Research On Constitutional Rights Protection In American Artificial Intelligence Territory

The application of artificial intelligence is overwhelming.The United States has a technology superiority,and the challenges of constitutional rights caused by rising technology is also undoubted.Data collection intensifies information privacy,machine algorithms reproduce discrimination from the real world,and autonomous vehicles put personal health and safety at risk.This dissertation is not intended to set definition for artificial intelligence.Instead,it takes the input of artificial intelligence(data),the core of artificial intelligence(algorithms),and the representative application of artificial intelligence(autonomous vehicles)as examples to describe the challenges and responses in the United States.Finally,the experience and deficiencies of the United States are summarized to provide intellectual support for constitutional rights protection in Chinese artificial intelligence territory.The current legal regulations of artificial intelligence in the United States are scattered.Personal data protection is based on individual identity,and is divided into health data protection,financial data protection,and consumer data protection.Due to the majority of consumer identity subjects,consumer data protection has become the primary manifestation of data protection,and Federal Trade Commission has become an important federal agency for data protection.Due to the failure of Algorithmic Accountability Act in the congress,the discrimination caused by the black box algorithm has increased arbitrarily.The existing algorithm regulation attempts to correct the unfair results by reforming the disparate impact assessment theory.However,algorithm regulation encounters the shield of free speech.Many technology companies have cited algorithm output as free speech and refused to accept algorithm regulation.The House of Representatives and the Senate have separately proposed legislative proposals on autonomous vehicles.At present,the safety and privacy standards of autonomous vehicles are set by the National Highway Traffic Safety Administration.Although American government maintains a restraint attitude towards technology regulation,but the development of artificial intelligence technology will inevitably impact the theory of constitutional rights.Automatic machines have been applied to all areas of social life,with the degree of intelligence increasing,intelligent robots are going to gain human-like wisdom.As unnatural person,legal person has acquired legal status and enjoys certain constitutional rights.Whether intelligent robots can obtain certain legal status and constitutional rights has become a central topic.This dissertation believes that confirming robots a limited legal personality status will become the mainstream trend around the world,but the lack of objective interests makes it difficult to become a subject of constitutional rights.The expansion of technological power has led to a shift in the counter party of constitutional rights,however,limited by state action doctrine,company’s action can hardly be identified as state action,thus escaping from the constraints of constitutional rights.From the perspective of rights value,the discriminatory reproduction of algorithm has impacted the value of equality,the right to be forgotten has challenged the value of publicity,and research freedom has even impacted human dignity.How to minimize the risk of rights while enjoying the technical benefits has become a major problem in technical regulation and rights protection.The balance between technological innovation and rights protection needs to focus from start to end and seek tripartite cooperation.The ex ante prevention and the ex post correction work together,trying to provide complete life-cycle protection for constitutional rights protection.The ex ante prevention mechanism takes the principle of fair information practice as its theoretical origin,and takes the privacy design and redesign principles as its theoretical evolution,especially manifested in insurance of autonomous vehicle.To avoid the adverse effects of technical regulations,manufacturers that meet the ex ante prevention design can enjoy certain liability reductions.The ex post correction mechanism takes the disparate impact assessment as the theoretical origin and the algorithm(data)protection impact assessment as the theoretical development,which is deeply reflected in the Algorithmic Accountability Act.In addition,the construction of insurance to compensate the victims is also a right protection scheme of ex post choices.Technological barriers lead to a difficul situation of state regulation.State power has to seek cooperation with technical power.The cooperation between state regulation and industry regulation also needs the assistance of public participation,so as to ensure the vitality of technological development and the integrity of individual rights.In the tripartite cooperation of state,industry and individuals,the state bears the main obligation of constitutional rights protection.In the ex ante prevention phase,Federal Trade Commission provides best practices for company data compliance,and the rational transparency of algorithms has become its next step in law enforcement.In order to avoid the chaos of standards,Department of Transportation has seized the authority to set safety standards for autonomous vehicles,and assigned them to National Highway Traffic Safety Administration for the specific implementation and interpretation.To seize technological advances,several states have