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Will Rinehart: Unpacking the Executive Order on Artificial Intelligence

Most are underweighting the legal challenges and problems to rule of law.

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The author of this Expert Opinion is Will Rinehart, senior research fellow at the Center for Growth and Opportunity

If police are working on an investigation and want to tap your phone lines, they’ll effectively need to get a warrant. They will also need to get a warrant to search your home, your business, and your mail.

But if they want to access your email, all they need is just to wait for 180 days.

Because of a 1986 law called the Electronic Communications Privacy Act, people using third-party email providers, like Gmail, only get 180 days of warrant protection. It’s an odd quirk of the law that only exists because no one in 1986 could imagine holding onto emails longer than 180 days. There simply wasn’t space for it back then!¹

ECPA is a stark illustration of consistent phenomena in government: policy choices, especially technical requirements, have durable and long-lasting effects. There are more mundane examples as well. GPS could be dramatically more accurate but when the optical system was recently upgraded, it was held back by a technical requirement in the Federal Enterprise Architecture Framework (FEAF) of 1999. More accurate headlights have been shown to be better at reducing night crashes yet adaptive headlights only just got approved last year, nearly 16 years after Europe because of technical requirements in FMVSS 108. All it takes is one law or regulation to crystallize an idea into an enduring framework that fails to keep up with developments.

I fear the approach pushed by the White House in their recent executive order on AI might represent another crystallization moment. ChatGPT has been public for a year, the models on which they are based are only five years old, and yet the administration is already working to set the terms for regulation.

The “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” is sprawling. It spans 13 sections, extends over 100 pages, and lays out nearly 100 deliverables for every major agency. While there are praiseworthy elements to the document, there is also a lot of cause for concern.

Among the biggest changes is the new authority the White House has claimed over newly designated “dual use foundation models.” As the EO defines it, a dual-use foundation model is

  • an AI model that is trained on broad data; generally uses self-supervision; contains at least tens of billions of parameters; is applicable across a wide range of contexts; and that exhibits, or could be easily modified to exhibit, high levels of performance at tasks that pose a serious risk to security, national economic security, national public health or safety, or any combination of those matters.

While the designation seems to be common sense, it is new and without provenance. Until last week, no one had talked about dual use foundation models. Rather, the designation does comport with the power the president has over the export of military tech.

As the EO explains it, the administration is especially interested in those models with the potential to

  • lower the barrier of entry for non-experts to design, synthesize, acquire, or use chemical, biological, radiological, or nuclear weapons;
  • enable powerful offensive cyber operations through automated vulnerability discovery and exploitation against a wide range of potential targets of cyber attacks; or
  • permit the evasion of human control or oversight through means of deception or obfuscation

The White House is justifying its regulation of these models under the Defense Production Act, a federal law first enacted in 1950 to respond to the Korean War. Modeled after World War II’s War Powers Acts, the DPA was part of a broad civil defense and war mobilization effort that gave the President the power to requisition materials and property, expand government and private defense production capacity, ration consumer goods, and fix wage and price ceilings, among other powers.

The DPA is reauthorized every five years, which has allowed Congress to expand the set of presidential powers in the DPA. Today, the allowable use of DPA extends far beyond U.S. military preparedness and includes domestic preparedness, response, and recovery from hazards, terrorist attacks, and other national emergencies. The DPA has long been intended to address market failures and slow procurement processes in times of crisis. Now the Biden Administration is using DPA to force companies to open up their AI models.

The administration’s invocation of the Defense Production Act is clearly a strategic maneuver to utilize the maximum extent of its DPA power in service of Biden’s AI policy agenda. The difficult part of this process now sits with the Department of Commerce, which has 90 days to issue regulations.

In turn, the Department will likely use the DPA’s industrial base assessment power to force companies to disclose various aspects of their AI models. Soon enough, dual use foundation models will have to report to the government tests based on guidance developed by the National Institute of Standards and Technology (NIST). But that guidance won’t be available for another 270 days. In other words, Commerce will regulate companies without knowing what they will be beholden to.

Recent news from the United Kingdom suggests that all of the major players in AI are going to be included in the new regulation. In closing out a two-day summit on AI, British Prime Minister Rishi Sunak announced that eight companies were going to give deeper access to their models in an agreement that had been signed by Australia, Canada, the European Union, France, Germany, Italy, Japan, Korea, Singapore, the U.S. and the U.K. Those eight companies included Amazon Web Services, Anthropic, Google, as well its subsidiary DeepMind, Inflection AI, Meta, Microsoft, Mistral AI, and OpenAI.

