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The limits of state AI legislation

Presented by Special Competitive Studies Project: How the next wave of technology is upending the global economy and its power structures
Apr 30, 2024 View in browser
 
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By Derek Robertson

Presented by Special Competitive Studies Project

With help from Christine Mui

OpenAI's ChatGPT app is displayed on an iPhone.

OpenAI's ChatGPT app is displayed on an iPhone in New York on May 18, 2023. The Connecticut Senate pressed ahead Wednesday, April 24, 2024 with one of the first major legislative proposals in the U.S. to reign in bias in AI decision making and protect people from harm, including manufactured videos or deepfakes. | Richard Drew/AP

When it comes to regulating artificial intelligence, the action right now is in the states, not Washington.

State legislatures are often, like their counterparts in Europe, contrasted favorably with Congress — willing to take action where their politically paralyzed federal counterpart can’t, or won’t. Right now, every state except Alabama and Wyoming is considering some kind of AI legislation.

But simply acting doesn’t guarantee the best outcome. And today, two consumer advocates warn in POLITICO Magazine that most, if not all, state laws are overlooking crucial loopholes that could shield companies from liability when it comes to harm caused by AI decisions — or from simply being forced to disclose when it’s used in the first place.

Grace Gedye, an AI-focused policy analyst at Consumer Reports, and Matt Scherer, senior policy counsel at the Center for Democracy & Technology, write in an op-ed that while the use of AI systems by employers is screaming out for regulation, many of the efforts in the states are ineffectual at best.

Under the most important state laws now in consideration, they write, “Job applicants, patients, renters and consumers would still have a hard time finding out if discriminatory or error-prone AI was used to help make life-altering decisions about them.”

Transparency around how and when AI systems are deployed — whether in the public or private sector — is a key concern of the growing industry’s watchdogs. The Netherlands’ tax authority infamously immiserated tens of thousands of families by accusing them falsely of child care benefits fraud after an algorithm used to detect it went awry.

Gedye and Scherer are concerned with how AI is already being used in the U.S. in decisions around hiring, education, insurance, housing and lending, among other decision-making processes (including even criminal sentencing). They say that the current crop of state legislation is toothless when it comes to details of enforcement, or even written expressly with human resources tech companies in mind. (Those companies, for their part, assert that working with state legislatures to shape bills around AI is a tried-and-true part of balancing regulation and private sector innovation.)

One issue: a series of jargon-filled loopholes in many bill texts that says the laws only cover systems “specifically developed” to be “controlling” or “substantial” factors in decision-making.

“Cutting through the jargon, this would mean that companies could completely evade the law simply by putting fine print at the bottom of their technical documentation or marketing materials saying that their product wasn’t designed to be the main reason for a decision and should only be used under human supervision,” they explain.

Another problem is one that dogs regulators of industries much more quotidian than AI: The haziness around what is and isn’t a “trade secret” which would harm companies to disclose. Theranos, Gedye and Scherer point out, reportedly used trade secrets law to threaten whistleblowers. These flaws, combined with weak enforcement mechanisms, they write, have made a law aimed at curtailing AI in hiring in New York City almost completely ineffectual.

So… what should happen? Gedye and Scherer lay out an explicit list of recommendations for lawmakers looking to beef up their AI decision-making regulation, including: Making definitions of decision-making systems less vague, to encompass any algorithm used in official consumer decisions; up-front transparency about the decision-making process before algorithms are deployed (and requiring explanations for consumers after); eliminating the “trade secrets” loophole; complying with existing civil rights law; and strengthening legal recourse for those affected by the systems’ use.

Another big issue for any legislature is the tech industry itself; companies want more freedom to operate as they figure out how and where to deploy powerful AI platforms.

The big AI companies have made their own efforts to get out in front of AI-related mayhem, with Amazon, Anthropic, Google, Inflection, Meta, Microsoft and OpenAI agreeing in September 2023 to a series of voluntary commitments laid out by the White House. Those do touch on many of the same topics, including public “discussion of the model’s effects on societal risks such as fairness and bias,” as well as “empowering trust and safety teams, advancing AI safety research, advancing privacy, protecting children, and working to proactively manage the risks of AI.”

