Artificial Intelligence And Autonomous Systems Legal Update (1Q19)

We are pleased to provide the following update on recent legal developments in the areas of artificial intelligence, machine learning and autonomous systems ("AI"). As noted in our Artificial Intelligence and Autonomous Systems Legal Update (4Q18), we witnessed few notable legislative developments in 2018, but also tentative evidence of growing federal government attention paid to AI technologies, and increasingly tangible steps taken by policy organizations and technology companies to address strategic concerns in light of the lack of a federal AI strategy and regulatory vacuum. Meanwhile, and as we will address in a forthcoming client alert, the past year has seen a significant uptick in global AI policymaking, as numerous world economies made budgetary and policy commitments and sought to stake out a position in the absence of a clear U.S. strategy. Notwithstanding these rapid global developments, its continued leadership position in development of AI technologies -albeit one that is increasingly coming under threat-means the United States still retains a unique opportunity to shape AI's global impact. In this update, we cover some of the recent developments that sketch out the beginnings of a U.S. federal AI strategy, and provide an overview of key current regulatory and policy issues.

Table of Contents

1. U.S. National Policy on AI Begins to Take Shape

2. Recent Bias Concerns for AI

3. Autonomous Vehicles

4. Ethics and Data Privacy

1. U.S. National Policy on AI Begins to Take Shape

   Under increasing pressure from the U.S. technology industry and policy organizations to present a substantive federal AI strategy on AI, in the past several months the Trump administration and congressional lawmakers have taken public actions to prioritize AI and automated systems. Most notably, these pronouncements include President Trump's "Maintaining American Leadership in Artificial Intelligence" Executive Order1 and creation of AI.gov.2 While it may be too early to assess the impact of these executive branch efforts, other executive agencies appear to have responded to the call for action. For example, in February, the Department of Defense ("DOD") detailed its AI strategy and on March 6 to 7, the Pentagon's research arm, the Defense Advanced Research Projects Agency ("DARPA"), hosted an Artificial Intelligence Colloquium to publicly discuss AI.3 The clear interest asserted by the Trump administration and growing traction within executive agencies should provide encouragement to stakeholders that the federal government is willing to prioritize AI, although the extent to which it will provide government expenditures to support its vision remains unclear.

   1. President Trump's Executive Order

      On February 11, 2019, President Trump signed an executive order ("EO"), titled "Maintaining American Leadership in Artificial Intelligence."4 The purpose of the EO was to spur the development and regulation of artificial intelligence, machine learning and deep learning and fortify the United States' global position by directing federal agencies to prioritize investments in AI,5 interpreted by many observers to be a response to China's recent efforts to claim a leadership position in AI research and development.6 Observers particularly noted that many other countries preceded the United States in rolling out national AI strategy.7 In an apparent response to these concerns, the Trump administration warned in rolling out the campaign that "as the pace of AI innovation increase around the world, we cannot sit idly by and presume that our leadership is guaranteed."8

      To secure U.S. leadership, the EO prioritizes five key areas:

      (1) Investing in AI Research and Development ("R&D"): encouraging federal agencies to prioritize AI investments in their "R&D missions" to encourage "sustained investment in AI R&D in collaboration with industry, academia, international partners and allies, and other non-federal entities to generate technological breakthroughs in AI and related technologies and to rapidly transition those breakthroughs into capabilities that contribute to our economic and national security."9

      (2) Unleashing AI Resources: making federal data and models more accessible to the AI research community by "improv[ing] data and model inventory documentation to enable discovery and usability" and "prioritiz[ing] improvements to access and quality of AI data and models based on the AI research community's user feedback."10

      (3) Setting AI Governance Standards: aiming to foster public trust in AI by using federal agencies to develop and maintain approaches for safe and trustworthy creation and adoption of new AI technologies (for example, the EO calls on the National Institute of Standards and Technology ("NIST") to lead the development of appropriate technical standards).11

