Everything Is Not Terminator: The White House Memo on Regulating AI Addresses Values but Not the Playing Field

Headshot - John Weaver
John F. Weaver
Director, Corporate Department and Chair, Real Estate Practice Group and Chair, Artificial Intelligence Practice
Published: Journal of Robotics, Artificial Intelligence & Law
March 5, 2020

To begin 2020, the Office of Management and Budget (“OMB”) released a memorandum (the “AI Memo”) with the subject “Guidance for Regulation of Artificial Intelligence Applications.”  In its introduction, it explains that it “provides guidance to all Federal agencies to inform the development of regulatory and non-regulatory approaches regarding technologies and industrial sectors that are empowered or enabled by artificial intelligence (AI),” pursuant to Executive Order 13859, “Maintaining American Leadership in Artificial Intelligence” (the “AI Executive Order”).  The AI Memo establishes 10 broad principles for federal agencies to use when formulating “regulatory and non-regulatory” approaches to AI (a dichotomy that I’ll return to later):

  1. Promote public trust in AI;
  2. Provide ample opportunities for the public to participate in and provide feedback on rulemaking governing AI;
  3. Leveraging scientific and technical information and processes;
  4. Assess risks in subject AI;
  5. Consider the costs and benefits of any AI;
  6. Maintain a flexible approach to adapt to changes and updates to AI applications;
  7. Consider impacts AI may have on fairness and discrimination;
  8. Incorporate disclosure and transparency in the rulemaking process to increase public trust and confidence in AI applications;
  9. Promote AI systems that are safe, secure, and operate as intended; and
  10. Coordinate with other federal agencies on AI strategies.

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