Nearly a year after Senate Majority Leader Chuck Schumer (D-NY) launched the SAFE Innovation Framework for artificial intelligence (AI) with Senators Mike Rounds (R-SD), Martin Heinrich (D-NM), and Todd Young (R-IN), the bipartisan group has released a 31-page “Roadmap” for AI policy.  The overarching theme of the Roadmap is “harnessing the full potential of AI while minimizing the risks of AI in the near and long term.”

In contrast to Europe’s approach to regulating AI, the Roadmap does not propose or even contemplate a comprehensive AI law.  Rather, it identifies key themes and areas of agreement and directs the relevant congressional committees of jurisdiction to legislate on key issues.  The Roadmap recommendations are informed by the nine AI Insight Forums that the bipartisan group convened over the last year.

Continue Reading Bipartisan Senate AI Roadmap Released

This week, the FTC published a blog post on the collection and use of consumer data in vehicles.  The FTC warned that “Car manufacturers—and all businesses—should take note that the FTC will take action to protect consumers against the illegal collection, use, and disclosure of their personal data” and provided a summary of some recent enforcement actions illustrating such point.  Note that this is part of a broader trend scrutinizing OEM data collection practices.  You can read the FTC’s full blog post here

On May 10, 2024, a divided Second Circuit panel held that a device that merely selects and dials numbers from a stored list does not constitute an “automatic telephone dialing systems” (ATDS) under the Telephone Consumer Protection Act (TCPA).  The panel observed in Soliman v. Subway Franchisee Advertising Fund Trust Ltd. that its holding aligns with that of three other U.S. Courts of Appeals that have considered this issue. 

By way of background, the plaintiff in Soliman sued Subway, alleging, among other things, that Subway sent an automated marketing SMS to her mobile phone in violation of the TCPA because she previously withdrew consent to receive such messages.  The plaintiff alleged that Subway used an automated text-messaging system that was able to “dial telephone numbers stored as a list or in a database without human intervention.”  She argued that the TCPA’s definition of an ATDS encompasses technology that generates any number used to store or produce telephone numbers, not just technology that generates the telephone numbers themselves.

A majority of the Second Circuit panel held that based on the Supreme Court’s decision in Facebook Inc v. Duguid and “principles of statutory interpretation,” the TCPA’s restrictions on the use of an ATDS did not apply to the device used by Subway. 

Although the final text of the EU AI Act should enter into force in the next few months, many of its obligations will only start to apply two or more years after that (for further details, see our earlier blog here). To address this gap, the Commission is encouraging industry to take early, voluntary steps to implement the Act’s requirements through an initiative it is calling the AI Pact. With the upcoming European elections on the horizon, the Commission on 6 May 2024 published additional details on the AI Pact and encouraged organizations to implement measures addressing “critical aspects of the imminent AI Act, with the aim of curbing potential misuse” and contributing “to a safe use of AI in the run-up to the election.”

Continue Reading European Commission Calls on Industry to Commit to the AI Pact in the Run-Up to the European Elections

The U.S. Federal Communications Commission (FCC) is set to reopen the public comment period on potential further amendments to its orbital debris mitigation rules, providing space industry stakeholders with a new opportunity to provide input on regulations with far-reaching implications.  The reopening of the record also further illustrates the FCC’s commitment to leadership in regulating commercial space operations.

Continue Reading FCC’s Space Bureau Seeks Further Input on Regulation of Orbital Debris

Over the past few months, the Federal Trade Commission (“FTC”) has received requests from U.S. Senators asking the FTC to investigate the data collection practices of several automotive manufacturers.  Last week, Senators Ed Markey (D-MA) and Ron Wyden (D-OR) sent a letter to the FTC asking the agency to investigate several automakers for “deceiving their customers by falsely claiming to require a warrant or court order before turning over customer location data to government agencies.”  Among other things, the letter alleges inconsistent data collection and retention practices in the industry, asserting that some automakers only collect location data for a “critical safety event” (e.g., collision, air bag deployment, or automatic emergency braking event) while others “routinely collect[] and retain[] vehicle location data.”  The letter also states that only one automaker has a policy of informing consumers about legal demands for their data.  The letter refers to the FTC’s recent geolocation “crack down” in other contexts and urges “the FTC to investigate these auto manufacturers’ deceptive claims as well as their harmful data retention practices” and to, “in addition to taking appropriate action against the companies, . . . consider holding these companies’ senior executives accountable for their actions.”

