Effective and Trustworthy Implementation of AI Soft Law Governance

Introduction by Carlos Ignacio Gutierrez, Gary E. Marchant and Katina Michael: “This double special issue (together with the IEEE Technology and Society Magazine, Dec 2021) is dedicated to examining the governance of artificial intelligence (AI) through soft law. This kind of law is considered “soft” as opposed to “hard” because it comes in the form of governance programs whose goal is to create substantive expectations that are not directly enforceable by government [1], [2]. Soft law materializes out of necessity to enable a technological innovation to thrive and not be hampered by disparate heterogeneous practices that may negatively impact its trajectory, causing a premature “valley of death” exit scenario [3]. Soft laws are meant to be “just in time” to grant industry fundamental guidance when dealing with complex socio-technical assemblages that may have significant socio-legal implications upon diffusion into the market. Anticipatory governance is closely connected with soft law, in that intended and unintended consequences of a new technology may well be anticipated and proactively addressed [4].

Soft law’s role in governance is to influence the implementation of new technologies whose inception into society have outpaced hard law. Its usage is not meant to diminish the need for regulations, but rather be considered an interim solution when the roll-out of a new technology is happening rapidly, resisting the urge to create reactive and premature laws that may well take too long to enter legislation in a given state. Mutual agreement and conformance toward common goals and technical protocols through soft law among industry representatives, associated government agencies, auxiliary service providers, and other stakeholders, can lead to positive gains. Including the potential for societal acceptance of a new technology, especially where there are adequate provisions to safeguard the customer and the general public…(More)”.