Biden, Democrats Expected to Push for Tighter Face-Scanning Regulation

Congress will revisit the possibility of a federal moratorium on face-scanning technology in the upcoming session, House Oversight Committee Chair Carolyn Maloney, D-N.Y., told us. Industry representatives expect the Biden administration to push for tighter face-scanning regulation. Reps from CTA, BSA|The Software Alliance and the Information Technology Industry Council (ITI) said President Donald Trump’s most important artificial intelligence contribution will be his regulatory guidance to agencies.

“We’re picking it up again,” Maloney said. “There’s a lot of questions about it not being accurate, and so we’re going to revisit it.” She took over for the late Elijah Cummings, D-Md., who helped lead a bipartisan push with House Oversight Committee ranking member Jim Jordan, R-Ohio, for a federal moratorium on the technology. Maloney noted reports of faulty face-scanning technology allegedly leading to wrongful arrests. “The technology needs to be improved," she said. "They can’t be misidentifying people and arresting.”

The Trump administration’s lasting impact on AI technology most likely will be its OMB draft guidance, said BSA Senior Director-Policy Christian Troncoso. The budget office released a draft memo to the heads of executive departments and agencies proposing guidance for the regulation of AI applications, accepting comment through March (see 2003130071). “It provides a pretty solid foundation,” said Troncoso, noting the emphasis on a nonregulatory approach.

The draft is “absolutely a step in the right direction in terms of firming up principles,” said ITI Policy Director Courtney Lang. Trump’s AI executive orders (see 2012030058 and 1902110054), while “fairly high-level,” were also positive steps, said Senior Vice President-Policy John Miller, noting the focus on American leadership and R&D spending.

The Office of Science and Technology Policy on Tuesday launched the National Artificial Intelligence Initiative Office. It was established through the National Artificial Intelligence Initiative Act, which codified and expanded several White House policies and initiatives. Lynne Parker will serve as founding director of the office.

CTA was “pleased with what we saw” in the White House’s draft memo and the conclusion that agencies must avoid regulatory action that “needlessly hampers AI innovation and growth,” said Vice President-Technology Policy Doug Johnson. Voluntary, consensus standards are something CTA is “contributing to,” he added: It's exploring the use of trustworthy AI in healthcare and the development of guidelines for trustworthy AI systems. CTA expects to release a document on healthcare AI next month and guidelines on trustworthy AI systems midyear, he said.

Industry stakeholders view the OMB draft memo as a “useful framework” for how regulators need to think about AI, said Davis Wright’s K.C. Halm. He noted the guidance’s stated need for development of industry standards or best practices.

“I don’t anticipate a 180” degree change from President-elect Joe Biden, said Halm. “I suspect we’re going to see a continuation of sorts from the Biden administration.” Biden could take targeted action, and one area to watch is face-scanning regulation or moratoriums on certain technology, he added: “Members of Congress and public interest groups have raised questions and some concerns about how federal agencies use that technology. So it’s possible to imagine a Biden administration taking some steps in that direction.”

Miller wouldn’t be surprised to see renewed focus on AI regulation for law enforcement. AI can accomplish “a lot of positives and societal good ... that gets overlooked in some of the conversations about regulating particularly high-risk applications,” he said. CTA hasn’t taken a stance on the prospect of a federal moratorium on face-scanning technology, said Johnson. Neither has BSA, said Troncoso.

Johnson noted the AI provisions included in the recently passed National Defense Authorization Act, describing a renewed focus on the technology. Covington & Burling highlighted the NDAA’s AI provisions, including the National Artificial Intelligence Initiative, the National Institute of Standards’ development of standards and best practices, a Department of Energy AI research program and specific provisions for DOD.

Troncoso expects the Biden administration to take a fresh look at the OMB guidance and apply its own “gloss.” It would be surprising for Biden to “scratch” the document entirely, because it includes a lot of consistency with international documents, he said: BSA is “pleased” OMB articulated a need for industry standards and best practices