Over the years, as part of its role as the primary federal consumer protection regulator, the Federal Trade Commission (FTC) has filled a void in the oversight and regulation of new technologies. Most recently, the rapid adoption of artificial intelligence (AI), machine learning, and other algorithmic decision-making systems (AI tools) - supercharged by the public release of powerful generative AI models - has raised the FTC's concern about possible harm to consumers. With no federal law that specifically regulates AI, the FTC has sought to use its existing consumer protection authority to constrain harmful AI-related business practices. 

Primarily, the FTC has authority under Section 5 of the FTC Act to prohibit businesses from engaging in deceptive unfair business practices, which it has long used to regulate company data practices. With increasing and novel uses of AI and other algorithmic data processing tools, the FTC has issued a number of guidance documents and engaged in enforcement activity demonstrating what it believes to be deceptive or unfair when businesses use these tools. Businesses that do not follow this guidance face investigation and potential enforcement, with the FTC coming up with creative penalties designed to dissuade improper behavior, including the disgorgement of algorithms, data, and other inputs to and outputs of unlawful AI systems. 

In this Insight article, Bret Cohen, from Hogan Lovells, covers some of the AI business practices that the FTC considers unfair or deceptive, describes penalties available to the agency when bringing a Section 5 claim for use of AI tools, and explains the FTC's views on best practices for use of these tools. 

In this Insight article, Camila Tobón, Partner at Shook, Hardy & Bacon, explores the far-reaching impact of President Biden's Executive Order 14110 on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the Executive Order), delineating eight principles for the responsible development of AI.

On November 15, 2023, a bipartisan group of senators from the Senate Committee on Commerce, Science, and Transportation introduced the Artificial Intelligence Research, Innovation, and Accountability Act of 2023 (AIRIA). This group included John Thune, Amy Klobuchar, Roger Wicker, John Hickenlooper, Shelley Moore Capito, and Ben Ray Luján.  

This legislation aims to establish a framework to enhance innovation while ensuring greater transparency, accountability, and security in the development and operation of artificial intelligence (AI) applications. Klobuchar noted the importance of AIRIA, emphasizing the "potential for great benefits, but also serious risks [of AI], and [the necessity for] our laws . . . to keep up." She explained, "[t]his bipartisan legislation is one important step of many necessary towards addressing potential harms. It will put in place common sense safeguards for the highest-risk applications of AI – like in our critical infrastructure – and improve transparency for policy makers and consumers." 

AIRIA follows the recent Executive Order on Safe, Secure, and Trustworthy AI (the Executive Order) and the Blueprint for an AI Bill of Rights recently released by the White House. The legislation holds jurisdiction over AI-related agencies, specifically requiring the National Institute of Standards and Technology (NIST) to research, facilitate, and recommend standardization and authenticity of online content connected to behavior with AI systems. To achieve this objective, AIRIA is structurally divided into two sections: Title I – AI Research and Innovation and Title II – AI Accountability. Bennett B. Borden, Danny Tobey, Tony Samp, Coran Darling, and Ted Loud, from DLA Piper, discuss AIRIA and what the future could hold for AI regulation in the US.