Artificial intelligence and data protection in health-what we learned from the pandemic
| Autor | Carla Barbosa/Inês Fernandes Godinho |
| Cargo del Autor | Department of Health, Ethics & Society - CAPHRI School, FHML - Maastricht University (PhD Candidate) Centro de Direito Biomédico e Instituto Jurídico - Faculdade de Direito de Coimbra Jean Monnet Center of Excellence 'Building the Age of a Lawful and sustainable Data-Use' (BALDUS) - Universitá Degli Studi di Perugia/Universidade Lusófona - ... |
| Páginas | 69-100 |
ARTIFICIAL INTELLIGENCE AND DATA PROTECTION IN
HEALTH – WHAT WE LEARNED FROM THE PANDEMIC 1
C B
Department of Health, Ethics & Society - CAPHRI School, FHML - Maastricht
University (PhD Candidate)
Centro de Direito Biomédico e Instituto Jurídico - Faculdade de Direito de Coimbra
Jean Monnet Center of Excellence “Building the Age of a Lawful and sustainable Data-
Use” (BALDUS) - Universitá Degli Studi di Perugia
C B / I F G
Universidade Lusófona - Centro Universitário do Porto
CEAD Francisco Suárez
I Know Some Algorithms Are Biased—because I Created One
Nicholas T. Young (2020)
Summary: 1. THE PROPOSAL FOR REGULATION (ARTIFICIAL INTELLIGENCE
ACT – AI ACT) 2. AI AND DATA PROTECTION 3. THE EDPB/EDPS
JOINT OPINION (JO) 4. AI AND HEALTH 5. EUROPEAN HEALTH
DATA SPACE 6. MORE GLOBAL PERSPETIVE 6.1. UNESCO 6.2. WORLD
HEALTH ORGANIZATION 7. PANDEMIC, AI AND DATA 8. FINAL
CONSIDERATIONS 9. BIBLIOGRAPHY.
Nowadays, Artificial Intelligence (AI) is part of the current language, having
ceased to be a mere fictional possibility in science fiction writings and films. AI is not
the future, but the present. The advent of AI and its significance within the scope of
technological evolution is having (and will continue to have, increasingly) a profound
impact on human societies. Issues such as mobility or health are (and will be) deeply
linked to AI.2
1 El presente trabajo se ha realizado financiado por el Proyecto DERECHO Y MEDICINA:
DESAFIOS TECNOLOGICOS Y CIENTIFICOS (DEMETYC) PID2019104868RA-I00 financiado por
MCIN/ AEI /10.13039/501100011033.
2 Just think about autonomous vehicles or the contribution of AI to COVID-19 vaccines.
70 Carla Barbosa / Inês Fernandes Godinho
Although the idea of artificial intelligence is not recent, its dissemination and
massive use has also placed it at the center of the legal discussion, both from the
perspective of benefits, its impact, as well as its risks.3
British mathematician and cryptanalyst ALAN TURING, in the 1940s, led a team
that cracked the encryption of Germany’s Enigma Machine during the II World War.4
In 1947, TURING, in a lecture at the London Mathematical Society, spoke of
the possibility of the machine learning, comparing it to a student. Indeed, in general
terms, the common thread in definitions of artificial intelligence is that they learn
through experience.5
In the Proposed Regulation on Artificial Intelligence (hereinafter, the AI Act),
the advanced definition for “artificial intelligence system” is that of software that is
developed with one or more techniques and approaches6 that can, for a set of human-
defined objectives,, generate “outputs”, such as content, forecasts, recommendations
or decisions that influence the environment with which they interact (cf. art. 3 (1),
AI Act). Since this is a definition – apparently – more contained, the consultation of
Annex I allows, from the outset, to understand that at stake are approaches related to
machine learning (“machine learning”), as predicted by TURING at the end of the
40s. from the last century.
The European Union (EU) published a White Paper, in 20207, with a view to
collecting contributions on the different aspects of the issues raised by AI8, presenting
three pillars: excellence, trust and responsibility.
