57 THE ETHICAL BIAS OF ARTIFICIAL INTELLIGENCE AS A SUBJECT OF LAW IN
INDONESIA
Ulil Afwa*, Nurani Ajeng Tri Utami, Agus Mardianto Faculty of Law, Universitas Jenderal Soedirman, Indonesia
*(Corresponding author) email: [email protected]
ABSTRACT
The discourse on the ethical challenges of artificial intelligence is a never-ending topic. Currently, there are several ethical guidelines and recommendations for Artificial Intelligence but these guidelines are non-binding and yet to reach significant effect. Artificial Intelligence systems are growing massively in almost all areas of human life, such as in the fields of medicine, business, finance, education, law, and manufacturing. Although Artificial Intelligence is quite developed and has a broad legal impact on society, in Indonesia regulations regarding Artificial Intelligence has not been specifically regulated.
So, there is no legal certainty that overshadows the use of Artificial Intelligence. This paper will address how the legal subject of Artificial Intelligence is seen from the ethical aspect and how is the legal responsibility of Artificial Intelligence. The urgency to progressively initiate regulation on Artificial Intelligence globally and incorporate human rights and ethical standards in Artificial Intelligence creation is massive. The need for the government to intervene, and discriminated groups should have a significant role to shape artificial intelligence regulation to create justice is needed and positively supported.
Keywords: Artificial Intelligence, ethic, subject of law.
INTRODUCTION
Indonesia uniquely adopts various systems of law from history. We adopt the system of law from Netherland with adjustment from the system of law and habit/customary law from the society. This condition result in the dynamic of Indonesian system of law.
The subject of law in Indonesia, theoretically divided into 2 (Prananingrum, 2014):
1. Individual Person (orang per-orangan) (naturlijk person)
2. Legal Person (Rechtpersoon) (an entity that is visualized as a person, can grow independently and be able to be responsible independently too with fiduciary relationship)
Legal subjects must be independent, the way to identify and authenticate the existence of a legal person is: legal persons must be independent of their assets. The created legal person, who can act alone and
58 when the responsibility is asked for, the founder and the company are separated. In this meaning, fiduciary Liability is the key to creating a legal person: an entity that is visualized as a person. If this concept is projected onto an automatic device whose existence is not independent in doing their act but is conditioned by humans, the set of instructions is aimed and has a certain function (Pagallo, 2013). With those functions, enough to explain that AI has not the ability to act independently but are automatic conditions created by humans themselves (Bungin et al., 2021).
By that legal standing, AI is not purely intellectual but artificial, the real legal person we conclude from the theory is the creator himself (Alfons, 2018). In this policy context it means that AI should not be positioned as an independent legal subject, but more like an asset from the creator.
Research Question:
This paper will analyze how the positioning of AI as subject of law in Indonesia and how the existing regulation about it in Indonesia?
METHODOLOGY OF RESEARCH
This study was a doctrinal research conducted using statute, analytical, and case approaches. Data source used was secondary data which consisting of journals and books. The secondary data was analyzed qualitatively.
RESULT AND DISCUSSION
A. The Development of Private Subject of Law
The development of civil law subjects in the world has several types of development, not only naturlijkpersoon and also a rechtperson:
1. Individual company, a legal entity that is also an individual (Omnibus Law 2021) 2. Government (In the context of procurement agreements)
These two are what happens in Indonesia, in aboard, there are much development of the private subjects of law.
1. The development of the doctrine of Artificial intelligence, an agent (an extension of a human hand that is not human (automation machine/software)(Ghazmi, 2021).
2. AI recognized as an inventor in Australia
Regarding AI being recognized as an independent person recognized as an inventor in Australia of course, we have to look at the context. We have to see a different concept implemented in Indonesia & Australia. In Indonesia there are still debates about can the machine be said to be the next developer? Common consensus recognized that it is approved to develop innovation, but it is not recognized as an inventor (Jaya & Goh, 2021).
The international scholarly debate now refers to 2 approaches regarding AI as a Subject of law:
59 1. AI as a human tool (human-centered AI) (Tsang et al., 2017), this approach is taken by
UNESCO and the EU.
2. AI as an entity that may become a legal subject, this approach is taken by Australia AI in Indonesia:
1. AI is not a legal subject, but only a tool (human-centered AI Approach)
2. AI can be constructed as an electronic agent according to the ITE Law (UU Transaksi Elektronik)
3. As an electronic agent, the ITE Law constructs AI as a tool that is carried out by humans as the organizer of the electronic system
4. Therefore, AI is not known as a legal subject because it does not bear its rights and responsibilities. The holder of the rights and responsibilities is the creator. AI here is constructed as a tool used by electronic system organizers (humans).
