On July 10, 2024, the U.S. Senate passed the Stopping Harmful Image Exploitation and Limiting Distribution (“SHIELD”) Act, which would criminalize the distribution of private sexually explicit or nude images online.
Specifically, the legislation makes it unlawful to knowingly distribute a private intimate visual depiction of an individual
Continue Reading U.S. Senate Passes SHIELD Act to Criminalize Distribution of Private Intimate Images OnlineThis quarterly update highlights key legislative, regulatory, and litigation developments in the fourth quarter of 2023 and early January 2024 related to technology issues. These included developments related to artificial intelligence (“AI”), connected and automated vehicles (“CAVs”), data privacy, and cybersecurity. As noted below, some of these developments provide companies with the opportunity for participation and comment.
Federal Executive Developments on AI
The Executive Branch and U.S. federal agencies had an active quarter, which included the White House’s October 2023 release of the Executive Order (“EO”) on Safe, Secure, and Trustworthy Artificial Intelligence. The EO declares a host of new actions for federal agencies designed to set standards for AI safety and security; protect Americans’ privacy; advance equity and civil rights; protect vulnerable groups such as consumers, patients, and students; support workers; promote innovation and competition; advance American leadership abroad; and effectively regulate the use of AI in government. The EO builds on the White House’s prior work surrounding the development of responsible AI. Concerning privacy, the EO sets forth a number of requirements for the use of personal data for AI systems, including the prioritization of federal support for privacy-preserving techniques and strengthening privacy-preserving research and technologies (e.g., cryptographic tools). Regarding equity and civil rights, the EO calls for clear guidance to landlords, Federal benefits programs, and Federal contractors to keep AI systems from being used to exacerbate discrimination. The EO also sets out requirements for developers of AI systems, including requiring companies developing any foundation model “that poses a serious risk to national security, national economic security, or national public health and safety” to notify the federal government when training the model and provide results of all red-team safety tests to the government.
Federal Legislative Activity on AI
Congress continued to evaluate AI legislation and proposed a number of AI bills, though none of these bills are expected to progress in the immediate future. For example, members of Congress continued to hold meetings on AI and introduced bills related to deepfakes, AI research, and transparency for foundational models.
Continue Reading U.S. Tech Legislative, Regulatory & Litigation Update – Fourth Quarter 2023
The field of artificial intelligence (“AI”) is at a tipping point. Governments and industries are under increasing pressure to forecast and guide the evolution of a technology that promises to transform our economies and societies. In this series, our lawyers and advisors provide an overview of the policy approaches and regulatory frameworks for AI in jurisdictions around the world. Given the rapid pace of technological and policy developments in this area, the articles in this series should be viewed as snapshots in time, reflecting the current policy environment and priorities in each jurisdiction.
The following article examines the state of play in AI policy and regulation in the United States. The previous article in this series covered the European Union.
U.S. policymakers are focused on artificial intelligence (AI) platforms as they explode into the mainstream. AI has emerged as an active policy space across Congress and the Biden Administration, as officials scramble to educate themselves on the technology while crafting legislation, rules, and other measures to balance U.S. innovation leadership with national security priorities.
Over the past year, AI issues have drawn bipartisan interest and support. House and Senate committees have held nearly three dozen hearings on AI this year alone, and more than 30 AI-focused bills have been introduced so far this Congress. Two bipartisan groups of Senators have announced separate frameworks for comprehensive AI legislation. Several AI bills—largely focused on the federal government’s internal use of AI—have also been voted on and passed through committees.
Meanwhile, the Biden Administration has announced plans to issue a comprehensive executive order this fall to address a range of AI risks under existing law. The Administration has also taken steps to promote the responsible development and deployment of AI systems, including securing voluntary commitments regarding AI safety and transparency from 15 technology companies.
Despite strong bipartisan interest in AI regulation, commitment from leaders of major technology companies engaged in AI R&D, and broad support from the general public, passing comprehensive AI legislation remains a challenge. No consensus has emerged around either substance or process, with different groups of Members, particularly in the Senate, developing their own versions of AI legislation through different procedures. In the House, a bipartisan bill would punt the issue of comprehensive regulation to the executive branch, creating a blue-ribbon commission to study the issue and make recommendations.
I. Major Policy & Regulatory Initiatives
Three versions of a comprehensive AI regulatory regime have emerged in Congress – two in the Senate and one in the House. We preview these proposals below.
