Civil law regulation of artificial Intelligence in the Russian Federation

Trokhov Maksim Sergeevich Postgraduate student, Department of Civil Law, Moscow financial and industrial University "Synergy" 125315, Russia, federal city, Moscow, Leningradsky ave., 80 K. E max.trohov@gmail.com Koloskova Ol'ga Aleksandrovna Student, Department of International and Integration Law, RANEPA 82 Vernadsky Ave., Moscow, 117571, Russia, federal destination city okoloskova098@inbox.ru

Glazov Il'ya Dmitrievich Postgraduate student, Department of civil law, Moscow Financial and industrial University "Synergy" 125315, Russia, Moscow, Leningradsky ave., 80 K. E rfyl@mail.ru

The concept of artificial intelligenceAt the moment, the use of artificial intelligence systems (hereinafter referred to as "AI") is becoming more common.

Machine learning and neural network technologies are used in various fields, such as medicine, finance, transport and others. However, as the popularity of the use of artificial intelligence technology grows, the number of issues related to the definition of the legal status of this technology, as well as the definition of the legal concept of "artificial intelligence", increases.

The introduction of artificial intelligence systems determines the need to control the creation and use of these systems in order to protect the rights and freedoms of the individual, society and the state. Increasingly, AI use cases are being identified that raise concerns about security, privacy, responsibility and ethics. For example, self-driving cars using insufficiently modified AI can create a dangerous situation on the road, cause harm to life, health and property ^[1].

One of the main problems associated with AI regulation is its ethical aspect. This applies both to the use of AI for military purposes, and to use in medicine, education and other fields. The European Union, for example, sets the task not only to ensure security when using AI, but also to protect the rights of consumers and citizens in general. In addition, it is important to take into account the issues of responsibility for decisions made by AI systems, including the possibility of appealing against them and compensation for damages.

Currently, the legal regulation of AI in foreign countries is at the stage of formation and development. Such regulation includes various aspects, including safety, ethics, responsibility and protection of the rights of citizens and consumers. At the same time, the development of AI continues, and the regulation of its use will require additional discussion and coordination of international norms and rules. It is worth noting that most of the described concepts and characteristics of AI, enshrined in regulatory legal acts, differ, which is certainly a problem for creating a uniform approach to its regulation in the future.

Some governments and organizations, such as the US National Council for Science and Technology, define AI as "systems that mimic human intellectual abilities, including the ability to learn, solve problems, plan, pattern recognition, natural language processing, etc." ^{[2, p. 11]}. Other definitions of AI emphasize its ability to automate and improve performance in a specific field of activity ^[3].

In 2021, the UN Commission on International Trade Law (UNCITRAL) adopted a resolution on the legal regulation of artificial intelligence. The resolution established the definition of the concept of "artificial intelligence". According to this definition, "artificial intelligence" is a technology based on computer algorithms and machine learning methods that is capable of performing tasks that usually require human intelligence, including, but not limited to, speech recognition, pattern recognition, natural language processing, planning and decision-making ^[4]. This definition is broad and includes various AI technologies. It also highlights the ability of AI to perform tasks that previously could only be performed by humans.

The European Union (hereinafter referred to as the "EU") has also developed its own definition of the concept of "artificial intelligence". In April 2021, the EU submitted a draft regulation of AI, which established the definition of this concept. According to the project, "artificial intelligence" means software that performs tasks that usually require human intellectual activity, such as perception, analysis, understanding and interaction with the world, as well as the ability to learn and adapt to changing conditions and rules ^[5]. This definition emphasizes that AI not only performs tasks that previously could only be performed by humans, but can also learn and adapt to a changing environment. Also, the draft regulation established criteria for classifying AI into different levels of risk, depending on their impact on society.

The recommendations of the National Technology Initiative (NTI) state that "artificial intelligence" is a system capable of automatically recognizing images, speech, natural language and extracting content from them, analyzing data, identifying patterns and making predictions ^[6].

