Confronting the Challenges of Regulating Artificial Intelligence

Public opinion polls conclude that the American public is in favor of regulating artificial intelligence (“AI”), and many technology companies publicly claim that they would welcome regulation. And yet the United States has struggled to enact federal comprehensive AI regulations beyond a short-lived Executive Order. Why? Part I of this Article explains why regulating AI is so difficult, focusing on six key reasons: AI is a global issue; AI is not one discrete issue; AI is developing at a speed that is unprecedented; lawmakers largely lack the technical expertise effective AI regulation requires; the stakes of getting the regulation wrong are so large that paralysis results; and there is currently high-profile hostility toward federal regulation. Exploring each of those complications helps contextualize the relative lack of U.S. federal action on AI regulation. But a choice to not enact comprehensive federal AI regulation does not mean that AI will not be regulated in the U.S. Rather, as Part II discusses, if the U.S. does not enact federal AI regulation, AI will still be “regulated,” either through corporate self-regulation by AI developers, existing federal and state regulatory structures (namely antitrust, copyright, and privacy), and/or private tort actions. Each of these alternatives to AI regulation has important limitations. Part III concludes by offering some optimism, building the case for why now is an ideal time for AI regulation, notwithstanding the many challenges. There is public support for AI regulation, we can implement lessons learned from existing regulations, and technology companies themselves at least claim to welcome it. It is time to confront the challenges of regulating AI to help ensure innovation, prosperity, and safety.