Additionally, a fuzzy jurisdictional boundary risks years or even decades of litigation to concretize the limits of the agency’s authority. One is the risk of mission creep: Without a clear jurisdictional boundary, an agency created with ChatGPT and job automation in mind could go on to regulate search engine results, social media feeds, smarthome devices, and more. Congress might try to avoid this problem altogether by leaving it up to the agency to decide which systems to regulate. Assuming Congress creates an agency to regulate AI (or gives new power to an existing agency), which AI systems will be subject to regulation? This is a tricky problem because it’s hard to draw a line that differentiates the Strong AI systems Congress seems worried about-ChatGPT, for example-from algorithms used in more mundane applications. The first question concerns agency jurisdiction. Two such questions warrant particular attention. Yet Congress itself must grapple with certain foundational questions or else risk having the entire regulatory scheme rendered ineffectual by litigation and administrative delays. Because of these challenges, many members of Congress appear ready to outsource the task of regulating AI to an agency that (hopefully) has the technical expertise to figure out and mitigate the risks. But the cutting-edge AI systems they want to regulate are both tremendously complex and rapidly evolving.
For example, an AI agency might play a role, in collaboration with OIRA, in identifying existing regulations that hinder beneficial AI adoption.Ī growing and bipartisan faction in Congress wants to address the risks presented by artificial intelligence. Although most of the public discussion has focused on how an agency could help to mitigate the risks of AI, there is also potential for an AI regulator to be involved in reforms to maximize AI potential. OIRA can also lean on expertise from different agencies, and its review process forces policy decisions to be justified in the language of cost-benefit analysis, which helps to combat regulatory capture. OIRA, however, has the broad expertise to analyze how AI systems are going to interact and to create the relevant checks and balances. AI is a general-purpose technology that touches every sector, and the experts in computer science are not necessarily the experts on the broad implications of AI.
Agencies are required to submit regulations to OIRA for review before they are issued, but independent agencies are exempt. Practically, it would also ensure the agency falls under the purview of the Office of Information and Regulatory Affairs. An agency where decisionmakers are appointed by and easily removable by the President may avoid separation-of-powers challenges. For example, in recent years, the Supreme Court has been taking a hard look at offices that are insulated from political control in cases like Seila Law v. But the debate over creating a new agency is not going away, and if lawmakers do choose to create a new agency, they should pay close attention to its level of political insulation.Īn agency with relatively less independence may have legal and practical advantages, particularly given the unique task of regulating algorithms. There are existing legal remedies and authorities that can be used to manage AI risks, as well as agencies that could be granted new regulatory authorities. Others fear that a hands-off regulatory approach will lead to problems ranging from the invasion of privacy to the destabilization of democracy, and there is growing bipartisan support for creating a new AI regulator to address these risks.
Some argue that the coming AI revolution will improve our health outcomes, help us avoid accidents, and increase our standard of living. Below is a summary of each panelist’s remarks. Professor Aram Gavoor of GW Law moderated the discussion.
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Panelists Eli Nachmany, Laura Stanley, and Seanhenry VanDyke discussed important issues that will arise as Congress and the executive branch consider whether and how to regulate artificial intelligence. The Federalist Society recently hosted a webinar entitled New Voices in Administrative Law: The Emerging Debates on AI Regulation.
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