Delegating the law of artificial intelligence : a procedural account of technology-neutral regulation

Abstract

The growing popularity of artificial intelligence (AI) technologies is a pressing matter for regulation in the European Union (EU) and beyond. Faced with the growing adoption of AI technologies in society, legislators often try to address AI-related issues through so-called technology-neutral regulation, that is, through regulatory instruments that apply equally to different technologies. The general meaning of technology neutrality is clear at first glance, yet scholars and policymakers in various domains have interpreted and developed the concept in different—and sometimes incompatible— ways. As a result, there is considerable divergence about what technology neutrality requires and what it adds to AI regulation. I address that divergence by proposing a new account of technology-neutral regulation. Under the procedural account, which I introduce in Part I of this thesis, technology-neutral regulation is nothing more—and nothing less—than the delegation of the power to determine the contents of the law concerning certain technologies. Viewing technology-neutral regulation in this way, I argue, allows one to reconcile the different definitions of the concept that appear in current scholarship. More importantly, it invites scholars and policymakers to focus their analyses on the actors who exercise that power and the legal constraints which bind them, rather than on mentions of technology in legal texts. This change of focus could lead to new insights about regulation and help articulate debates that seem to have little in common with one another. In Part II of the thesis, I use the procedural account to reassess ongoing discussions about AI in EU law. By doing so, I am able to map the competence and legitimacy gaps stemming from technology-neutral regulation and suggest ways to alleviate them. Therefore, viewing technology-neutral regulation as delegation is not simply a theoretical argument but a potentially valuable tool for policymakers and scholars dealing with AI.