5. In the consequences that are carried out by AI as a tool, the matters and obligations are borne by the user of the tool, namely the organizer of the electronic system (UU ITE) (PP 71/2019 concerning Electronic system operator)
6. AI can also fall within the scope of the law on the national system of science and technology Recently, there are principles for responsible stewardship of trustworthy AI from the various international fora can be concluded in 5 points:
1. AI should benefit people and the planet by driving inclusive growth, sustainable development, and well being
2. AI systems should be designed in a way that respects the rule of law, human rights, democratic values, and diversity, and they should include appropriate safeguards
3. There should be transparency and responsible disclosure around AI systems to ensure that people understand when they are engaging with them and can challenge outcomes (Dremliuga et al., 2019)
4. AI systems must function in a robust, secure, and safe throughout their lifetimes, and potential risk should be continually assessed and managed
5. Organizations and individuals developing, deploying, or operating AI systems should be held accountable for their proper functioning in line with the above principles
B. National Legislation about AI in Indonesia
There are National policies and international operation for trustworthy AI:
60 1. Facilitate public and private investment in research and development to spur innovation in
trustworthy AI
2. Foster an accessible AI ecosystem with digital infrastructure and technologies, and mechanisms to share data and knowledge
3. Create a policy environment that will open the way to the deployment of trustworthy AI systems
4. Equip people with skills for AI and support workers to ensure a fair transition
5. Co-operate across borders and sectors to share information, develop standards and work towards responsible stewardship of AI
In ASEAN level, there is also regulation we found about AI. This regulation resulted in ASEAN connectivity 2025 which regulated Digital technology as one of the strategies. AI played key roles in digital innovation. In the 9th ASEAN connectivity symposium, Artificial Intelligence acknowledges as the key roles in digital innovation as said by President of Economic Research Institute for ASEAN and East Asia (EIRIA).
There is also Artificial Intelligence 6th ASEAN – Pacific Alliance Ministerial Meeting (New York, 28th Sept 2019) which stated:
“Cognizant of global challenges such as an increase in protectionist measures, effect of climate change and the Fourth Industrial Revolution and Artificial Intelligence (AI), among others, the Ministers emphasized that countries and regions should cooperate and share best practices that support resilience and innovations in the Asia-Pacific. They also stressed the importance of promoting free- trade and reaffirmed support for the open, rules-based multilateral trading systems embodied by the World Trade Organization as well as stressed the importance of supporting micro, small, and medium- sized enterprises since they play a significant role in both ASEAN and the Pacific Alliance”
Ethical Guidelines for Trustworthy AI resulted are:
a) According to the Guidelines, trustworthy AI should be:
1. Lawful – respecting all applicable laws and regulation 2. Ethical – respecting ethical principles and value
3. Robust – both from a technical perspective while taking into account its social environment b) 7 Key Requirements AI systems should meet to be deemed trustworthy:
1. Human agency and oversight: AI system should empower human beings, allowing them to make informed decisions and fostering their fundamental rights, at the same time, proper oversight mechanisms need to be ensured, which can be achieved through human-in-the-loop, human-on-the-loop, and human-in-command approaches
61 2. Technical robustness and safety: AI systems need to be resilient and secure. They need to be safe, ensuring a fallback plan in case something goes wrong, as well as being accurate, reliable, and reproducible. That is the only way to ensure that also unintentional harm can be minimized and prevented
3. Privacy and data governance: besides ensuring full respect for privacy and data protection, adequate data governance mechanisms must also be ensured taking into account the quality and integrity of the data, and ensuring legitimized access to data
4. Transparency: the data, system, and AI business models should be transparent. A traceability mechanism can help achieve this. Moreover, AI systems and their decisions should be explained in a manner adapted to the stakeholder concerned. Humans need to be aware that they are interacting with an AI system, and must be informed of the system’s capabilities and limitations
5. Diversity, non-discrimination, and fairness: Unfair bias must be avoided, as it could have multiple negative implications, from the marginalization of vulnerable groups to the exacerbation of prejudice and discrimination. Fostering diversity, AI systems should be accessible to all, regardless of any disability, and involve relevant stakeholders throughout their entire life circle
6. Societal and environmental well-being: AI systems should benefit all human beings, including future generations. It must hence be ensured that they are sustainable and environmentally friendly. Moreover, they should take into account the environment, including other living beings, and their social and societal impact should be carefully considered.
7. Accountability: Mechanism should be put in place to ensure responsibility and accountability for AI systems and their outcomes. Auditability, which enables the assessment of algorithms, data, and design processes plays a key role therein, especially in critical applications. Moreover, adequate and accessible redress should be ensured.
C. AI Regulatory Developments and Challenges in Indonesia
How recent regulation about AI found in Indonesia's National Artificial Intelligence Strategy 2020 – 2045. This is the first policy document in Indonesia that specifically discusses artificial intelligence/AI was published in July 2020. This document is a formulation of the results of discussions from the working group for the preparation of the National Strategy for Artificial Intelligence formed by BPPT (Badan Pengkajian dan Penerapan Teknologi), which consists of ministries/agencies, universities, industry, associations, and communities in the field of AI.
