Have you ever thought about what would happen if series like Black Mirror, Love Death and Robots, and Matrix became real?

In the new digital era of Web 3.0, the world is experiencing a technological revolution with dizzying speed. Emerging technologies are changing the current social, political, and financial landscape while the regulatory response needs to catch up. To properly regulate these technologies, the regulators must tackle complex challenges and quickly adapt to this new digital era. In simple words, they must be “technologically savvy”1.

What exactly are emerging technologies?

Emerging technology is a new innovative technology. Also, it can be an already existing one, which keeps developing and has or will have a significant social impact. Moreover, they hold infinite opportunities but threats as well.2 Some examples of emerging technologies are Artificial Intelligence (AI), the Internet of Things (IoT), virtual reality3, machine learning, and nanotechnology.4

Emerging technologies have pros and cons. On the one hand, they can provide opportunities to improve our current lifestyle and overcome difficulties such as waste of time, energy, and resources. On the other hand, they evolve so fast that regulators cannot keep up with them and regulate them appropriately. The so-called pacing problem indicates that the law cannot follow the rate of technological evolution, leaving society with outdated and ill-suited regulations. Furthermore, regulators must develop new policies and embrace technological evolution and innovation while, protecting human rights, like privacy, data protection, and freedom of speech.

In more detail, the pacing problem constitutes one of the main challenges posed by emerging technologies in the regulatory field. Outdated regulations or overregulation are the main problems of the “racing game”. Technology makes it difficult for regulators to appropriately correspond to new needs and issues. 5

Secondly, the unpredictable nature of business models that rely on emerging technologies can be quite challenging. Business models bring new ideas or technologies to an already existing market.6 They can evolve rapidly and shift from one regulatory category to another.7 Consumer harm is difficult to assign because of the interconnectivity of IoT and the capabilities of machine learning.8 In addition, the anonymity and decentralized nature of Web 3.0 and blockchain pose novel yet complex challenges to regulators.9

Thirdly, data privacy and security are among the concerns. In the IoT era, smart devices collect and exchange enormous amounts of data.10 This data overload leaves an equally big digital footprint making it more difficult for users to log out than to log in.11

In that case, the question is “Who owns the data?”. The government, the users, or the service providers?12 If the service provider is the owner, could they share our data with 3rd parties? Other questions arise from the nature of the data and the way it is being collected: “Can data be owned?” and “How is the data being collected?”. Users’ data often remain unprotected and can be shared without their knowledge.13 Not to mention privacy policies and cookies, which can become quite opaque and lengthy.

On top of that questions, cybersecurity constitutes an additional concern. The interconnectivity that the IoT era offers poses serious threats in the case of hacking. Smart homes, smart cars, and smart cities are examples of how hacking could even cost human lives. Regulators must address difficult and technical questions regarding algorithmic accountability, harm liability, and protection from hackers. 14

And finally, the AI-based challenges are mainly related to the Black Box Algorithm problem and algorithmic bias.

As algorithms process data and will be making more predictions and decisions for us, transparency and accountability must be reassured. However, in the case of Black Box Algorithms (BBA), the principles mentioned are not met, either because trade secrets protect them or because their creators cannot explain them. In that case, regulators must deal with questions related to Article 22GDPR which does not permit decisions based only on automated processing without any human factor involved.15

Furthermore, although algorithms have been built to make objective and unbiased decisions, they are prone to biases and end up proliferating already existing discriminations.16 According to M.I.T. Media Lab computer scientist Joy Buolamwini, algorithmic discriminations exist and affect every part of our lives. Her research on Facial Recognition Technologies discovered that algorithms are detecting more effectively white males rather than females and people of color, sealing that algorithmic bias is a reality. 17 However, these biases are inevitable if the data fed to the algorithms are flawed. Like in the case of BBA, algorithmic accountability and transparency must be met. In that way, people can question discriminatory algorithmic decisions and claim unbiased and fair ones.

