Henry Fraser

Henry Fraser, Jose-Miguel Bello y Villarino

This paper critically evaluates the European Commission's proposed AI Act's approach to risk management and risk acceptability for high-risk AI systems that pose risks to fundamental rights and safety. The Act aims to promote "trustworthy" AI with a proportionate regulatory burden. Its provisions on risk acceptability require residual risks from high-risk systems to be reduced or eliminated "as far as possible", having regard to the "state of the art". This criterion, especially if interpreted narrowly, is unworkable and promotes neither proportionate regulatory burden, nor trustworthiness. By contrast the Parliament's most recent draft amendments to the risk management provisions introduce "reasonableness", cost-benefit analysis, and are more transparent about the value-laden and contextual nature of risk acceptability judgements. This paper argues that the Parliament's approach is more workable, and better balances the goals of proportionality and trustworthiness. It explains what reasonableness in risk acceptability judgments would entail, drawing on principles from negligence law and European medical devices regulation. And it contends that the approach to risk acceptability judgments need a firm foundation of civic legitimacy: including detailed guidance or involvement from regulators, and meaningful input from affected stakeholders.

Henry Fraser, Jessica M. Szczuka, Raffaele F. Ciriello

A series of high-profile tragedies involving companion chatbots has triggered an unusually rapid regulatory response. Several jurisdictions, including Australia, California, and New York, have introduced enforceable regulation, while regulators elsewhere have signaled growing concern about risks posed by companion chatbots, particularly to children. In parallel, leading providers, notably OpenAI, appear to have strengthened their self-regulatory approaches. Drawing on legal textual analysis and insights from regulatory theory, psychology, and information systems research, this paper critically examines these recent interventions. We examine what is regulated and who is regulated, identifying regulatory targets, scope, and modalities. We classify interventions by method and priority, showing how emerging regimes combine "locks and blocks", such as access gating and content moderation, with measures addressing toxic relationship features and process-based accountability requirements. We argue that effective regulation of companion chatbots must integrate all three dimensions. More, however, is required. Current regimes tend to focus on discrete harms, narrow conceptions of vulnerability, or highly specified accountability processes, while failing to confront deeper power asymmetries between providers and users. Providers of companion chatbots increasingly control artificial intimacy at scale, creating unprecedented opportunities for control through intimacy. We suggest that a general, open-ended duty of care would be an important first step toward constraining that power and addressing a fundamental source of chatbot risk. The paper contributes to debates on companion chatbot regulation and is relevant to regulators, platform providers, and scholars concerned with digital intimacy, law and technology, and fairness, accountability, and transparency in sociotechnical systems.

Henry Fraser, Zahra Stardust

This paper examines the role of public interest litigation in promoting accountability for AI and automated decision-making (ADM) in Australia. Since ADM regulation faces geopolitical headwinds, effective governance will have to rely at least in part on the enforcement of existing laws. Drawing on interviews with Australian public interest litigators, technology policy activists, and technology law scholars, the paper positions public interest litigation as part of a larger ecosystem for transparency, accountability and justice with respect to ADM. It builds on one participant's characterisation of litigation about ADM as an exercise in legal retrofitting: adapting old laws to new circumstances. The paper's primary contribution is to aggregate, organise and present original insights on pragmatic strategies and tactics for effective public interest litigation about ADM. Naturally, it also contends with the limits of these strategies, and of the Australian legal system. Where limits are, however, capable of being overcome, the paper presents findings on urgent needs: the enabling institutional arrangements without which effective litigation and accountability will falter. The paper is relevant to law and technology scholars; individuals and groups harmed by ADM; public interest litigators and technology lawyers; civil society and advocacy organisations; and policymakers.