EPIC AI Rulemaking Petition

Calling on the FTC to regulate the use of artificial intelligence in commerce

In February 2020, EPIC filed a petition with the Federal Trade Commission calling on the FTC to conduct a rulemaking concerning the use of artificial intelligence in commerce. "Given the scale of commercial AI use, the rapid pace of AI development, and the very real consequences of AI-enabled decision-making for consumers, the Commission should immediately initiate a rulemaking to define and prevent consumer harms resulting from AI," EPIC urged. EPIC called on the FTC to enforce the AI standards established in the OECD AI Principles, the OMB AI Guidance, and the Universal Guidelines for AI. Several FTC Commissioners have already acknowledged the FTC's role in regulating the use of AI. EPIC's petition followed two prior EPIC complaints to the FTC about the use of AI in employment screening and the secret scoring of young athletes. EPIC's petition is the first formal effort to establish federal regulations for commercial AI use.

Top News

  • EPIC v. AI Commission: Internal Report Alludes to 'Mass Surveillance,' 'Streets Carpeted with Cameras': In a FOIA lawsuit, EPIC has obtained more documents from the Commission on Artificial Intelligence. The records include internal correspondence and an unattributed report about China's social scoring, facial recognition tools, and AI-based surveillance. The internal report highlights the "draconian" consequences of China's AI use but states that "Mass surveillance is a killer application" for AI and that "having streets carpeted with cameras is good infrastructure for smart cities[.]" The Commission's disclosure to EPIC follows a ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. The AI Commission held over 200 secret meetings with tech firms, defense contractors, and others. EPIC is also litigating to enforce the Commission's obligation to hold open meetings. The case is EPIC v. National Security Commission on AI, No. 19-2906 (D.D.C.). (Apr. 7, 2020)
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  • EPIC Advises White House on Regulation of Private Sector AI » (Mar. 13, 2020)
    EPIC submitted comments on the OMB draft Guidance for Regulation of Artificial Intelligence Applications. The OMB Guidance instructs federal agencies to regulate private sector use of AI. EPIC recommended that the OMB guidance also apply to government uses of AI, that OMB establish prohibitions on secret profiling and unitary scoring, and require transparency to ensure fairness and accountability in automated decisions concerning people. EPIC has recently petitioned the FTC to undertake a rulemaking for AI in commerce. EPIC has published the AI Policy Sourcebook, the first reference book on AI policy.
  • EPIC Urges Court to Open Meetings, Records of AI Commission » (Mar. 10, 2020)
    EPIC has filed a reply brief in EPIC v. AI Commission urging a federal court in Washington, DC to enforce the Commission's obligation to hold open meetings and publish its records on a regular basis. The court previously ruled that the AI Commission must comply with the Freedom of Information Act. In briefs with the court, EPIC explained that the Commission must also comply with the Federal Advisory Committee Act, citing the law enacted by Congress. "It is not for the Government or the courts to second-guess that legislative choice simply because the AI Commission's transparency obligations flow from two statutes rather than one," EPIC wrote. In a recent report for Congress and the President, the Commission recommended weakening privacy safeguards for Americans but never consulted with the public as the Federal Advisory Committee Act would require. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • Comments on OMB AI Guidance Due Friday » (Mar. 9, 2020)
    The OMB is seeking comments on the proposed Guidance for Regulation of Artificial Intelligence Applications. The Guidance recommends that federal agencies "promote advancements in technology and innovation, while protecting American technology, economic and national security, privacy, civil liberties, and other American values, including the principles of freedom, human rights, the rule of law, and respect for intellectual property." The US AI Guidance follows from the OECD AI Principles, which the United States has endorsed, as well as some of the Universal Guidelines for AI, a human rights framework for AI endorsed by more than 250 experts and 60 associations in 40 countries. EPIC will recommend that the OMB regulation apply to all government uses of AI, include prohibitions on secret profiling and unitary scoring, and require transparency to ensure fairness and accountability in automated decisions concerning people. EPIC has recently petitioned the FTC to undertake a rulemaking for AI in commerce. Comments to the OMB are due Friday, March 13 and can be submitted through the Federal Register. EPIC has published the AI Policy Sourcebook, the first reference book on AI policy.
  • EPIC v. AI Commission: Court Orders Rapid Disclosure of Records » (Mar. 9, 2020)
    In EPIC's open government case concerning US AI policy, a federal court has ordered the National Security Commission on Artificial Intelligence to process 800 pages of records a month for disclosure to EPIC. The order follows the court's previous ruling in EPIC v. AI Commission that the Commission is subject to the Freedom of Information Act. The Commission recently released a report to Congress that criticizes the EU General Data Protection Regulation and calls for greater "government access to data on Americans." Before issuing its report, the Commission held more than two hundred secret meetings with tech firms, defense contractors, and others but did not gather opinions from the American public. EPIC is also litigating to enforce Commission's obligation to hold open meetings.
  • In FOIA Case, EPIC Obtains New Documents From AI Commission » (Mar. 4, 2020)
    EPIC has obtained a more documents from the National Security Commission on Artificial Intelligence. The records obtained by EPIC show that the AI Commission was aware of work on algorithmic transparency and AI bias. But the Commission's recent report to Congress did not endorse these recommendations, instead criticizing EU privacy law and calling for greater "government access to data on Americans." The Commission's disclosure follows a court ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. Before issuing its report, the AI Commission held regular secret meetings with tech firms and defense contractors but did not gather opinions from the American public. EPIC is also litigating to enforce Commission's obligation to hold open meetings.
  • EPIC's Rotenberg urges OECD to "Defend democratic values" » (Feb. 27, 2020)
    Speaking at the launch of the OECD AI Policy Observatory in Paris, EPIC President Marc Rotenberg urged OECD member countries to defend "the rule of law, fundamental rights, and democratic institutions." Rotenberg praised the OECD for its work on the AI Principles, noted the influence of the OECD Privacy Guidelines, but also warned that AI decisionmaking will have a profound impact on employment, education, and criminal justice. "The OECD is uniquely situated,:" Rotenberg said "to promote economic growth and protect democratic values." EPIC helped establish the OECD Civil Society Advisory Council and has gathered support for the Universal Guidelines for AI, a policy framework to protect human rights. EPIC's Rotenberg first urged "algorithmic transparency" at the OECD global forum in Japan in 2014.
  • EU Hearing on AI in Criminal Justice Highlights Concerns » (Feb. 20, 2020)
    The European Parliament heard testimony today on AI in Criminal Law amidst a widespread push towards robust AI regulation in the EU. The panelists before the committee responsible for civil liberties, justice, and home affair focused on facial recognition, risk assessments, and predictive policing. The hearing explored regulation and law enforcement use, and also transparency, explainability, and accountability. The hearing in Parliament followed the release of a European Commission White Paper on AI. EPIC has called for a moratorium on face surveillance and maintains a resource about the use of risk assessments in the US Criminal Justice system.
  • Report Reviews AI in Federal Agencies » (Feb. 20, 2020)
    A report released by the Administrative Conference of the US with Stanford and NYU explores the use of Artificial Intelligence techniques by 142 Federal Agencies. According to the report, law enforcement agencies are most likely to use AI. The report "Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies" cites documents obtained by EPIC in the FOIA lawsuit EPIC v. CBP. In that case, EPIC obtained document from the federal agent that revealed problems with biometric identification. EPIC has recommended the Universal Guidelines for AI to guide the government's use of AI and EPIC recently petitioned the Federal Trade Commission to establish regulations for the use of AI in commerce.
  • EPIC to Court: Order AI Commission to Open Meetings, Records » (Feb. 19, 2020)
    EPIC has filed a brief urging a federal court to enforce the transparency obligations of the National Security Commission on Artificial Intelligence. EPIC explained that the AI Commission must hold open meetings and publish its records on a regular basis. The court previously ruled that the AI Commission must comply with EPIC's Freedom of Information Act request, but the Commission now claims that it is exempt from a related statute that requires advisory committees to operate transparently. EPIC told the court that "as is often the case for federal entities, the AI Commission must comply with two (or three, or more) statutory obligations at the same time." The Commission, which is tasked with developing U.S. AI policy, recently released a report to Congress criticizing the EU General Data Protection Regulation and calling for greater "government access to data on Americans." The AI Commission met frequently in secret with lobbyists and private contractors, but never gathered opinions from the American public.
