Undercover operatives and agents play a crucial role in preventing and safeguarding victims from the most serious crimes, including terrorism. In order to gain the trust of those under investigation, there are occasions where they need to participate in criminality themselves. This is a long-standing capability which remains critical for national security.

The Covert Human Intelligence Sources Bill provides certainty to public authorities already using this critical capability and confirms a common set of safeguards by which they are bound, including compliance with Human Rights.

Debt of gratitude

Security Minister James Brokenshire said: “We owe a huge debt of gratitude to the men and women who put themselves in often dangerous situations in order to protect our national security and keep the public safe. In the course of this vital work, it may be necessary for agents to participate in criminal activity in order to gain the trust of those under investigation. This is a critical capability and subject to robust and independent oversight. It’s important that those with a responsibility to protect the public can continue this work, knowing that they’re on a sound legal footing to do so.”

Ken McCallum, director general of MI5, stated: “Throughout MI5’s history, human agents have played a critical role in helping to protect the UK from terrorist threats and hostile activity by states. Since March 2017, MI5 and Counter-Terrorism Policing have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt that many of these attacks would not have been prevented. In some situations, it’s both necessary and proportionate to authorise agents to be involved in some managed level of criminal activity in order to win or maintain the trust of those intent on harming the UK and gain the critical information needed to save lives.

This power, carefully used and independently overseen, is vital such that we can continue to meet our duty to keep the public safe.”

Express power

DAC Graham McNulty, Covert Human Intelligence Sources lead at the National Police Chiefs’ Council, explained: “We welcome the creation of an express power which will ensure policing can continue to deploy this vital tactic against the most harmful offenders. From terrorists to violent gangs and organised criminals who seek to harm the most vulnerable in society, this Government Bill will help us to disrupt their activities and keep our communities safe.”

Lynne Owens, director general of the National Crime Agency, commented: “We lead the UK’s fight to cut serious and organised crime, focusing on the most determined criminals who dominate communities through violence linked to drugs and firearms supply, who abuse the vulnerable and who threaten the UK’s economic security and institutions. Law enforcement has long used Covert Human Intelligence Sources to help thwart the most serious criminal threats to our nation and its partners.”

Owens went on to state: “Only when it’s absolutely necessary and proportionate will we authorise our Covert Human Intelligence Sources to be involved in a limited form of criminal activity. This is done with great care and scrutiny. Without this capability we would not be able to bring to justice criminals and their groups who conspire to harm the UK and its citizens. We welcome this new legislation which puts this crucial capability on a firm foundation.”

Robust oversight

Robust independent oversight is provided by the Investigatory Powers Commissioner, namely Sir Brian Leveson, who carries out regular inspections and publishes an Annual Report on the findings for public consumption.

This capability is supported by the courts, with the Investigatory Powers Tribunal (in its recent supportive judgment on the use of Covert Human Intelligence Sources participation in criminal conduct) noting that: “The policy… has been exercised with scrupulous care by the Security Service so as to discharge its essential functions in protecting national security, while also giving proper regard to the Human Rights of persons who may be affected by the activities of agents.”

The Investigatory Powers Commissioner has also commented that, with regards to MI5, “in every case that we examined… the activity authorised was proportionate to the anticipated operational benefits”.

The public authorities that will be authorised under the Bill are the UKIC, the police service, the National Crime Agency, the Home Office (immigration and borders functions), Her Majesty’s Revenue and Customs, HM Forces and their police, the Ministry of Justice (HMPPS), the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency, the Gambling Commission, the Medicines and Healthcare Regulation Authority and, last but not least, the Serious Fraud Office.

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British billionaire Richard Branson, founder of Virgin Atlantic Airways and a campaigner for LGBT+ rights, cannot be in all places at all times.

Technology could soon change that.

Uncannily familiar in appearance and voice, avatars of Branson and two human rights activists displayed on tablet devices were unveiled at a youth summit in London on Friday.

The digital doppelgangers use pre-recorded phrases to interactively engage in conversations with people about social causes like climate change through a mobile application designed by technology company AI Foundation.

In theory, that means an imprisoned human rights activist could continue to engage with others through their avatar.

“You will never be able to silence anyone again,” said AI Foundation’s CEO Lars Buttler at the One Young World conference.

The animated renderings of Branson, a Colombian kidnapping survivor and a North Korean refugee addressed a packed auditorium in central London and asked each other questions about democracy and forgiveness.

Laura Ulloa, the 28-year-old Colombian activist which one of the avatars is modelled on, told the conference the technology allows her to “be in all the places I can’t be” and to have one-on-one conversations that could “change people’s minds through empathy.”

Other kinds of artificial intelligence including robots, holograms and “AI dolls” have yet to be mass produced but are depicted in popular culture including in the 2019 novel by British author Ian Mcewan, Machines Like Me.

Rights groups are examining how to use artificial intelligence to monitor abuses like the death penalty but others have raised concerns about the dangers posed by avatars.

“Such avatars come with clear risks,” said Edin Omanovic, of UK-based surveillance monitoring group Privacy International.

“You have to hand over a huge amount of sensitive information to make the programme work and trust the company to keep this data secure from hackers and not to monetise it by sharing your data with third parties.”

Co-founder of the One Young World summit, David Jones said: “Bad people have always done bad things with new technology but we’re trying to use this technology to drive positive change while protecting it as much as we can.”