Still, it’s unclear what kind of enforcement they’d actually accept. The op-ed authors write that there have been a few promising changes to Connecticut’s AI legislation to close loopholes and force companies using AI tools to explain their positions. But they end on a wary note, pointing out that “Connecticut Gov. Ned Lamont has expressed skepticism of his state’s bill — not because the bill doesn’t do enough to protect consumers, but because he fears it will hurt Connecticut’s standing with the business community.”

 

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Innovation is on display at The AI Expo for National Competitiveness. Step into the future with the Special Competitive Studies Project and explore captivating, cutting-edge tech demos and witness insightful discussions on tech policy and global affairs led by a mix of government, academic, and industry leaders in DC. Join us to forge connections, gain perspectives and be part of charting a course toward a future defined by innovation, collaboration, and shared purpose for free.

 
canada wants chips, too

Canadian flag. Photo credit: MaxPixel

The Canadian flag. | MaxPixel

The U.S. is trying to reshape the global map of semiconductor manufacturing, and many countries have already signaled their interest in joining its supply chain.

One is its northern neighbor. The Canadian government is steadily dishing out funds from $250 million set aside for projects to bolster its semiconductor industry — including $60 million to IBM last week. But that pales in comparison to the U.S.’s multi-billion-dollar CHIPS Act, or incentives offered by the European Union and governments in Asia.

DFD asked Canada’s minister of industry, François-Philippe Champagne, what role he sees one of America’s largest trading partners occupying. He’s reluctant — and Canada’s budget is likely unable — to engage in any global subsidy battle set off by Washington’s embrace of industrial policy: “When you're Canada, you're not trying to outcompete. You try to be complimentary. You try to be strategic.”

Instead, the IBM expansion and Canada’s broader goal aim to secure a foothold in the increasingly advanced processes for finishing chips within their electronic devices. It’s also talking to firms that make older, so-called legacy chips for the automotive sector and EV transition.

“We need to play with our strengths. Canada is very good at the front end and the back end,” Champagne said. “I don't think that our game is necessarily to try to replicate what our friends in the U.S. are doing.”

Champagne’s pitch to U.S. firms is simple: Reduce dependence on offshore assembly and packaging, especially from Taiwan. While other places are interested in that niche and may offer lower costs, he’s had some prior success in selling Canada as the safer, more stable business environment due to its intellectual property protections and abundant resources. — Christine Mui

 

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benchmarking

The White House reported Monday that federal agencies are hitting their deadlines for AI preparedness as laid out in last year’s AI executive order.

POLITICO’s Mohar Chatterjee had the update yesterday for Pro subscribers, writing that White House officials say “hundreds” of tech workers will join the government by this summer, with a total of 500 hires planned by the fall of 2025. Deadlines also included last week’s announced formation of an AI safety board, and a set of new rules for AI-assisted bioresearch.

By the end of June the secretary of commerce must submit a report on those rules, along with requirements for the director of the National Science Foundation to help agencies build privacy into their AI operations.

meta and the eu elections

The European Commission is investigating Meta’s handling of Russian propaganda on the company’s platforms ahead of the European Union’s June elections.

POLITICO’s Clothilde Goujard reported today on the probe, which follows warnings that Russia and other geopolitical opponents could use AI tools to wreak informational havoc across Europe and the world. European Commission President Ursula von der Leyen said in a press release: "This Commission has created means to protect European citizens from targeted disinformation and manipulation by third countries. If we suspect a violation of the rules, we act.”

The Commission suspects Meta of failing to uphold its responsibilities under the EU’s Digital Services Act, which requires them to actively limit such efforts to spread false information. In addition to saying Meta's Facebook and Instagram might not be working hard enough to stop the spread of false ads, propaganda, and bots, both AI-generated and not, they voiced their concern over the company’s phasing out moderation tool CrowdTangle.

 

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Stay in touch with the whole team: Derek Robertson (drobertson@politico.com); Mohar Chatterjee (mchatterjee@politico.com); Steve Heuser (sheuser@politico.com); Nate Robson (nrobson@politico.com); Daniella Cheslow (dcheslow@politico.com); and Christine Mui (cmui@politico.com).

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