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United States Privacy Digest | A view from DC: US Senate is back in session, tackling AI Related reading: A view from DC: NIST proposes update to guidance on privacy learning programs

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The legacy of the U.S. Senate is built on compromise. Since the advent of the filibuster, which effectively ended rule by simple majority, legislation has not passed without protracted political wrangling, clear bipartisan support or supermajority control. With a razor-thin margin of a Democrat majority, today's Senate is acutely aware of this reality.

At the same time, it can seem these days as though the spirit of compromise is a diminishing resource. Like the disorienting effect of an optical illusion, the activities of individual senators and committees seem to simultaneously produce evidence of productive compromise and deep competition, depending on how the light catches.

One can tell a compelling story of bipartisanship. Just yesterday, for example, the two leaders of the Senate judiciary's subcommittee for privacy, technology and law indicated in interviews with The New York Times that they plan to announce a bipartisan framework for regulating artificial intelligence.

U.S. Sens. Richard Blumenthal, D-Conn., and Josh Hawley, R-Mo., say their plan will include "requirements for the licensing and auditing of AI, the creation of an independent federal office to oversee the technology, liability for companies for privacy and civil rights violations, and requirements for data transparency and safety standards." Perhaps legislation will be unveiled in time for the Senate Committee on the Judiciary subcommittee's scheduled hearing next week.

One can also tell a completely different story, tinged with political competitiveness, as senators jockey to position themselves as leaders on the hot topic of AI.

As it happens, the two most relevant Senate subcommittees for issues related to AI have each scheduled their own hearing next week — at exactly the same time. Not only will these hearings be in direct competition with each other on CSPAN, but they also seem carefully timed to occur the day before the first of the highly publicized closed-door "AI Insight Forums" hosted by Senate Majority Leader Chuck Schumer, D-N.Y.

The other hearing, titled "The Need for Transparency in Artificial Intelligence," will be hosted by the Senate Committee on Commerce, Science, and Transportation's Subcommittee on Consumer Protection, Product Safety and Data Security. As chair of the subcommittee, Sen. John Hickenlooper, D-Colo., will lead the hearing, exploring "how to increase transparency in AI technologies for consumers, identify uses of AI that are beneficial or 'high-risk' and evaluate the potential impact of policies designed to increase trustworthiness in the transformational technology."

Hickenlooper, along with Subcommittee Ranking Member Marsha Blackburn, R-Tenn., previously sent letters to leading U.S. industry associations, asking how their member companies plan to implement the AI Risk Management Framework published by the U.S. National Institute of Standards and Technology. Two of these associations, BSA and the Information Technology Industry Council, are scheduled to testify at the hearing next to Carnegie Mellon Dean Ramayya Krishnan, a member of the National Artificial Intelligence Advisory Committee, and Sam Gregory of WITNESS, a human rights advocacy organization focused on video as a tool for accountability.

Similarly, the Judiciary subcommittee hearing will feature an academic voice — none other than Woodrow Hartzog, one of the preeminent scholars of privacy and data rights — alongside leading AI innovators, Microsoft's Brad Smith and NVIDIA's William Dally.

Although the Senate's chief priority in its return to work is to keep the government running by passing budget proposals, AI is high on the secondary priority list.

Schumer devoted an entire paragraph of his most recent "dear colleagues" letter to a discussion of his forthcoming AI Insight Forums. He wrote the forums will "convene the leading minds in AI, including AI developers, civil rights and worker advocates, researchers, and other key thinkers, to lay a foundation for action on AI." It's worth reading the rest of his description, as it helps to clarify the role these leadership forums could play alongside committee activities:

"We know there is real bipartisan interest in developing a comprehensive AI framework to give Congress the opportunity to bolster and accelerate AI innovation in a safe and responsible way. These forums will build on the longstanding work of our Committees by supercharging the Senate's typical process so we can stay ahead of AI's rapid development. This is not going to be easy, it will be one of the most difficult things we undertake, but in the twenty-first century we cannot behave like ostriches in the sand when it comes to AI. We must treat AI with the same level of seriousness as national security, job creation, and our civil liberties."