A. SAFE Innovation: Values-Based Framework and New Legislative Process
In June, Senate Majority Leader Chuck Schumer (D-NY) unveiled a new bipartisan proposal—with Senators Martin Heinrich (D-NM), Todd Young (R-IN), and Mike Rounds (R-SD)—to develop legislation to promote and regulate artificial intelligence. Leader Schumer proposed a plan to boost U.S. global competitiveness in AI development, while ensuring appropriate protections for consumers and workers.Continue Reading Spotlight Series on Global AI Policy — Part II: U.S. Legislative and Regulatory Developments
This quarterly update summarizes key legislative and regulatory developments in the second quarter of 2023 related to key technologies and related topics, including Artificial Intelligence (“AI”), the Internet of Things (“IoT”), connected and automated vehicles (“CAVs”), data privacy and cybersecurity, and online teen safety.
Artificial Intelligence
AI continued to be an area of significant interest of both lawmakers and regulators throughout the second quarter of 2023. Members of Congress continue to grapple with ways to address risks posed by AI and have held hearings, made public statements, and introduced legislation to regulate AI. Notably, Senator Chuck Schumer (D-NY) revealed his “SAFE Innovation framework” for AI legislation. The framework reflects five principles for AI – security, accountability, foundations, explainability, and innovation – and is summarized here. There were also a number of AI legislative proposals introduced this quarter. Some proposals, like the National AI Commission Act (H.R. 4223) and Digital Platform Commission Act (S. 1671), propose the creation of an agency or commission to review and regulate AI tools and systems. Other proposals focus on mandating disclosures of AI systems. For example, the AI Disclosure Act of 2023 (H.R. 3831) would require generative AI systems to include a specific disclaimer on any outputs generated, and the REAL Political Advertisements Act (S. 1596) would require political advertisements to include a statement within the contents of the advertisement if generative AI was used to generate any image or video footage. Additionally, Congress convened hearings to explore AI regulation this quarter, including a Senate Judiciary Committee Hearing in May titled “Oversight of A.I.: Rules for Artificial Intelligence.”
There also were several federal Executive Branch and regulatory developments focused on AI in the second quarter of 2023, including, for example:
Continue Reading U.S. Tech Legislative & Regulatory Update – Second Quarter 2023
On June 29, 2023, the Federal Trade Commission (“FTC”) posted a blog to its website expressing concerns about the recent rise of generative artificial intelligence (“generative AI”). To get ahead of this rapidly developing technology, the FTC identified “the essential building blocks” of generative AI and highlighted some business practices the agency would consider “unfair methods of competition.” The FTC also underscored technological aspects unique to generative AI that could raise competition concerns.
What is Generative AI?
Traditional AI has existed in the marketplace for years and largely assisted users in analyzing or manipulating existing data. Generative AI, on the other hand, represents a significant advance with its ability to generate entirely new text, images, audio, and video. The FTC notes that this content is frequently “indistinguishable from content crafted directly by humans.”
What are the “essential building blocks” of generative AI?
The FTC identified three “essential building blocks” that companies need to develop generative AI. Without fair access to the necessary inputs, the FTC warns that competition and the ability for new players to enter the market will suffer.
Continue Reading The Federal Trade Commission and Generative AI Competition Concerns
The American Music Fairness Act (“AMFA”) has been re-introduced in the Senate for this Congress. Sen. Padilla (D-CA) introduced the bill (S.253) earlier this month, along with Sens. Blackburn (R-TN), Tillis (R-NC), and Feinstein (D-CA). The bill was referred to the Judiciary Committee, on which every cosponsor serves.
Continue Reading THE AMERICAN MUSIC FAIRNESS ACT RETURNS TO THE SENATEOn Tuesday, February 14, 2023, the Senate Judiciary Committee held a hearing titled “Protecting Our Children Online.” The witnesses included only consumer advocates, and no industry representatives. As Committee Chair, however, Senator Durbin (D-IL) indicated that he plans to hold another hearing featuring representatives from technology companies.
The key takeaway was that there continues to be strong bipartisan support for passing legislation that addresses privacy and online safety for minors. Both Senator Durbin and Senator Graham (R-SC), the Committee’s Ranking Member, were in agreement that the Committee will mark up relevant legislation, which could happen within the next six months—making the next couple months particularly important for negotiations. Notably, all of the previously introduced legislation that was discussed had passed at least its respective Senate Committee last Congress.
Senators focused on four bills that could be included as part of a legislative package:
Continue Reading Senate Judiciary Committee Holds Hearing on Children’s Online Safety
This quarterly update summarizes key legislative and regulatory developments in the fourth quarter of 2022 related to Artificial Intelligence (“AI”), the Internet of Things (“IoT”), connected and autonomous vehicles (“CAVs”), and data privacy and cybersecurity.
