White House Issues Guidance for AI Regulation and "Non-Regulation"

In a highly orchestrated policy announcement made at the 2020 CES show, the Trump Administration released a draft framework and set of principles for governance of AI technology and applications in the U.S.

Specifically, the OMB released a memorandum to all federal agencies and executive offices, the "Guidance for Regulation of Artificial Intelligence Applications" (AI Guidelines), a detailed policy document articulating the Administration’s regulatory and non-regulatory approach to the many forms of emerging artificial intelligence (AI) technology and applications in society today. The Administration is inviting public comment on the AI Guidelines for a period of sixty days which will conclude on March 13.

According to the Administration’s AI policy lead, Chief Technology Officer Michael Kratsios, the AI Guidelines are intended to achieve three overarching policy goals:

• Encourage public engagement in the AI discussion
• Promote a "light-touch" AI regulatory approach
• Promote the adoption and development of trustworthy AI

The guidelines reflect a National AI strategy based on a philosophy of regulatory restraint, as mandated by President Trump’s Executive Order 13859. Indeed, the AI Guidelines call for federal agencies to consider a regulatory approach that fosters "innovation, growth, and engenders trust, while protecting core American values" through both regulatory and non-regulatory actions and "reducing unnecessary barriers to the development and deployment of AI." To that end, the AI Guidelines direct federal agencies to "avoid regulatory and non-regulatory actions that needlessly hamper AI innovation and growth."

We purposely wanted to avoid top-down, one-size-fits-all, blanket regulations...
Lynne Parker, U.S. Deputy Chief Technology Officer, 
White House Office of Science and Technology Policy

Notably, the AI guidelines do not articulate a policy preference or approach for regulating any specific AI technology or application, such as facial recognition, deep fakes, or algorithmic decision-making systems. Nor do the guidelines articulate high-level governance or ethical principles that would cover all AI technologies.

Instead, the Administration is using the comment process to design potential regulation of AI technologies consistent with "the U.S. approach to free-market capitalism, federalism, and good regulatory practices."

In conjunction with the AI guidelines, the Department of Transportation also released their latest guidance on the development of autonomous vehicles, largely reflecting the regulatory restraint articulated in the AI Guidelines. Ironically, at the same time that the Administration was touting its philosophy of regulatory restraint, the Commerce Department’s Bureau of Industry and Security issued an interim final rule restricting the sale and export of Geospatial AI software, which leverages AI to analyze satellite imagery.

Guidelines Encourage Innovation and Growth in AI

The Administration’s AI Guidelines direct agencies to first consider actions that encourage innovation, growth and engender trust while also "protecting core American values," which, according to OMB, include "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." 

Specifically, the agencies must consider approaches that reduce barriers to the development and deployment of AI, and avoid actions that hamper AI innovation and growth. Further, agencies must undertake AI-specific cost-benefit analyses before taking any action.

These principles reflect traditional conservative principles of limited regulation in the area of emerging technologies that are necessary to ensure that new regulations do not stifle innovation – what one agency head has called "regulatory humility." Notably, this approach differs from some proposals in Congress that seek to regulate or limit algorithms or certain AI applications, and marks a clear move away from the type of top-down regulatory oversight that many believe the EU may adopt in the months ahead.

Notably, the OMB guidance encourages federal agencies to consider preempting state laws in certain situations, including (if necessary) addressing inconsistent, duplicative or burdensome state laws "that prevent the emergence of a national market." The AI Guidelines specifically direct federal agencies to consider the effect of potential federal regulation on existing or potential state actions.

This approach mirrors many of the same issues raised in the current debate over the need for a national privacy framework and the potential preemption of certain state laws.

As the debate over whether or when to regulate AI technology and applications expands, organizations developing, deploying or using this technology should consider filing formal comments with the Administration. The opportunity to do so is now available as the comment window remains open until March 13. We provide further analysis on the key principles identified in the AI Guidelines here.

This article is a condensed version of an artificial intelligence advisory originally featured on DWT.com on January 22, 2020. Our comprehensive analysis on White House AI Guidelines can be found here.