There is another definition of "artificial intelligence", which is based on the theory of cybernetics and biology. According to this definition, "artificial intelligence" is technological systems capable of imitating human intellectual abilities, such as perception, understanding, analysis, decision—making, etc.

Despite the variety of definitions, they all have one thing in common: "artificial intelligence" is technological systems and programs capable of independently analyzing data and solving tasks that require intellectual abilities.

The legal definition of the concept of "artificial intelligence" was first formulated in Russian legislation by Decree of the President of the Russian Federation No. 490 dated October 10, 2019 "On the development of artificial intelligence in the Russian Federation". According to the above—mentioned Decree, "artificial intelligence is a complex of technological solutions that allows simulating human cognitive functions (including self-learning and searching for solutions without a predetermined algorithm) and obtaining results comparable, at least, with the results of human intellectual activity when performing specific tasks. The complex of technological solutions includes information and communication infrastructure, software (including those using machine learning methods), processes and services for data processing and solution search" ^[7].

Currently, this definition is contained in Federal Law No. 123-FZ of April 24, 2020 "On Conducting an Experiment to Establish Special Regulation in Order to Create the necessary Conditions for the Development and Implementation of Artificial Intelligence Technologies in the Subject of the Russian Federation — the Federal City of Moscow and Amendments to Articles 6 and 10 of the Federal Law "On Personal Data data"" ^[8].

One of the proposals for the formulation of the legal concept of AI was made in the report of the Ministry of Digital Development, Communications and Mass Communications of the Russian Federation of Russia in 2019. According to this report, AI should be defined as "a set of algorithms and programs that simulate the work of the human brain in terms of pattern recognition, speech, thinking and other cognitive functions, as well as the ability of self-learning and learning of other algorithms" ^[9].

However, some scientists have expressed concerns about such a definition of AI, which, as they believe, is too narrow and does not reflect the full range of capabilities of the technology. For example, in the article "Artificial Intelligence in Russia: legal regulation", researcher at the Institute of State and Law of the Russian Academy of Sciences Alexey Petrovich Abramovich argues that the legal definition of AI should include not only algorithms and programs, but also the data on which these algorithms are based, as well as the equipment used for their functioning ^{[10, p. 488]}.

Thus, the formulation of a legal concept of AI is a complex task that requires taking into account various aspects of the technology and its potential consequences. Russian scientists continue to study this problem and propose various formulations that can take into account all aspects of AI and meet the needs of legal regulation in this area.

An important point in this process is a balanced consideration of the interests of various parties, including representatives of business, science, the state and society as a whole. It is necessary to take into account both the advantages of AI and the potential risks associated with its use, such as workplace automation, deterioration of privacy and data security, as well as the possibility of creating dangerous autonomous systems.

The article "Artificial Intelligence and Law: Development Trends" notes that fixing the definition of AI in the law will allow establishing a legal regime that will regulate relations in the field of AI use. Also, the authors point out that the definition of AI should be broad enough to cover all its aspects and take into account possible changes in the future ^{[11, pp. 89-90]}.

One of the main arguments in favor of fixing the legal definition of AI is the need to establish a legal framework for its use in various spheres of life that would be clear and understandable for all participants in legal relations ^{[12, p. 44]}.

In addition, the consolidation of the legal definition of AI is of great importance for civil legislation. For example, in case of disputes related to the use of AI, fixing the definition of AI in law can help in determining the legal status of an autonomous system, as well as establishing responsibility for its actions. In turn, this can increase the level of protection of the rights and interests of participants in legal relations ^{[13, p. 8]}.

Taking into account all the above, it can be emphasized that the need to consolidate the legal definition of AI in the law is connected not only with the solution of legal issues, but also with ensuring the safety and protection of human rights and interests when using AI. In addition, the authors note that fixing the definition of AI in the law can become a starting point for creating a unified system of responsibility for the actions of autonomous systems and establishing mechanisms for monitoring their use.

Legal regulation of artificial intelligence in RussiaIn the course of writing this scientific article, a methodology based on the collection of data on legislative acts and legal regulation in the field of artificial intelligence technologies was applied.

