November has been a busy month in artificial intelligence on the international, federal, and state levels.  The last several weeks have seen what is probably an unprecedented amount of activity regarding artificial Intelligence (“AI”), the most dramatic of which involved the stepping down of Open AI’s CEO Sam Altman last Friday after a clash with the OpenAI board and the hiring of Altman, his co-founder Greg Brockman, and other colleagues by Microsoft the following Monday. This follows a prior investigation by the Federal Trade Commission into OpenAI for potentially engaging in deceptive privacy practices or harming consumers, and an appearance by Altman before a Senate Judiciary subcommittee hearing earlier this spring warning that the technology could “cause significant harm to the world.” In addition, in July, the Federal Trade Commission opened an investigation into OpenAI, the company behind ChatGPT, requesting it to send over records about how it addresses risks related to its AI models, as well as detailed descriptions of complaints received of products making “false, misleading, disparaging, or harmful” statements about people, and for records relating to the security incident the company disclosed in March that allowed some users to see payment-related information.

So far, we have seen the following activity.  Our team will continue to track legislative, regulatory, and policy developments in artificial intelligence as the landscape evolves.

White House (Biden Administration)

• White House Executive Order.  On October 30, shortly before the announcement of the Bletchley Declaration mentioned below, President Biden issued an “Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence” that issued a multitude of directives across a wide swath of federal agencies and departments, as well as AI developers. The directives are summarized into eight main categories in our previous blog post, located here.

International  

• European Union. At the AI Safety Summit on Nov. 1-2, 2023, 27 countries, including the European Union, China, and the United States, signed the Bletchley Declaration, which focuses on talking the risk of frontier AI to “identify AI safety risks of shared concerns, building a shared scientific and evidence-based understanding,” and “building respective risk-based policies across countries to ensure safety.” At the same time, the European Parliament is debating finalization of the Artificial Intelligence Act, introduced in April 2021. It is in the last phase of the legislative process, the “trilogue” process whereby the EU Commission, Council and Parliament gather to hash out the law’s final disposition.  France, Germany, and Italy are pushing for codes of conduct without an initial sanction regime for foundation models, rather than prescriptive obligations in the AI rulebook.
• China. Less than two weeks before the U.S. executive order was announced, China announces its Global AI Governance Initiative at the Belt and Road Forum in Beijing. The much shorter proclamation announces high level principles such as upholding a “people-centered approach in developing AI”, “developing AI for good”, “fairness and non-discrimination”, with “wide participation and consensus-based decision-making”, and to “encourage the use of AI technologies to prevent AI risks.”  However, it also includes language reiterating the need to “respect other countries’ national sovereignty and strictly abide by their laws”.  It also opposes “using AI technologies for the purposes of manipulating public opinions, spreading disinformation, intervening in other countries’ internal affairs… and jeopardizing the sovereignty of other states.”

Federal Trade Commission

• FTC Authorizes Compulsory Process for AI-Related Products and Services. Today, on November 21, 2023, the FTC approved an omnibus resolution authorizing the use of compulsory process in nonpublic investigations involving products and services that use or claim to be produced using AI or claim to detect its use.  This will streamline FTC staff’s ability to issue civil investigative demands (CIDs), which are similar to subpoenas, in AI-related investigations, while retaining the FTC’s authority to determine when CIDs are issued. Click here to view the press release.
• FTC Announces Exploratory Challenge to Prevent he Harms of AI-Enabled Voice Cloning.  On November 16, 2023, the FTC announces the “Voice Cloning Challenge”, including at $25,000 prize to the winner, to help promote the development of ideas to protect consumers from the misuse of AI-enabled voice cloning.   Submissions must address at least one of the following intervention points: (a) prevention or authentication; (b) real-time detection or monitoring; or (c) post-use evaluation.  The FTC will accept submissions online from January 2, to January 12 2024. More detail about the challenge may be found here.
• FTC Keeping a Close Watch Over AI Effect on Cloud Market Competition.  The FTC collected more than 100 public comments about cloud computing from industry, policy groups, and academics after requesting input earlier this year.  In its November 16, 2023 meeting, it presented on its findings from the previous RFI and public panel discussions on cloud computing, in which Chair Khan mentioned that “as cloud competing is a key input for artificial technologies, fully understanding the dynamics in this layer is only more important and relevant today that it was even earlier this year.” A transcript of the meeting may be found here.  
• FTC Files Comments to the US Copyright Office Regarding Artificial Intelligence. On October 30, 2023, in Docket No. 2023-6, the FTC submitted comments to US Copyright Office (“USCO”) commending the USCO’s ongoing efforts to examine copyright law and policy issues raised by AI technology.  The FTC filed comments to: (1) explain its interest and expertise in promoting fair competition and protecting against unfair or deceptive practices in an economy in which AI is being rapidly deployed; (2) identify issues raised by generative AI that implicate competition and consumer protection policy; and (3) briefly summarize and provide the full transcript of the FTC’s October 4, 2023 roundtable at which creative professionals described the effects of generative AI on their work. The comments may be found here.

Federal Communication Commission

• FCC Announces New AI Calling and Voice Initiatives.  On November 16^th, the FTC and the Federal Communications Commissions (“FCC”) announced a Notice of Inquiry (“NOI”) on the implications of artificial intelligence technologies on protecting consumers from unwanted robocalls and robotexts.  The NOI primarily seeks to understand the potential risks, as well as benefits, associated with AI in the telecommunications sector.  It also seeks input regarding potential liability for AI develops who design calling systems in a manner that permits or promotes violations of the TCPA. It is also collecting information to define the term “Artificial Intelligence” for purposes of the Telephone Consumer Protection Act (“TCPA”).  Comments are due by December 18, 2023.  The full NOI and list of questions can be found here. 