Thankfully, the administration isn’t pushing for a pause on AI development, they aren’t denouncing more advanced models, nor are they suggesting that AI needs to be licensed. But this is probably because doing so would face a tough legal challenge. Indeed, it seems little appreciated by the AI community that the demand to report on models is a kind of compelled speech, which has typically triggered First Amendment scrutiny. But the courts have occasionally recognized that compelled commercial speech may actually advance First Amendment interests more than undermine them.

The EO clearly marks a shift in AI regulation because of what will come next. In addition to the countless deliverables, the EO encourages agencies to use their full power to advance rulemaking.

For example, the EO explains that,

  • the Federal Trade Commission is encouraged to consider, as it deems appropriate, whether to exercise the Commission’s existing authorities, including its rulemaking authority under the Federal Trade Commission Act, 15 U.S.C. 41 et seq., to ensure fair competition in the AI marketplace and to ensure that consumers and workers are protected from harms that may be enabled by the use of AI.

Innocuous as it may seem, the Federal Trade Commission, as well as all of the other agencies that have been encouraged to use their power by the administration, could come under court scrutiny. In West Virginia v. EPA, the Supreme Court made it more difficult for agencies to expand their power when the court established the major questions doctrine. This new line of legal reasoning takes an ax to agency delegation. Unless there’s explicit, clear-cut authority granted by Congress, an agency cannot regulate a major economic or political issue. Agency efforts to push rules on AI could get caught up by the courts.

To be fair, there are a lot of positive actions that this EO advances.² But details matter, and it will take time for the critical details to emerge.

Meanwhile, we need to be attentive to the creep of power. As Adam Thierer described this catch-22,

  • While there is nothing wrong with federal agencies being encouraged through the EO to use NIST’s AI Risk Management Framework to help guide sensible AI governance standards, it is crucial to recall that the framework is voluntary and meant to be highly flexible and iterative—not an open-ended mandate for widespread algorithmic regulation. The Biden EO appears to empower agencies to gradually convert that voluntary guidance and other amorphous guidelines into a sort of back-door regulatory regime (a process made easier by the lack of congressional action on AI issues).

In all, the EO is a mixed bag that will take time to shake out. On this, my colleague Neil Chilson is right: some of it is good, some is bad, and some is downright ugly.

Still, the path we are currently navigating with the Executive Order on AI parallels similar paths in ECPA, GPS, and adaptive lights. It underscores a fundamental truth about legal decisions: even the technical rules we set today will shape the landscape for years, perhaps decades, to come. As we move forward, we must tread carefully, ensuring that our legal frameworks are adaptable and resilient, capable of evolving alongside the very technologies they seek to regulate.

Will Rinehart is a senior research fellow at the Center for Growth and Opportunity, where he specializes in telecommunication, internet and data policy, with a focus on emerging technologies and innovation. He was formerly the Director of Technology and Innovation Policy at the American Action Forum and before that a research fellow at TechFreedom and the director of operations at the International Center for Law & Economics. This piece originally appeared in the Exformation Newsletter on November 9, 2023, and is reprinted with permission.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

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Artificial Intelligence

CES 2024: Senators Talk Priorities on AI, Broadband Connectivity

Lawmakers called for guardrails on AI systems and more ACP funding.

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Photo of the panel by Jake Neenan

LAS VEGAS, January 12, 2024 – U.S. senators highlighted their tech policy priorities on artificial intelligence and broadband connectivity at CES on Friday.

Sens. Ben Luján, D-New Mexico, Cynthia Lummis, R-Wyoming, and John Hickenlooper, D-Colorado, sat on a panel moderated by Senator Jacky Rosen, D-Nevada.

Promise and perils of AI

The lawmakers highlighted their focus on mitigating the potential risks of implementing AI. 

Hickenlooper touted the AI Research, Innovation and Accountability Act, which he introduced in November with Luján and other members of the Senate Commerce, Science and Transportation Committee.

That law would require businesses deploying AI in relation to critical infrastructure operation, biometric data collection, criminal justice, and other “critical-impact” uses to submit risk assessments to the Commerce Department. The National Institute of Standards and Technology, housed in the department, would be tasked with developing standards for authenticating human and AI-generated content online.

“AI is everywhere,” Hickenlooper said. “And every application comes with incredible opportunity, but also remarkable risks.”

Connectivity

Luján and Rosen expressed support for recent legislation introduced to extend the Affordable Connectivity Program. The fund, which provides a $30 monthly internet subsidy to 23 million low-income households, is set to dry up in April 2024 without more money from Congress.

