Artificial Intelligence (AI)

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Policymakers and candidates of both parties have increased their focus on how technology is changing society, including by blaming platforms and other participants in the tech ecosystem for a range of social ills even while recognizing them as significant contributors to U.S. economic success globally.  Republicans and Democrats have significant interparty—and intraparty—differences in the form of their grievances and on many of the remedial measures to combat the purported harms.  Nonetheless, the growing inclination to do more on tech has apparently driven one key congressional committee to have compromised on previously intractable issues involving data privacy.  Rules around the use of algorithms and artificial intelligence, which have attracted numerous legislative proposals in recent years, may be the next area of convergence. 

While influential members of both parties have pointed to the promise and peril of the increasing role of algorithms and artificial intelligence in American life, they have tended to raise different concerns.  Legislative proposals from Democrats have frequently focused how deployment of algorithms and artificial intelligence affects protected classes, while Republican proposals have largely, but not exclusively, been aimed at perceived unfairness in how algorithms treat Republicans and those expressing conservative views.  For instance, Republican Whip John Thune (R-SD), the former chair of the Senate Committee on Commerce, Science, and Transportation, has sponsored the Political BIAS Emails Act (S. 4409), which would address technology companies reportedly filtering Republican campaign emails.  Meanwhile, Senator Ron Wyden (D-OR) introduced the Algorithmic Accountability Act (S. 3572) that, among other things, requires that “automated decision systems” be subject to an “evaluation of any differential performance associated with consumers’ race, color, sex, gender, age, disability, religion, family status, socioeconomic status, or veteran status.”…

Continue Reading ARTIFICIAL INTELLIGENCE AND ALGORITHMS IN THE NEXT CONGRESS

On July 13, the Federal Trade Commission published a notice of proposed rulemaking regarding the Motor Vehicle Dealers Trade Regulation Rule.  The Motor Vehicle Dealers Trade Regulation Rule is aimed at combating certain unfair and deceptive trade practices by dealers and promoting pricing transparency.  Comments to the proposed rule are due on or before September 12, 2022. 

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The proposed rule:

  1. Prohibits dealers from making certain misrepresentations in the sales process, enumerated in proposed § 463.3.  The list of prohibited misrepresentations includes misrepresentations regarding the “costs or terms of purchasing, financing, or leasing a vehicle” or “any costs, limitation, benefit, or any other Material aspect of an Add-on Product or Service.”
  • Includes new disclosure requirements regarding pricing, financing and add-on products and services.  Notably, the proposed rule would obligate dealers to disclose the offering price in many advertisements and communications with consumers.
  • Prohibits charges for add-on products and services that confer no benefit to the consumer and prohibits charges for items without “Express, Informed Consent” from the consumer (which, notably, as defined, excludes any “signed or initialed document, by itself”).  The proposed rule outlines a specific process for presenting charges for add-on products and services to the consumer, which obligates the dealer to disclose and offer to close the transaction for the “Cash Price without Optional Add-Ons” and obtain confirmation in writing that the consumer has rejected that price.
  • Imposes additional record-keeping requirements on the dealer, in order to demonstrate compliance with the rule.  The record-keeping requirements apply for a period of 24 months from the date the applicable record is created.

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Continue Reading FTC Proposes Motor Vehicle Dealers Trade Regulation Rule

This quarterly update summarizes key federal legislative and regulatory developments in the second quarter of 2022 related to artificial intelligence (“AI”), the Internet of Things, connected and automated vehicles (“CAVs”), and data privacy, and highlights a few particularly notable developments in U.S. state legislatures.  To summarize, in the second quarter of 2022, Congress and the Administration focused on addressing algorithmic bias and other AI-related risks and introduced a bipartisan federal privacy bill.

Artificial Intelligence

Federal lawmakers introduced legislation in the second quarter of 2022 aimed at addressing risks in the development and use of AI systems, in particular risks related to algorithmic bias and discrimination.  Senator Michael Bennet (D-CO) introduced the Digital Platform Commission Act of 2022 (S. 4201), which would empower a new federal agency, the Federal Digital Platform Commission, to develop regulations for online platforms that facilitate interactions between consumers, as well as between consumers and entities offering goods and services.  Regulations contemplated by the bill include requirements that algorithms used by online platforms “are fair, transparent, and without harmful, abusive, anticompetitive, or deceptive bias.”  Although this bill does not appear to have the support to be passed in this Congress, it is emblematic of the concerns in Congress that might later lead to legislation.

