Artificial Intelligence Regulation: Still Many Concerns, Still Little Progress, But…

We start with six-plus weeks of chattering, plus two small improvement areas.

In the best of the latter, a “California law puts digital fingerprints on AI fakes” (Kurt Knutsson, Fox News, August 13^th).  Something we need nationwide, as of August 2^nd there the “rules require artificial intelligence tools to embed provenance data in synthetic media, with social platforms, device makers next,” as “large generative AI providers” must “embed hidden provenance information in covered media created by their systems,” those forms including “images, video and audio.”  These “covered AI providers must offer a detection tool at no cost,” which also allows uploading media and “submit(ting) a link to content stored online.”  Unfortunately, “a detection tool from one AI company may not identify media produced by another.”  Let us hope that, with a limited number of large producers, the tools can soon be combined - and mandated in the other 49 states.

Another form of regulation might end up being implemented, as “With A.I. Riches at Stake, Pressures Mount to Share the Wealth” (Tony Romm, The New York Times, August 16^th).  In June, generally pro-AI Virginia became the first state to “impose a small tax on data centers based on the vast amounts of electricity they consume.”  Not so “small,” as that money “is expected to be a windfall, supplying up to $600 million in revenue in the coming year,” as companies “shoulder” the “burden” of “new economic and environmental costs.”  Elsewhere, “policymakers are rethinking their economic relationship with artificial intelligence, trying to ensure their communities stand to benefit more clearly from a technology that may mint Silicon Valley an incalculable new fortune.”  Meanwhile, Senator Bernie Sanders “has called for a new sovereign wealth fund to redistribute profits from tech giants to the public,” which is not a totally new thought, as “for decades, Alaska has paid small dividends to its residents based on the sale of oil extracted within its borders… hardly enough to replace a person’s wages, but for some economists, the fund is a tempting model for the digital age.”  Nebraska’s Republican governor has cancelled a state law providing tax incentives to AI companies, as “Big Tech needs to pay their way,” and Texas’s same “ordered a statewide audit of data centers and their compliance with local electricity rules,” saying that “simply put, Texans must come first.”  Expect more of these changes, by Democrats as well - indeed, “over the past two years, roughly 30 states have considered legislation related to data center energy use.”

In the first state to temporarily stop allowing new data centers, “A.I. Is to Be Banned in N.Y.C. Elementary and Middle Schools” (Matthew Haag, The New York Times, September 1^st).  There will be no more “individual screens… until third grade,” “and teachers will not be able to ask A.I. to grade assignments.”  Yet there are exceptions, and “a member of a city education oversight panel” said the effectiveness of the ruling “remains to be seen.”

More overall, “Big AI is begging to be regulated.  That should worry you” (Dace Potas, USA Today, September 18^th).  Six days before that, “Anthropic CEO Dario Amodei published an essay calling, surprisingly, for a slowdown of American and global artificial intelligence development,” saying that “the most effective method of pacing is via regulation that targets all US frontier AI companies,” and drawing agreement from “OpenAI CEO Sam Altman and X CEO Elon Musk.”  That, per Potas, could be either in anticipation of acting “independently of instructions,” wanting to be seen advocating the newly inevitable, or working to create an oligopoly with smaller firms kept out, and, as I have written, it could be from expecting their companies would fare better than competitors.

“Has the A.I. Industry Become Too Big to Fail?” (Bethany McLean, The New York Times, September 26^th).  Altman called for the federal government to serve as “insurer of last resort” in case OpenAI collapsed, which would be similar to what it was during the 2008 financial crisis; now, by comparison, “the A.I. boom is far larger than the boom in subprime mortgages” which caused the 2008 problems.  As McLean put it, since “Americans really do not like A.I. companies,” and “it is hard to imagine the nation would accept a deal like the one that emerged in 2008, which prioritized the balance sheets of the investor class at the expense of everyone else,” “the solution to the whole ever-expanding A.I. terror starts with… No company should be too big to fail.”

Now, on to the hopeful articles.

What do we need to legally implement to bridle AI?  Perhaps not much, as “There Are Plenty of Laws on the Books to Check the A.I. Giants.  Use Them.” (Lina M. Khan, The New York Times, September 30^th).  Product liability laws, which “apply when goods are defective or dangerous”; tort law, which “establishes basic duties for companies to not act negligently or recklessly”;  and “consumer protection laws prohibiting unfair or deceptive practices,” which can take effect “when businesses injure others by failing to take adequate precautions,” are three categories, and have already been the foundations for “a host of lawsuits,” along with “criminal laws that address more egregious forms of corporate lawbreaking.”  Marginal cases when brought to courts may end up establishing precedents, but defensible legal actions where any of the above could apply should not be suppressed because of a perceived lack of protection under the law.  So even though on that same date Michael Gold and Cecilia Kang’s Times piece, “Congress Set to Leave Washington for the Midterms With No A.I. Progress” sounded sad, it did not mean the technology is without national restrictions.

One thing needing official clarification though is when “A.I. Is Going Rogue.  Who Should Be Held Responsible?” (David McCabe, also in the New York Times, October 1^st), as “legal scholars say applying existing law could be messy.”  Although “common sense might indicate A.I. companies would… be held liable for their runaway technology,” “the problem is so new that courts have largely yet to confront it.”  As well, nothing has been established on how the liability for open-source AI software will be shared between those producing its “underlying code” and those modifying it.  Some situations may be judged to be examples of the First Amendment.  It would be hard to show negligence when “an A.I. model exhibited harmful behavior for the first time,” and “it may also be difficult to show that an A.I. company intended to do harm, which can be essential to some criminal prosecutions.” 

Yet, per “A.I. Companies Say They Aren’t Responsible for Their Unpredictable Products.  Don’t Believe Them” (The Editorial Board, The New York Times, October 10^th), “liability is an incomplete answer for the challenges posed by A.I., but it has two great advantages: The laws are on the books, and they are powerful.  Makers of cars, airplanes, tobacco products and opioids have all been forced by lawsuits to change how they do business.  They made their products safer, restrict access to them or both.”  As McCabe implied, “the most important step is to start bringing lawsuits.  The legal process moves slowly.  The work of applying old laws to a new technology will be difficult, and progress requires judges to start chewing on actual cases.”

So that is where we are.  Yes, we need the federal AI regulation commission.  But until then, people with legitimate complaints about it should move forward as well as they can.  That, whether our government acts or doesn’t, should get us the AI control we need.