Background
On May 15th, Senate Majority Leader Chuck Schumer (D-NY), along with Senators Mike Rounds (R-SD), Martin Heinrich (D-NM) and Todd Young (R-IN) unveiled their long-anticipated Artificial Intelligence (AI) Roadmap, titled "Driving U.S. Innovation in Artificial Intelligence: A Roadmap for Artificial Intelligence Policy in the United States Senate" ("the Roadmap").
The Roadmap's release follows a series of bipartisan AI roundtables held with industry stakeholders, covering a range of topics, including copyright, transparency, intellectual property, elections and democracy, risk management, national security, privacy, and liability. The Roadmap released by Leader Schumer's office is an effort to synthesize the feedback received during these roundtables and guide congressional committees as they develop a regulatory framework for the formative stages of the technology's development.
Highlights from AI Roadmap
The Roadmap addresses eight policy areas impacted by AI development. These topics include:
- Supporting U.S. Innovation in AI;
- AI and the Workforce;
- High Impact Uses of AI;
- Elections and Democracy;
- Privacy and Liability;
- Transparency, Explainability, Intellectual Property, and Copyright; and
- Safeguarding Against AI Risks
Notably, the Roadmap calls for the creation of a comprehensive federal data privacy framework related to AI that can be applied across multiple sectors. The Roadmap specifies that this data privacy framework should include provisions addressing data minimization, data security, consumer data rights, consent and disclosure, and data brokers. However, on the issue of liability, the Roadmap departs from this comprehensive approach. It defers to the committees of jurisdiction to determine whether additional standards and/or clarity are needed for liability as it relates to AI, therefore likely relying upon (and updating as needed) existing liability statutes.
The Roadmap also recommends legislation to "establish a coherent approach to public-facing transparency requirements for AI systems," and develop best practices for when stakeholders should disclose that their products use AI. However, the Roadmap stops short of calling for major legislation addressing copyright issues in AI. Instead, it calls on committees of jurisdiction to monitor the reports emerging from the U.S. Copyright Office and the U.S. Patent and Trademark Office on issues regarding AI and existing copyright law. It recommends action "as deemed appropriate to ensure the U.S. continues to lead the world on this front."
The Bipartisan Senate AI Working Group also calls for the development of a framework for export controls for AI systems and coordination and partnerships with international allies on AI policy development.
Takeaways and a Look Ahead
While the Roadmap marks a pivotal moment towards developing an AI regulatory framework, the path forward for any significant AI legislation getting enacted into law remains elusive.
Leader Schumer has indicated that the he envisions a process wherein individual committees draft legislation based on the parts of the Roadmap that fall under the committee's jurisdiction, instead of moving forward with one comprehensive bill addressing all the topics contained in the Roadmap. In a properly functioning Congress – one exercising regular order" - the Committees generate and consider individual pieces of legislation as proposed in the Roadmap. While this piecemeal approach could provide Members and committees multiple opportunities to enact at least some AI legislation and to tackle these policies issue by issue, the piecemeal approach runs the risk of getting caught up in the process. Each committee will have other legislative priorities, and multiple pieces of AI legislation will divide stakeholders and the public's attention, potentially leading to less urgency to finalize these pieces of legislation. Further, it can be very difficult to move individual bills in the Senate because of its rules for consideration of legislation on the floor.
The Roadmap's call for a federal data privacy standard is fraught with legislative hurdles. As a longtime bucket list item for members, similar efforts at passing data privacy legislation (such as H.R. 1165, the Data Privacy Act of 2023) have been extremely difficult, with the issue of federal preemption proving difficult to reconcile between Republicans (who prefer a national standard) and Democrats (who prefer stricter data privacy laws put forward on the state level). Senate Commerce Committee Chair Maria Cantwell (D-WA) and House Energy and Commerce Chair Catchy McMorris Rodgers (R-WA) released a bipartisan draft of the American Privacy Rights Act of 2024 (APRA). While notable for its bipartisan nature (and thus different from the House Republican-led Data Privacy Act of 2023) and despite the leadership from the two relevant committee chairs, this legislation still has yet to be formally introduced and remains in the early stages of the legislative process.
Most importantly, time is not on the Leader's side. The legislative calendar for the remainder of the 118th Congress is not conducive for the passage of any legislation that emerges following the release of the Roadmap. With elections due in November, Congress has a limited amount of legislative days to hold markups and floor votes on any potential legislation, and Congress will be preoccupied with considering must-pass legislation such as FY 2025 appropriations, the National Defense Authorization Act (NDAA), and the Farm Bill. While it is possible some AI provisions could be added to these pieces of legislation (particularly the NDAA), any AI provisions of major consequence are unlikely to be added, as members will be reluctant to risk the possibility of these provisions serving as a poison pill for these carefully negotiated legislative packages.
Next Congress could be a renewed opportunity to begin moving these pieces of AI legislation, but this would largely depend upon the outcome of the 2024 elections, especially given that many senior lawmakers who lead on technology issues have opted not to run for reelection. Further, control of the Senate is in play, and Majority Leader Schumer could be Minority Leader in the 119thCongress.
Though many of its recommendations are vague, the Roadmap signals a new, bipartisan phase of legislating on AI issues. However, the road ahead remains plagued with potential pitfalls.
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