Bialystok Legal Studies vol. 26 nr 3
New Technologies between Law and Ethics: Some Reflections
Abstract: This article proposes a reflection on the relationship between ethics, law and new technologies. The relevance of the debate is testified by numerous initiatives and measures, both European and international, which aim to offer answers, necessarily not definitive but evolving, to phenomena such as the development of the internet of things, the incessant extraction and use of big data and, more generally, advances in artificial intelligence and robotics. From this perspective, issues such as respect for privacy and human dignity are raised, to be balanced with the right to inform and be informed as a sign of an effectively shared knowledge. What emerges is the need for a deep critical consideration of the guarantee of individual and collective spheres of action, removed from the domination of market interests, in the affirmation of prevailing and non-negotiable rights. Equally indispensable is the critical attention given to the limits to be placed on human manipulation and alteration, and on the relationship between human being and machine. This assumes a particular ethical, legal and prescriptive meaning aimed at guaranteeing the pluralism of values and dialogue typical of every democratic society.
Keywords: artificial intelligence, knowledge, new technologies, privacy, roboethics
Page range: 9-24
Bias in Artificial Intelligence Systems
Abstract: Artificial intelligence systems are currently deployed in many areas of human activity. Such systems are increasingly assigned tasks that involve taking decisions about people or predicting future behaviours. These decisions are commonly regarded as fairer and more objective than those taken by humans, as AI systems are thought to be resistant to such influences as emotions or subjective beliefs. In reality, using such a system does not guarantee either objectivity or fairness. This article describes the phenomenon of bias in AI systems and the role of humans in creating it. The analysis shows that AI systems, even if operating correctly from a technical standpoint, are not guaranteed to take decisions that are more objective than those of a human, but those systems can still be used to reduce social inequalities.
Keywords: AI discrimination, AI fairness, algorithmic bias, artificial intelligence
Page range: 25-42
Abstract: The issue of the regulation of artificial intelligence (AI) is one of the significant challenges faced by the EU at present. Most researchers focus on the substantive scope of AI regulation, including state law, ethical norms and soft law. In addition to the substantive and legal scope of the regulation, it is worthwhile considering the manner of such regulation.1 Since AI is an algorithmic code, it seems correct to regulate (restrict) AI not so much with traditional law established in natural (human) language as with one implemented into algorithms. They may operate as a tool supporting traditional legislation (RegTech), but it is possible to go further with the issue and create regulation algorithms which implement the law as the effective law. However, this requires a new approach to law and legislation – the law as algorithmic code.
Keywords: AI, AI ecosystem, AI regulation, Algorithm, law as IT code, RegTech, LegalTech
Page range: 43-60
Patrycja Dąbrowska-Kłosińska, Agnieszka Grzelak, Agnieszka Nimark
The Use of Covid-19 Digital Applications and Unavoidable Threats to the Protection of Health Data and Privacy
Abstract: This paper starts with a dilemma. How to ensure the adequate protection of individual health data and privacy in a global pandemic, which has intensified the use of digital applications for the purposes of data sharing and contact-tracing? There is no simple answer to this question when choosing between the protection of public health and individual privacy. However, the history of the existing case-law regarding infectious diseases control, both Polish and European, teaches about numerous examples in which health data and privacy were not adequately protected, but, on the contrary, were misused leading to human rights infringements. In light of this case law and public health ethics, this paper argues radically that the use of digital applications to fight the Covid-19 pandemic has not been sufficiently justified at least in the Polish context. Especially, unconvincing benefits from the use of these tools do not outweigh the likelihood of human rights infringements with far-reaching consequences for political, social and economic rights now and in the future. In its novelty, this article combines a historical-legal method with the concept of public health ethics and a human rights-based approach and to foster further research and discussion. The text also responds to the pressing need to analyze those human rights issues embedded in the Polish reality.
Keywords: COVID-19, digital applications, European Court of Human Rights, fundamental rights, global health threats, health data protection, privacy, surveillance
Page range: 61-94
Abstract: In the present paper we examine several problems associated with medical development in the field of human-enhancing technologies, particularly with respect to disability. The subject of our considerations partly focuses on the fact that progress in biotechnology and information technology in medicine has contributed to the elimination of diseases and various health disorders (including some aspects of disability). Furthermore, we centre our attention on the dilemma of increasing the efficiency and activity of those who are ‘fully functional’, by introducing, among others, the available exo-extensions (such as exo-prostheses), endo-implantation and reprogenetics (such as PDG and CRISPR methods). Finally, we point out several ethical and legal doubts surrounding the apparent intention of creating a transhumanist vision of the ‘perfect human being’ (‘post-human’, ‘bionic human’, ‘human cyborg’).
Keywords: disability, eugenics, health, human enhancement, quality of life, transhumanism,
Page range: 95-108
Abstract: The Internet-related cases coming to the European Court of Human Rights provide a good illustration of the challenges posed to the protection of human rights as based on the European Convention of Human Rights drafted in 1950. Considering that the Convention is a 70-year-old instrument, the Strasbourg Court has to deal with these cases using the body of principles and interpretation methods and techniques that has been developed so far, and in particular the ‘living instrument’ doctrine. In this study I propose to explore some main threads in the Court’s jurisprudence on Internet-related cases, outlining the specific nature of Internet-related cases, discussing the problem of rights connected with the Internet as well as the impact of the Internet on such classical rights as freedom of expression and the right to privacy. I conclude that the Internet-related case law of the Convention is in a process of constant development. The Strasbourg Court has demonstrated that it is capable of dealing with Internet-related cases based on general Convention norms and using its well-developed interpretation techniques. The striking feature of Strasbourg’s case law is the ECtHR’s recognition of the considerable importance of the Internet as regards the exercise of freedom of expression, and in particular freedom to seek and access information. Although the ECtHR regards the Internet as a communication medium, however, it recognises its specific features which affect the performance of rights protected by the Convention as well as dangers it poses for the protection of human rights under the European Convention of Human Rights.
