology. In short, the paper will be aiming to analyze the selection of cases by focusing on which legal definitions were used by the judiciary in their decisions. The paper would conclude with a forward-looking exercise on
what the current application of a rule in a given case might mean for future applications of this rule for emerging technologies and also discuss the shape EU’s (draft) regulation is starting to take. Moreover, the research project will offer a breakdown of the nature of legal responses in different domains to assess to what extent sectoral differences exist, e.g. carve outs for strategic R&D projects, but also sectors with user-contact where AI technology is already being rolled out or beginning to be scaled up.

The paper will make use of economic analysis methodology in addition to comparative legal analysis and has as an aim to improve predictability and legal certainty regarding the upcoming efforts to regulate AI technology.