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OUR PERSPECTIVES

The Daunting Task of Regulating Generative AI



Generative artificial intelligence (AI) algorithms, like ChatGPT and DALL-E, have caused a stir in recent months. Generative AI refers to technology that has the ability to create original content or data on its own, without being specifically programmed to do so. It is a rapidly growing field with the potential to revolutionize various industries by generating unique content that is virtually indistinguishable from that produced by humans. Given the rapidly evolving nature of the technology, its potential to transform a range of sectors and Congress’ pace in the regulation of emerging technologies, we can expect significant challenges in the regulation of generative AI.


One of the main challenges of regulating generative AI is the lack of transparency and accountability in the development process. Unlike traditional software, generative AI systems are not explicitly programmed, and instead learn from data and make decisions based on complex algorithms. This makes it difficult to trace decision-making processes and identify potential biases or errors. And, if an error has unintended consequences, who would be liable for the damages?


There is a serious risk that generative AI could exacerbate existing inequalities and biases. Machine learning algorithms can sometimes reflect the biases and prejudices of their creators, which can result in discriminatory outcomes. If the data that AI systems pull from is biased, the generated content will also be biased. This could have serious implications for areas such as hiring, lending, and criminal justice, where decisions are already made based on data-driven algorithms. Regulators will need to ensure that the training data used for generative AI is representative and unbiased.


Another challenge is the legal and ethical implications of generative AI-generated content. For example, who owns the copyright for content generated by an AI system? Should AI-generated content be treated the same as content created by humans? These complex questions require the establishment of regulatory frameworks to ensure that the intellectual property rights are protected.


There is also the challenge of regulating generative AI across different countries and jurisdictions. AI systems can be used by different users around the world. This creates a need for global coordination and collaboration among regulators to ensure that generative AI is developed and used in a responsible and ethical manner. Regulations that are too strict could put American companies at a disadvantage, while regulations that are too lax could result in unfair competition.


Finally, the elephant in the room: Congress’ lack of understanding as to how the technology works and its potential to shape industry. Most members of Congress do not have a background in technology. And while there are undoubtedly congressional staffers who are well-versed in AI policy, we’ve seen in recent years how Congress’ unfamiliarity with a subject can lead to a slow rollout of regulation - think cryptocurrency and the collapse of FTX, or the privacy implications associated with social media companies mining and selling user data. Understanding the intricacies of machine learning algorithms, and how they can be used to process content and data, can be extremely challenging. If Congress doesn’t work across the aisle with experts and industry stakeholders to get ahead of the curve to regulate generative AI, the consequences could be disastrous.


Only time will tell how generative AI ultimately affects our society. In order to effectively regulate generative AI, Congress will need to work with experts and stakeholders to gain a deeper understanding of the technology and its potential impacts, as well as to develop regulations that balance the potential benefits of generative AI with the risks to privacy, security, equity, and intellectual property.

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