To analyze several federal and regional laws, system-structural and formal-dogmatic methods were used, including an assessment of their practical effectiveness for modern challenges.

The first legislative definition of artificial intelligence was introduced in the Decree of the President of the Russian Federation dated 10.10.2019, which also approved the "National Strategy for the Development of Artificial Intelligence for the period up to 2030". According to this definition, artificial intelligence is a complex of technological solutions capable of simulating human cognitive functions and obtaining results that are at least as good as the results of human intellectual activity. It is important to note that this definition covers the currently available types of artificial intelligence in a broad sense, including artificial intelligence working on the basis of predefined tasks, as well as artificial intelligence working autonomously and potentially able to completely replace a person.

The Information Security Doctrine currently operates in the Russian Federation, where the information sphere is defined as a set of information, objects of informatization, information systems, websites on the Internet, communication networks, information technologies and entities associated with the formation and processing of information, the development and use of these technologies, ensuring information security and regulating relevant social relations. In accordance with information security measures, legal measures have been introduced in the Russian Federation aimed at identifying, preventing and eliminating information threats. The use of information technologies without ensuring information security significantly increases the likelihood of information threats, therefore, a national management system for the Russian segment of the Internet has been developed, providing increased security of critical information infrastructure and stability of its functioning, as well as the security of information transmitted and processed in information systems on the territory of the Russian Federation. In addition, a special law on the security of critical information infrastructure was adopted ^[14].

In 2019, the law on Digital Rights came into force, which amended the Civil Code of the Russian Federation ^[15]. In accordance with the new Article 141.1 of the Civil Code of the Russian Federation, the content and conditions for the exercise of digital rights are determined by the rules of the information system corresponding to the characteristics established by law. The holder of a digital right is the one who, in accordance with the rules of the information system, can dispose of this right. The disposal of digital rights is possible only in the information system without the participation of third parties. The conclusion of a transaction by electronic or other technical means is equivalent to the conclusion of a contract in writing, with the exception of making a will using electronic or other technical means. In addition, the law provides for the possibility of creating an agreement on the provision of information services with the condition of its non-disclosure to third parties to ensure the protection of the collection and processing of significant amounts of impersonal information ("big data"), as well as the introduction of "self-executing" transactions, or smart contracts, which are considered concluded and valid when performed remotely, for example, by sending an SMS or filling out a form on the Internet. In addition, the law introduces the possibility of creating an agreement on the provision of information services with the condition of its non-disclosure to third parties to ensure the protection of the collection and processing of significant amounts of depersonalized information, also known as "big data".

On January 1, 2020, Federal Law No. 439-FZ began to take effect, which amends the Labor Code of the Russian Federation in terms of the transition from a paper workbook to electronic employment histories ^[16]. This will allow companies to save on labor costs and reduce the risk of losing information about the length of service of employees. Russia also has legislation on the protection of critical information infrastructure, where a computer incident is a crime. The subjects of this legislation are state bodies and legal entities that own information systems and networks in various sectors of the economy. The federal executive authority installs tools to search for signs of computer attacks in telecommunications networks of critical information infrastructure.

The Russian Federation has a Law on the Security of the Critical Information Infrastructure of the Russian Federation (OBKI) ^[17]. Currently, the Ministry of Digital Development, Communications and Mass Media is working on the development of a package of documents that provides for requirements for software and equipment at the OBKI facilities, as well as the procedure for switching to the preferential use of domestic software. Within the framework of the federal project "Regulatory Regulation of the Digital Environment", a draft law on state data management was developed, which includes a new terminology and plans to systematize the volume flow of digital content created by the state through the introduction at the federal level of a "Unified Information Platform of the National Data Management System" and a "Digital Analytical Platform for providing statistical Data".

The legal regulation of relations in the field of ensuring the security of the OBKI in the Russian Federation was supplemented by Federal Law No. 126-FZ dated 07.07.2003 "On Communications". In addition, the Criminal Code of the Russian Federation provides for a specific crime for illegally affecting the critical information infrastructure of the Russian Federation (Article 274.1) in Chapter 28 "Crimes in the field of computer information" ^[18]. Thus, for violation of the rules of operation of means of storage, processing or transmission of protected computer information in the field of OBKI, this threatens with forced labor for up to five years or imprisonment for up to six.

