United States: Everything Is Not Terminator - The Importance Of Regulating AI As Soon As Possible

Published in The Journal of Robotics, Artificial Intelligence & Law March-April 2018

Recently, at Google's second annual Go North conference, Shivon Zilis, the Director of OpenAI, and Tim Hwang, the AI Fund Director of Ethics and Governance, discussed policy deci­sions and public oversight of artificial intelligence ("AI"). Zilis noted that there is a need for more crossover discussion between the AI development community and the people forming public policy. Hwang worried that AI researchers are "basically writing policy in code" and that there is "no good way for the public at large to signal" the direction AI development should take.1 Their comments highlight an important point: The researchers, develop­ers, startups, and established companies working in AI are rapidly creating the industry right now. That industry is not established yet, but it will be soon, and the history of government regulation shows that it is easier to regulate a new industry than a mature industry. The most effective way to regulate AI's direction in the future is to regulate it now.

Industry Response to Attempted Regulation in the Past

Although regulating AI now is a contested idea,2 a brief review of how different industries have responded to attempted regulation is helpful. The giant U.S. manufacturing companies that flourished during the 19th century vehemently fought workers compensation and unemployment insurance laws well into the 20th century.3 Similarly, when the Food and Drug Administration ("FDA") under the Clinton Administration tried to regulate the tobacco sector, the industry fought back, eventually winning at the U.S. Supreme Court, which ruled in 2000 that Congress had not granted the Adminis­tration the authority to regulate tobacco products.4 The tobacco industry spent much of the next decade successfully blocking Congressional efforts to pass legislation that would grant the FDA that authority, although eventually the Family Smoking Prevention and Tobacco Control Act did that in 2009.5 These efforts came after decades of tobacco companies fighting law suits that alleged they knew the health risks of their products and relied on the addictive qualities of nicotine to ensure profits.6 Even the 2009 legislation did not end the industry's resistance to government regulation, as tobacco companies have continued to bring litigation challenging the statute.7


1. Darrell Etherington, "OpenAI Director Shivon Zilis Explains Why AI Requires Oversight Now," TechCrunch, November 2, 2017, https://techcrunch.com/2017/11/02/openai-director-shivon-zilis-explains-why-ai-requires-oversight-now .

2. White House Office of Science and Technology Policy, "Request for Infor­mation on the Future of Artificial Intelligence," Public Responses, September 1, 2016, Respondent 159, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/OSTP-AI-RFI-Responses.pdf ("Policymakers must carefully ensure they have a full understanding of the boundaries and promises of" AI and "regulators should proceed cautiously"); Amitai Etzioni and Oren Etzioni, "Why Regulating AI Is A Mistake," Forbes, January 9, 2017, https://www.forbes.com/sites/ciocentral/2017/01/09/why-regulating-ai-is-a-mistake/#67d164962be3  ("AI use will need some kind of oversight but hardly a regulatory regime"); see Adam Thierer, Permissionless Innovation: The Continuing Case for Compre­hensive Technological Freedom (Mercatus Center at George Mason University, 2016), 12-15 (explaining how the internet benefitted from the absence of early overt regulation).

3. Albro Martin, "Economy from Reconstruction to 1914," in Glenn Porter, ed., Encyclopedia of American Economic History, vol. 1 (New York: Charles Scrib­ner's Sons, 1980), 107.

4. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).2018] The Importance of Regulating AI As Soon As Possible 135

5. An act to protect the public health by providing the Food and Drug Administration with certain authority to regulate tobacco products, to amend title 5, United States Code, to make certain modifications in the Thrift Savings Plan, the Civil Service Retirement System, and the Federal Employees' Retirement System, and for other purposes, Pub. L. 111-31, June 22, 2009; see United States v. Phillip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C. 2006); Abigail R. Moncrieff, Reincarnating the 'Major Questions' Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got it Wrong), 60 ADMIN L. REV. 593, 601-02 (Summer 2008).

6. Tobacco Control Consortium, Federal Regulation of Tobacco: A Summary (July 2009), 14-15; see Phillip Morris, 449 F.Supp.2d at 1; Moncrieff, supra note 5, at 601-02.

7. BBK Tobacco & Foods, LLP v. FDA, 672 F.Supp.2d 969 (D. Ariz. 2009); Lorillard Inc. v. FDA, 56 F.Supp.3d 37 (D.D.C. 2014).

John Frank Weaver, an associate at McLane Middleton and a member of the firm's corporate and real estate practice groups, is the "Everything Is Not Terminator" columnist for The Journal of Robotics, Artificial Intelligence & Law.

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