Biden Admin AI Regs Show US Disfunction
The Biden Administration recently announced a set of “commitments” by some of the top players in so-called generative AI to “protect” people from the potential damages that AI can do to society. The are pretty much going to be useless because the US is mostly a broken a polity.
The regulations themselves are entirely voluntary. There is nothing in the announced agreements that protects people’s privacy or ensures that the data used by these companies results in compensation. And there is nothing in this agreement that allows the government to enforce it in anyway. We just have to take the companies’ word that they will do even the little they have agreed to do.
To be fair, the Biden administration is trying to regulate as much as it can within the strictures of current laws. The Justice Department, FTC, EEOC and Consumer Financial Protection Bureau have all stated that they will use existing regulatory powers to the extent possible to protect Americans. But that apprach has two problems. First, existing laws may not cover AI entirely. Second, the Supreme court has invented a way to micro-manage government agencies and decide for itself what they can and cannot do, regardless of the text of the law or Congress’s intent.
The Major Questions doctrine is made up bullshit. There is nothing in the text of the Constitution to support it and it comes almost entirely from a 2000 Sandra Day O’Connor opinion where she stated that “we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Essentially, she didn’t like that Congress gave an agency power so she decided that Congress must be wrong. You can see the end result of this mindset in the student loan forgiveness case. Congress gave the power to “modify or waive” student loans right in the text of the law. Roberts, however, didn’t like the policy and so ignored the clear wording of the law and disallowed the action. It was so egregious that Kagan’s dissent stated outright that the Court “exceeded its proper role”. Essentially, the Court has decided that it and it alone determines what agencies can and cannot regulate, Constitution and law be damned.
In theory, Congress could be more specific in its grant of powers or could regulate directly. But that brings us to the larger problem: it is almost impossible to pass laws in the United States. A combination of partisan rancor (largely driven by the radicalization of Republicans), gerrymandering that allows members to pick their voters, the effective 60 vote requirement in the Senate to pass anything other than one or two massive spending bills, the “rotten boroughs” of Senate seats that give outside power to minority positions, and the power that the illegality of most campaign finance regulations has given to large money donors has resulted in a Congress that simply does not pass laws outside of a handful of must pass budgets and meaningless post office naming bills.
As a result, there is precious little that can be done. Even where the public largely agrees (privacy laws, certain gun control laws, etc.) Congress rarely acts. The best that can be done is administrative action, but such actions have the Supreme Court standing over every step waiting to impose its personal policy preferences. The issue, then, is not with the Biden Administration per se but with the way we have allowed the minority in the Senate and the Supreme Court to usurp powers to itself. The country simply does not function as a viable democracy anymore.
Self-regulation never works. Facebook self-regulated itself into conducting experiments on its users with no notifications and into facilitating genocides. Google self-regulated its AI ethics teams out the door when they dared to criticize the company’s work. Self-regulation won’t protect us against the dangers of AI or ensure that the benefits are widely shared. The Biden administration is trying to do the right thing, but absent wider reforms, it is going to fail.
Unless and until the filibuster is removed and the Court is reformed, either by expansion or by having its powers of review curtailed, the country will remain ungovernable. And as long as the country is ungovernable, we will remain at the mercy of companies who care only for their own pocketbooks not our wellbeing however much any White House wishes otherwise.