Federal Legislative Activity

• New AI Bill to Require Companies to Certify Technology Safety.  On November 15, 2023, Senators John Thune and Amy Klobuchar introduced bipartisan legislation, the “Artificial Intelligence Research, Innovation, and Accountability Act of 2023”, that would require companies to test their artificial intelligence tools that pose high risks to Americans and certify that they’re safe. Specifically, technology companies would be required to adhere to a self-certification regime and attest the safety of their AI systems, which would be categorized based on their risk.  It would require NIST to conduct research with the goal of creating guidelines for providing information on the authenticity and origin of online content, and require large internet platforms to let users known when they are interacting with content produced via generative AI.  To read the press release, click here.
• New Bill to Establish Defense Working Group to Develop and Coordinate AI Initiative among the Five Eyes countries. Also on November 15, 2023, Rep. Mike Gallagher introduced another bipartisan bill to direct the Secretary of Defense to establish a working group to develop and coordinate an artificial intelligence initiative among the Five Eyes Countries and for other purposes. The Five Eyes alliance is an intelligence network established in 1946 after World War II among the United States, the United Kingdom, Canada, Australia and New Zealand, where they signed the 1948 UKUSA Agreement, intended as a cooperative arrangement for sharing signals intelligence (SIGINT). Rep. Gallagher’s press release can be found here.

State Activity

State Legislation.  November also saw the continued activity in state legislatures on artificial intelligence:

• Texas:  In Texas, HB 1 was placed on the general state calendar on November 16, 2023.  While primarily relating to primary and secondary education, the bill does create a commission to develop recommendations on, among other things, “grading systems and the impact that those systems will have on the assessment and accountability system, including the use of artificial intelligence in grading systems.”
• New York.  Meanwhile, New York state bill A4969 that would create a temporary state commission to study and investigate how to regulate artificial intelligence, robotics, and automation, was vetoed on November 16, 2023, and thus tabled. Another bill, A216, which relates to requiring advertisements to disclosure the use of synthetic media created or modified through artificial intelligence, was amended and sent back to the committee on consumer affairs and Protection on November 14, 2023. New York Senate Bill S7735, which relates to the use of automated decision tools by landlord for making housing decisions, was introduced on November 2, 2023, and referred to the Senate Rules Committee.
• Florida.  In Florida, HB 483 was filed November 14, 2023.  Another education bill, it would establish an Artificial Intelligence in Education Task Force, “to evaluate the potential applications of artificial intelligence in K-12 and higher education; to develop policy recommendations for responsible and effective uses by students and educators; to identify workforce needs related to artificial intelligence; and provide policy recommendations to ensure the state develops education and workforce training programs that align with changing industry needs.“
• Wisconsin.   On November 7, 2023, Wisconsin SB 644 was introduced, which relates to the disclosures regarding content generated by artificial intelligence in political advertisements granting rulemaking and penalty authority to the state Ethics Commission.  On November 15, 2023, Rep. Subeck was added as a cosponsor.
• Pennsylvania.  A Pennsylvania bill, HB 1304, which was introduced in June 1, 2023, amends statutes regarding 911 emergency communication services. Among its provisions, it requires the Legislative Budget and Finance Committee, in conjunction with the Joint State and Local Government Commissions to study, among other things, the use of artificial intelligence in a 911 system, including recommended standards. The bill passed the House on June 13, 2023, and referred to committee for second consideration on November 13, 2023.
• Michigan.  Michigan bills 5141, 5143, and 5144 would restrict the use of artificial intelligence and manipulated media in political campaigns and would generally require campaign advertisements and other political media to disclose of the use of artificial intelligence systems.  HB 5142 and 5145 were companion bills to HB 5141 and 5144, that would make complementary change to the Code of Criminal Procedures.  The bill, introduced in October 11, 2023, passed the House on October 31, 2023, and was reported out of Senate Committee favorably with a substitute, on November 8, 2023, thus passing the House with the Senate Substitute on November 8, 2023. It is expected to be presented to the Governor today (November 21, 2023).  To view the Senate substitute for HB 5143, click here.
• Massachusetts.  In Massachusetts, SB 227, would establish the Massachusetts Information and Privacy and Security Act, Economic Development and Emerging Technologies.  The privacy risk assessment conducts by the controllers shall specify whether its algorithms uses “machine learning, natural language processing, artificial intelligence techniques or other techniques of similar or greater complexity.” After coming out of the House on February 16, 2023, and a Senate hearing in October, it was discharged to the Senate Committee on Advanced Information Technology, the Internet, and Cybersecurity on November 2, 2023.  The Senate concurred on November 6, 2023.

State Bar Associations

• California Bar Passes AI Guidelines. On November 16, 2023, the California Bar approved new guidelines for lawyers using AI, calling for lawyers to consider disclosing use of generative AI to their clients and not to charge hourly fees for time save by using the tech tools. It also urges lawyers to ensure that humans are reviewing AI-generated outputs for inaccuracy and bias. At a meeting of the California Bar’s Board of Trustees, the program director for the Office of Professional Competence, Erika Doherty, stated that “this would be, to my knowledge, the very first AI item that is specifically approved by a regulatory agency for lawyers.”