  • EU Commission Seeks Public Comment on AI Plan » (Feb. 19, 2020)
    The European Commission has published the White Paper on Artificial Intelligence(AI) and the European Data Strategy. the Commission stated that the aim is to promote "Technology that works for people; a fair and competitive economy; and an open, democratic and sustainable society." On AI and fundamental rights, the Commission warned that "biases in algorithms or training data used for recruitment AI systems could lead to unjust and discriminatory outcomes..." The Commission also warned that the "gathering and use of biometric data for remote identification purposes carries specific risks for fundamental rights" but stopped short of endorsing a moratorium on face surveillance. The EU White Paper on Artificial Intelligence is open for public consultation until May 19, 2020. The Commission is also gathering feedback on the data strategy.
  • European Parliament Passes Resolution for AI Oversight » (Feb. 12, 2020)
    The European Parliament has passed a resolution urging the European Commission to adopt strong rules for industrial policy on artificial intelligence and robotics. The Resolution emphasizes safety, transparency, explainability, and data quality. The Resolution also seeks to "ensure that automatic decision-making is not being used to discriminate against consumers based on their nationality, place of residence or temporary location." The Resolution also supports the free flow of non-personal data to promote innovation. The European Commission is expected to announce how it will proceed with AI regulation next week. Last week, a Dutch Court ruled that an AI system to detect welfare fraud violated human rights. EPIC has promoted Algorithmic Transparency and the Universal Guidelines for AI, and also published the AI Policy Sourcebook, the first reference book on AI policy.
  • Dutch Court Rules Secret Welfare Algorithm Violates Human Rights » (Feb. 5, 2020)
    A Dutch Court ruled that an algorithmic risk assessment technique that ostensibly detects fraud violates human rights and privacy laws. The SyRi system processed massive amounts of personal data held in a government agencies with an opaque algorithm. The Dutch court ruled "there is a risk that the use of SyRI will inadvertently make connections based on bias." EPIC tracks and publicizes the use of risk assessments in the US Criminal Justice System as well as advocates for the Universal Guidelines for AI to ensure Algorithmic Transparency in automated decision making, EPIC published the AI Policy Sourcebook, the first reference book on AI policy.
  • EPIC Seeks Regulation of AI, Petitions Federal Trade Commission » (Feb. 3, 2020)
    Today EPIC filed a petition with the Federal Trade Commission for a rulemaking "concerning the use of artificial intelligence in commerce." The EPIC petition follows two recent EPIC complaints to the FTC about the use of AI for employment screening and the secret scoring of young athletes. EPIC noted that several FTC Commissioners have called for updated regulations to address the challenges of Artificial Intelligence. EPIC pointed to the recent OMB Guidance for Regulation of Artificial Intelligence in support of the FTC rulemaking. EPIC also publishes the AI Policy Sourcebook, the first reference book on AI policy.
  • Senator Bennet Slams White House AI Strategy » (Jan. 31, 2020)
    Sen. Michael Bennet (D-CO) has criticized the White House Guidance on Artificial Intelligence as "insufficient" and "little more than gauzy generalities." In a letter to US Chief Technology Officer Michael Kratsios, Bennet said the "principles male only passing referrence to privacy protections" and "just a cursory discussion of Americans' civil rights." Bennet said also that the White House "has failed to set spending targets, establish metrics, or allocate additional funding." EPIC published the AI Policy Sourcebook, the first reference book on AI policy. The AI Sourcebook includes the Universal Guidelines for AI, an influential human rights framework for AI policy.
  • European Parliament Committee Adopts Resolution on AI Oversight » (Jan. 23, 2020)
    A new European Parliament Resolution advises the European Commission to establish strong oversight of artificial intelligence. The Resolution emphasizes safe and compliant products, human responsibility, safety, transparency, explainability, and data quality. The Resolution also supports the free flow of non-personal data to promote innovation. Several of these principles are put forward in the Universal Guidelines for AI, which EPIC recommends as the baseline for AI Policy. On February 19, the European Commission is expected to announce how it will proceed with AI regulation. EPIC has promoted Algorithmic Transparency and published the AI Policy Sourcebook, the first reference book on AI policy.
  • EPIC Recommends Congress Implement OECD AI Principles, Back Universal Guidelines » (Jan. 15, 2020)
    EPIC has urged Congress to implement the OECD Principles on AI and adopt the Universal Guidelines of AI. In a statement in advance of a hearing on "Industries of the Future," EPIC also highlighted the White Houses's Guidance for AI Regulation, and urged the Senate to prioritize public participation and democratic values. Senator Roger Wicker's (R-MS) bill, the "Industries of the Future Act," would promote government investment in research and development and create a government Council to advise the Office of Science and Technology Policy on future industries, including artificial intelligence. EPIC has long advocated for transparency and public participation in AI policymaking. EPIC successfully sued the National Security Commission on Artificial Intelligence to ensure public access to agency records. EPIC recently filed a complaint with the FTC alleging that recruiting company HireVue fails to comply with baseline standards for AI decision-making. EPIC also sued the DOJ to uncover documents about the use of algorithms in the criminal justice system.
  • White House Publishes Guidance for AI Regulation » (Jan. 9, 2020)
    The White House has published Guidance for Regulation of Artificial Intelligence Applications. In a statement, US Chief Technology Officer Michael Kratsios said "The White House calls on agencies to protect privacy and promote civil rights, civil liberties, and American values in the regulatory approach to AI. Among other important steps, agencies should examine whether the outcomes and decisions of an AI application could result in unlawful discrimination, consider appropriate measures to disclose when AI is in use, and consider what controls are needed to ensure the confidentiality and integrity of the information processed, stored and transmitted in an AI system." The US AI Guidance follows from the OECD AI Principles, which the United States has endorsed, as well as some of the Universal Guidelines for AI, a human rights framework for AI endorsed by more than 250 experts and 60 associations in 40 countries. The Guidance makes clear the importance of public participation in the formulation of AI policy. EPIC successfully sued the National Security Commission on Artificial Intelligence to ensure public access to agency records.
  • EPIC Advises USPTO to Follow US AI Commitments, Limit Trade Secrets » (Jan. 9, 2020)
    In comments submitted to the USPTO's request for information, EPIC recommended limiting trade secret defenses for AI techniques that have a a significant effect on an individual. EPIC also highlighted the US endorsement of the OECD AI principles, the White House's Guidance for Regulation of Artificial Intelligence Applications, and the Universal Guidelines for Artificial Intelligence. EPIC explained that these policy frameworks make clear the importance of transparency in AI policy. In 2019, EPIC successfully sued the National Security Commission on Artificial Intelligence to ensure public access to agency records.
  • Court Orders Further Briefing in EPIC v. AI Commission » (Dec. 20, 2019)
    A federal court has ordered the National Security Commission on Artificial Intelligence to respond to EPIC's arguments that the Commission is violating a federal law requiring advisory committees to operate transparently. During a hearing in EPIC v. AI Commission, Judge Trevor N. McFadden ordered the parties to file briefs concerning the Commission's obligation to hold open meetings and publish its records. The court has already ruled that the AI Commission must comply with EPIC's Freedom of Information Act request. In the same hearing, the government stated that the Defense Department will disclose records about the AI Commission in the next 4-6 weeks. The Commission, which is tasked with developing U.S. AI policy, recently released a report to Congress criticizing the EU General Data Protection Regulation and calling for greater "government access to data on Americans."
  • At Council of Europe, EPIC's Rotenberg Urges Focus on AI and Human Rights » (Nov. 19, 2019)
    Speaking to the Council of Europe in Strasbourg, EPIC's Marc Rotenberg urged democratic nations to move forward a policy framework for AI that safeguards human rights. "You cannot afford to wait," said Mr. Rotenberg, describing the work of EPIC to establish algorithmic accountability. In the past few years, EPIC has promoted Algorithmic Transparency, supported the Universal Guidelines for AI, and published the first reference book on AI policy. EPIC has also challenged the secrecy of the US National Commission on AI and urged the recognition of AI policy frameworks to regulate the use of AI techniques.
  • EPIC Files Complaint with FTC about Employment Screening Firm HireVue » (Nov. 6, 2019)