To conclude as technology evolves at a breathtaking pace, regulators and policymakers must face new yet demanding challenges. Emerging technologies can update and degrade at the same time the way we live if not properly and timely regulated. To do so, regulators have to go beyond traditional regulatory norms. New, more flexible, and future-proof schemes must be designed along with law and technology cooperation. In that way, innovation and human rights can be protected and coexist in a healthy and promising society.

 

1 AI for Good Blog, ‘How ICT regulators can adapt to harness emerging technologies for good’ (AI for Good, 18th of July ) https://aiforgood.itu.int/how-ict-regulators-can-adapt-to-harness-emerging- technologies-for-good/ accessed 27 January 2023
2 Winston & Strawn LLP, ‘What is the Definition of Emerging Technology?’ (Winston & Strawn LLP, ) https://www.winston.com/en/legal-glossary/emerging-technology.html accessed 27 January 2023; ITU INTERVIEWS, ‘GSR-18: STEPHEN BEREAUX, CEO, URCA, Bahamas’ (12 July 2018) https://youtu.be/qNT7AGsXCm0 accessed 27 January 2023
3 ITU, World Bank 2020-2023, ‘Emerging technologies (AI) challenges and principles of regulation’ (Digital Regulation Platform, 16th of December ) https://digitalregulation.org/3004297-2/ accessed 27 January 2023
4 Mandel, Gregory, Regulating Emerging Technologies (March 9, 2009). Law, Innovation & Technology, Vol. 1, p. 75, 2009, Temple University Legal Studies Research Paper No. 2009-18, Available at SSRN: https://ssrn.com/abstract=1355674
5 William Eggers, Pankaj Kamleshkumar Kishnani, Mike Turley, ‘The future of regulation Principles for regulating emerging technologies’ (Deloitte Insights, 19th of June ) https://www2.deloitte.com/us/en/insights/industry/public-sector/future-of-regulation/regulating- emerging-technology.html accessed 27 January 2023
6 Talin Benjamin, ‘9 disruptive business models explained – new opportunities for companies’ (MoreThanDigital, 16th of September ) https://morethandigital.info/en/9-disruptive-business- models-new-opportunities-for-companies/ accessed 27 January 2023
7 William Eggers, Pankaj Kamleshkumar Kishnani, Mike Turley, ‘The future of regulation Principles for regulating emerging technologies’ (Deloitte Insights, 19th of June ) https://www2.deloitte.com/us/en/insights/industry/public-sector/future-of-regulation/regulating- emerging-technology.html accessed 27 January 2023
8 ITU, World Bank 2020-2023, ‘Emerging technologies (AI) challenges and principles of regulation’ (Digital Regulation Platform, 16th of December) https://digitalregulation.org/3004297-2/ accessed 27 January 2023
9 ITU, World Bank 2020-2023, ‘Emerging technologies (AI) challenges and principles of regulation’ (Digital Regulation Platform, 16th of December ) https://digitalregulation.org/3004297-2/ accessed 27 January 2023; William Eggers, Pankaj Kamlesh Kumar Kishnani, Mike Turley, ‘The future of regulation Principles for regulating emerging technologies’ (Deloitte Insights, 19th of June ) https://www2.deloitte.com/us/en/insights/industry/public-sector/future-of-regulation/regulating- emerging-technology.html accessed 27 January 2023
10 ITU, World Bank 2020-2023, ‘Emerging technologies (AI) challenges and principles of regulation’ (Digital Regulation Platform, 16th of December) https://digitalregulation.org/3004297-2/ accessed 27 January 2023
11 Ibid
12 ibid
13 ibid
14 ibid
15 ibid
16 ibid
17 Coded Bias, Directed by Shalini Kantayya, 7th Empire Media, Chicken & Egg Pictures, Ford Foundation – Just Films, January 2020 https://www.imdb.com/title/tt11394170/ accessed January 27, 2023