Administering Artificial Intelligence

64 Pages Posted: 18 Dec 2019 Last revised: 8 Sep 2020

See all articles by Alicia Solow-Niederman

Alicia Solow-Niederman

George Washington University - Law School

Date Written: November 29, 2019

Abstract

As AI increasingly features in everyday life, it is not surprising to hear calls to step up regulation of the technology. In particular, a turn to administrative law to grapple with the consequences of AI is understandable because the technology’s regulatory challenges appear facially similar to those in other technocratic domains, such as the pharmaceutical industry or environmental law. But AI is unique, even if it is not different in kind. AI’s distinctiveness comes from technical attributes—namely, speed, complexity, and unpredictability—that strain administrative law tactics, in conjunction with the institutional settings and incentives, or strategic context, that affect its development path. And this distinctiveness means both that traditional, sectoral approaches hit their limits, and that turns to a new agency like an “FDA for algorithms” or a “federal robotics commission” are of limited utility in constructing enduring governance solutions.

This Article assesses algorithmic governance strategies in light of the attributes and institutional factors that make AI unique. In addition to technical attributes and the contemporary imbalance of public and private resources and expertise, AI governance must contend with a fundamental conceptual challenge: algorithmic applications permit seemingly technical decisions to de facto regulate human behavior, with a greater potential for physical and social impact than ever before. This Article warns that the current trajectory of AI development, which is dominated by large private firms, augurs an era of private governance. To maintain the public voice, it suggests an approach rooted in governance of data—a fundamental AI input—rather than only contending with the consequences of algorithmic outputs. Without rethinking regulatory strategies to ensure that public values inform AI research, development, and deployment, we risk losing the democratic accountability that is at the heart of public law.

Keywords: artificial intelligence, machine learning, algorithm, governance, administrative law, regulation

Suggested Citation

Solow-Niederman, Alicia, Administering Artificial Intelligence (November 29, 2019). 93 S. Cal. L. Rev. 633 (2020), Available at SSRN: https://ssrn.com/abstract=3495725 or http://dx.doi.org/10.2139/ssrn.3495725

Alicia Solow-Niederman (Contact Author)

George Washington University - Law School ( email )

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