On April 25, 2023, four federal government agencies released a joint statement announcing their resolve against bias and discrimination in automated systems and artificial intelligence (AI). Together, the Consumer Financial Protection Bureau (CFPB), the Department of Justice’s Civil Rights Division (DOJ), the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) will jointly seek to ensure that innovation does not supplant individual rights and regulatory compliance. Specifically, these federal agencies will continue to scrutinize the implementation of new AI technology to protect civil rights, equal employment opportunity, fair competition and consumer protection.
Automated systems and AI permeate a variety of industries, including entertainment, healthcare, employment and financial services. Software and algorithmic processes can be used to streamline workflows, assist individuals in completing tasks and simplify decision-making. However, the DOJ, FTC, EEOC and CFPB are concerned that the increasing reliance on automated systems likewise will increase the risk of unlawful biases and discrimination:
- More public and private organizations are using these automated systems to make “critical decisions that can impact individuals’ rights and opportunities, including fair and equal access to a job, housing, credit opportunities, and other goods and services.”
- “Although many of these tools offer the promise of advancement, their use also has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.”
As noted in the joint statement, automated systems and AI depend upon large data sets to identify patterns, perform tasks and make predictions. If the underlying data set is unrepresentative, then the system could produce biased and discriminatory results. The lack of transparency in some of these automated systems may further complicate the issue, making it difficult for users to identify potential bias or discrimination in outcomes.
The joint statement confirms the federal government’s increased scrutiny of automated systems and AI-enabled technologies. As seen in the employment context, state regulators also are introducing laws and guidance aimed at enforcing responsible innovation. Employers, healthcare providers and technology developers, among others, should (1) monitor updates to federal, state and foreign regulation of automated systems; and (2) assess their organizations’ intentional and inadvertent use of AI to comply with regulations and ensure best practices.
Please contact the authors of this alert if you have questions about how state and federal regulation may implicate your industry.