    Today, EPIC filed a complaint with the FTC alleging that recruiting company HireVue has committed unfair and deceptive practices in violation of the FTC Act. EPIC charged that HireVue falsely denies it uses facial recognition. EPIC also said the company failed to comply with baseline standards for AI decision-making, such as the OECD AI Principles and the Universal Guidelines for AI. The company purports to evaluate a job applicant's qualifications based upon their appearance by means of an opaque, proprietary algorithm. EPIC has brought many similar consumer privacy complaints to the FTC, including a complaint on Facebook's facial recognition practices that contributed to the FTC's 2019 settlement with Facebook. Last year EPIC also asked the FTC to investigate the Universal Tennis Rating system, a secret technique for scoring high school athletes.
  • EPIC Seeks More Details on Secretive AI Commission Report » (Nov. 6, 2019)
    Following the release of a report by the US Commission on Artificial Intelligence, EPIC is seeking specific information about recommendations that could impact the privacy rights of Americans. EPIC previously sued the Commission to make public its records and meetings. Now EPIC wants to know why the Commission criticized the EU General Data Protection Regulation and why the Commission wants to amend U.S. privacy laws to allow "government access to data on Americans." EPIC is also curious why the Commission selectively published the names of organizations and businesses it consulted. The Commission is chaired by former Google CEO Eric Schmidt. EPIC filed suit against the Commission earlier this year to ensure transparency and public participation. The Commission has held more than 200 closed-door meetings. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C).
  • Report Raises New Concerns About Privacy Safeguards for US AI Deployment » (Nov. 4, 2019)
    A report released today by the National Security Commission on Artificial Intelligence raises new concerns about privacy and human rights safeguards for the use of AI by the federal government. The report to Congress acknowledges that "AI tools present states with greater capabilities to monitor and track their citizens or those of other states" and that AI "increases the risk of human rights abuses or violation of individual privacy[.]" The Commission also calls for AI uses that are "consistent with constitutional principles of due process, individual privacy, equal protection, and non-discrimination." But the report criticizes the EU's "privacy-first approach" to AI, calling the GDPR "a significant obstacle in any efforts to standardize privacy regulations," even though many leading US companies have agreed to comply with the privacy law. The Commission's report was drafted almost entirely in secret, in violation of multiple open government laws. In September, EPIC filed suit against the Commission to ensure transparency and public participation. EPIC's case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • Bill Introduced to Regulate Forensic Algorithms » (Sep. 23, 2019)
    U.S. Rep. Mark Takano (D-CA 41) has introduced the "Justice in Forensic Algorithms Act of 2019." The Act would create federal standards for the development and use of forensic algorithms as well as prohibit the use of trade secrets privileges to prevent defense access to evidence in criminal proceedings. The Computational Forensic Algorithm Standards include considerations of bias, accuracy, precision, and reproducibility, and makes "publicly available documentation by developers of computational forensic software of the purpose and function of the software, the development process, including source and description of training data, and internal testing methodology and results, including source and description of testing data." Earlier this year, Iowa passed a law regarding pre-trial risk assessment algorithms. EPIC has advocated for Algorithmic Transparency across all applications and urges the use of the Universal Guidelines for Artificial Intelligence to guide AI regulation. A new publication from EPIC — the AI Policy Sourcebook — includes major policy frameworks for artificial intelligence.
  • Secret AI Policy Meetings Continue » (Sep. 19, 2019)
    The National Security Commission on Artificial Intelligence is holding yet another closed-door meeting today—at least the fourth such meeting in the Commission's short existence. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully refusing to publish any meeting notices or to allow any public participation. Last week, EPIC renewed its request to access Commission records and meetings. The Commission is dominated by representatives of large tech firms, including Google and Microsoft. EPIC has urged Congress to ensure that the Commission operates transparently.
  • EPIC Publishes First Reference Book on AI Policy » (Sep. 17, 2019)
    EPIC has published "The EPIC AI Policy Sourcebook 2019." The EPIC collection is the first compendium of AI policy, providing essential information to policy makers, researchers, journalists, and the public. The EPIC Sourcebook includes global AI frameworks such as the OECD AI Principles and the Universal Guidelines for AI, as well as materials from the EU, Council of Europe, national AI initiatives and professional societies IEEE and ACM. The Sourcebook also includes an extensive resources section on AI, including organizations, reports, articles, and books from around the world. "Required reading for a necessary conversation," Sherry Turkle. The EPIC AI Policy Sourcebook is now available in the EPIC Bookstore.
  • EPIC Renews Request for Information About National AI Commission » (Sep. 16, 2019)
    EPIC has renewed its request with the National Security Commission on Artificial Intelligence for records and access to Commission meetings. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully refusing to publish any meeting notices or to allow any public participation. The Commission is dominated by representatives of large tech firms, including Google and Microsoft. EPIC previously requested records about the AI Commission and has urged Congress to ensure that the Commission operates transparently.
  • Privacy Emphasized in White House AI Budget Request » (Sep. 12, 2019)
    The White House Budget for 2020 emphasizes privacy and ethics in AI Research and Development. The budget recommends "broad, multidisciplinary research in security and privacy," but actual funding levels remain unclear. In 1989, the Human Genome Project set aside 18 million dollars annually to examine Ethical, Legal, and Social Implications. Strategic priorities from the 2016 National Privacy Research Strategy will be carried forward. EPIC has recently published the "AI Policy Sourcebook," containing public policy frameworks for Artificial Intelligence.
  • EPIC Advisory Board Member Anne Washington Testifies Before Congress » (Sep. 12, 2019)
    EPIC Advisory Board Member Professor Anne Washington today testified at a hearing on "The Future of Identity in Financial Services: Threats, Challenges, and Opportunities." Professor Washington said "Ignoring AI exceptions in financial services risks excluding many in our society because they are outliers from expectations...By baking privacy, security, and usability into the design of our AI systems, we can build a more responsible and ethical data environment." EPIC supports algorithmic transparency which would reduce bias and help ensure fairness in automated decisionmaking. EPIC proposed the Universal Guidelines for Artificial Intelligence as the basis for federal legislation. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries. EPIC has recently published the "AI Policy Sourcebook," containing the Universal Guidelines and other AI policy framework.
  • Facebook Faces More Civil Rights Lawsuits » (Aug. 20, 2019)
    A new lawsuit alleges that Facebook violated the Fair Housing Act by allowing advertisers to use factors such as race, sex, and disability to prevent home buyers and renters from seeing housing ads. Facebook recently settled claims and made changes to its advertising practices following lawsuits by the Department of Housing and Urban Development. EPIC is currently challenging the FTC's settlement with Facebook, arguing that it provides little benefit to Facebook users. EPIC also supports algorithmic transparency, which would reduce bias and help ensure fairness in automated decisionmaking. EPIC proposed the Universal Guidelines for Artificial Intelligence as the basis for federal legislation. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries.
  • EPIC Comments on Council of Europe Draft AI Recommendation » (Aug. 15, 2019)
    EPIC has filed comments on the Council of Europe's Recommendation on AI and human rights. Drafted by a committee of human rights experts, the Recommendation is expected to be adopted by the COE in early 2020. EPIC expressed strong support for the draft Recommendation, noting nearly all of the Universal Guidelines for Artificial Intelligence principles are included. EPIC also recommended the COE incorporate UGAI principles prohibiting secret profiling and unitary scores and requiring termination of AI systems that spin out of control. Intended to maximize the benefits of AI, to minimize the risk, and to ensure the protection of human rights, over 250 experts and 60 organizations have endorsed the Universal Guidelines. EPIC also recently urged the White House to safeguard personal data in U.S. AI research and development.
  • NIST Publishes Plan For AI Technical Standards » (Aug. 12, 2019)