Continue Reading Data Collection by Auto Manufacturers under Scrutiny

In the absence of congressional action on comprehensive artificial intelligence (AI) legislation, state legislatures are forging ahead with groundbreaking bills to regulate the rapidly advancing technology.  On May 8, the Colorado House of Representatives passed SB 205, a far-reaching and comprehensive AI bill, on a 41-22-2 vote.  The final vote comes just days after the state Senate’s passage of the bill on May 3, making Colorado the first state in the nation to send comprehensive AI legislation to its governor for signing.  While Governor Jared Polis (D) has not indicated whether he will sign or veto the bill, if SB 205 becomes law, it would establish a broad regulatory regime for developers and deployers of “high-risk” AI systems. 

Continue Reading Colorado Becomes the First State to Pass Comprehensive AI Legislation

The U.S. Supreme Court is expected to issue opinions in the coming months in two highly-anticipated cases — Moody v. NetChoice, L.L.C. (11th Cir.) and NetChoice, L.L.C. v. Paxton (5th Cir.) — that could potentially have significant implications for how companies moderate content on their platforms.

Continue Reading U.S. Supreme Court Expected to Rule on NetChoice Cases in the Coming Months

On May 2, 2024, the Federal Communications Commission (FCC) released a draft Notice of Proposed Rulemaking (NPRM) for consideration at the agency’s May 23 Open Meeting that proposes to “prohibit from recognition by the FCC and participation in [its] equipment authorization program, any [Telecommunications Certification Body (TCB)] or test lab in which an entity identified on the Covered List has direct or indirect ownership or control.”  The NPRM also would also direct of FCC’s Office of Engineering and Technology to “suspend the recognition of any TCB or test lab directly or indirectly owned or controlled by entities identified on the Covered List, thereby preventing such entities from using their owned or controlled labs to undermine our current prohibition on Covered Equipment.”

The NPRM would seek comment on “whether and how the Commission should consider national security determinations made in other Executive Branch agency lists in establishing eligibility qualifications for FCC recognition of a TCB or a test lab in our equipment authorization program.”  It also would “propose that the prohibition would be triggered by direct or indirect ownership or control of 10% or more” and that “TCBs and test labs would be required to report any entity that holds a 5% or greater direct or indirect equity and/or voting interest.”  The NPRM would also “propose to collect additional ownership and control information from TCBs and test labs” in order to implement the proposed national security prohibition.

The proposal follows a number of other recent FCC actions undertaken to address national security concerns pertaining to communications networks and devices.  FCC Chairwoman Jessica Rosenworcel and Commissioner Brendan Carr recently announced their support for the proposal.

As the 2024 elections approach and the window for Congress to consider bipartisan comprehensive artificial intelligence (AI) legislation shrinks, California officials are attempting to guard against a generative AI free-for-all—at least with respect to state government use of the rapidly advancing technology—by becoming the largest state to issue rules for state procurement of AI technologies.  Without nationwide federal rules, standards set by state government procurement rules may ultimately add another layer of complexity to the patchwork of AI-related rules and standards emerging in the states.

On March 21, 2024, the California Government Operations Agency (GovOps) published interim guidelines for government procurement of generative AI technologies.  The new guidance directs state officials responsible for awarding and managing public contracts to identify risks of generative AI, monitor the technology’s use, and train staff on acceptable use, including for procurements that only involve “incidental” AI elements.  For “intentional” generative AI procurements, where an agency is specifically seeking to purchase a generative AI product or service, the guidelines impose a higher standard: in addition to the requirements that apply to “incidental” purchases, agencies seeking generative AI technologies are responsible for articulating the need for using generative AI prior to procurement, testing the technology prior to implementation, and establishing a dedicated team to monitor the AI on an ongoing basis.

Continue Reading California Establishes Working Guidance for AI Procurement