November 26, 2022

Volume XII, Number 330

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November 23, 2022

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White House Weighs In On the Use of AI by Businesses

On October 3, 2022, the White House Office of Science and Technology Policy published its “Blueprint for an AI Bill of Rights.” This adds to prior federal guidance released by the EEOC and DOJ regarding the use of AI in employment decisions.

The framework published by the White House is intended to apply to automated systems that have an impact on individuals’ “rights, opportunities, or access to critical resources or services.”

The blueprint sets forth five protections to which individuals should be entitled:

  • Safe and effective systems

  • Protection from algorithmic discrimination

  • Data Privacy

  • Notice and explain when an automated system is being used and how it impacts the individual

  • Ability to opt out of automated systems and have access to people who can remedy issues

The framework is intended to assist in putting guardrails in place in the use of AI and automated systems. In conjunction with the publishing of the blueprint, the Biden-Harris Administration announced actions across the federal government to advance protections for workers and employers, students, patients, and more.

These initiatives include the Department of Labor’s release of “What the Blueprint for AI Bill of Rights Means for Workers” and its ramping of enforcement of required surveillance reporting to protect worker organizing. There are also consumer protections noted such as the Federal Trade Commission’s recent consideration of rulemaking on consumer privacy and data. And many others related to education and health care.

The Administration’s announcement is consistent with steps taken during the Trump Administration. It also is generally consistent with principles for AI established by the Organization for Economic Cooperation and Development (OECD). The OECD is a global organization established in 1961 to promote economic cooperation and development with nearly 40 members, including the United States. In 2019, U.S. National Telecommunications and Information Administration joined OECD in adopting global AI principles. Among other things, the OECD’s Principles on Artificial Intelligence provide that AI actors should:

“respect the rule of law, human rights, and democratic values, throughout the AI system lifecycle. These include freedom, dignity, and autonomy, privacy and data protection, nondiscrimination and equality, diversity, fairness, social justice, and internationally recognized labour rights.”

“provide meaningful information… (i) to foster a general understanding of AI systems, (ii) to make stakeholders aware of their interactions with AI systems, including in the workplace, (iii) to enable those affected…to understand the outcome, and (iv) to enable those adversely affected… to challenge its outcome”

While this latest blueprint for use of AI is only guidance at this time, it signals the direction the federal government intends to take with future regulation and legislation when it comes to automated systems and related technology. And, it builds on a set of principles emerging globally that seek to ensure the appropriate use of AI, principles that we are seeing embedded in laws in the U.S. such as the law regulating “automated employment decision tools” going into effect in New York City in 2023.

Businesses and employers who use AI and automated systems need to consider the Administration’s guidance along with emerging laws, regulations, and principles to guide their adoption and application of AI. This includes developing policies and procedures that establish protections to avoid potential discrimination or breaches of privacy.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 280
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About this Author

Principal

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm's Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and...

973- 538-6890
Cecilie E. Read KM Attorney Los Angeles
KM Attorney

Cecilie E. Read is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s California Advice and Counsel Resource Group, and is based in the Los Angeles, California, office of Jackson Lewis P.C. She uses her expansive understanding of the complexities of California employment law to ensure all Jackson Lewis attorneys are consistently ahead of the curve and working efficiently to serve clients.

Prior to joining Jackson Lewis, Ms. Read defended employers in a wide range of industries in employment claims from single-plaintiff harassment claims to wage...

213-689-0404
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