AI Systems at the Workplace: legal trajectories between privacy and drones 2.0 strategy

Abstract

The case study exam shows that the civil use of drones also concerns production contexts, so talking about drones necessarily implies a reflection on the impact of technology on workers' rights and freedoms. In fact, it is now recognised that the right to privacy is a principle on which identity and psycho-physical integrity, and therefore individual and collective health and safety, are based. Firstly, the main national, international and EU regulations that have intervened over time to regulate the matter and that constitute the state of the art will be examined, namely the Chicago Convention of 7 December 1944 on International Civil Aviation, the special provisions made by the Navigation Code, Regulation (EU) No. 1139/2018 unifying the subject matter and the subsequent implementing Regulations No. 945 and 947 of 2019, in an attempt to systematise and understand whether the set of rules currently in force, starting with strict liability, adequately responds to the needs of the commercial development of the sector and to an effective protection of workers. Market requirements, moreover, require that certain technical standards be met before the product is put into circulation. Drones, although they have very high levels of automation and can be identified by artificial intelligence systems, according to Art 2 para 2 and Art 6 para 1, are, however, only partially affected by the recent Regulation establishing harmonised standards on artificial intelligence. They are classified as high-risk systems and the Regulation only reserves to them the application of certain provisions concerning product conformity requirements for placing on the market or their use, the first of which is the principle of human oversight. Furthermore, the prerogative of regulatory experimentation spaces (the so-called Sandbox) is provided for in article 57 of the AI Act. Has an opportunity for the protection of fundamental rights been missed or are the instruments of legal protection, mainly of the psycho-physical integrity of the worker, also linked to the protection of personal data, still guaranteed by Regulation (EU) No. 679/2016 of 27 April 2016? With this contribution, we intend to demonstrate that the legal institutions contained in the GDPR such as the principle of accountability and in particular privacy by design, DPIA, the tools of negotiation and consultation in the company such as codes of conduct and negotiation with the social partners remain the most protective and effective for the purposes of implementing the principle of transparency and mitigation of the risks underlying operations that employ pervasive technologies such as drones. In particular, the unifying Regulation (EU) No. 1139/2018, which shares with the GDPR the legal institution of privacy by design, will be examined. Having said this, it will be appropriate to examine possible regulatory developments regarding the methods of assessing risk situations to be carried out, if possible, in a shared and preventive manner, right from the development of the software, in order to prepare suitable measures to avert dangerous situations and harmful consequences. Studying an unprecedented technology such as drones in the context of work is, moreover, both an opportunity and a pretext to reflect on the legal strategies and instruments made available by the legislator to limit and control the exercise of employers' powers. Mitigating the objective aspects of liability and allocating it in a different way and not only on the operator is another possible development of the legislation. To the extent that UAVs will be deployed in production contexts, in fact, unprecedented scenarios will open up, which may configure profiles of liability on the part of the employer for the protection of privacy, but will also favour the emergence of unprecedented forms of union bargaining and new organisational models, aimed at strengthening the consent and information of workers as well as improving living and working conditions.