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The EU’s Pacing ProblemTekla Emborg 2023-12-19T16:02:36In 2011, legal scholar Gary Marchant argued that regulators are confronted bya pacing problem as “successive waves of technical change are washing over[societies]” at an exponential pace. Marchant referred to a lengthy list of specificadvancements including robotics and biotechnology – today, Artificial Intelligence(AI) would probably be first on his list. Developments in Large Language Models(LLMs) exponentially accelerate developments in many other scientific fields,including in AI itself. Some suggest that AI will impact societies on a scale similarto the printing press, electricity, and the nuclear bomb. It might even be argued thatAI has the potential to surpass these previous technologies in impact – as the co-founders of Center for Humane Technology, Aza Raskin and Tristan Harris, putit, “nukes don’t make stronger nukes, but AI makes stronger AI”.  The speed ofdeployment of technology is also increasing at an exponential rate. For example,it took Facebook 4,5 years to reach 100 million users; it took Instagram 2,5 years;and it took ChatGPT two months (0,17 years). Exponential developments have thepotential to leave a gap between technology and deployment on the one hand andlegal-ethical oversight on the other hand. This is what has been named the pacingproblem.The EU regulators face a pacing problem. This has been demonstrated severaltimes during the legislative process of the AI Act itself: for example, the initialCommission proposal from 2021 did not include a definition of General PurposeAI (GPAI). The proposal did not anticipate the rise of Large Language Models likeChatGPT and GPT-4 but only addressed AI systems designed for specific purposes.This lacuna in the original proposal has haunted the EU Parliament, Council andCommission in the past final weeks of the trilogue negotiations, where the inclusionof so-called Frontier Models has been hotly contested.The pacing problem arguably can be addressed in two ways: a) increasing the paceof regulatory oversight; b) reducing the pace of technological development and/or deployment. The first option is the less controversial one which is more clearlywithin the control of the EU legislators. The second option faces political and industryopposition and is often accused of being impossible, un-strategic, or degressive.This is a narrative that has been supported and fuelled by industry players whenlobbying for excluding Foundational Models from the scope of the AI Act.I will focus on the first option here. However, the options are not mutually exclusive,and I believe we are losing out on important policy leavers by blankly disregardingthe second option. Affecting the pace with which technology is developed anddeployed into society may both be possible, strategic, and essential to ensurehuman progress on the long-term. The open letter in March 2023 calling for aninterim international moratorium on training of models more powerful than GPT4 illustrates that big parts of the industry and academia are concerned with theexponential advances in AI. The letter was signed by thousands of industry and- 1 -academic expert salong with civil society organizations. Policy experts and makersshould take this call for action seriously and explore what it would look like inpractice to integrate an emergency brake on the development and/or deployment ofhighly capable AI should we turn out to need it in the near future.Getting the EU legislative train up to speedDelegation of power to the CommissionThere are several methods of increasing the pace of regulatory oversight whichhave been on the drawing board in the process of drafting the AI Act. One wayis by delegating broad powers to the European Commission to alter the scopeof the High Risk regime under the proposed AI Act. This was proposed by theEuropean Parliament proposal in May 2023. Delegated acts are ‘non-legislativeacts of general application to supplement or amend certain non-essential elementsof the legislative act’ (article 290 of the Treaty of the Functioning of the EuropeanUnion, hereinafter TFEU). They allow the Commission to modify legislation withoutthe need for the cumbersome Ordinary Legislative Procedure (art 294 TFEU). TheHigh Risk category of the AI Act is arguably the most significant category of theAct, as it applies to a large pool of systems and impose significant obligations onproviders of the High Risk systems. While we must wait for publication of the finalagreement of the trilogue negotiations to know the final shape of the obligations,all three proposals for an AI Act by the EU Council, Commission and Parliamentsuggested that providers of high-risk systems must, for example, put in place a riskmanagement system; meet data quality requirements; and complete a pre-marketconformity self-assessment. The importance of the High Risk category is highlightedby the fact that the AI Act presumes low risk – any systems that fall outside thescope of the defined categories do not give rise to obligations under the Act.The scope of the High Risk Regime is determined amongst others by the areas anduse-cases laid down in Annex III of the proposed