    The National Institute of Standards and Technology has published a plan for federal involvement in developing AI technical standards. The NIST report states that it "is important for those participating in AI standards development to be aware of, and to act consistently with, U.S. government policies and principles, including those that address societal and ethical issues, governance, and privacy." NIST recommends the government (1) bolster AI standards expertise in federal agencies, (2) support public and private sector engagement in crafting AI standards, (3) translate requirements for trustworthy AI into practical standards, and (4) strategically engage around the world. NIST also calls for research into benchmarking "the reliability, robustness, and trustworthiness of AI systems" and "improve AI evaluations and methods for verification and validation," as well as the incorporation of ethical considerations and "human-centered" values. EPIC filed comments on the NIST plan, urging the U.S. to adopt the OECD Principles on Artificial Intelligence and the Universal Guidelines for AI. Both frameworks require rights-protective AI, verified as robust and reliable throughout its lifecycle.
  • EPIC, Legal Scholars, Technology Experts Publish Statement on US AI R&D Policy » (Aug. 8, 2019)
    EPIC and more than two dozen legal scholars and technical experts have filed comments on a White House Office of Management and Budget proposal to open federal data sets for AI research and development. "EPIC supports the public availability of data from the federal government for use in AI research, development, and testing that is not personally identifiable information," the document states. However, the experts strongly cautioned "against the use of data sets containing personally identifiable information," noting that federal agencies are under legal obligations to safeguard personal information. "EPIC's view of the use of government data for AI reflects long-standing practices in federal information policy that seek to maximize public access to public information while restricting access to personal data," the letter stated. EPIC also encouraged compliance by federal agencies with the OECD Principles on Artificial Intelligence, which the US recently endorsed, and the Universal Guidelines for AI. Both frameworks emphasize the importance of privacy protection in AI research. EPIC has previously proposed the UGAI as the basis for federal AI policy - twelve principles intended to maximize the benefits of AI, to minimize the risk, and to ensure the protection of human rights. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries.
  • US AI Commission Continues Secret Meetings » (Jul. 15, 2019)
    On July 11, 2019, the National Security Commission on Artificial Intelligence held its third meeting behind closed doors. Created by the National Defense Authorization Act for Fiscal Year 2019, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address the national security and defense needs of the U.S. Representatives of large tech firms, including Google and Microsoft, dominate the Commission. Like its first meeting in March, the AI Commission provided no notice of the meeting and no opportunity for public participation. According to reports, the AI Commission received briefings on AI research, national security uses of AI, and preparing the workforce for AI. The AI Commission's mandate specifies that comprehensive reports be made available to the public. EPIC previously filed a Freedom of Information Act request seeking a copy of the AI Commission report, which has still not been released to the public.
  • White House Seeks Public Comments on AI and Federal Data » (Jul. 11, 2019)
    The White House is requesting public comment on which federal data and models should be made available for AI research, development, and testing. Comments are due by August 8, 2019. The request for public comments follows from the Executive Order on Artificial Intelligence, which also requires agencies to identify privacy, civil liberties, and security concerns associated with access federal data sets. The Privacy Act of 1974 imposes limits on how government agencies collect, use, and transfer personal data. In Scientific American, EPIC has strongly favored greater use of federal data that is not personally identifiable, such as statistical data and data concerning climate change, but has warned against the use of personal data maintained by federal agencies for AI projects. EPIC also recently filed comments with the National Institute of Standards and Technology urging the U.S. to implement the OECD Principles on Artificial Intelligence and the Universal Guidelines for AI, which both emphasize the importance of privacy protection in AI research.
  • At G-20, Merkel Calls for Comprehensive AI Regulation » (Jun. 28, 2019)
    Speaking at the G-20 Summit in Japan, German Chancellor Angela Merkel called for the European Commission to propose comprehensive regulation for artificial intelligence. "It will be the job of the next Commission to deliver something so that we have regulation similar to the General Data Protection Regulation that makes it clear that artificial intelligence serves humanity," Chancellor Merkel said. EPIC recently urged the U.S government to implement the OECD Principles on Artificial Intelligence and the Universal Guidelines for AI as standards for U.S. AI policy. Over 250 experts and 60 organizations, representing more than 40 countries have endorsed the Universal Guidelines, which are intended to maximize the benefits of AI, to minimize the risk, and to ensure the protection of human rights.
  • White House Updates National AI Research and Development Plan » (Jun. 21, 2019)
    The White House has published the 2019 update of the National Artificial Intelligence Research and Development Strategic Plan. The report sets out priorities for U.S. AI policy. The 2019 report carries forward seven recommendations from the 2016 plan. The plan underscores the need to address the ethical, legal, and societal implications of AI (Strategy #3), emphasizes safety and security (Strategy #4), and the development of standards and benchmarks (Strategy #6). A new recommendation "focuses on the increasing importance of effective partnerships between the Federal Government and academia, industry, other non-Federal entities, and international allies to generate technological breakthroughs in AI." The 2019 report acknowledges input from "researchers, research organizations, professional societies, civil society organizations and individuals." Common themes included "the importance of developing trustworthy AI systems, including fairness, ethics, accountability, and transparency of AI systems." EPIC also recommended that the US AI strategy incorporate the Universal Guidelines for Artificial Intelligence in national policy. As the report notes, "beyond purely data-related issues, however, larger questions arise about the design of AI to be inherently just, fair, transparent, and accountable."
  • Intelligence Agencies Inspector General Calls for AI Oversight » (Jun. 11, 2019)
    A new report from the Inspector General urges oversight of the use of Artificial Intelligence techniques by the U.S. intelligence agencies. "Reassuring statements that the [intelligence community] is currently using AI technologies - and will use AI technologies in the future - in ways consistent with the rule of law and American values will not be sufficient. The [agencies] will need to validate those statements for the American people," the Inspector General said. "Investment asymmetry between mission performance and intelligence oversight in AI efforts could lead to an accountability deficit," the statement continues, "there is little indication that investments in oversight of AI are currently a high priority." EPIC recently urged the federal government to implement the OECD Principles on Artificial Intelligence and the Universal Guidelines for AI as primary standards for U.S. AI policy.
  • EPIC Recommends NIST Implement OECD AI Principles, Back Universal Guidelines » (May. 31, 2019)
    EPIC has filed comments with the National Institute of Standards and Technology urging the U.S. to implement the OECD Principles on Artificial Intelligence and the Universal Guidelines for AI. NIST sought information from the public on the appropriate standards U.S. AI policy. EPIC called on NIST to begin implementing the OECD principles - the first international standard for AI, which the U.S. recently endorsed. EPIC also said the agency should go further by adopting the Universal Guidelines for AI. Over 250 experts and 60 organizations, representing more than 40 countries have endorsed the UGAI, which are intended to maximize the benefits of AI, to minimize the risk, and to ensure the protection of human rights. EPIC will host a panel discussion on The Future of AI Policy in the U.S. at the National Press Club in Washington, DC on June 5, with representatives from the White House, the OECD, and leading experts in technology and public policy.
  • OECD Announces AI Principles, 42 Nations Endorse » (May. 22, 2019)
    Today the OECD announced the OECD Principles on Artificial Intelligence, the first international standard for AI, with the backing of 42 countries. The OECD AI principles make central "the rule of law, human rights and democratic values" and set out requirements for fairness, accountability and transparency. OECD Secretary-General Gurría said the OECD AI principles "place the interests of people at its heart." Gurría also quoted Alan Turing, who once said, "We can only see a short distance ahead, but we can see plenty there that needs to be done." Civil society groups, working through the CSISAC played a key role in the development of the OECD AI Principles as did the EPIC Public Voice project. Earlier this year, EPIC President Marc Rotenberg commended the US administration for backing the OECD process, but also wrote in the New York Times that there is much more to be done. "The United States must work with other democratic countries to establish red lines for certain AI applications and ensue fairness, accountability, and transparency as AI systems are deployed."
  • OECD to Announce International Standard for AI » (May. 21, 2019)