In the summer of 2020, a federal law was adopted on the establishment of a unified federal information register, which will contain data on citizens of the Russian Federation, foreigners and stateless persons living in Russia, as well as on foreign citizens temporarily staying in the country. This register will be maintained by the Federal Tax Service of Russia and it is assumed that its creation will increase the efficiency of public services, increase the collection of payments, ensure more accurate calculation and calculation of taxes and reduce fraudulent actions in obtaining social support and paying taxes. However, the creation of a centralized resource also raises the issue of confidentiality and security of information contained in the database, which includes a lot of personal data, such as name, date and place of birth and death, citizenship, marital status, passport details, education and qualifications, tax and military records, etc. According to this law, the Federal Tax Service of Russia is obliged to provide information from the Register at the request of the court, the prosecutor's office, investigative and law enforcement agencies. The law on enhanced unqualified electronic signature ^[19] has also come into force in Russia, which provides for the issuance of key certificates by a certification authority to verify electronic signatures, and their receipt can be carried out remotely. However, the identification of a person requires the use of an enhanced electronic signature, which is issued only upon personal appearance and joint interaction of the certifying center with the identification and authentication system.

In accordance with Federal Law No. 63-FZ of April 6, 2011 "On Electronic Signatures", an electronic document signed with a simple or unqualified electronic signature is considered equivalent to a paper document signed with a handwritten signature in accordance with the agreement of participants in electronic interaction. In the Russian Federation, there are Internet services, such as "Contact the Federal Tax Service of Russia" or "Taxpayer's Personal Account" on the website of the Federal Tax Service of the Russian Federation, which allow you to file complaints against decisions of registration authorities on state registration and refusal to register it in electronic format. However, in this case, the electronic complaint must be signed with an enhanced qualified electronic signature of the applicant.

The Bank of Russia is developing an information service "Know your Customer", which allows you to assess the risks of customers of credit institutions associated with terrorist financing operations or the legalization of proceeds from crime. However, it also raises the issue of data privacy and legal liability for their illegal distribution. Rospatent is also introducing a digital platform for patent search based on international sources, including artificial intelligence, and the Federal Antimonopoly Service of Russia is developing an antimonopoly package that takes into account the impact of "price robots" on competition.

Currently, intensive work is underway on the comprehensive regulation of legal regimes, including an experimental legal regime in Moscow. To this end, the draft law of the Ministry of Economic Development of the Russian Federation No. 922869-7 ^[20] was submitted, which defines an experimental legal regime as the application of special regulation in the field of digital innovations to a certain group of persons for a certain period of time. The special regime, in turn, means that there is no dissemination of certain legal acts or legal norms containing mandatory requirements, such as requirements for licensing, certification, accreditation, access and permits by identifying participants in the field of digital innovation. If the bill is adopted, it is possible to expand experiments on the introduction of various technologies in other regions. On June 1, 2020, a one-year experiment began on the remote use of an enhanced unqualified electronic signature when providing services and performing other actions using the ESIA. For this purpose, the federal state information system "Unified identification and authentication system in the infrastructure that provides information and technological interaction of information systems used to provide state and municipal services in electronic form" is used. Enhanced unqualified electronic signature allows, among other things, to carry out transactions using the portal of public services, conclude lease agreements of federal property, sign documents for employment purposes and provide tax reports of citizens.

