Momentum builds for comprehensive bipartisan legislation on artificial intelligence

Long-awaited efforts to pursue a comprehensive federal regulatory framework for artificial intelligence in the United States have taken a step forward in the Senate as bipartisan lawmakers seek to balance the competing imperatives of acting quickly and getting it right.

Senate Majority Leader Chuck Schumer (D-NY) announced in mid-May that he was working with a small bipartisan core of his colleagues – identified as Senators Mike Rounds (R-SD), Todd Young (R-IN) and Martin Heinrich (D-NM), chair of the Senate AI Caucus – to craft legislation that can attract broad, bipartisan support. Schumer and Young had teamed up across the aisle on the initiative that ultimately was enacted into law last year – the CHIPS and Science Act – which included funding to boost US research and manufacturing of semiconductors.

Fast forward to a June 21 speech at the Center for Strategic and International Studies (CSIS) in Washington DC, Senate Majority Leader Chuck Schumer (D-NY) laid out a proposal for Congressional action that he is calling a SAFE Innovation Framework for AI policy. He said the framework has been informed by “months of talks with over 100 AI developers, executives, scientists, researchers, workforce experts, and advocates.”

At CSIS, Schumer announced the Senate would convene an upcoming series of nine “AI Insight Forums” to provide lawmakers an opportunity to hear from and interact with top experts in the field of AI, supplementing the process of Congressional hearings and other traditional legislative procedures.  The initial topics for the forums are as follows:

• AI innovation
• Copyright and intellectual property
• Use-cases and risk management
• Workforce
• National security
• Guarding against doomsday scenarios
• AI’s role in our social world
• Transparency, explainability and alignment and
• Privacy and liability

Legislative outlook

Given the current divided government, with a Republican House and a Democratic Senate and President, finding a bipartisan approach will be imperative in order to actually enact legislation. The Senate has a 60-vote threshold for moving forward legislation, meaning consensus is essential; Recent precedents exist as small bipartisan groups of senators have often played a pivotal role in laying the groundwork for significant legislation, such as infrastructure, semiconductors, and COVID aid.

As we reported in April when indications of the Senate initiative began to emerge, it is expected that the legislation will emphasize transparency and explainability of AI systems. This would include information on the training and intended audience for an algorithm, disclosure of data sources, an explanation for how AI models make certain determinations, and strong ethical guardrails.

Schumer has said he is seeking a requirement for “companies to allow independent experts to review and test AI technologies ahead of a public release or update, and give users access to those results.”

On the other side of the Capitol, House Speaker Kevin McCarthy (R-CA) is seeking to help close the knowledge gap about AI and its potential that many in Congress cite as a problem in designing an effective regulatory framework. In April, McCarthy brought two MIT AI experts to address members of Congress. Last month, OpenAI’s CEO met with lawmakers.

McCarthy said he had MIT develop a course on AI and quantum computing for members of the House Intelligence Committee and other representatives, similar to a course designed for military officers. The speaker said, “the best approach here is to bring in some of the brightest minds to talk about it before you're crafting any legislation on it.”

Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) has expressed her intention to first secure passage of the American Data Privacy and Protection Act (ADPPA) before considering AI legislation. She stated, “We are at an inflection point to ensure our personal information is responsibly collected especially since this data may be used to train and develop artificial intelligence that may or may not align with our values.” While bipartisan in the House (the same legislation passed 53-2 in the Democratic-led Committee last year), efforts to preempt state laws, especially some of California’s privacy laws, may mean a more complicated Senate path.

A piecemeal approach?

Comprehensive legislation is difficult to move in a timely manner, especially in a divided Congress, leading some in Congress to suggest that a more piecemeal approach targeting specific AI-related issues – from bias to privacy protection to interoperability of data – could be more effective and accomplished more quickly. Others argue that much of the regulation of AI can be accomplished using existing agencies and authorities.

Various more narrowly focused legislative proposals have already been introduced in the House and Senate, including a bill to require a disclaimer for political advertisements that use images or video generated by AI and another proposal to create an AI training program for federal supervisors and management officials. Some members of Congress are keen to ensure that AI developers can be held accountable in court for products or apps that cause public harm. Many of these freestanding bills and ideas could ultimately be folded into a broader, comprehensive legislative package if one emerges.

Congress has recently been stepping up its oversight and policy attention on AI. A highly anticipated May 16 hearing of the Senate Judiciary Committee’s Subcommittee on Privacy, Technology and the Law featured testimony from representatives of two industry leaders, OpenAI and IBM. On the same day, the Senate Homeland Security Committee held a hearing on the use of AI in the federal government.

Meanwhile, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet on May 17 held a hearing on the interoperability of AI and copyright law. The Senate Judiciary Committee’s Intellectual Property Subcommittee held a June 7 hearing on AI focusing on patents, innovation, and competition. Both IP-related hearings have been designated as “part 1,” an indication that lawmakers expect to continue to hash out the IP implications posed by AI.

Going forward

At a time of growing Congressional and public concern over the implications of AI regarding job losses, compromised privacy, the spread of on-line misinformation, competition with China, and other countries that are developing their own AI products and regulatory regimes, we are closely following these developments.  To learn more about this evolving landscape and its implications for your business, please contact any of the authors.