Automation Rights: How to Rationally Design Humans-Out-Of-The-Loop Law

Abstract

This essay begins with the following puzzle: in sharp contrast to significant evidence demonstrating the effectiveness of AI-based automation in high stakes spheres-health care, transportation, national security, finance, workplace safety, public administration, and more-the contemporary impulse is to legally require a human-into-the-loop is heightened the higher the stakes of the activity or decision. Indeed, in the legislation emerging in both the EU and the United States, ironically showcases the assumption that when it comes to AI, high stakes equal high-risk of tackling the stakes through the most advanced technology. Moreover, while there are hundreds of bills, reports, and executive orders that seek to prohibit or restrain certain uses or applications of AI, there are virtually no equivalent frameworks, or even language, that would mandate automation when such a shift has been empirically shown to be the safest, or most consistent in achieving agreed upon goals or courses of action. This essay, written for the University of Chicago Symposium on How AI Will Change the Law, argues for the development of more robust-and balanced-law that focuses not only on the risks but also the potential that AI brings. In turn, it argues that there is a need to develop a framework for laws and policies that incentivize, and at times, mandate transitions to AI-based automation. Automation rights-the right to demand and the duty to deploy AI-based technology when it outperforms human-based action-should become part of the legal landscape. A rational analysis of the costs and benefits of AI deployment would suggest that certain high-stakes circumstances compel automation because of the high costs and risks of not adopting the best available technologies. Inevitably, the rapid advancements in machine learning will mean that law soon must embrace AI, accelerate deployment, and under certain circumstances prohibit human intervention, as a matter of fairness, welfare, and justice.

Keywords: artificial intelligence policy, consumer behavior, automation, regulatory policy, privacy