Schumer goes on to list 10 "critical issues" on which the Senate has the opportunity to advance legislation this fall. Two of the listed issues are artificial intelligence and "advancing kids and teens online safety and privacy." Schumer clarifies, "Our committees have done excellent work to move these along, but we are under no illusion that we can make progress on the senate floor unless we get bipartisan cooperation."

Bipartisan cooperation, compromise and acting in good faith. These vaunted values are echoed again throughout Leader Schumer's letter. There is no other path forward to legislative success. But political realities will continue to slow legislative goals. There are two equal houses of Congress, after all.

With a budget negotiation cycle focused on the House Republicans' threats to shut down the government, there is a lot of work to do before AI and privacy are up for a vote.

Here's what else I'm thinking about:

  • The U.S. has a full-strength telecommunications regulator for the first time since the Biden administration began. The Federal Communications Commission will finally be able to tackle a backlog of partisan priorities after the Senate confirmed Anna Gomez to serve as its third Democrat commissioner. Gomez's supremely normal confirmation process was a stark contrast to the lengthy, irregular and vitriolic battle that led to the prior nominee, Gigi Sohn, withdrawing from consideration. Once Gomez is in place, the FCC is expected to move rapidly on regulatory and enforcement matters, including some privacy priorities like closing investigations into telecom companies' collection and use of geolocation data. We will be watching closely for updates from the newly created Privacy and Data Protection Task Force.
  • Court and legislative battles over youth safety, privacy and free speech continue. After an Arkansas court decision temporarily blocked the state's new social media law, and as NetChoice's multifront battle against similar laws continues, lawmakers are continuing to consider how to approach youth safety and privacy restrictions in ways that do not run afoul of America's strong free speech values. Teens are starting to find their own voice in the debate, as The Washington Post reports.
  • Apple and Google are regulators, at least when it comes to mobile payments. In a new report, the U.S. Consumer Financial Protection Bureau is deliberate in its description of the role that mobile platforms play in shaping "innovation, consumer choice, and the growth of open and decentralized banking and payments in the U.S." It is remarkable for an agency to call attention to the role of platforms as de facto regulators, and even more so to call out specific policies as "hampering" the policy goals of government agencies. The report is part of the CFPB's work to push toward more open banking and "clarify consumers' personal financial data rights" with a rulemaking process that started last year.

Upcoming happenings:

The week starting 11 Sept. will be a busy one for policymakers and stakeholders alike. Here's what to watch for and where to tune in:

  • 12 Sept.: A coalition of nonprofits host a panel titled "Online Privacy: Empowering Vulnerable Communities" (AT&T Forum).
  • 12 Sept.:, The Washington Post hosts a conversation with the co-chairs of the Senate AI Caucus on an episode of "Across the Aisle with Leigh Ann Caldwell" (virtual).
  • 12 Sept.: The U.S. Senate Committee on the Judiciary, subcommittee on privacy, technology and the law hosts a hearing titled "Oversight of AI: Legislating on Artificial Intelligence" (Dirksen 226).
  • 12 Sept.: The U.S. Senate Committee on Commerce, Science and Transportation subcommittee on consumer protection, product safety and data security hosts a hearing on "The Need for Transparency in Artificial Intelligence" (Russell 253).
  • 14 Sept.: The Information Technology and Innovation Foundation and the XR Association host the AR/VR Policy Conference 2023 (Convene).
  • 14 Sept.: The Brookings Center on Regulation and Markets hosts a virtual event titled "Frontier AI regulation: Preparing for the future beyond ChatGPT."
  • 14 Sept.: The Bipartisan Policy Center hosts a panel titled "The Future of AI Governance" (virtual).

Please send feedback, updates and time travel tips to cobun@iapp.org.


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