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Humans and machines are destined to live in an ever-closer relationship. To make it a happy marriage, we have to better address the ethical and legal implications that data science carry.

Artificial intelligence, and in particular its subfields of machine learning and deep learning, may only be neutral in appearance, if at all. Underneath the surface, it can become extremely personal.

The benefits of grounding decisions on mathematical calculations can be enormous in many sectors of life. However, relying too heavily on AI inherently involves determining patterns beyond these calculations and can therefore turn against users, perpetrate injustices and restrict people’s rights.

AI in fact can negatively affect a wide range of our human rights. The problem is compounded by the fact that decisions are taken on the basis of these systems, while there is no transparency, accountability and safeguards on how they are designed, how they work and how they may change over time.

Encroaching on the right to privacy and the right to equality

The tension between advantages of AI technology and risks for our human rights becomes most evident in the field of privacy. Privacy is a fundamental human right, essential in order to live in dignity and security. But in the digital environment, including when we use apps and social media platforms, large amounts of personal data is collected – with or without our knowledge – and can be used to profile us, and produce predictions of our behaviours. We provide data on our health, political ideas and family life without knowing who is going to use this data, for what purposes and why.

Machines function on the basis of what humans tell them. If a system is fed with human biases (conscious or unconscious) the result will inevitably be biased. The lack of diversity and inclusion in the design of AI systems is therefore a key concern: instead of making our decisions more objective, they could reinforce discrimination and prejudices by giving them an appearance of objectivity. There is increasing evidence that women, ethnic minorities, people with disabilities and LGBTI persons particularly suffer from discrimination by biased algorithms.

Studies have shown, for example, that Google was more likely to display adverts for highly paid jobs to male job seekers than female. Last May, a studyby the EU Fundamental Rights Agency also highlighted how AI can amplify discrimination. When data-based decision making reflects societal prejudices, it reproduces – and even reinforces – the biases of that society. This problem has often been raised by academia and NGOs too, who recently adopted the Toronto Declaration, calling for safeguards to prevent machine learning systems from contributing to discriminatory practices.

Decisions made without questioning the results of a flawed algorithm can have serious repercussions for human beings. For example, software used to inform decisions about healthcare and disability benefits has wrongfully excluded people who were entitled to them, with dire consequences for the individuals concerned.

Stifling freedom of expression and freedom of assembly

Another right at stake is freedom of expression. A recent Council of Europe publication on Algorithms and Human Rights noted for instance that Facebook and YouTube have adopted a filtering mechanism to detect violent extremist content. However, no information is available about the process or criteria adopted to establish which videos show “clearly illegal content”.

Although one cannot but salute the initiative to stop the dissemination of such material, the lack of transparency around the content moderation raises concerns because it may be used to restrict legitimate free speech and to encroach on people’s ability to express themselves.

Similar concerns have been raised with regard to automatic filtering of user-generated content, at the point of upload, supposedly infringing intellectual property rights, which came to the forefront with the proposed Directive on Copyright of the EU. In certain circumstances, the use of automated technologies for the dissemination of content can also have a significant impact on the right to freedom of expression and of privacy, when bots, troll armies, targeted spam or ads are used, in addition to algorithms defining the display of content.

The tension between technology and human rights also manifests itself in the field of facial recognition. While this can be a powerful tool for law enforcement officials for finding suspected terrorists, it can also turn into a weapon to control people. Today, it is all too easy for governments to permanently watch you and restrict the right to privacy, freedom of assembly, freedom of movement and press freedom.

What governments and the private sector should do

AI has the potential to help human beings maximise their time, freedom and happiness. At the same time, it can lead us towards a dystopian society. Finding the right balance between technological development and human rights protection is therefore an urgent matter – one on which the future of the society we want to live in depends.

To get it right, we need stronger co-operation between state actors – governments, parliaments, the judiciary, law enforcement agencies – private companies, academia, NGOs, international organisations and also the public at large. The task is daunting, but not impossible.

A number of standards already exist and should serve as a starting point. For example, the case-law of the European Court of Human Rights sets clear boundaries for the respect for private life, liberty and security. It also underscores states’ obligations to provide an effective remedy to challenge intrusions into private life and to protect individuals from unlawful surveillance. In addition, the modernised Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data adopted this year addresses the challenges to privacy resulting from the use of new information and communication technologies.

States should also make sure that the private sector, which bears the responsibility for AI design, programming and implementation, upholds human rights standards. The Council of Europe Recommendation on the roles and responsibilities of internet intermediaries, the UN guiding principles on business and human rights, and the report on content regulation by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, should all feed the efforts to develop AI technology which is able to improve our lives. There needs to be more transparency in the decision-making processes using algorithms, in order to understand the reasoning behind them, to ensure accountability and to be able to challenge these decisions in effective ways.A third field of action should be to increase people’s “AI literacy”.

A third field of action should be to increase people’s “AI literacy”. States should invest more in public awareness and education initiatives to develop the competencies of all citizens, and in particular of the younger generations, to engage positively with AI technologies and better understand their implications for our lives. Finally, national human rights structures should be equipped to deal with new types of discriminations stemming from the use of AI.

Artificial intelligence can greatly enhance our abilities to live the life we desire. But it can also destroy them. We therefore have to adopt strict regulations to prevent it from morphing in a modern Frankenstein’s monster.

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