    The OECD will announce this week The Recommendation on Artificial Intelligence, the first intergovernmental standard on AI. [OECD flyer] The OECD AI Recommendation aims to foster innovation and trust in AI by promoting the responsible stewardship of trustworthy AI while ensuring respect for human rights and democratic values. The OECD AI Standard addresses fairness, accountability, and transparency and speaks specifically to the need to respect "freedom, dignity and autonomy, privacy and data protection, non-discrimination and equality, diversity, fairness, social justice, and internationally recognised labour rights." The OECD AI standard complements existing OECD standards in areas such as privacy, cryptography, digital security risk management, and responsible business conduct. Over the past year, EPIC led an effort to promote Universal Guidelines for AI following an earlier campaign for Algorithmic Transparency. EPIC will host a panel discussion on The Future of AI Policy in the US at the National Press Club in Washington, DC on June 5, with representatives from the White House, the OECD, and leading experts in technology and public policy. Registration is open to the public.
  • In Comments to Defense Dept. EPIC Urges Adherence to Privacy Act, Algorithmic Fairness » (Apr. 22, 2019)
    In comments to the Department of Defense on the proposed expansion of the "Insider Threat" Database, EPIC recommended the Department withdraw unlawful and unnecessary routine use disclosures, significantly narrow the Privacy Act exemptions, and adopt the Universal Guidelines for Artificial Intelligence. The DoD plans to collect detailed, personal information, including health data, ethnicity and race, biometric data, travel records, and social media information, on federal employees, their friends, and family members. EPIC noted widespread computer security problems at the DoD, and warned, "this system of records—despite a documented inability to protect personal data—invites the very threats the program seeks to prevent." EPIC previously commented on the creation of the system.
  • European Commission Releases AI Policy Report » (Apr. 8, 2019)
    The European Commission's Expert Group on Artificial Intelligence has released Guidelines for Trustworthy AI. The EU Guidelines identify seven principles for ethical AI: (1) Human agency and oversight; (2) Robustness and safety; (3) Privacy and data governance (4) Transparency; (5) Diversity, non-discrimination and fairness; (6) Societal and environmental well-being; and (7) Accountability. The European Commission will open a pilot program to test implementation of the Guidelines for Trustworthy AI this summer. The EU Guidelines reflect several principles from the Universal Guidelines for Artificial Intelligence, which have been endorsed by more than 260 experts and 60 organizations in 40 countries. The Universal Guidelines are designed to protect human rights in the development and use of AI systems.
  • White House Launches AI Website, Questions About Public Input Remain » (Mar. 21, 2019)
    A new White House website "Artificial Intelligence for the American People" emphasizes "AI for American Innovation, AI for American Industry, AI for the American Worker, and AI with American Values," but still provides no opportunities for public input. The National Commission on Artificial Intelligence, tasked with advising the federal government on AI policy, also recently held its first meeting in secret. Last year, EPIC—joined by nearly 100 experts and leading scientific organizations including AAAS, ACM, FAS, and IEEE—successfully petitioned the White House Select Committee on Artificial Intelligence to incorporate public input in the committee's work. EPIC has urged US support for the Universal Guidelines for AI, a policy framework emphasizing fairness, accountability, and transparency for AI systems.
  • At OECD, EPIC's Rotenberg Calls for "Bold" AI Framework » (Mar. 11, 2019)
    Speaking to the Going Digital Summit of the OECD in Paris, EPIC President Marc Rotenberg urged the OECD to adopt a bold framework for AI that will safeguard fundamental rights. "The OECD is uniquely situated to put forward an international framework that spurs innovation, and protects democratic institutions and human rights," said Mr. Rotenberg. The OECD Civil Society Advisory Council has promoted the Universal Guidelines for AI, a policy framework endorsed by more than 250 experts and 60 associations in more than 40 countries.
  • EPIC to Congress: Require Algorithmic Transparency To Prevent Discriminatory Profiling » (Mar. 5, 2019)
    Prior to a hearing on "Inclusion in Tech: How Diversity Benefits All Americans," EPIC has sent a statement to a House committee. EPIC said that "algorithmic transparency" could reduce bias and help ensure fairness in automated decisionmaking. EPIC proposed the Universal Guidelines for Artificial Intelligence as the basis for federal legislation. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries. EPIC, Color of Change, the Open Markets Institute, and others have also urged the FTC to require Facebook to reform is hiring practices. "If the company wishes to connect the world," EPIC and the groups wrote, "it must also be prepared to reflect the world in all of its decision-making."
  • Representatives Lawrence and Khana Introduce Resolution on AI Policy » (Feb. 28, 2019)
    Reps. Brenda Lawrence (D-MI) and Ro Khanna (D-CA) have introduced a Congressional resolution calling for guidelines for the ethical development of artificial intelligence. The Ethical AI resolution sets out core principles, including transparency, accountability, fairness, privacy protection, public engagement, education, and safety. EPIC has proposed similar principles, the Universal Guidelines for Artificial Intelligence as the basis for AI legislation. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries. EPIC previously urged lawmakers to appoint AI Commission members who support the Universal Guidelines.
  • EPIC to NYC: Develop Privacy Safeguards for "Smart City" Technologies » (Feb. 14, 2019)
    In comments to the City of New York, EPIC identified current privacy risks to New Yorkers, new challenges from the development of "smart cities" services, and also described how other cities are tackling privacy issues. The NYC Mayor's Office of Information Privacy sought input from the public on policies to best serve the privacy interests of New Yorkers. EPIC recommended that the city minimize collection of personally identifiable data, promote the use of statistical data, upgrade cyber security, and provide increased opportunity for public participation in the development of new Internet-based services. EPIC also encouraged NYC to adopt the Universal Guidelines for Artificial Intelligence when implementing AI technology.
  • White House Executive Order on AI Leaves Key Questions Unanswered » (Feb. 11, 2019)
    President Trump today signed an executive order on Artificial Intelligence that leaves many questions unanswered. EPIC has urged both the White House and Congress to ensure public input on AI policy. EPIC has also proposed the Universal Guidelines for Artificial Intelligence as the basis for AI legislation to reduce bias in decision-making algorithms, ensure digital globalization is inclusive, create human-centered evidence-based policy, promote safety in AI deployment in national security uses, and rebuild trust in institutions. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries.
  • EPIC To PCLOB: Review 12333, Facial Recognition, AI, Smart Borders, and 702 Authority » (Feb. 7, 2019)
    In advance of a Privacy and Civil Liberties Oversight Board forum on "Countering Terrorism while Protecting Privacy and Civil Liberties: Where do We Stand in 2019," EPIC sent a statement to the Board outlining priorities. EPIC said the Civil Liberties Board should (1) release the report on Executive Order 12333; (2) limit government use of facial recognition; (3) establish safeguard for government AI use; (4) monitor proposals for "smart" borders and assess privacy impacts on US residents; and (5) reform Section 702 surveillance authority. The independent agency reviews federal agency programs to ensure protections for privacy and civil liberties. EPIC helped establish the PCLOB. In 2003 EPIC testified before the 9-11 Commission and urged the creation of an independent privacy agency to oversee the surveillance powers established after 9/11. EPIC also set out initial priorities for the PCLOB and spoke at the first meeting of the Oversight Board in 2013. In 2016, EPIC awarded former PCLOB Board Member Judge Patricia Wald with the EPIC Champion of Freedom Award.
  • EPIC to Senate: Oversight Board Must Review Government Use of Facial Recognition, AI » (Feb. 5, 2019)
    In advance of a hearing about the Privacy and Civil Liberties Oversight Board, EPIC sent a statement to the Senate Judiciary Committee outlining priorities. EPIC said the Civil Liberties Board should (1) release the report on Executive Order 12333; (2) review the use of facial recognition technology and propose safeguards; (3) review the use of artificial intelligence and propose safeguards; and (4) monitor proposals for "smart" borders and assess privacy impacts on US residents. The independent agency reviews federal agency programs to ensure adequate safeguards for privacy and civil liberties. EPIC helped establish the PCLOB. In 2003 EPIC testified before the 9-11 Commission and urged the creation of an independent privacy agency to oversee the surveillance powers established after 9/11. EPIC also set out initial priorities for the PCLOB and spoke at the first meeting of the Oversight Board in 2013. In 2016, EPIC awarded former PCLOB Board Member Judge Patricia Wald with the EPIC Champion of Freedom Award.
  • Public Voice Urges World Economic Forum to Adopt Universal Guidelines for AI » (Jan. 25, 2019)
