April 2024

On April 17, the Nebraska governor signed the Nebraska Data Privacy Act (the “NDPA”) into law.  Nebraska is the latest state to enact comprehensive privacy legislation, joining California, Virginia, Colorado, Connecticut, Utah, Iowa, Indiana, Tennessee, Montana, Oregon, Texas, Florida, Delaware…

Continue Reading Nebraska Enacts Nebraska Data Privacy Act

With the rapid evolution of artificial intelligence (AI) technology, the regulatory frameworks for AI in the Asia–Pacific (APAC) region continue to develop quickly. Policymakers and regulators have been prompted to consider either reviewing existing regulatory frameworks to ensure their effectiveness in addressing emerging risks brought by AI, or proposing new, AI-specific rules or regulations. Overall, there appears to be a trend across the region to promote AI uses and developments, with most jurisdictions focusing on high-level and principle-based guidance. While a few jurisdictions are considering regulations specific to AI, they are still at an early stage. Further, privacy regulators and some industry regulators, such as financial regulators, are starting to play a role in AI governance.

This blog post provides an overview of various approaches in regulating AI and managing AI-related risks in the APAC region.  

  • AI-Specific Laws and Regulations

Several jurisdictions in the region are moving toward AI-specific regulations, including the People’s Republic of China (hereinafter referred to as China), South Korea, and Taiwan.

  • China has been most active in shaping regulations specific to generative AI technologies since 2023. It has taken a multifaceted approach that combines AI-specific regulations, national standards and technical guidance to govern generative AI services and the regulatory focus has been on services that are provided to the public in China. The Interim Administrative Measures for Generative Artificial Intelligence Services represent a milestone as the first comprehensive regulation specifically addressing generative AI services (a summary of this regulation can be found in our previous post here). Several non-binding technical documents and national standards have been issued or are being drafted to further implement this regulation. Prior to the regulation that specifically addresses generative AI services, China had issued regulations for deep synthesis and algorithmic recommendations. Further, China promulgated rules on conducting an ethical review of scientific activities involving generative AI.
  • Beyond a few provisions on narrow aspects scattered in other regimes, South Korea does not presently have a comprehensive AI-specific regulatory framework. Proposed in early 2023, the draft Act on Fostering the AI Industry and Securing Trustworthy AI remains currently pending before the National Assembly. If enacted, it would set out the first comprehensive legislative framework governing the usage of AI in South Korea, generally reflecting an approach that would permit AI usage and developments subject to subsequent safeguards if and as needed. In parallel, the Personal Information Protection Commission (PIPC) has been advocating for a flexible approach to AI based on self-regulation, with support from the PIPC. Furthermore, the Korean Fair Trade Commission (KFTC) will soon start a detailed study to identify potential AI-induced risks in terms of consumer protection as well as unfair or anti-competitive practices, which might result in KFTC-supervised self-regulation of certain AI aspects through industry codes of conduct supplemented by a set of guidelines on AI, or even proposed legislation or amendments to existing consumer protection or antitrust rules. 
  • Similarly, Taiwan is drafting a basic law governing AI, i.e., the Basic Law for Development of Artificial Intelligence, which will set out fundamental principles for AI development and for the government to promote the development of AI technologies. However, it is still uncertain whether and when Taiwan will pass this draft law.
  • Non-binding AI Principles and Guidelines

Continue Reading Overview of AI Regulatory Landscape in APAC

Since 2020, with the adoption of Washington state’s non-compete statute (Chapter 49.62 of the Revised Code of Washington (“RCW 49.62”)), Washington has imposed significant restrictions on employer use of non-compete agreements with employees and independent contractors, permitting such agreements only subject to certain statutory and common-law requirements, including without limitation, a minimum annual earnings threshold (the 2024 limits are $120,559.99 for employees and $301,399.98 for independent contractors), and a Washington forum for any disputes.

Now, Senate Bill 5935 (“SB 5935”) – which takes effect on June 6, 2024 – amends the non-compete statute to further restrict the use of non-compete provisions and expand the types of agreements that may be considered non-competes. As a result, employers will need to take quick action to review their employment agreements and hiring processes to ensure compliance with the new law.

However, as discussed in our Covington Alert, on April 23, 2024 the Federal Trade Commission issued a final rule purporting to ban the use of non-competes with most U.S. workers.  The FTC Rule – should it become effective – would supersede inconsistent state laws.  The earliest the FTC Rule would take effect is late August 2024, and pending legal challenges may result in court orders that could delay or stay enforcement of the FTC Rule. Accordingly, employers with workers in Washington State should take steps to comply with SB 5935 before it takes effect on June 6, 2024.  Employers should also consider consulting with employment and executive compensation counsel for assistance with navigating the evolving non-compete landscape.