Act. As an example, one of the 8areas listed in the Council proposal is ‘law enforcement’, and one of the use-caseslisted under this area is assessing the risk of persons (re)offending. The Commissionproposals delegate limited power to the Commission to merely amend the particularuse-cases listed under each area in Annex III. In contrast, the Parliament proposalsuggested delegating power to the EU Commission to both add, remove, and amendareas as well as use-cases listed in Annex III. This latter proposal would increasethe adaptability of the High Risk scope by giving the Commission more room tomake alterations to Annex III. There are also other, less formalistic approaches thatincrease the wiggle room of the Commission, for example adoption of vague termsin Annex III which would allow the Commission to clarify the meaning of the terms inthe future with interpretative guidelines etc. The scope of the High Risk regime couldalso be impacted by non-binding recommendations which often impact how termsare interpreted.A strong AI Office- 2 -Another aspect increasing the pace of regulatory oversight would be to have anagile, centralized oversight body supporting implementation and enforcement of theAI Act as recommended by The Future Society. They suggest implementing a tieredauthority model where a European AI Office oversees the most concerning regulatedentities – for example providers of general purpose-AI or AI systems affectingmore than 45 million people. Such a centralized body would have, inter alia, designfeatures like a supervisory examination system where regulatory authorities are inclose and ongoing collaboration with providers of Foundation Models. It could alsobe granted supervision and enforcement competences including the power to makebinding decisions and order interim measures in case of urgency. Furthermore,the AI Office would establish public-private partnerships to set in place iterativefeedback-mechanisms from SMEs and provide support for prospective high-riskAI providers within the Union to foster responsible innovation and combat the riskof monopolisation. The Future Society points to these design suggestions as theoptions that would make the AI Office outlined in the Parliament proposal functionthe most effectively, efficiently, coherently, and legitimately. In light of the pacingproblem, strengthening information flows from AI industries to the regulators, andvice versa, is an important aspect of increasing the pace of regulatory oversight.Potential backfiring when firing up the EU regulatoryengineOne potential drawback of increasing the pace of regulatory oversight is somesacrifices to democratic legitimacy. Lack of input, output, and throughput legitimacyhave historically been points of critique of the European Union. Wide delegations ofpower to the EU Commission enables the Commission to make decisions withoutactive approval by the European Council of Ministers and the European Parliament– the two institutions in the EU regulatory framework designed to provide inputlegitimacy. However, delegated acts only enter into force if no objection has beenexpressed by either the EUP or the Council and can always be revoked by theParliament and Council. This ensures that democratic control is maintained, whileoutput legitimacy may be increased through more timely adaptation of the legislationto rapidly changing realities. Democratic legitimacy may also be an issue withregards to the AI Office – this must be taken into account when shaping the actualoffice and its legal framework.There is also a potential objection that the increased flexibility to adjust the scopeof the High Risk regime will create legal uncertainty that may discourage innovationand investments in AI development in the EU. This concern is largely overruledby the massive European investment in AI, including by the Commission itself.For example, the Commission is investing billions of euros in AI research andinnovation through the Horizon Europe, Digital Europe and Recovery and ResilienceFacility alongside national investments across EU Member States. Furthermore, theCommission has led international dialogue on ethics with third countries including inthe G7; systematically monitored and coordinated AI-related developments amongMember States; and set up the European AI Alliance –these are significant efforts topromote the development and uptake of AI in the Union.- 3 -While the two measures suggested – wide delegation of power and a strong AIOffice – probably fall short relative to the overhaul our political institutions needto deal with the exponentially increasing pace of technological development anddeployment, they are within the scope of the proposals for the EU AI Act, andthey would be steps in the right direction. Not much attention has been paid to thepacing problem in recent discussions of the Act, but as the final frantic minutes ofthe trilogues have passed this weekend, I can hardly wait to go search for higherregulatory gears and technology emergency brakes in the historical and long-awaited EU AI Act.- 4 -

The EU’s Pacing Problem

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The EU’s Pacing Problem

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