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The Diverging Paths of AI Regulation

The Diverging Paths of AI Regulation

Milgrom Team

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The Google Pixel 6 launched recently.  Among its many most anticipated features are new artificial intelligence and machine learning features (“AI”), including its speech translation and recognition, and its AI photo editing software.  Indeed, although the phone has significant hardware advancements, most commentators recognized that AI advancements were the driving factor behind its success.

This focus on the benefits of AI follows a longer societal trend where there is increasing recognition that AI has countless untapped benefits.  Whether it was Alphazero demonstrating new playing styles in chess,  dramatically improving efficiency in insurance writing and claims processing, or countries using facial recognition to monitor their citizens, AI is and will continue to fundamentally change the world.

However, countries’ recognition and reaction to AI has not been consistent.  Europe, as expected because of its strong stance on individual data rights and privacy, has launched the most aggressive and restrictive stance against the use of AI.  Back in 2018, the European Economic Area passed the General Data Protection Regulation, restricting the use of some automated decision making.  Additionally, in April 21, 2021, the European Union released a draft of the EU Artificial Intelligence Act, which further attempted to regulate AI through harmonized rules within the European Union.  The breadth of the proposed rules is broad – it applies to those outside of the EU that market or provide AI systems to the EU – and the definition of AI is broadly defined, encompassing processes which could reasonably be considered AI. 

The proposed rules separate AI into three different tiers of risk: unacceptable risk AI systems, high risk systems, and limited and minimal risk AI systems. Unacceptable risk AI systems such as social scoring or real time remote biometric identification systems are fully banned under the proposed laws.  High risk AI systems, including systems that evaluate a consumer’s creditworthiness or use biometric identification in non-public spaces require company oversight, including conducting audits that are similar to Data Protection Impact Assessments to ensure that the systems perform as intended and are secured. Low risk systems continue to have little oversight as the authorities are less concerned about potential abuses with this AI.

On the other end of the spectrum, China has fully embraced the use of AI.  Instead of worrying about any negative privacy implications, China has leaned on AI as a tool to build its society and government.   Among the uses getting most coverage are China’s use of facial recognition and other AI methods to keep tabs on its citizens, such as the use of AI emotion-detection software on Uyghurs. More generally however, China has woven AI into its social fabric by using it for everyday operations including its social credit system which monitors its citizens and rewards them or punishes them for things they do, its payment and communications systems, or even its defense systems.  This general acceptance for AI has been backed by formal legislation such as the ”Made in China 2025” plan or “Next Generation Artificial Intelligence Development Plan”.  The effect has been a boom in the research, use, and acceptance of AI (e.g., where as China previously lagged behind in AI research, China has now become the frontrunner.)  

Meanwhile, the United States stands in the middle of these two extremes.  Like the EU, the United States has agreed that AI should be used in ways that are “based on shared democratic values, including respect for human rights”.  Significantly, the U.S. and EU agreed that AI should not be used for social credit scoring.   However, the U.S. does not seem to share the EU’s concern over the other potentially invasive and threatening ways that AI could be used and has not publicly committed to a robust federal framework that addresses these AI issues. Instead, the U.S. appears to be concerned over the strategic and geopolitical issues that advanced AI will present, especially if other actors like China become world leaders.

Thus, because of the significant developments in AI and what those developments mean, all countries have been forced reckon with AI regulation.  However, geopolitical, historical, and other regulatory forces have created responses that dramatically differ throughout the world.  These responses have not only changed the trajectory of AI development in various parts of the world but also increasingly left out the possibility of harmonious AI regulation.  

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The Diverging Paths of AI Regulation

This focus on the benefits of AI follows a longer societal trend where there is increasing recognition that AI has countless untapped benefits. Whether it was Alphazero demonstrating new playing styles in chess, dramatically improving efficiency in insurance writing and claims processing, or countries using facial recognition to monitor their citizens, AI is and will continue to fundamentally change the world.