The ACP Extension Act would provide $7 billion to keep the program afloat through 2024. It was first stood up with $14 billion from the Infrastructure Act in late 2021. 

“There are a lot of us working together,” Luján said, to keep the program alive for “people across America who could not connect, not because they didn’t have a connection to their home or business, but because they couldn’t afford it.”

Lawmakers, advocates, the Biden administration, and industry groups have been calling for months for additional funding, but the bill faces an uncertain future as House Republicans look to cut back on domestic spending.

Luján also stressed the need to reinstate the Federal Communications Commission’s spectrum auction authority.

“I’m ashamed to say it’s lapsed, but we need to get this done,” he said.

The Commission’s authority to auction off and issue licenses for the commercial use of electromagnetic spectrum expired for the first time in March 2023 after Congress failed to renew it. A stopgap law permitting the agency to issue already purchased licenses passed in December, but efforts at blanket reauthorization have stalled.

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12 Days of Broadband

12 Days: Is ChatGPT Artificial General Intelligence or Not?

On the First Day of Broadband, my true love sent to me: One Artificial General Intelligence

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Illustration by DALL-E

December 21, 2023 – Just over one year ago, most people in the technology and internet world would talk about passing the Turing test as if it were something far in the future.

This “test,” originally called the imitation game by computer scientist Alan Turing in 1950, is a hypothetical test of a machine’s ability to exhibit intelligent behavior equivalent to, or indistinguishable from, that of a human.

The year 2023 – and the explosive economic, technological, and societal force unleashed by OpenAI since the release of its ChatGPT on November 30, 2022 – make those days only 13 months ago seem quaint.

For example, users of large language models like ChatGPT, Anthropic’s Claude, Meta’s Llama and many others are daily interacting with machines as if they were simply very smart humans.

Yes, yes, informed users understand that Chatbots like these are simply using neural networks with very powerful predictive algorithms to come up with the probabilistic “next word” in a sequence begun by the questioner’s inquiry. And, yes, users understand the propensity of such machines to “hallucinate” information that isn’t quite accurate, or even accurate at all.

Which makes the Chatbots seem, well, a little bit more human.

Drama at OpenAI

At a Broadband Breakfast Live Online event on November 22, 2023, marking the one-year anniversary of ChatGPT’s public launch, our expert panelists focused on the regulatory uncertainty bequeathed by a much-accelerated form of artificial intelligence.

The event took place days after Sam Altman, CEO of the OpenAI, was fired – before rejoining the company on that Wednesday, with a new board of directors. The board members who forced Altman out (all replaced, except one) had clashed with him on the company’s safety efforts.

More than 700 OpenAI employees then signed a letter threatening to quit if the board did not agree to resign.

In the backdrop, in other words, there was a policy angle behind of corporate boardroom battles that was in itself a big tech stories of the year.

“This [was] accelerationism versus de-celerationism,” said Adam Thierer, a senior fellow at the R Street Institute, during the event.

Washington and the FCC wake up to AI

And it’s not that Washington is closing its eyes to the potentially life-altering – literally – consequences of artificial intelligence.

In October, the Biden administration issued an executive order on AI safety includes measures aimed at both ensuring safety and spurring innovation, with directives for federal agencies to generate safety and AI identification standards as well as grants for researchers and small businesses looking to use the technology.

But it’s not clear which side legislators on Capitol Hill might take in the future.

One notable application of AI in telecom highlighted by FCC chief Jessica Rosenworcel is AI-driven spectrum sharing optimization. Rosenworcel said in a July hearing that AI-enabled radios could collaborate autonomously, enhancing spectrum use without a central authority, an advancement poised for implementation.

AI’s potential contribution to enhancing broadband mapping efforts was explored in a November House hearing. AI faced skepticism from experts who argued that in rural areas where data is scarce and of inferior quality, machine learning would struggle to identify potential inaccuracies. Initially, the FCC regarded AI as having strong potential for aiding in broadband mapping.

Also in November, the FCC voted to launch a formal inquiry on the potential impact of AI on robocalls and robotexts. The agency believes that illegal robocalls can be addressed through AI which can flag certain patterns that are deemed suspicious and analyze voice biometrics for synthesized voices.

But isn’t ChatGPT a form of artificial general intelligence?

As we’ve learned through an intensive focus on AI over the course of the year, somewhere still beyond passing the Turing test is the acclaimed concept of “artificial general intelligence.” That presumably means that it is a little bit smarter than ChatGPT-4.