Starting in July 2020, Moscow launched a five-year project to introduce artificial intelligence in accordance with the National Program "Digital Economy of the Russian Federation". This project is being implemented against the background of the active development of digital technologies in Russia and the development of legal initiatives to regulate them. At the Russian Internet Forum in 2019, the "Code of Ethics for the Use of Data" was adopted ^[21], which defines the principles of ethical behavior when working with data. The Code is aimed at creating regulatory initiatives in the field of data use and establishing general rules of professional conduct in relation to private, industrial and other types of data. The Code establishes standards of professional ethics, including the principles of legality of data use, professional responsibility, inadmissibility of interference with privacy during data processing, etc. In addition, the Code includes the principles of data processing and use, including the prevention of discrimination against citizens, the prohibition of falsification of data, the prevention of harm to users, automated processing of citizens' data only with their consent and the prohibition of misleading users. The professional community has assessed the code of ethics as an acceptable basis for self-regulation of data market participants, which can normalize their interaction with each other and with citizens, legal entities and the state in the data processing industry, however, there are still controversial issues regarding the legal status of artificial intelligence.

Legal status of artificial intelligenceOne of the most controversial issues in the paradigm of the connection between artificial intelligence technology and law is the question of the legal status of artificial intelligence.

The debatable nature of this issue is due to several reasons.

Firstly, recently there has been an increase in quantitative indicators of the use of algorithms, which is based on the use of artificial intelligence technology. Every year more and more enterprises use this technology in their production processes: scoring models in financial institutions that determine the credit rating of their counterparties; predictive systems that allow predicting future sales trends; generative systems with which you can create a work of art or a website design in a matter of minutes, and much more. According to the report, formed on the basis of research on the use of artificial intelligence technology, the share of organizations that have implemented this technology to solve at least one business function has increased 2.5 times over the past 5 years ^[22].

The impact of AI technology on the various spectrum of public relations is significant, and it is growing more and more. Consequently, the potential number of conflict situations involving the technology in question as one of the sources of such situations is also growing. In turn, law, being the main regulator of public relations, whose main task is to protect the interests of the individual, society and the state, should regulate such disputes involving AI, as well as protect the rights and freedoms of individuals and business entities from encroachments using these technologies.

Secondly, in addition to the quantitative growth in the use of artificial intelligence, a noticeable qualitative growth of the technology in question is revealed. The improvement of artificial intelligence training methods has made it possible to increase the efficiency of speech and image recognition algorithms, as well as opportunities in the field of machine translation, the creation of artificial intelligence for games and robotics, in particular for autonomous machines. One of the main trends in the development of artificial is the increase in the volume of data and the power of computing systems. This allows you to create more and more complex and accurate models that provide higher prediction accuracy and less error when performing tasks. Artificial intelligence technology is also being improved in the field of natural language processing. This makes it possible to create systems that can understand and process human language, as well as create software that provides more efficient and accurate automatic translation.

In the philosophy of artificial intelligence, one of the significant theories is the theory of strong and weak artificial intelligence, proposed by the American philosopher D. J. Searle ^{[23, pp. 421 – 422]}. According to this theory, there are two types of artificial intelligence: "strong" artificial intelligence and "weak" artificial intelligence.

Weak artificial intelligence is a system capable of imitating the human mind to one degree or another. Such artificial intelligence can give answers and solve problems using connections whose architecture was set by a person, while artificial intelligence itself cannot understand the meaning of the objects with which it works. Even if a weak artificial intelligence will reason about concepts that require abstract thinking, for example, about the meaning of life, it will mean that such an artificial intelligence has been trained on data that allows it to simulate such reasoning. In other words, weak artificial intelligence lacks such important and inherent qualities of the human mind as abstract thinking, self-awareness, reflection, and emotional component.

Conversely, strong artificial intelligence is characterized by a level of development at which its capabilities are comparable or surpasses the capabilities of the human mind. And in this case, capabilities are understood not so much as the ability to solve problems, as the ability to make decisions, make informed choices using the qualities inherent in human intelligence, that is, abstract thinking, self-awareness and reflection.

Most scientists agree that the artificial intelligence technologies that exist now belong to weak artificial intelligence. Accordingly, at the moment there is no threat associated with the superiority of artificial intelligence over human, although a number of scientists believe that the absence of such a threat will not last long.

However, it would be rash to assume that weakly developed intelligence does not pose any threat to current social relations. In fact, even such a weak artificial intelligence creates a number of problems that require resolution, including in the legal field.