    This week, The Public Voice urged participants at Davos to adopt the Universal Guidelines for AI to protect human rights, and to ensure access, inclusion, and equity for global citizens. Leaders of the World Economic Forum launched the 2019 Davos conference this week, with several events on privacy and AI to develop technology policies that are "underpinned by the necessary ethical principles and values-based framework." In opening remarks, Klaus Schwab said the 4th Industrial Revolution demands human-centered, inclusive, and sustainable solutions. @ThePublicVoice urged adoption of the UGAI principles to reduce bias in decision-making algorithms, ensure digital globalization is inclusive, create human-centered evidence-based policy, promote safety in AI deployment in national security uses, and rebuild trust in institutions.
  • European Commission Seeks Input on AI Policy » (Jan. 9, 2019)
    The European Commission's Expert Group on Artificial Intelligence has requested comments on draft Guidelines for Trustworthy AI. The EU Guidelines state, "Trustworthy AI has two components: (1) it should respect fundamental rights, applicable regulation and core principles and values, ensuring an 'ethical purpose' and (2) it should be technically robust and reliable since, even with good intentions, a lack of technological mastery can cause unintentional harm." The EU Guidelines reflect several principles from the Universal Guidelines for Artificial Intelligence, which have been endorsed by more than 250 experts and 60 organizations in 40 countries. The Universal Guidelines promote transparency, accuracy, and fairness for AI systems. Comments to the European Commission are due January 18, 2019. The final report will be released in March 2019.
  • EPIC Asks Congress to Nominate AI Commission Members Who Support the Universal Guidelines » (Dec. 19, 2018)
    EPIC has urged members of Congress responsible for a new National Commission on AI to nominate experts and public interest representatives who have endorsed the Universal Guidelines for Artificial Intelligence. EPIC told Congress "it is vitally important that the National Security Commission include members who can represent the interests of the American public on AI." Leading computer scientists and scientific societies, including the American Association for the Advancement of Science, have endorsed the Universal Guidelines. According to the 2019 National Defense Authorization Act, the National Security Commission on AI will be composed of 15 members, conduct an extensive review of AI, and prepare an initial public report in 2019.
  • EPIC Urges Public Input on AI Policy » (Dec. 11, 2018)
    In a statement on AI policy to the House Armed Services Committee, EPIC urged the panel to ensure public input on AI policy. The statement from EPIC follows a petition to the White House, backed by EPIC and leading scientific organizations, to solicit public comments on US AI policy. EPIC also proposed the Universal Guidelines for Artificial Intelligence as the basis for AI legislation. The Universal Guidelines are intended to "maximize the benefits of AI, minimize the risk, and ensure the protection of human rights." More than 230 experts and 60 organizations, including the American Association for the Advancement of Science, have endorsed the Universal Guidelines.
  • EPIC To Congress: Require Algorithmic Transparency For Google, Dominant Internet Firms » (Dec. 10, 2018)
    EPIC has sent a statement to the House Judiciary Committee in advance of a hearing on Google's business practices. EPIC said that "algorithmic transparency" should be required for Internet firms. EPIC explained that Google's acquisition of YouTube led to a skewing of search results after Google substituted its secret "relevance" ranking for the original objective ranking, based on hits and ratings. EPIC pointed out that Google's algorithm preferences YouTube's web pages over EPIC's in searches for videos concerning "privacy." Last year the European Commission found that Google rigged search results to preference its own online service. The Commission required Google to change its algorithm to rank its own shopping comparison the same way it ranks its competitors. The US Federal Trade Commission has failed to take similar action, after even receiving substantial complaints. EPIC also urged Congress to consider the Universal Guidelines for AI as a basis for federal legislation.
  • EPIC's Rotenberg Urges Support for AI Guidelines at OECD » (Nov. 19, 2018)
    Speaking to the OECD Global Strategy Group in Paris, EPIC President Marc Rotenberg urged OECD member countries to endorse the Universal Guidelines for AI. "Civil society recognizes that AI may help solve the world's greatest challenges - from climate change and resource scarcity to  medical breakthroughs and sustainable development. But we also believe that the public must be given the opportunity to participate in the development of AI policy. And there should be guidelines at the outset that safeguard democratic values and human rights," said Mr. Rotenberg. More than 200 experts and 50 NGOs, from across 40 countries, have endorsed the Universal Guidelines for AI, the first human rights framework for artificial intelligence. The OECD Global Strategy Group brings together senior officials from member countries to discuss the challenges shaping today's world.
  • Pew Research: Widespread Concerns in US About AI » (Nov. 16, 2018)
    A new survey from the Pew Research Center "Public Attitudes Toward Computer Algorithms" found widespread concern about the fairness of automated decision making. According to the Pew report, "Americans express broad concerns over the fairness and effectiveness of computer programs making important decisions in people's lives." Americans oppose the use algorithms for criminal risk assessments (56%), automated resume screening for job applicants (57%), and personal finance scores (68%). Many of the concerns in the Pew Report are addressed in the Universal Guidelines for AI, the first human rights framework for AI. More than 200 experts and 50 NGOs have endorsed the Universal Guidelines. Public opinion polls consistently find strong support among Americans for new privacy laws.
  • Following EPIC Petition, National Science Foundation Seeks Public Comment on AI Policy » (Sep. 26, 2018)
    The National Science Foundation has announced that it is seeking public comment on US policy for artificial intelligence The decision follows a petition by EPIC, leading scientific organizations including AAAS, ACM, FAS, and IEEE, and nearly 100 experts calling for public participation in the work of the White House Select Committee on Artificial Intelligence. In May, the White House held a secret meeting with government agencies and federal officials. Several key AI challenges, such as accountability, transparency, ethics, and fairness, were ignored. EPIC recently urged the Senate Commerce Committee to ensure public participation in U.S. AI policy. In a FOIA request, EPIC obtained communications between the Office of Science and Technology Policy and the National Science Foundation. Last month EPIC urged the Senate Commerce Committee to ensure public participation in US AI policy. And EPIC is hosting a Public Voice conference in Brussels on "AI, Ethics, and Fundamental Rights." Comments on US AI policy are due to NSF by October 26.
  • White House Establishes AI Advisory Committee » (May. 10, 2018)
    The White House has established the "Select Committee on Artificial Intelligence" to advise the President and coordinate AI policies among executive branch agencies. The Office of Science and Technology Policy, NSF, and DARPA will lead the interagency committee. According to the White House, the goals of the Committee are (1) prioritize funding for AI research and development; (2) remove barriers to AI innovation; (3) train the future American workforce; (4) achieve strategic military advantage; (5) leverage AI for government services; and (6) lead international AI negotiations. The Committee will also coordinate efforts across federal agencies to research and adopt technologies such as autonomous systems, biometric identification, computerized image and video analysis, machine learning and robotics. It is unclear whether the Committee will include public perspectives in its work. In 2014, EPIC, joined by 24 consumer privacy, public interest, scientific, and educational organizations petitioned the OSTP to accept public comments on a White House project concerning Big Data. The petition stated, "The public should be given the opportunity to contribute to the OSTP's review of 'Big Data and the Future of Privacy' since it is their information that is being collected and their privacy and their future that is at stake." In 2015 EPIC launched an international campaign for Algorithmic Transparency and recently urged Congress to establish oversight mechanisms for the use of AI by federal agencies.
  • House Bill Would Create Commission on AI » (Mar. 22, 2018)
    Congresswoman Elise Stefanik (R-NY) has introduced a bill (H.R. 5356) that would create the National Security Commission on Artificial Intelligence (AI).Congresswoman Stefanik said, “It is critical to our national security but also to the development of our broader economy that the United States becomes the global leader in further developing this cutting edge technology.” The Commission would conduct a comprehensive review of AI technologies, assess the risks to national security, identity actionable items, and provide recommendations to the President and Congress. The Commission’s recommendations would also address: data and privacy, international law and ethics, competitiveness, technological advantages, cooperation and competition, investments and research, and workforce and education. In 2015, EPIC launched an international campaign for Algorithmic Transparency. EPIC has also warned Congress about the use of opaque technique in automated decision-making.