Keywords: human rights, Internet, the European Convention of Human Rights, the European Court of Human Rights
Page range: 109-133
Salvatore Antonello Parente
Artificial Intelligence and Taxation: Assessment and Critical Issues of Tax-Levy Models
Abstract: The phenomenon of artificial intelligence and robotics, which has been under investigation for several years, has given rise to new taxation models, which have opened a lively ethical and legal debate in the scientific and cultural community which has not yet subsided. This essay, analyzing the tax effects of the relationship between intelligent machines and humans in the light of the perspectives offered by the new economy and after verifying compatibility with the founding principles of the Italian legal system (first of all, the rule of ‘ability to pay’ pursuant to Article 53 of the Constitution), assesses new taxable cases and tax-levy techniques related to the applications of artificial intelligence, also in the light of the possible tax subjectivity of the robot, in an attempt to make a contribution, from a de iure condendo perspective, to the taxation dynamics concerning automated production processes.
Keywords: digital personality of the robot, electronic ability to pay, intelligent machines, taxation dynamics, tax-levy models
Page range: 135-151
Abstract: The COVID-19 pandemic caused by the SARS-CoV–2 coronavirus, which emerged in Europe in January 2020, gave rise to restrictions by European Union Member States on freedom of movement and residence in the Schengen area. Individual actions by states mobilized the EU to take formal steps as well as to implement practical solutions to coordinate the efforts of all Member States. Digital solutions belong to the practical measures. Their implementation may bring potential benefits but is also associated with the possibility of potential risks. This article presents the basic assumptions of freedom of movement and residence in the Schengen area and their limitations by Member States justified by public health reasons. The characteristics of digital solutions for facilitating freedom of movement during the COVID-19 pandemic are then presented, taking into account their effectiveness. The paper concludes with a presentation of the benefits and potential risks associated with the implementation of selected digital solutions by the European Union.
Keywords: COVID-19, free movement, public health, Schengen area
Page range: 153-170
Wojciech Filipkowski, Lorenzo Picarella
Criminalizing Cybercrimes: Italian and Polish Experiences
Abstract: The rapidly advancing development of technology has both positive and negative effects on society and its members. Moreover, legislation can be slow to catch up with reality. This also applies to any reaction of society to new forms of social deviance. There is typically a delay in the introduction of legislation which tries to give a legal framework to new technological developments. The authors have taken an exploratory approach, analysing changes in Italian and Polish penal law relating to cybercrime that have occurred in Italy and Poland so far. The timeline, pace, and scope of the processes of criminalization are presented for each country. Even though both legislators had and have the same goal, differences in the approach to achieving it are visible. The conclusions may lead to changes in the penal policies of both countries.
Keywords: cybercrime, Italy, penal law, penal policy, Poland
Page range: 171-183
Abstract: The main purpose of this article is to discuss the basic legal and axiological problems that are associated with technological advances in animal rearing and breeding. The implementation of this research task required, first and foremost, the definition of the concept of ‘welfare’ and the identification of basic legal provisions determining the welfare of livestock in Poland. Moreover, the article addresses the ethical aspect of the problems associated with the implementation of modern animal welfare technologies, including the role of Christianity in shaping moral attitudes in this area. The paper is also an attempt to define the level of public awareness about the need to protect animals and the perception of problems related to the intensification of livestock production. The need to address the issue stems, above all, from the fact that human life and our attitudes towards animals are changing with the development of civilization. In any event, the changes that have taken place in this area over the past decades make the problem topical and lead to a reflection on the welfare of animals kept in industrial farming conditions. It is assumed that the research carried out will contribute to the development of an optimal legal model for the protection of livestock. Even the mere dissemination of the results will raise public awareness of the humanitarian protection of animals, which is one of the preconditions for further progress in civilization.
Keywords: animals, breeding, industry, welfare, law, ethics
Page range: 185-204
Abstract: This article concerns the compliance of the institutions of remote trials and remote detention hearings introduced to the CCP by the Polish ‘coronavirus act’ of 19 June 2020 with the ECHR standard on the rights of the accused. In the first part of the article, it is indicated that the ECtHR in its jurisprudence accepts that a trial in the form of a videoconference is not in principle contrary to the ECHR, provided, however, that there are compelling reasons to dispense with the traditional trial (main or appellate) and that the procedure of using a videoconference itself meets the requirements of a fair trial according to Article 6 ECHR and ensures the accused both effective personal participation in the trial and effective use of the services of a defence counsel, in particular the confidentiality of the lawyer’s contact with their client. The Covid-19 outbreak has changed European justice systems, and now videoconferencing in court proceedings is seen not only as an exceptional measure, but as possibly an effective part of the ordinary activity of courts. The analysis of the assumptions of remote trials in ordinary Polish criminal proceedings shows that this institution does not meet the standards of a fair trial, especially the standard of the effective participation of the defence counsel. In contrast, compared to a remote trial, a remote detention hearing in Poland has a wider scope of application and poses serious risks to the standards on deprivation of liberty (Article 5(3) and Article 3 ECHR) and effective defence (Article 6(3) ECHR). The possibility of using both forms of videoconferencing without the participation of a defence counsel and the permanent nature of the changes introduced are particularly worrying.
Keywords: ECHR, ECtHR, effective defence, fair trial, videoconference
Page range: 205-221