Additionally, the bipartisan American Data Privacy and Protection Act (H.R. 8152), introduced by a group of lawmakers led by Representative Frank Pallone (D-NJ-6), would require “large data holders” (defined as covered entities and service providers with over $250 million in gross annual revenue that collect, process, or transfer the covered data of over five million individuals or the sensitive covered data of over 200,000 individuals) to conduct “algorithm impact assessments” on algorithms that “may cause potential harm to an individual.”  These assessments would be required to provide, among other information, details about the design of the algorithm and the steps the entity is taking to mitigate harms to individuals.  Separately, developers of algorithms would be required to conduct “algorithm design evaluations” that evaluate the design, structure, and inputs of the algorithm.  The American Data Privacy and Protection Act is discussed in further detail in the Data Privacy section below.…

Continue Reading U.S. AI, IoT, CAV, and Data Privacy Legislative and Regulatory Update – Second Quarter 2022

Facial recognition technology (“FRT”) has attracted a fair amount of attention over the years, including in the EU (e.g., see our posts on the European Parliament vote and CNIL guidance), the UK (e.g., ICO opinion and High Court decision) and the U.S. (e.g., Washington state and NTIA guidelines). This post summarizes two recent developments in this space: (i) the UK Information Commissioner’s Office (“ICO”)’s announcement of a £7.5-million fine and enforcement notice against Clearview AI (“Clearview”), and (ii) the EDPB’s release of draft guidelines on the use of FRT in law enforcement.

I. ICO Fines Clearview AI £7.5m

In the past year, Clearview has been subject to investigations into its data processing activities by the French and Italian authorities, and a joint investigation by the ICO and the Australian Information Commissioner. All four regulators held that Clearview’s processing of biometric data scraped from over 20 billion facial images from across the internet, including from social media sites, breached data protection laws.

On 26 May 2022, the ICO released its monetary penalty notice and enforcement notice against Clearview. The ICO concluded that Clearview’s activities infringed a number of the GDPR and UK GDPR’s provisions, including:

  • Failing to process data in a way that is fair and transparent under Article 5(1)(a) GDPR. The ICO concluded that people were not made aware or would not reasonably expect their images to be scraped, added to a worldwide database, and made available to a wide range of customers for the purpose of matching images on the company’s database.
  • Failing to process data in a way that is lawful under the GDPR. The ICO ruled that Clearview’s processing did not meet any of the conditions for lawful processing set out in Article 6, nor, for biometric data, in Article 9(2) GDPR.
  • Failing to have a data retention policy and thus being unable to ensure that personal data are not retained for longer than necessary under Article 5(1)(e) GDPR. There was no indication as to when (or whether) any images are ever removed from Clearview’s database.
  • Failing to provide data subjects with the necessary information under Article 14 GDPR. According to the ICO’s investigation, the only way in which data subjects could obtain that information was by contacting Clearview and directly requesting it.
  • Impeding the exercise of data subject rights under Articles 15, 16, 17, 21 and 22 GDPR. In order to exercise these rights, data subjects needed to provide Clearview with additional personal data, by providing a photograph of themselves that can be matched against the Clearview Database.
  • Failing to conduct a Data Protection Impact Assessment (“DPIA”) under Article 35 GDPR. The ICO found that Clearview failed at any time to conduct a DPIA in respect of its processing of the personal data of UK residents.

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Continue Reading Facial Recognition Update: UK ICO Fines Clearview AI £7.5m & EDPB Adopts Draft Guidelines on Use of FRT by Law Enforcement

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Sam Jungyun Choi, Associate in Covington’s Technology Regulatory Group, and Anna Oberschelp, Associate in Covington’s Data Privacy & Cybersecurity Practice Group, discussed global regulatory trends that affect robotics, highlights of which are captured here.  A recording of the forum is available here until May 31, 2022.