Artificial Intelligence
In the last quarter of 2022, the annual National Defense Authorization Act (“NDAA”), which contained AI-related provisions, was enacted into law. The NDAA creates a pilot program to demonstrate use cases for AI in government. Specifically, the Director of the Office of Management and Budget (“Director of OMB”) must identify four new use cases for the application of AI-enabled systems to support modernization initiatives that require “linking multiple siloed internal and external data sources.” The pilot program is also meant to enable agencies to demonstrate the circumstances under which AI can be used to modernize agency operations and “leverage commercially available artificial intelligence technologies that (i) operate in secure cloud environments that can deploy rapidly without the need to replace operating systems; and (ii) do not require extensive staff or training to build.” Finally, the pilot program prioritizes use cases where AI can drive “agency productivity in predictive supply chain and logistics,” such as predictive food demand and optimized supply, predictive medical supplies and equipment demand, predictive logistics for disaster recovery, preparedness and response.
At the state level, in late 2022, there were also efforts to advance requirements for AI used to make certain types of decisions under comprehensive privacy frameworks. The Colorado Privacy Act draft rules were updated to clarify the circumstances that require controllers to provide an opt-out right for the use of automated decision-making and requirements for assessments of profiling decisions. In California, although the California Consumer Privacy Act draft regulations do not yet cover automated decision-making, the California Privacy Protection Agency rules subcommittee provided a sample list of related questions concerning this during its December 16, 2022 board meeting.Continue Reading U.S. AI, IoT, CAV, and Privacy Legislative Update – Fourth Quarter 2022
Today, the American Music Fairness Act (“AMFA”) will take a step forward as the bill is set for mark up with the House Judiciary Committee. The Copyright Act provides exclusive rights to publicly perform sound recordings by means of digital audio transmissions (e.g., internet and satellite), and AMFA is the latest attempt to extend such rights to analog audio transmissions (e.g., terrestrial radio).
Marking up the bill at this late stage of the Congressional term may mean the bill is tacked on to end-of-year spending packages (as with the CASE Act in 2020), or more likely that it will be taken up again next Congress. With bipartisan and bicameral support of members on the relevant Committees of jurisdiction, AMFA could still move in a divided Congress, making it all the more important for stakeholders to engage now if they want to support or make changes to the bill.
The AMFA Bill
The bipartisan AMFA bill was first introduced in the House on June 24, 2021 (H.R.4130), and its companion Senate bill followed on September 22, 2022 (S.4932). Rep. Jerry Nadler (D-NY) recently became the House bill’s primary sponsor after its original sponsor Rep. Ted Deutch (D-CA) left Congress.
The bill would amend Section 106(6) of the Copyright Act, which provides the exclusive right to publicly perform sound recordings via “digital audio transmission,” by deleting the word “digital.” AMFA also attempts to address some criticisms that faced similar predecessor bills. For example, AMFA proposes low flat fees for certain nonsubscription broadcast transmissions by public or smaller commercial stations, and other fees would be set in rate-setting proceedings before the Copyright Royalty Board. Such rate-setting proceedings would take account of economic, competitive, and programming information, and whether transmissions substitute for or promote record sales, and interfere with or enhance other revenue streams for sound recording owners. Continue Reading CONGRESS TO MARK UP THE AMERICAN MUSIC FAIRNESS ACT
Public Policy
With Senate Democrats having secured the 50th vote needed to maintain control of the Senate, both parties are eagerly awaiting the results of the Georgia runoff on December 6 between Democratic Senator Raphael Warnock (D-GA) and Republican candidate Herschel Walker. If Walker wins, the Senate will be split 50-50. The implications of a 51–49 Democratic majority versus a 50–50 Democratic majority are significant.
An Equally Divided Senate
Since February 3, 2021, the Senate has operated under an organizing resolution negotiated by Majority Leader Chuck Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY). The organizing resolution formalized a power-sharing agreement for the 117th Congress and was largely modeled on the 2001 power-sharing agreement reached by then-Democratic leader Tom Daschle (D-SD) and then-Republican leader Trent Lott (R-MS) following the November 2000 elections that resulted in a 50–50 Senate split for the 107th Congress. The 2021 power-sharing agreement laid out internal rules of the Senate, apportioned the makeup and control of committees, and prescribed procedures for the control of Senate business. Specifically, the 2021 power-sharing agreement provides that: