Digitalization and artificial intelligence in the legal dimension

Bagdat Musin, Minister of Digital Development, Innovation and Aerospace Industry of Kazakhstan, provided convincing data proving that our Central Asian republic is one of the leaders in the process of digitalization. At the same time, we are particularly advanced in the provision of public services. Judging by the information we have been presented with, Kazakhstan is really turning into a listening society and a “human-centered state.”

An analysis of the authorities’ activities last year shows that human rights in Kazakhstan are actually protected, and many human problems find their resolution thanks to digitalization. This is what the President of the Republic of Kazakhstan, Kasym-Jomart Tokayev, emphasized last autumn at a forum dedicated to digitalization issues.

Meanwhile, acquaintance with the latest achievements of science and technology during the three days of the Forum clearly demonstrated that in Kazakhstan, as well as in virtually all countries of the Eurasian Economic Union (EAEU), unfortunately, the legal side of digitalization is insufficiently developed, although many processes that are taking place today in the economy, in government, and political life are very closely related to digitalization, to other technological imperatives, and to the introduction of these technologies in all spheres of public life.

As a lawyer, I am primarily interested to know: what is the legal formalization of the processes taking place? To what extent does our legislative array ensure the application of “digital” for the actual benefit of the individual, and will there be no concomitant or side effects, as medics say?

Today in many countries, including Kazakhstan, in order to ensure public safety, compliance with traffic rules on the streets and in public places, video cameras are installed to recognize and identify virtually any person. Installing video cameras at polling stations during elections is also in discussion. While such activities are useful, there is a clear need for a legal mechanism to protect the human right to privacy.

Last year, the President of Kazakhstan instructed to develop the so-called Digital Code of Law. As far as I know, work in this direction is quite active. Our partners, our neighbors and colleagues from Kyrgyzstan have developed a corresponding digital law-book and sent it to the Parliament. I think the exchange of information between the relevant institutions and government bodies of our countries is extremely important here.

As far as I know, EU member states and the European Parliament have also reached an agreement on a law to regulate the use of artificial intelligence. The initiative aims to ensure that AI systems sold and used in the EU are safe and respect society’s fundamental rights and values.

It is symptomatic that the Venice Commission of the Council of Europe devoted its attention last December to the introduction of digital technologies and artificial intelligence in electoral processes.

The creation of artificial intelligence has become an objective reality. At the same time, there are questions not only about responsibility for possible harm caused by it, but also about understanding of this phenomenon from legal positions. It is particularly important to ensure human rights in the use of artificial intelligence. The legal formalization of this process is virtually non-existent today. Although two major problems always remain: first, who is responsible for the harm caused by any given mechanism “guided” by artificial intelligence, and second, what to do with products, with works of art “produced” by artificial intelligence, what to do with copyrights?

Artificial intelligence is beginning to be used to write scientific theses, music, and so on. I am not even talking about the fact that in the future, the question of the legal personality of artificial intelligence may arise, because recently, in the European Union, the question of recognizing an electronic person as a subject of legal relations, along with the traditional ones (individuals, legal entities, and the state), is being seriously discussed. There even have already been cases of robot marriages in some countries. However, as I know from the press, the courts later annulled such acts.

The American science fiction writer Isaac Asimov, back in the middle of the previous century, formulated the “three laws of robotics,” which have become a recognized standard for science fiction. The first law states: “A robot may not injure a human being or, through inaction, allow a human being to come to harm.” Second: “A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.” And finally, the third: “A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.”

Today, when AI is actively used in the military, the genius sci-fi writer’s suggestions seem naive. But nevertheless, legislative restrictions on the use of AI are clearly needed.

The literature suggests that information today is a sort of “new oil,” in the sense that it is very valuable and, at the same time, a driving force in economics, politics, and social processes. The traditional view of the Romano-Germanic and Anglo-Saxon systems of law is changing. Legal scholars are again talking about their convergence. This is often the case even in countries that unambiguously adopted the European continental system.

In Kazakhstan, the issue of convergence of English and continental law is actualized in connection with the activities of the International Financial Center “Astana,” whose legal system is known to be based on the law of England and Wales.

A legislative decision is also needed on the circulation of cryptocurrencies.

As far as labor law is concerned, one can work today either in an office or in a factory floor, or at home, or neither in an office nor at home, but being in constant electronic communication with the employer. On August 8, 2016, France passed a law that gives employees the right to disconnect from communications, telephone, and so on at certain times of the day. Thus, the constitutional right to rest is realized. In the 2022 Labor Code of Kazakhstan, there are norms ensuring the protection of labor rights of citizens working remotely.

