January 29, 2021

AI Law Could Drive the Biden Legacy

Mike Lavender

For the future of the interconnectivity of business and cybersecurity, it is imperative that the Biden administration make international cooperation in the regulation of artificial intelligence a key component of the United States’ reentry into international cooperation and leadership.  The Biden administration is expected to take a cooperative tone on international matters, and it is critical that the administration look at the areas where international model rules are needed for the protection of countries and individuals as well as the technology being created to service each.

If the United States does not begin to engage the international community and simultaneously take a serious look at domestic artificial intelligence regulation, it will fall behind in a very dangerous arms race that is quickly maturing out of its infancy. Without international coherence in the law, corporations will race to countries that provide the greatest flexibility—even if that flies in the face of business ethics.  The United States is already behind in that its intellectual property laws do not recognize the creativity of machine-based systems, which forces developers in these areas two undesirable options: leave creative results unprotected or take credit for property they did not create.[1]  From a business ethics perspective, this undermines many of the principles that have historically enabled the creativity of United States developers.

 Strong process models are imperfect, but already developed to justify cooperation with the international community.  The United States has seen desirable outcomes in negotiating treaties with other nuclear capable countries.  While this model has been successful in keeping mankind from annihilating itself, it arguably fails to deal with countries who (currently) lack nuclear capabilities but nonetheless want a seat at the table.  Despite sanctions against countries wanting to develop the technology, the prevalence of nuclear technology theft and unauthorized research and development seems to indicate that negotiating one-on-one with countries developing AI technology will not achieve the desired long-term effect.

Rather than negotiating with countries individually, the United States should lead the way in developing comprehensive worldwide regulations that will protect countries from one another as well as protecting humans, other creatures, and the environment from artificial intelligence.  We have seen this type of cooperation in the past in Space Law, and have seen strong leadership from the United States in the development of ICANN. 

The international community recognized almost immediately that there were both interconnectivity and state sovereignty issues in dealing with space.  Thanks in part to World War I, the Paris Convention of 1919 established the sovereignty of airspace[2] merely 16 years after the Wright brothers were credited with the first flight and 6 years after the first passenger-carrying flight. After another world war and the corresponding advancements in technology, the international community was spurred into a substantive movement to regulate space.  As today with AI, there were many academic articles and books written that began to shape a framework for future regulation.  It therefore appears we are at a crucial time, similar to the beginning of the substantive development of Space Law, and should be ready to take the next steps without fighting world wars. 

A more recent example of the international community cooperating to set parameters and harness a global technology that has changed the world is the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN provides an important link between the worldwide web, businesses, and the consumers they service by maintaining databases related to namespace and numerical space on the Internet to ensure stable and secure network operation.  ICANN is unique in that it is not a treaty, but a state-registered nonprofit organization.[3],[4] While ICANN may not be the best model for international cooperation in regulating AI because of the nature of AI versus maintaining a registration database, it does show unprecedented international cooperation in moving business, technology, and society forward. ICANN demonstrated that countries can cooperate on an international scale without being forced by conflict, and it highlights that some issues have international results which the world should solve and that the United States can take the lead in these areas.  The US Department of Defense funded the earliest iteration of ICANN and transferred control to the Department of Commerce as global use of the internet increased.  Recognizing the potential of a global multistakeholder community, ICANN was incorporated in 1998.

More and more is being written on how states individually—and the world as a whole—should regulate AI, but no country has yet stepped forward to lead an international effort in regulation and ethics.  The incoming Biden administration has the opportunity to take the lead here and work toward laws that will encourage the development of AI and commercial growth, but also protect humans, states, and the environment from countries that would develop AI in a dangerous way.

[1] Abbott, Ryan, The Reasonable Robot: Artificial Intelligence and the Law (Cambridge, 2020), 77.

[2] Space Legal Issues. (2019). “The Paris Convention of 1919”. Retrieved from https://www.spacelegalissues.com/space-law-the-paris-convention-of-1919/ on 12/29/2020

[3] Internet Corporation for Assigned Name and Numbers. (nd). “ICANN History Project”. Retrieved from https://www.icann.org/history on 12/29/2020

[4] ICANN is incorporated under the laws of the state of California.

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Mike Lavender

Assistant Professor, University of North Georgia

Mike Lavender is an assistant professor and director in the Mike Cottrell College of Business at the University of North Georgia.  He has previously served as Director of Legal Studies and Co-director of the Center for Human Rights and Civil Liberties at the University of Southern Mississippi.  His research publications and presentations include such areas as developing model rules for AI and compensation in eminent domain cases using economic considerations.