Previously, OpenAI had defined AGI as “AI systems that are generally smarter than humans.” But apparently sometime recently, the company redefined this to mean “a highly autonomous system that outperforms humans at most economically valuable work.”

Some, including Rumman Chowdury, CEO of the tech accountability nonprofit Humane Intelligence, argue that framing AGI in economic terms, OpenAI recast its mission as building things to sell, a far cry from its original vision of using intelligent AI systems to benefit all.

AGI, as ChatGPT-4 told this reporter, “refers to a machine’s ability to understand, learn, and apply its intelligence to solve any problem, much like a human being. ChatGPT, while advanced, is limited to tasks within the scope of its training and programming. It excels in language-based tasks but does not possess the broad, adaptable intelligence that AGI implies.”

That sound like something that an AGI-capable machine would very much want the world to believe.

Additional reporting provided on this story by Reporter Jericho Casper.

See “The Twelve Days of Broadband” on Broadband Breakfast

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Artificial Intelligence

Sam Altman to Rejoin OpenAI, Tech CEOs Subpoenaed, EFF Warns About Malware

Altman was brought back to OpenAI only days after being fired.

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Photo of Snap CEO Evan Spiegel, taken 2019, permission.

November 22, 2023 – OpenAI announced in an X post early Wednesday morning that Sam Altman will be re-joining the company that built ChatGPT as CEO after he was fired on Friday. 

Altman confirmed his intention to rejoin OpenAI in an X post Wednesday morning, saying that he was looking forward to returning to OpenAI with support from the new board.

Former company president Greg Brockman also said Wednesday he will return to the AI company.

Altman and Brockman will join with a newly formed board, which includes former Salesforce co-CEO Bret Taylor as the chair, former US Treasury Secretary Larry Summers, and Quora CEO Adam D’Angelo, who previously held a position on the OpenAI board.

Satya Nadella, the CEO of OpenAI backer Microsoft, echoed support for both Brockman and Altman rejoining OpenAI, adding that he is looking forward to continuing building a relationship with the OpenAI team in order to best deliver AI services to customers. 

OpenAI received backlash from several hundred employees who threatened to leave and join Microsoft under Altman and Brockman unless the current board of directors agreed to resign.  

Tech CEOs subpoenaed to attend hearing

Sens. Dick Durbin, D-Illinois, and Lindsey Graham, R-South Carolina, announced Monday that tech giants Snap, Discord and X have been issued subpoenas for their appearance at the Senate Judiciary Committee on December 6 in relation to concerns over child sexual exploitation online. 

Snap CEO Evan Spiegel, X CEO Linda Yaccarino and Discord CEO Jason Citron have been asked to address how or if they’ve worked to confront that issue. 

Durbin said in a press release that the committee “promised Big Tech that they’d have their chance to explain their failures to protect kids. Now’s that chance. Hearing from the CEOs of some of the world’s largest social media companies will help inform the Committee’s efforts to address the crisis of online child sexual exploitation.” 

Durbin noted in a press release that both X and Discord refused to initially accept subpoenas, which required the US Marshal Service to personally deliver those respective documents. 

The committee is looking to have Meta CEO Mark Zuckerberg and TikTok CEO Shou Zi Chew testify as well but have not received confirmation regarding their attendance.  

Several bipartisan bills have been brought forth to address that kind of exploitation, including the Earn It Act, proposed by Sens. Richard Blumenthal, D-Connecticut, and Graham, which holds them liable under child sexual abuse material laws. 

EFF urging FTC to sanction sellers of malware-containing devices

The Electronic Frontier Foundation, a non-profit digital rights group, have asked the Federal Trade Commission in a letter on November 14 to sanction resellers like Amazon and AliExpress following allegations mobile devices and Android TV boxes purchased from their stores contain malware.

The letter explained that once the devices were turned on and connected to the internet,  they would begin “communicating with botnet command and control (C2) servers. From there, these devices connect to a vast click-fraud network which a report by HUMAN Security recently dubbed BADBOX.”

The EFF added that this malware is often operating unbeknownst to the consumer, and without advanced technical knowledge, there is nothing they can do to remedy it themselves.

“These devices put buyers at risk not only by the click-fraud they routinely take part in, but also the fact that they facilitate using the buyers’ internet connections as proxies for the malware manufacturers or those they sell access to,” explained the letter. 

EFF said that the devices containing malware included ones manufactured by Chinese companies AllWinner and RockChip, who have been reported on for sending out products with malware before by EFF.

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