      (4) Building the AI Workforce: asking federal agencies to prioritize fellowship and training programs to prepare for changes relating to AI technologies and promoting Science, Technology, Engineering and Mathematics education.12

      (5) International Engagement and Protecting the United States' AI Advantage: calling on agencies to collaborate with other nations but also to protect the nation's economic security interest against competitors and adversaries.13

      AI developers will need to pay close attention to the executive branch's response to standards setting. The primary concern for standards sounds in safety, and the AI Initiative echoes this with a high-level directive to regulatory agencies to establish guidance for AI development and use across technologies and industrial sectors, and highlights the need for "appropriate technical standards and reduce barriers to the safe testing and deployment of AI technologies"14 and "foster public trust and confidence in AI technologies."15 However, the AI Initiative is otherwise vague about how the program plans to ensure that responsible development and use of AI remain central throughout the process, and the extent to which AI policy researchers and stakeholders (such as academic institutions and nonprofits) will be invited to participate. The EO announces that the NIST will take the lead in standards setting. The Director of NIST, shall "issue a plan for Federal engagement in the development of technical standards and related tools in support of reliable, robust, and trustworthy systems that use AI technologies" with participation from relevant agencies as the Secretary of Commerce shall determine.16 The plan is intended to include "Federal priority needs for standardization of AI systems development and deployment," the identification of "standards development entities in which Federal agencies should seek membership with the goal of establishing or supporting United States technical leadership roles," and "opportunities for and challenges to United States leadership in standardization related to AI technologies."17

      Observers have criticized the EO for its lack of actual funding commitments, precatory language, and failure to address immigration issues for AI firms looking to retain foreign students and hire AI specialists.18 For example, unlike the Chinese government's commitment of $150 billion for AI prioritization, the EO adds no specific expenditures, merely encouraging certain offices to "budget" for AI research and development.19 To begin to close this gap, on April 11, 2019, Congressmen Dan Lipinski (IL-3) and Tom Reed (NY-23) introduced the Growing Artificial Intelligence Through Research (GrAITR) Act to establish a coordinated federal initiative aimed at accelerating AI research and development for U.S. economic and national security. The GrAITR Act (H.R. 2202) would create a strategic plan to invest $1.6 billion over 10 years in research, development, and application of AI across the private sector, academia and government agencies, including NIST, the National Science Foundation, and the Department of Energy (DOE)-aiming to help the United States catch up to other countries, including the UK, who are "already cultivating workforces to create and use AI-enabled devices." The bill has been referred to the House Committee on Science, Space, and Technology. 19a

      In April 2019, Dr. Lynne Parker, assistant director for artificial intelligence at the White House Office of Science and Technology Policy, noted that regulatory authority will be left to agencies to adjust to their sectors, but with high-level guidance from the Office of Management and Budget ("OMB") on creating a balanced regulatory environment, and agency-level implementation plans. Dr. Parker said that a draft version of OMB's guidance likely would come out in early summer.20

      For more details, please see our recent update President Trump Issues Executive Order on "Maintaining American Leadership in Artificial Intelligence.

   2. AI.gov Launch

      On March 19, 2019, the White House launched ai.gov as a platform to share AI initiatives from the Trump administration and federal agencies.21 These initiatives track along the key points of the AI EO, and ai.gov is intended to function as an ongoing press release. Presently, the website includes five key domains for AI development: the Executive order on AI, AI for American Innovation, AI for American Industry, AI for the American Worker, and AI with American Values.22

      These initiatives highlight a number of federal government efforts under the Trump administration (and some launched during the Obama administration). Highlights include the White House's charting of a Select Committee on AI under the National Science and Technology Council, the Department of Energy's efforts to develop supercomputers, the Department of Transportation's efforts to integrate automated driving systems, and the Food and Drug Administration's efforts to assess AI implementation in medical research.23

   3. U.S. Senators Introduce "Algorithmic Accountability Act" to Address Bias

      On April 10, 2019, a number of Senate Democrats introduced the...