On April 18, 2023, the National Association of Attorneys General (NAAG) held a public session as part of its three-day Annual Symposium in Philadelphia. Throughout the day, Attorneys General, their senior staff, law enforcement partners, and other subject matter experts presented on a series of topics addressing key enforcement priorities and challenges facing Attorneys General and their offices throughout the country. Although the panels addressed a diverse set of topics, the consistent theme was the trend toward cooperation and open communication between and among various levels of government and community stakeholders.
Regulating Algorithms and Automated Processes
The Chief Deputy Attorney General of Colorado led a discussion about the significant impact that algorithms and automated processes have on almost every part of our lives and the relative lack of a regulatory framework to ensure transparency and fairness in how those automated tools are applied. The subject matter experts on the panel, who have researched, written, and advised state and federal governments on these issues, stressed the challenges of ensuring that automated processes and the decisions that rely on them do not reflect bias or unfairness. Notably, while the explosion of artificial intelligence ("AI") tools has created remarkable new opportunities, it has also left many unanswered questions about how such tools should be regulated. There is a clear "technology gap" between regulators and the private sector entities they regulate with respect to automated processes that will only expand with the growing reach of machine learning and AI. As such, the panelists discussed whether an updated regulatory approach is required. Such an approach would seek to move beyond a reactive model, (i.e., enforcement actions in the wake of data breaches) to a more proactive model that would permit regulators to audit or otherwise scrutinize algorithms to identify potential flaws that reflect fundamental issues of bias or discrimination. Such a model is not without its own challenges, including identifying regulatory staff with sufficient expertise to conduct such audits and reassuring private companies that such reviews would not compromise their intellectual property or increase litigation. As regulations and regulators are decidedly playing "catch up" in this fast-growing area, the panelists expressed a need for cooperation and collaboration between government at every level to develop an effective regulatory framework in this increasingly important area.
Organized Retail Crime
Illinois Attorney General Kwame Raoul led a discussion on the growing coordination between federal, state, and local law enforcement and retail industry representatives to combat Organized Retail Crime. The panelists noted that retail theft has evolved beyond "smash and grab" jobs and is now executed by sophisticated criminal rings that create what is, in effect, a shadow industry complete with warehouses and online distribution. Moreover, these criminal enterprises create a host of harms, from lost tax revenues and lost sales for legitimate businesses to public health and safety risks that come from improperly storing stolen food or medical items. Attorney General Raoul highlighted that while Organized Retail Crime is a growing problem nationally, law enforcement efforts to recognize and combat the problem, bolstered by leveraging federal resources and information sharing from retailers and trade associations, have been increasingly successful and are becoming a model for broader cooperation between the public and private sectors.
State and Local Cooperation
Similarly emphasizing the importance of cooperation, former South Dakota Attorney General Mark Vargo moderated a panel on collaboration between state Attorneys General and local prosecutors and law enforcement agencies. Attorneys General Kathleen Jennings of Delaware and Alan Wilson of South Carolina took part in the discussion, as did District Attorney John Flynn of Erie County in New York. While noting that the scope of each Attorney General's authority varied by state, the panelists stressed the need for communication, not only between state and local authorities, but also with federal partners and with community stakeholders. The panelists noted that keeping an open and consistent line of dialog was an important component on broad policy initiatives, proposed legislative changes, and on the day-to-day of management of individual prosecutions. Attorney General Wilson described the importance of collaboration with law enforcement at every level in connection with his office's recent high-profile murder prosecution of Alex Murdaugh, and District Attorney Flynn described similar cooperation in investigating and prosecuting the seemingly racially motivated mass shooting in Buffalo.Attorney General Jennings echoed similar themes in describing her work with government officials and community leaders to seek to reduce gun violence in her state.
The NAAG's Annual Symposium provided an opportunity to hear directly from Attorneys General and key decisionmakers in their offices about their enforcement priorities. It also offered a chance for state Attorneys General to articulate their viewpoints on regulatory issues and to gain an understanding of the increased frequency of cooperation between and among different government agencies.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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