passed legislation and executive orders to encourage autonomous vehicles to conduct road tests.In the ex post correction phase,California Consumer Privacy Act entered into force on January 1,2020,making it the most representative data protection bill in the United States.With affirmative action as guidance,with disparate impact assessment and But For Causation as clues,the post-correction of algorithmic discrimination appears.Following the double-layered insurance framework designed by American civil nuclear energy,the redesign of the insurance system will become a possible development direction for autonomous vehicles.Although the United States has not clarified the role of state in tripartite cooperation,direction control of the tripartite regulation and timely addition of enforcement power are the unquestionable responsibilities of state.In the tripartite cooperation between state,industry and individuals,the industry regulation is carried out by platform companies and industry organizations in meta-regulation.The transformation of the legal form from repressive to autonomous and responsive has triggered a regulation mode change:from command-and-control regulation to self-regulation to meta-regulation.Meta-regulation can realize the reflectiveness of internal operations and the openness of the external environment,thereby to achieve the optimal effect.The Toronto Declaration advocates the human rights due diligence,which derived from Guiding Principles on Business and Human Rights:Implementing the United Nations "Protect,Respect and Remedy" Framework,then becomes the industry regulation guide for black box algorithm.Although the rights protection policies of technology companies focus differently,they all reflect the awakening of rights protection.The specific implementation of industry regulation mainly depends on the standard setting of industry organizations and the credibility of third-party certification.At present,Digital Advertising Alliance,Institute of Electrical and Electronics Engineers,International Organization for Standardization,and International Association of Privacy Professionals have become representative organizations of industry regulation.However,industry regulation under meta-regulation is bound to rely on the reflective support of external forces in order to achieve remarkable results.This,except state intervention,is mainly reflected in individual participation.In the tripartite cooperation between state,industry and individuals,individuals need to improve their own literacy to supervise the formulation and implementation of rules.Due to the fragility of individual power,individual participation is mainly presented through consumer organization as public participation.Public participation is not only the contemporary aspect of rational negotiation among subjects,but also the complement and coordination in tripartite cooperation.The basic premise of public participation is the improvement of personal literacy,especially as algorithmic(data)literacy.Whether through active learning or participation,personal literacy can be positively improved.In the ex ante participation stage,the regulatory recommendations and safety claims of consumer organizations can rewrite the rules;in the ex post response stage,public participation can timely and effectively monitor the implementation of the rules.From participating in the rule-making process to supervising the effect of rule implementation,public participation with fully expression will achieve formal and substantive normative effectiveness.In addition,the individual’s exercise of rights is also a manifestation of public participation,but the exercise of rights must be within its limits in order to achieve a positive-sum result between technology and rights.In the end,the protection of constitutional rights in American artificial intelligence territory shows a tripartite cooperation form between prevention in advance and correction afterwards.As far as its positive experience is concerned,the revolution of privacy theory and design theory provides intellectual support for tripartite regulation,the cautious attitude of state provides a relaxed atmosphere for technological development,and the identity of consumer subjects digs deeper into traditional rights protection methods.As far as its negative deficiencies are concerned,state action doctrine restricts the object of constitutional rights to state action,thereby allowing the infringement of constitutional rights by technology companies.The lack of legislation leads to a lack of value consideration for technological prosperity,which intensifies the problem of responsibility distribution in practice.Although there are huge differences between the United States and China,the globalization of technology has made data protection,black box algorithms,and autonomous vehicles common problems.The current data protection in China presents multilateral governance,algorithms regulation only rely on the edge of data protection,and ex post regulation of autonomous vehicles is vague.The lack of public participation has been the weakness of rights protection.Obsessed with American-style rights protection is certainly not desirable,but denying the experience of America is also too arbitrary.Selectively absorbing the positive advantages from American experience,improving the basic literacy of individuals,increasing public participation channels,expanding the meta-regulation,and promoting the life-cycle rights protection through tripartite cooperation should be the direction of China’s future constitutional rights protection in Al territory.