Background

The Growth of Commercial AI Use

The absence of effective AI regulations in the United States has accelerated the spread of unaccountable and untrustworthy AI tools. And the unregulated use of those AI tools has already caused serious harm to consumers, who are increasingly subject to opaque and unprovable decision-making in employment, credit, healthcare, housing, and criminal justice.

Businesses are currently relying on opaque AI techniques to make life-altering decisions about consumers. The scope of AI use in employment screening is sweeping. HireVue—just one competitor in the employment screening field—has over 700 corporate customers. And the use of opaque AI tools is not limited to the employment context. Students are subject to AI-based analysis, including automated screening of their communications on school-mandated laptops. Individuals are pressed to hand over intimate, real-time health data to insurance giants—data which may be fed into undisclosed risk assessment tools. And DNA testing services GEDmatch and 23andMe rely on proprietary algorithms to develop genetic profiles of consumers, information which law enforcement routinely seeks to obtain and use. 

Businesses are employing AI with little or no accountability to consumers. For example, Clearview AI, uses a powerful algorithm and billions of facial images collected without consent for a facial recognition app capable of quickly identifying a person based on a single photo. Yet despite the recent public outcry over Clearview’s use of AI, individual consumers have little ability to hold the company accountable for developing and operating a facial recognition tool based on their personal data. And Clearview is not alone in the field: companies including Amazon, FaceFirst, and Vigilant Solutions have also developed large-scale—and largely unaccountable—facial recognition tools.