Trends on Regulating Artificial Intelligence

            According to the Organization for Economic Cooperation and Development  Artificial Intelligence Policy Observatory (“OECD”), since 2017, at least 60 countries have adopted some form of AI policy, a torrent of government activity that nearly matches the pace of modern AI adoption.  Countries around the world are establishing governmental and intergovernmental strategies and initiatives to guide the development of AI.  These AI initiatives include: (1) AI regulation or policy; (2) AI enablers (e.g., research and public awareness); and (3) financial support (e.g., procurement programs for AI R&D).  The anticipated introduction of AI regulations raises concerns about looming challenges for international cooperation.…

Continue Reading Robotics Spotlight: Global Regulatory Trends Affecting Robotics

          On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  One segment of the Robotics Forum covered risks of automation and AI, highlights of which are captured here.  A full recording of the Robotics Forum is available here until May 31, 2022.

            As AI and robotics technologies mature, the use-cases are expected to grow in increasingly complex areas and to pose new risks. Because lawsuits have settled prior to a court deciding liability questions, no settled case law yet exists to identify where the liability rests between robotics engineers, AI designers, and manufacturers.  Scholars and researchers have proposed addressing these issues through products liability and discrimination doctrines, including the creation of new legal remedies specific to AI technology and particular use-cases, such as self-driving cars.  Proposed approaches for liability through existing doctrines have included:…

Continue Reading Robotics Spotlight: Risks of Automation and AI

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Winslow Taub, Partner in Covington’s Technology Transactions Practice Group, and Jennifer Plitsch, Chair of Covington’s Government Contracts Practice Group, discussed the robotics issues presented in private transactions…

This quarterly update summarizes key federal legislative and regulatory developments in the first quarter of 2022 related to artificial intelligence (“AI”), the Internet of Things (“IoT”), connected and automated vehicles (“CAVs”), and data privacy, and highlights a few particularly notable developments in the States.  In the first quarter of 2022, Congress and the Administration focused…

A recent AAA study revealed that, although the pandemic has resulted in fewer cars on the road, traffic deaths have surged.  Speeding, alcohol-impairment, and reckless driving has caused the highest levels of crashes seen in decades, and the National Safety Council estimates a 9% increase in roadway fatalities from 2020.  Autonomous vehicles (AVs) have the…

In 2021, European lawmakers and agencies issued a number of proposals to regulate artificial intelligence (“AI”), the Internet of Things (“IoT”), connected and automated vehicles (“CAV”), and data privacy, as well as reports and funding programs to pursue the developments in these emerging areas.  From the adoption of more stringent cybersecurity standards for IoT devices to the deployment of standards-based autonomous vehicles, federal lawmakers and agencies have also promulgated new rules and guidance to promote consumer awareness and safety. While our team tracks developments across EMEA, this roundup focuses on a summary of the key developments in Europe in 2021 and what is likely to happen in 2022.

Part I: Internet of Things

With digital policy being a core priority for the current European Commission, the EU has pursued a range of initiatives in the area of IoT.  These developments tend to be interspersed throughout a range of policy and legislative decisions, which are highlighted below.

Connecting Europe Facility and IoT Funding

In July 2021, the European Parliament and Council of the EU adopted a regulation establishing the Connecting Europe Facility (€33.7 billion for 2021-2027) to accelerate investment in trans-European networks while respecting technological neutrality.  In particular, the regulation noted that the viability of “Internet of Things” services will require uninterrupted cross-border coverage with 5G systems, to enable users and objects to remain connected while on the move.  Given that 5G deployment in Europe is still sparse, road corridors and train connections are expected to be key areas for the first phase of new applications in the area of connected mobility and therefore constitute vital cross-border projects for funding under the Connecting Europe Facility.  The Parliament had also called earlier for “stable and adequate funding” for investments in AI and IoT, as well as for building transport and ICT infrastructure for intelligent transport systems (ITS), to ensure the success of the EU’s data economy.

In May 2021, the Council adopted a decision establishing a specific research funding programme (€83.4 billion for 2021-2027) under Horizon Europe.  In specifying the EU’s priorities, the decision identified the importance of IoT in health care, cybersecurity, key digital technologies including quantum technologies, next generation Internet, space, and satellite communications.
Continue Reading EMEA IoT & CAV Legislative and Regulatory Roundup 2021 and Forecast 2022