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Homelessness in Colorado: Denver Ballot Issue 303

Homelessness in Colorado: Denver Ballot Issue 303

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Just a few weeks ago, Denver residents were asked to vote on Denver Ballot Issue 303. A YES vote on the ballot measure would have required the city to perform enforcement sweeps of unauthorized camping sites within 72 hours of a complaint being filed, while also creating a process for individuals to bring a civil action against the city if they failed to do so. The ordinance would also have limited camping on public property to four designated areas which the city would have been responsible for servicing with utilities.

While Denver residents ultimately voted NO on Ballot Issue 303, even if it had succeeded at the polls, the 72-hour requirement would have violated a federal order issued this past January, which requires seven days’ notice prior to performing a sweep of camping sites within the city.

Regardless of the political motivations and ultimate outcome of Ballot Issue 303, Denver, along with many cities within the United States, is facing a severe homelessness crisis. Every year, the Metro Denver Homeless Initiative (the “MDHI”) conducts a “Point in Time Count” to estimate how many individuals are experiencing homelessness within the city. The 2021 data shows a 40% increase in the number of individuals staying in a shelter on a single night, while the number of people experiencing homelessness for the first time doubled. According to the Denver Rescue Mission, more than 1,561 individuals are unsheltered, living on the streets or camping in open areas.

Finding an effective solution for reducing homelessness has proven to be a complicated and enduring issue. Over the past decade, Denver has seen rent and home values rise while the number of people moving to the city continues to increase. This has led to a dramatic decrease in the availability of affordable housing within Denver, and Colorado as a whole. According to the National Low Income Housing Coalition, for every 100 of Colorado’s lowest income households, there are only 30 affordable rental units available. 

One promising solution the city has implemented has been the construction of Safe Outdoor Spaces, which consist of authorized camping sites serving around 50 people. The sites feature heated tents, staff members, and utilities such as hot water, laundry, and trash removal. While many residents support the city-run sites, conversations often turn on where the sites should be placed, and who should qualify for the program. Many of these conversations are difficult and uncomfortable, as people attempt to balance an empathetic response with an effective and long-lasting solution.

Despite the challenges, these difficult conversations must continue if we are to reduce the number of people experiencing homelessness within Denver. While we may not all agree on the best solutions, there is no question that homelessness is a heartbreaking condition that we must all work together to alleviate. More funding will likely be needed for healthcare services, particularly in respect to mental health, and ensuring that residents have access to affordable housing will continue to be a paramount issue moving forward. While the Safe Outdoor Spaces may be one potential option, constructing a few sites that can hold 50 people each won’t be enough to dramatically decrease the number of people experiencing homelessness. Together, we can work towards a pragmatic and compassionate response to ensure that the most vulnerable members of our community are provided with a chance to succeed.

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Homelessness in Colorado: Denver Ballot Issue 303

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Miscellaneous

What COVID-19 Shows About Facebook’s Oversight Board

What COVID-19 Shows About Facebook’s Oversight Board

Milgrom Team

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As the COVID-19 Delta variant has increased infection rates worldwide and has threatened to triple the death toll related to COVID, Facebook has again been put in the crosshairs for health misinformation on its platform. Multiple commenters and reports have noted the prevalence of COVID-19 and vaccination misinformation on Facebook and the high rate at which this misinformation has been viewed.  This recently culminated in a dispute with the White House where President Biden accused Facebook of “killing people” with its COVID-19 misinformation. While President Biden eventually clarified that his statements were more directly aimed at those posting misinformation on Facebook than Facebook itself, the whole affair has again underscored the difficulty that Facebook has had monitoring controversial speech, especially speech that could affect the general health and welfare of its users. 

Non-profits, politicians, and policy advocates have often argued for amended moderation standards for Facebook.  Republicans and conservative non-profits have often stated that Facebook’s moderation of content, especially conservative content, amounts to censorship, whereas Democrats have often asked for significantly more content moderation.  In fact, Democrats have now discussed removing Facebook’s Section 230 safe harbor if Facebook refuses to enact significant protections against health misinformation.    

In an effort to help mitigate these controversies and make difficult decisions, Facebook created an independent Oversight Board in 2020 which was made up of independent members who had the authority to review cases and make final decisions on content moderation.  Originally met with significant fanfare,  commentators argued that the Oversight Board offers an independent redress system which will provide due process and fair judgement on difficult speech issues.

In January 2021, the Oversight Board announced its first six decisions based off of cases recommended to the Oversight Board by Facebook.  One of the decisions included an October 2020 case in which Facebook removed a post which advocated that the French government permit the prescription of hydroxychloroquine combined with azithromycin to be used against COVID-19. In its reversal, the Oversight Board noted that the post did not rise to the level of imminent harm required by its Community Standards of Facebook and that the decision did not comply with international human rights standards on limiting freedom of expression. The Oversight Board recommended that Facebook adopt less intrusive means of enforcing its health misinformation policies where the content does not reach Facebook’s threshold of imminent physical harm.  The Oversight Board also recommended that Facebook increase the transparency around how it moderates health misinformation, including by publishing a transparency report on how Community Standards are enforced.

However, the COVID-19 case is emblematic of the difficulties that arise when introducing quasi-legal processes into the corporate context.  First and foremost, like any legal system, cases introduced to the Oversight Board take time to adjudicate.  In the case above, the incident occurred in October of 2020 and a decision was not rendered until January 2021.  With important life altering decisions like this, three or four months is a significant time that could theoretically affect the life of many users (especially in light of reports that people have died for ingestion of hydroxychloroquine). If the situation had been reversed, and Facebook had left dangerous content up where it should have been taken down, one could hypothesize the great harm that could have been caused.  Whereas private companies usually have the flexibility to be nimble and quickly respond to new policy and regulatory challenges they face, introducing a quasi-legal system will slow the ability for Facebook to timely finalize its decisions. 

Secondly, and perhaps most important to Facebook’s PR perspective, the quasi-judicial system has not inoculated Facebook from criticism.  It is telling that Facebook has not used the Oversight Board as a shield in responding to criticism over its regulation of misinformation – especially because the Oversight Board actually recommended less content moderation in certain situations — because such an explanation would likely be unpalatable to most of its critics.  In fact, Facebook specifically noted in its response to the Oversight Board’s recommendations that it publicly disagreed with the recommendation that it adopt less intrusive means, and would continue to remove misinformation based on consultation with the CDC and WHO.  Therefore, Facebook had to push back against its own Oversight Board to defend itself from further public criticism.

Finally, and most importantly for those who care about COVID-19 and the safety of the community, it is not clear that the Oversight Board’s decision was the right one. While hindsight is 20/20, the influence of misinformation on Facebook’s platform, the reluctance of some people to take COVID-19 precautions such as masks and vaccines, and the increasing prevalence of the COVID-19 Delta variant highlight how important appropriately dealing with this problem is.  For example, a popular theory propagated on Facebook alleges that the COVID-19 vaccine is being used by the U.S. government to microchip the population.  In a recent YouGov poll, one in five Americans said they believe that theory.

As Facebook and the public are finding out, making a process more independent does not guarantee that the process will achieve the correct answer.  The Supreme Court is littered with decisions that have been shown to be inherently problematic (e.g., Plessy v. Ferguson, Citizens United v. FEC, Korematsu v. United States).  Similarly, just because the Oversight Board is stocked with global experts in a variety of different fields does not prevent it from codifying decisions that may incorrectly weigh harms versus freedoms.  The Oversight Board’s recommendation that misinformation content be corrected instead of removed looks foolhardy during the current deteriorating situation.  It’s other recommendation that misinformation guidelines be clarified may also prove unworkable.  Much like Justice Potter Stewart’s infamous quote regarding obscenity, misinformation is hard to define but easy to recognize – providing clear regulation on what counts as misinformation is difficult to define and implement. Moreover, it’s not clear if the Oversight Board will revisit the health information issue or what, if any, appetite they have to reverse their own opinions.  Therefore, it is quite possible that this decision will stand and influence further Facebook decisions as the pandemic gets worse.

In sum, while the Oversight Board once held significant promise, and while it still might prove itself to be a useful tool that forever changes policy implementation for private companies, the COVID-19 situation has shown it may not be the panacea it was heralded to be.

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