Artificial intelligence, whatever its development, is a source of threats such as violation of privacy, banking and trade secrets, threats of cyberattacks using artificial intelligence, copyright infringement.

In order to minimize the risks associated with the introduction and use of artificial intelligence, it is considered necessary to determine the legal status of this technology through law-making and law enforcement.

A lot of researchers in legal science in one way or another touch on this issue. So V. V. Arkhipov and V. B. Naumov, reflecting on the problem of the legal status of artificial intelligence, come to the conclusion that it is necessary to add Chapter 5.1 "Agent robots" to subsection 2 "Persons" of Part one of the Civil Code of the Russian Federation. Despite the proposal to place these norms in a subsection that reveals the essence and characteristics of subjects, the authors of the above-mentioned scientific work essentially fix artificial intelligence as an object of civil law relations, since their proposed innovations provide that artificial intelligence technologies can be owned, disposed of and used ^{[24, p. 165]}.

There are other approaches to determining the legal status of artificial intelligence technology. For example, E. N. Iriskina and K.O. Belyakov believe that as a result of the massive development of artificial intelligence technology in order to regulate issues of civil liability, it is necessary to introduce a "quasi-subject robot" into civil legal relations ^{[25, pp. 70-71]}. In our opinion, this approach is very interesting, since it uses a pure doctrinal concept – "quasi-subject", which denotes a certain abstraction, which has some signs of the subject of legal relations, but a number of mandatory signs for the subject of legal relations, for example, legal capacity or will, are absent. In legal science, it is believed that the introduction of the concept of a quasi-subject is necessary because such a quasi-subject implies a special legal regime, namely, the endowment of an abstraction called a quasi-subject with a socio-legal value inherent in the subject by personifying such an abstraction ^{[26, p. 70]}. Traditionally, the following quasi-entities are distinguished in legal science: nation, family, embryo, labor collective, inheritance and others.

Some authors, for example A. I. Tiunova ^{[27, p. 58]}, admit the endowment of artificial intelligence with legal personality. So A. I. Tiunova cites as an example the case when in 2017 in Saudi Arabia a humanoid robot, based on the functioning of which artificial intelligence technology was introduced, became the first machine in the world to receive citizenship. Later, Japan similarly granted residency to the chatbot Shibuya Mirai, whose work was again based on artificial intelligence technology ^{[28, p. 113]}. In substantiation of the need to endow artificial intelligence with legal personality, a provision is given according to which artificial intelligence can independently act as a participant in legal relations, since despite the fact that artificial intelligence was originally created by a person or an organization, that is, an indisputable subject of legal relations, this technology can provide for further autonomous work and self-learning, allowing making decisions affecting significant public relationships independently, without human involvement.

In our opinion, the above-described ways of representing the legal status of artificial intelligence through the prism of legal personality is not correct. In substantiating this position, we want to refer to the above-mentioned theory of strong and weak artificial intelligence, proposed by D. J. Searle ^{[21, p. 422]} and the ability to form and exercise a personalized will and be isolated from other persons, as scientifically recognized signs of the subject of legal relations, proposed by the legal theorist S. S. Alekseev ^{[29, p. 289]}. At the moment, the existence of a strong artificial intelligence with autonomous will, abstract thinking, self-awareness, ideas about good, evil, justice and injustice has not been proven. Thus, we can assert that there is no strong artificial intelligence, in respect of which it would be appropriate to raise the question of its legal personality. All attempts to give artificial intelligence the capabilities of the human mind are not justified at the moment and may be the result of popularization of the idea of the superiority of artificial intelligence over the human mind in popular culture.

Speaking about the place of artificial intelligence technology in the structure of legal relations, it seems to us that the point of view of L. Y. Vasilevskaya is correct, who believes that artificial intelligence should be considered as an immaterial, ideal by nature object of law, which is the result of the development and use of new technologies in various fields ^{[30, p. 52]}.

It is the above-described approach of presenting artificial intelligence as an object of legal relations that is the first step towards improving the mechanism of legal regulation of social relations, an element of which is artificial intelligence.