This document is a national policy direction that contains focus areas and priority areas for AI technology. Artificial Intelligence Ethical Values should:
1. Oriented to the benefit of mankind
2. Breathing Pancasila values as the grundnorm, the basic principles in Indonesia
62 3. Reliable, safe and open, accountable
4. Synergy between stakeholders
5. Application of the principles of the National Science and Technology System Law. The AI should be coherent with this law
6. AI as a technology product, AI is not a legal subject that has rights and obligations, because AI is a technological product from humans
7. If there is a negative impact or loss from the use of AI, then the responsible party is the human who uses AI
These are to explain the legal standing of AI in Law in Indonesia.
Forms of AI Regulation in Indonesia
1. Regulations that regulate the specifics of AI technology
2. Regulations that specifically regulate the application of AI technology or the application of technology in the business sector
3. Legal liability for unintended consequences of using AI
4. A code of ethics created voluntarily by AI business associations or certain groups. the existence of a code of ethics as self-regulation for organizations working in AI
In this area, the existence of an ethics commission is the key. This ethics commission will later assess how AI intelligence is not only a cold and untouchable machine but will be directed towards its output as well as how it enters its input-output must also pay attention to ethical issues.
The critical Issue of AI is on the usage of Data for AI development. There are 3 kinds of data that the use of it needs to be regulated. Namely:
a. Public data b. Personal data
c. IPR (intellectual Property Rights) protected data a. Public Data Settings
1. Law No. 14 of 2008 concerning Public Information Disclosure (KIP) (Keterbukaan Informasi Publik)
2. Gov. Regulation No. 61 of 2010 concerning the implementation of UU KIP Scope of Public Data/Information
63 1. According to the KIP Law, public information is information that is generated, stored, managed, sent, and/or received by a public agency related to the organizers and administration of the State and/or the organizers and administration of other public bodies by the KIP Law.
2. In simple terms, public data is all data that is not part of private data and data that is not protected by intellectual property rights
For example: Law regulation, we have eclipse.com in Indonesia. If the public data use for train the AI, so the output for whatever resulted by those AI should be use for commercial and non-commercial needs.
b. Personal Data Settings
Related to this, there are several regulations about personal data settings:
1. Law on Information and Electronic Transactions 2. Population Administration Law
3. Gov. Regulation on Electronic Transaction and System Operation (PSTE) Penyelenggaraan Sistem dan Transaksi Elektronik
4. Ministry of communication and information regulations No. 20 the year 2016 concerning Personal Data Protection
Scope of personal data
1. According to PP PTSE, personal data is any data about a person, either identified and/or can be identified separately or combined with other information, either directly or indirectly through electronic and/or non-electronic systems.
2. According to the Population Administration Law, protected personal data includes:
information on physical and/or mental disabilities; fingerprint; iris; signature; and other data elements that are personal matter
3. While personal data such as date of birth, address, Id number, as well as names and ID of parents, do not include individual data that must be protected under the Population Administration Law.
Personal information that can reveal personal secrets so that it is excluded from disclosure to the public, namely:
1. History and condition of family members;
2. History, condition and treatment, medication Physical and psychological health of a person;
3. A person's financial condition, assets, income and bank accounts;
4. Evaluation results in relation to one's capabilities, intellect, and recommendation of abilities;
and/or
5. Disability concerning a person's personality related to the activities of the formal education unit and non-formal education unit
64 If personal data is being used as input to train the AI, it should require consent and approval from the owner of the data before it used for AI’s input. The usage with the consent of the owner then can be used for commercial and non-commercial.
c. IPR protected data settings
About the data that protected by the IPR, there are regulation can be used to protect, such as:
1. Law NO. 29 Year 2000 concerning Protection of Plant Varieties 2. Law no. 30 Year 2000 concerning Trade Secrets
3. Law no. 31 Year 2000 concerning Industrial Design
4. Law no. 32 Year 2000 concerning Integrated Circuit Layout Design 5. Law no. 28 Year 2014 concerning Copyright
6. Law no. 13 Year 2016 concerning Patents
7. Law no. 20 Year 2016 concerning Trademarks and Geographical Indications
On these law, there are sufficient regulation about how the protection of data used whether fro commercial or non-commercial purposes.
CONCLUSION
The legal legal standing about AI is that Computer + AI will not and cannot replace the lawyers, it’s only transforming legal services. For now, Indonesia is taking a human-centered approach to AI technology. Indonesia does not see AI as a legal subject, but as a tool used by humans. In responding to the challenges for regulations and legal professionals regarding AI, a new skill set is needed to be able to master the legal field in the digital era (ICT Knowledge, knowledge about data, teamwork skills). E-system would support the National Legal System development and resilience: protecting the national interest pursue to people prosperity.
There are recommendations about what to focus on the regulation of Artificial Intelligence which are:
1. Ethic and human rights; 2. The IPR related the data for the input of AI; 3. The consumer protection;
4. Data protection related public or private data.
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