Businesses have failed to ensure that AI is fair to consumers and free from impermissible bias. Fairness is one of the cornerstones of AI use, but businesses have failed to demonstrate that their use of AI is fair to consumers or free from impermissible bias. A report by the National Institute of Standards and Technology analyzed the facial recognition algorithms of a “majority of the industry” and found the software up to 100 times more likely to return a false positive for a non-white individual than for a white individual. 

Businesses are engaged in secret profiling of consumers. Secret scoring can harm the ability of individuals to obtain credit, jobs, housing, and other important opportunities. Predictive consumer scores are used by companies across many industries, such as Clearview AI and the Universal Tennis Rating.

Public Policy Frameworks Governing AI Use

Artificial intelligence poses unique risks to human rights, privacy, and autonomy. As Professors Danielle Keats Citron and Frank Pasquale explain, “New algorithmic decisionmakers are sovereign over important aspects of individual lives. If law and due process are absent from this field, we are essentially paving the way to a new feudal order of unaccountable reputational intermediaries.” Accordingly, policymakers and experts have established widely adopted legal standards for the use of AI.

In 2019, the member nations of the OECD, working also with many non-OECD members countries, promulgated the OECD Principles on Artificial Intelligence. The United States has endorsed the OECD AI Principles. The OECD AI Principles establish international standards for AI use:

  1. Inclusive growth, sustainable development and well-being.
  2. Human-centered values and fairness.
  3. Transparency and explainability.
  4. Robustness, security and safety.
  5. Accountability

The Universal Guidelines for Artificial Intelligence, a framework for AI governance based on the protection of human rights, were set out at the 2018 Public Voice meeting in Brussels, Belgium. The Universal Guidelines for AI have been endorsed by more than 250 experts and 60 organizations in 40 countries. The UGAI comprise twelve principles:

  1. Right to Transparency.
  2. Right to Human Determination.
  3. Identification Obligation.
  4. Fairness Obligation.
  5. Assessment and Accountability Obligations.
  6. Accuracy, Reliability, and Validity Obligations.
  7. Data Quality Obligation.
  8. Public Safety Obligation.
  9. Cybersecurity Obligation.
  10. Prohibition on Secret Profiling.
  11. Prohibition on Unitary Scoring.
  12. Termination Obligation. 

In January 2020, the Office of Management and Budget, in coordination with the Office of Science and Technology and Policy, released its Guidance for Regulation of Artificial Intelligence Applications. The OMB AI Guidance, which applies to “all Federal agencies,” incorporates many of the precepts of the OECD AI Principles and the UGAI. The OMB AI Guidance lays out ten “Principles for the Stewardship of AI Applications”: 

  1. Public Trust in AI.
  2. Public Participation.
  3. Scientific Integrity and Information Quality.
  4. Risk Assessment and Management.
  5. Benefits and Costs.
  6. Flexibility
  7. Fairness and Non-Discrimination.
  8. Disclosure and Transparency.
  9. Safety and Security.
  10. Interagency Coordination.

The FTC's Rulemaking Authority

Under the FTC Act (15 U.S.C. § 57a), the Commission is empowered to issue trade regulation rules “which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce[.]” These rules “may include requirements prescribed for the purpose of preventing such acts or practices.” A violation of a trade rule “shall constitute an unfair or deceptive act or practice in violation of section 5(a)(1) of [the FTC] Act, unless the Commission otherwise expressly provides in its rule.”

The Commission may initiate a trade regulation rulemaking when “it has reason to believe that the unfair or deceptive acts or practices which are the subject of the proposed rulemaking are prevalent.” Acts or practices are “prevalent” if the Commission “has issued cease and desist orders regarding such acts or practices” or—as in this case—when “information available to the Commission indicates a widespread pattern of unfair or deceptive acts or practices.”

The Need for the FTC to Conduct a Rulemaking

The unregulated use of AI to make decisions about consumers is unfair because it “causes or is likely to cause substantial injury to consumers” that is not outweighed by countervailing benefits. Businesses are regularly relying on biometric information, financial records, and other highly sensitive personal data to make individualized AI-based determinations about consumers. Many of these AI applications are completely unknown to consumers, as in the secret collection and processing of billions of facial images by Clearview. And even if consumers are notified that an AI system is in use, they are frequently given no explanation of the decisions made by that system and no meaningful opportunity to opt out. For example, many job applicants have little choice but to submit to HireVue’s AI-based screening tool—or else forgo an ever-growing list of employment opportunities.

Moreover, commercial uses of AI routinely violate established public policy frameworks. The AI tools deployed by HireVue, Clearview, Airbnb, and numerous other corporations flout the U.S.-endorsed OECD AI Principles and the Universal Guidelines on Artificial Intelligence. Instead, these AI tools are often opaque, unaccountable, and unreliable. For these reasons, strong majorities of the public have concluded that automated decisionmaking is “unacceptable” in criminal risk assessment (56%), resume screening (57%), job interviews (67%), and consumer scoring (68%).

Commercial applications of AI have also become sufficiently prevalent that the Commission must address the resulting unfairness to consumers through its trade regulation authority. According to a Gartner study, the commercial use of AI has increased 270% in the last 4 years, with 37% of businesses now using some form of the technology. By other accounts, the scale of commercial AI is even greater. Nearly half of respondents in one survey reported that “their organizations have embedded at least one [AI capability] into their standard business processes, while another 30 percent report piloting the use of AI.”

FTC Commissioners have repeatedly recognized that the rapid growth of AI implicates the FTC’s regulatory powers. In October 2018, Chairman Simons explained that the rise of AI “challenge[s] all of us to reexamine our regulatory approaches.” The following month, the Commission hosted a public event on “Consumer Protection Implications of Algorithms, Artificial Intelligence, and Predictive Analytics.” Commissioner Wilson recently noted that the FTC “has long been thinking about and grappling with” issues of algorithmic bias and discrimination, and Commissioner Phillips has acknowledged the FTC's power to “regulat[e] the private sector's use of technology and AI[.]” Commissioner Chopra has repeatedly warned about the “opacity and complexity of algorithmic decision-making” and that “we should never assume that algorithms will be free of bias.” And recently, Commissioner Slaughter sounded the alarm about the “mounting and urgent” nature of “algorithmic harms,” noting that a trade regulation rulemaking may be required.

EPIC's Interest

EPIC is a longstanding advocate of algorithmic transparency and legal safeguards for the use of artificial intelligence. As EPIC has explained, “Algorithmic accountability is a complex topic, but the impact cuts broadly across life in America, from jobs and credit to housing and criminal justice.” EPIC has also warned of the urgency to act now: “The United States must work with other democratic countries to establish red lines for certain A.I. applications and ensure fairness, accountability and transparency as A.I. systems are deployed.”

EPIC has specifically recommended that the FTC respond to the emergence of AI techniques that are “unfair or deceptive,” and therefore in violation of the FTC Act. In 2019, EPIC filed a complaint against recruiting company HireVue alleging that the company falsely denied it uses facial recognition and failed to comply with baseline standards for AI decision-making. And in 2017, EPIC filed a complaint against Universal Tennis Rating, a secret, proprietary algorithm, used to assign personally identifiable numeric scores to tennis players under 13 years old. And EPIC filed a complaint against Facebook concerning the company's facial recognition practices.

EPIC publishes the AI Policy Sourcebook, the first reference book on AI policy.

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