The government recently announced that Anacom will serve as the market supervisory authority in the field of artificial intelligence. This decision follows another from last year that assigned Anacom a coordinating role in the supervision of digital services. It makes use of the resources of an administrative entity originally created to liberalize communications which, having completed the main aspects of that mission several years ago, has had a void to fill since the end of the previous decade. The idea seems sound to me, but I am not certain that all its consequences have been fully considered thus far. Some are obvious, such as the need to prepare the organization with the essential knowledge required for its new functions. In some cases, the existing staff will adapt well to new duties, which they will surely carry out with their usual competence. In others, it will be necessary to hire additional resources.

However, there are at least two other consequences that require a level of reflection which, if it exists, is not apparent. The first concerns the independence from the government that Anacom should, or should not, observe in the area of digital services and artificial intelligence. Should it act as an independent authority, as it was required to do in the regulation of communications when such independence was explicity provided for in the directives? There is no clear reason to assume so, given that neither the Digital Services Regulation nor the Artificial Intelligence Regulation imposes it. What they establish differs from what was set out in the electronic communications directives or in personal data protection. Thus, Anacom’s potential independence from the government in carrying out its new responsibilities depends primarily on the will of the government itself. If the government intends to guarantee that independence, then, as a matter of good political practice and under the Framework Law on Independent Administrative Entities, it should justify that choice. I believe there is work to be done here. The government has not yet clearly established or justified whether, in its new responsibilities, Anacom should act as an authority independent from the government itself.

The second consequence to be considered concerns Anacom’s funding. Naturally, its original funding model is that of a communications regulator. Therefore, regulatory costs are covered by the communications operators. The new responsibilities that Anacom has been given will require more resources, while its traditional regulatory duties may come to require fewer. Yet the new regulated or supervised entities are not communications operators. Will the latter be the ones to bear the costs of regulating digital services and artificial intelligence providers? There appears to be a need to reformulate the funding model.

In short, the government’s policy choices regarding the regulation of digital services and artificial intelligence are understandable, but there seem to be some basic matters that require clarification. The restructuring of Anacom that is needed does not depend solely on decisions by its board of directors. It should begin with an update to the legal framework in which Anacom operates, so that its new responsibilities have technical and legal foundations as solid as possible.

João Confraria, Professor at CATÓLICA-LISBON