One of the confluent points of the various contributions was, precisely, the
existence of high risks in the use of AI, especially in terms of fundamental rights,
safety and consumer rights, for which there were no adequate legal solutions.9
3 Cfr. ALANG NAVNEET, Turns Out Algorithms are Racist, New Republic 2017, disponível
em: https://newrepublic.com/article/144644/turns-algorithms-racist.
4 TURING, ALAN, “Computing Machinery and Intelligence.”, 1950.
5 VILLASENOR, JOHN, FOGGO, VIRGINIA, Artificial Intelligence, Due Process, and Cri-
minal Sentencing, Michigan State Law Review (2020), pp. 295 e ss., p. 300.
6 Indicated, then, in Annex I of the Proposal.
7 White Paper on Artificial Intelligence – A European approach to excellence and trust, COM
(2020) 65 final, disponível em: https://ec.europa.eu/info/sites/default/files/commission-white-paper-
artificial-intelligence-feb2020_en.pdf.
8 Cf. INÊS FERNANDES GODINHO/CLÁUDIO R. FLORES/NUNO CASTRO MAR-
QUES, Consultation On The White Paper On Artificial Intelligence - A European Approach. Lusófona
University Of Porto, Faculty Of Law And Political Science (ULP) Comment on COM(2020) 65 White
Paper on Artificial Intelligence – A European approach to excellence and trust, and COM(2020) 64 fi-
nal – Report on the safety and liability implications of Artificial Intelligence, the Internet of Things and
robotics, ULP Law Review, 14 (1), 2020, pp. 157 ss., https://doi.org/10.46294/ulplr-rdulp.v14i1.7475
9 Communication from the Commission to the European Parliament, the Council, the Eu-
ropean Economic and Social Committee and the Committee of the Regions Fostering a European ap-
Artificial intelligence and data protection in health – what we learned from the pandemic 71
In 2021, it published the Coordinating Plan for Artificial Intelligence 202110,
which is based on the collaboration established between the Commission and the
Member States during the Coordinating Plan of 2018. This plan defines as strategies:
the acceleration of investments in AI technologies to boost a resilient economic
and social recovery, aided by the adoption of new digital solutions; adoption of AI
strategies and programmes, implementing them fully and in a timely manner to
ensure that the EU fully benefits from the rapid use of these technologies; harmonizing
AI policy to address possible fragmentation and to address global challenges.
These strategic points should be achieved, inter alia, through the adoption of
favorable conditions for the development and acceptance of AI in the EU; making
the EU the place where excellence thrives from laboratory to market; ensuring that
AI works for people and is a force for good in society; building strategic leadership in
high-impact sectors such as healthcare.
In the context of the present study, we will try to note the path of artificial
intelligence regulation in the European Union, and its articulation with the current
European legislation on the protection of personal data, especially personal health
data. An approach focused on the pandemic context, given the aforementioned
exponential increase in the use of artificial intelligence technologies as an element of
response both in the development of drugs and, for example, in an attempt to better
understand the evolution of the infection.
1. THE PROPOSAL FOR REGULATION (ARTIFICIAL INTELLIGENCE
ACT – AI ACT)
The Proposed Regulation aims to achieve two simultaneous objectives:
controlling the risks associated with AI and increasing trust in AI. In other words,
the objective of the AI Act Proposal is to allow a reliable and safe development of AI
in Europe, in full respect for the values and rights of citizens, presenting two axes: on
the one hand, an ecosystem of trust, aimed at the protection of rights of citizens and,
on the other hand, an ecosystem of excellence, aimed at creating value, promoting the
reinforcement of investment, innovation and use of AI in the European Union (EU).
Thus, the Proposed AI Act intends to establish harmonized rules for the placing
on the market and in service of AI systems, prohibitions of certain AI, harmonized
proach to Artificial Intelligence, COM (2021) 205 final, p. 5-6, available at: https://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=COM:2021:205:FIN&qid=1619355277817.
10 Communication from the Commission to the European Parliament, the European
Council, the Council, the European Economic and Social Committee and the Committee of the Regions
- Fostering a European approach to Artificial Intelligence, 21.4.2021 disponível em https://digital-strate-
gy.ec.europa.eu/en/library/coordinated-plan-artificial-intelligence-2021-review
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