Administrative law actualizes the issue of electronic participation of citizens in state governance. We also have to rethink some institutions of constitutional law: the constitutional territory of the state, the time. There is no territory in cyberspace. The neutrality and extraterritoriality of the Internet is, conventionally speaking, a “threat” to state sovereignty, just as social media, according to some theorists, is to the paternalistic-vertical organization of the state.

A number of scholars predict a coming crisis in representative democracy. In antiquity, democracy, as is known, had a direct character (Ancient Athens, Novgorod veche, Kazakh kurultais, etc.). Now democracy is representative: deputies, presidents, and other representatives of the people are elected. How legitimate will the rules they establish be in a situation where the will of the entire nation (or a majority of it) can be revealed via the Internet in virtually a matter of hours? How should the state respond to such improvised “referendums”? By the way, some countries are already establishing rules, according to which a state body is obliged to accept for consideration an appeal with a significant number of electronic signatures (100, 1000, 10,000, 100,000, and so on). In Kazakhstan, according to the Law of October 2, 2023, in order for the petition to be accepted for placement on the Internet resource, it must be joined by at least 50 citizens of the Republic of Kazakhstan.

The widespread use of digital technologies in law enforcement will help to end the shameful phenomenon of torture that, unfortunately, still occurs.

The introduction of blockchain technologies makes it possible to fight corruption more successfully, as violations of tender procedures and other mechanisms for the distribution of public funds, as well as distortion of the will of voters during the election of deputies and presidents, become practically impossible.

Kazakhstan is already starting to use artificial intelligence in the justice system. Relatively recently, last year, the Supreme Court presented a relevant mechanism that prepares draft decisions in civil cases. The parties can familiarize themselves in advance (before the trial) with the option that artificial intelligence offers. Naturally, the real decision is made by a judge in the name of the Republic of Kazakhstan. Artificial intelligence, of course, is not endowed with such a right. Nevertheless, the judge is bound to some degree by the option offered by artificial intelligence. After all, the information of all legislative arrays, materials, of judicial practice is put into the AI program.

The judge, of course, has the right, guided by his legal consciousness and sense of justice, to make a decision that differs from the one offered by artificial intelligence. But whether he wants it or not, since the parties are already familiar with the AI project, he will have to justify his actions. Thus, the possibility of corruption motives and the likelihood of professional errors in adjudication is drastically reduced.

According to available information, Kazakhstan is not only one of the first, but the real leader in this sphere. Why is AI so moderately implemented in many countries with so-called “developed justice”? In Europe, especially in Britain and other countries, where English law or its elements apply, there is fear of “desacralizing the judicial mantle,” as their lawyers say.

I don’t want to offend our judges, but we, unfortunately, have no such sacralization at all. Therefore, we are quietly moving towards the introduction of new technologies, and I think, the focus of judicial reform on the introduction of progressive methods of digitalization in justice should be supported.

Moreover, the introduction of artificial intelligence, even at the stage of drafting a court decision, opens up the possibility of giving AI the function of an arbitrator in the future.

Let’s say there is a contract made, in which the parties formalize in advance that in case of a dispute, the arbitrator will be an artificial intelligence whose decision they agree with. It sounds like science fiction today, but who knows? After all, something similar is already being used in sports.

In criminal proceedings, digitalization is also quite possible. It will not be necessary to draw up interrogation records, inspection of the place of incident, and so on. It will be sufficient to make an inventory of the relevant video recordings. Blockchain technologies should certainly be used, effectively excluding the possibility of forging and falsification of procedural electronic documents.

In the foreseeable future, the relevant institutions in criminal law, civil law, and a number of other branches of law will have to be revised.

We believe that there is an urgent need for a legislative solution to most of the above-mentioned issues. The experience of France, where a law on the digital republic (state) has been adopted, is interesting. In Kazakhstan, as already mentioned, we are working on a Digital Code of Law, and in Kyrgyzstan such a draft has already been submitted to Parliament.

Given the unanimous – as it seemed to me – opinion expressed at the forum that we are on the threshold of creating a single digital space in the EAEU, the need to synchronize the legislation of our countries in the area of digitalization is self-evident. It is important not only to ensure the effectiveness of such legislation, but also to respect the sovereignty of all states in the economic union.

Kazakhstan is transitioning to a whole new concept of digitalization of public administration, where people, their needs and interests are at the center of state policy. This “human-centered” approach will ensure that digitalization in our countries will be a boon for citizens and will not lead to the “overreaches” that are often portrayed in anti-utopian works, such as total surveillance of the population and other restrictions on rights.

I think that these and other legal problems of digitalization, as well as the use of AI, could well become the subject of discussion at one of the sessions during the next Verona Eurasian Economic Forum.