Rethinking Non-discrimination Law in the Age of Artificial Intelligence

Irrespective of artificial intelligenceArtificial Intelligence (AI) (“AI”) developments of our age, discriminationDiscrimination always found a way to influence our communities directly or indirectly. On the other hand, discriminationDiscrimination of individuals is prohibited as a reflection of the principle of equality, in the constitutions of contemporary societies and in international laws regulating the fundamental rights of the individual. Within the framework of the mechanisms improved depending upon this principle and constitutional basis, a legal struggle is waged against discriminationDiscrimination of individuals as a person or as part of a community. However, discriminationDiscrimination has reached a different dimension in the digital environment with the developing technologiesTechnology, especially AI systemsAI systems. Such systemsSystem bring new problems and the anti-discriminationDiscrimination rules and mechanisms generated for the physical world cannot completely find a solution. The discriminationDiscrimination of AI systemsAI systems could arise from reasons such as biased dataData sets and AI models, insufficient training dataTraining data, and human-induced prejudices. At the same time, due to the black boxBlack box problem in AI systemsAI systems, the fact that it is not always clear which inputs lead to which result, and which inputs are another problem in the detection of discriminatory results. On the other side, problems caused by different applications such as credit scoring, exam grade determination, face recognition, and predictivePredictive policingPolicing, in which individuals face explicitly discriminationDiscrimination due to AI systemsAI systems, are also emerging more and more. However, individuals do not always know that they deal with an AI systemAI systems, and they may or may not be subject to discriminationDiscrimination. For instance, it has been revealed that the algorithmAlgorithms used in visa applications in the UK ranks the applications as red, green, and yellow, yet classifies a certain group as persons with suspicious nationality, and applications made by persons from this nationality receive higher risk scores and are more likely to be rejected. Even though the use of AI systemsAI systems in our socio-economic life has reached an indispensable point, the prevention of discriminatory results caused by these systemsSystem also triggers the obligations of states in the context of fundamental rights. In this regard, the state has an obligation not to use discriminatory AI systemsAI systems within the scope of its negative obligation; again, it has the obligation to ensure that private institutions or individuals cannot violate a fundamental right against other individuals in a way that is contrary to non-discriminationNon-discrimination, within the scope of the positive obligation of the state. Furthermore, as in the process of protecting each fundamental right, the state will have an obligation to ensure that AI systemsAI systems do not cause discriminationDiscrimination, and in case of discriminationDiscrimination, to eliminate the elements that cause it. In parallel with the development of AI technologiesTechnology, it may be necessary to reinterpret existing rules and mechanisms or to establish new rules and mechanisms. In this sense, as in the draft Artificial IntelligenceArtificial Intelligence (AI) Act (“AIA”), having regard to the fact that AI has become a unique sector and its spheres of influence, organizing an institution specific to AI, and establishing an audit mechanism for developing and placing AI on the market, could be considered as an effective way to prevent and eliminate discriminationDiscrimination. In this regard, this Article aims to open a discussion about implementing newly emerging solutions to the Turkish legal framework, such as introducing a pre-audit mechanism as “AI—human rightsHuman rights impact assessment”, establishing AI audit mechanisms, and notification to individuals that they are subject to discriminationDiscrimination.