Here is an overview of the key changes under SB 5935:Continue Reading Changes to WA’s Non-Compete Law Require Employers to Take Action

Senate Commerce Committee Chair Maria Cantwell (D-WA) and Senators Todd Young (R-IN), John Hickenlooper (D-CO), and Marsha Blackburn (R-TN) recently introduced the Future of AI Innovation Act, a legislative package that addresses key bipartisan priorities to promote AI safety, standardization, and access.  The bill would also advance U.S. leadership…

Continue Reading New Bipartisan Senate Legislation Aims to Bolster U.S. AI Research and Deployment

With the 2024 election rapidly approaching, the Biden Administration must race to finalize proposed agency actions as early as mid-May to avoid facing possible nullification if the Republican Party controls both chambers of Congress and the White House next year. 

The Congressional Review Act (CRA) allows Congress to overturn rules issued by the Executive Branch by enacting a joint resolution of disapproval that cancels the rule and prohibits the agency from issuing a rule that is “substantially the same.”  One of the CRA’s most unique features—a 60-day “lookback period”—allows the next Congress 60 days to review rules issued near the end of the last Congress.  This means that the Administration must finalize and publish certain rules long before Election Day to avoid being eligible for CRA review in the new year.

Overview of the CRA

The CRA requires federal agencies to submit all final rules to Congress before the rule may take effect.  It provides the House with 60 legislative days and the Senate with 60 session days to introduce a joint resolution of disapproval to overturn the rule.  This 60-day period counts every calendar day, including weekends and holidays, but excludes days that either chamber is out of session for more than three days pursuant to an adjournment resolution.  In the Senate, a joint resolution of disapproval receives only limited debate and may not be filibustered.  Moreover, if it has been more than 20 calendar days since Congress received a final rule and a joint resolution has not been reported out of the appropriate committee, a group of 30 Senators can file a petition to force a floor vote on the petition.   

If a CRA resolution receives a simple majority in both chambers and is signed by the President, or if Congress overrides a presidential veto, the rule cannot go into effect and is treated “as though such rule had never taken effect.”[1]  The agency is also barred from reissuing a rule that is “substantially the same,” unless authorized by future law.[2]    

Election Year Threat: CRA Lookback Period

These procedures pose special challenges for federal agencies in an election year.  If a rule is submitted to Congress within 60 days before adjournment, the CRA’s lookback provision allows the 60-day timeline to introduce a CRA resolution to start over in the next session of Congress.

This procedure ultimately requires the current administration to assess the threat of a CRA resolution against certain rules and determine whether to issue the rule safely before the deadline or risk a potential CRA challenge. Continue Reading Congressional Review Act Threat Looms Over Biden Administration Rulemakings

On April 2, the California Senate Judiciary Committee held a hearing on the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act (SB 1047) and favorably reported the bill in a 9-0 vote (with 2 members not voting).  The vote marks a major step toward comprehensive artificial…

Continue Reading California Senate Committee Advances Comprehensive AI Bill

The Northern District of Illinois recently denied certification to several proposed classes of purchasers of a seizure drug called Acthar in City of Rockford v. Mallinckrodt ARD, Inc., No. 3:17-cv-50107, 2024 WL 1363544 (Mar. 29, 2024).  Class plaintiffs had alleged that defendant Express Scripts, a drug distributor, conspired with…

Continue Reading Court Denies Class Certification in Antitrust Case Based on Expert’s Reliance on Unsupported Assumptions in Damages Model

Last summer, the antitrust agencies proposed sweeping changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated rules. Covered in detail here, the proposed changes would significantly increase the time, burden, and costs on merging parties to prepare an HSR filing. The public comment period ended on September…

Continue Reading New HSR Rules Will be Finalized Within Weeks, According to DOJ Official

On April 2, 2024, the FCC released a Report and Order (the “Order”) and Further Notice of Proposed Rulemaking (the “Further Notice”) approving a rule change on a bipartisan, unanimous basis to allow radio broadcasters to use FM boosters to direct hyper-local programming for a portion of each hour at…

Continue Reading FCC Approves Rule Change Revolutionizing Radio Industry

On April 2, the Enforcement Division of the California Privacy Protection Agency issued its first Enforcement Advisory, titled “Applying Data Minimization to Consumer Requests.”  The Advisory highlights certain provisions of and regulations promulgated under the California Consumer Privacy Act (“CCPA”) that “reflect the concept of data minimization” and provides…

Continue Reading California Privacy Protection Agency Issues Enforcement Advisory on Data Minimization