Artificial Intelligence and Sensitive Inferences: New Challenges for Data Protection Laws

Mark Findlay, Jolyon Ford, Josephine Seoh and Dilan Thampapillai (eds.), Regulatory Insights on Artificial Intelligence: Research for Policy (Edward Elgar, 2021)

ANU College of Law Research Paper No. 21.1

21 Pages Posted: 6 Feb 2021 Last revised: 25 Mar 2021

See all articles by Damian Clifford

Damian Clifford

Australian National University College of Law

Megan Richardson

University of Melbourne - Law School

Normann Witzleb

The Chinese University of Hong Kong; Monash University - Faculty of Law

Date Written: December 14, 2020

Abstract

Data protection laws are under strain to respond to the continuing advances in information and communications technologies, including now AI technologies. How strictly they regulate the handling of personal information and its effects for human identity varies between jurisdictions, despite efforts to achieve international harmonisation. One such area of disparity between existing data protection laws is on the question of whether some types of data, designated ‘sensitive’, or ‘special’, should be subject to stricter legal or practical protection. In this article, we consider the basis on which some categories of data are accorded enhanced protection as sensitive (or special) in modern data protection regimes, and why the categories themselves may vary between jurisdictions. The blurring of the boundaries between ‘ordinary’ personal data and these sensitive categories through the potential to draw inferences from intensive data processing facilitated by developments in artificial intelligence (and more specifically machine learning), raises important new questions for policymakers.

Keywords: Privacy, data protection, sensitive data, inferences, GDPR, CCPA

JEL Classification: K10, K19, K23, K29, K30

Suggested Citation

Clifford, Damian and Richardson, Megan and Witzleb, Normann, Artificial Intelligence and Sensitive Inferences: New Challenges for Data Protection Laws (December 14, 2020). Mark Findlay, Jolyon Ford, Josephine Seoh and Dilan Thampapillai (eds.), Regulatory Insights on Artificial Intelligence: Research for Policy (Edward Elgar, 2021), ANU College of Law Research Paper No. 21.1, Available at SSRN: https://ssrn.com/abstract=3754037 or http://dx.doi.org/10.2139/ssrn.3754037

Damian Clifford

Australian National University College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

Megan Richardson

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Normann Witzleb (Contact Author)

The Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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