1) Here is a CRS InFocus report (4 August 2023) L. Paige Whitaker: 'Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation'.
Download CRS_InFocus_AI_FEC_4August2023
Introduction
Federal campaign finance law does not specifically regulate the use of artificial intelligence (AI) in political campaign advertising. As technology continues to evolve, concerns have grown regarding the use of AI-generated campaign ads and their potential to spread misinformation. At the same time, there are questions about whether regulation of such ads would run afoul of the First Amendment. This CRS In Focus discusses provisions of federal campaign finance law that may be relevant should Congress consider regulating AI-generated campaign ads. It then discusses pivotal Supreme Court rulings on campaign finance law and constitutional considerations for possible legislation.Federal Campaign Finance Law
The Federal Election Campaign Act (FECA or Act), codified at 52 U.S.C. §§ 30101–30146, does not specifically regulate the use of AI in political campaign ads. Two FECA provisions, however, may be relevant to this issue: the prohibition on fraudulent misrepresentation of campaign authority and the requirement of disclaimers, which are statements of attribution that appear directly on certain campaign communications.FECA Prohibition on Fraudulent Misrepresentation of Campaign Authority
FECA prohibits a federal office candidate, including employees and agents of such a candidate, from fraudulently misrepresenting another candidate or political party “on a matter which is damaging to such other candidate or political party.” The Act further prohibits anyone from fraudulently soliciting campaign contributions whereby the solicitor misrepresents that he or she is fundraising on behalf of a candidate or party. 52 U.S.C. § 30124.On June 22, 2023, the Federal Election Commission (FEC) discussed, but did not approve, a petition asking it to seek comments as to whether the FEC should rule that 52 U.S.C. § 30124 applies to “deliberately deceptive artificial intelligence campaign advertisements.” The petition, submitted by Public Citizen, asserts that a deepfake audio or video clip made by a candidate that depicts an opposing candidate saying or doing something that did not occur— such as making an offensive comment or accepting a bribe—would violate 52 U.S.C. § 30124. FEC Agenda Document No. 23-14-A.
FECA Disclaimer Requirements
FECA requires that any public political advertising financed by a political committee—including candidate committees—include disclaimers. FECA and Supreme Court precedent define political committee to include “any committee ... or other group of persons that receives contributions or makes expenditures aggregating in excess of $1,000 during a calendar year” whose major purpose is to elect federal candidates to office. 52 U.S.C. § 30101(4); see Buckley v. Valeo, 424 U.S. 1, 79 (1976). FECA further defines contribution and expenditure as monies or anything of value “for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8), (9).
For radio and television advertisements by candidate committees, FECA generally requires that the communication state who financed the ad, along with an audio statement by the candidate identifying the candidate and stating that the candidate “has approved” the message. In the case of television ads, the candidate statement is also required to be conveyed by an unobscured, full-screen view of the candidate making the statement or, if the candidate message is conveyed by voice-over, accompanied by a clearly identifiable image of the candidate, along with a written message of attribution at the end of the communication. 52 U.S.C. § 30120(a).
In addition, regardless of the financing source, FECA requires a disclaimer on (1) communications that expressly advocate for the election or defeat of a clearly identified candidate, (2) electioneering communications (defined to include broadcast ads that refer to a clearly identified federal candidate that are run 60 days before a general election or 30 days before a primary), and (3) public communications that solicit contributions. These communications can include ads financed by outside groups, corporations, or labor unions. For such ads, FECA generally requires that a disclaimer clearly state certain contact information of the entity that paid for the communication and that the communication was not authorized by any candidate or candidate committee. In radio and television advertisements, such disclaimers are required to include, in a clearly spoken manner, an audio statement saying who is responsible for the content of the advertising. In television ads, the statement is required to be conveyed by an unobscured, full-screen view of a representative of the entity paying for the ad, in a voice- over, along with a written message of attribution at the end of the communication. 52 U.S.C. § 30120(a), (c), (d).
Effective March 1, 2023, the FEC promulgated new regulations that broaden the disclaimer requirements for public internet communications. Previously, the regulations generally required disclaimers on public communications— defined to include ads that are “placed for a fee on another person’s website”—that were made by political committees, contained express advocacy, or solicited campaign contributions. The new regulations specify that this requirement also applies to “communications placed for a fee on another person’s ... digital device, application, or advertising platform.” 87 Fed. Reg. 77467–77480 (Dec. 19, 2022).
Regardless of whether a campaign communication is created with AI, FECA’s disclaimer requirements would apply as discussed. However, the Act does not require such disclaimers to indicate that the ad was created with AI.
FECA Penalties
In addition to a series of civil penalties, FECA sets forth criminal penalties for knowing and willful violations of the Act. Generally, FECA provides that any person who knowingly and willfully violates any provision of the Act that involves the making, receiving, or reporting of any contribution, donation, or expenditure of $25,000 or more per calendar year shall be fined under Title 18 of the U.S. Code, imprisoned for not more than five years, or both. If the amount involved is $2,000 or more per calendar year, but less than $25,000, the Act provides for a fine or imprisonment for not more than one year, or both. Should Congress amend FECA to regulate AI-generated campaign ads, unless otherwise provided in the legislation, FECA’scivil and criminal penalties would apply.Constitutional Considerations for Legislation
In the 118th Congress, legislation has been introduced that would regulate AI in federal election campaigns. For example, H.R. 3044 and S. 1596, which are companion bills, would amend FECA’s disclaimer requirements to require additional disclaimers. Specifically, for an ad that contains an image or video generated, entirely or in part, by AI, the legislation would require the ad to include a statement indicating that fact.In McConnell and Citizens United, the Court applied a standard of “exacting scrutiny” that requires a substantial relation between the disclaimer requirement and a sufficiently important governmental interest. These precedents suggest that courts could uphold the constitutionality of a FECA AI-disclaimer requirement to the extent the government could show that the requirement furthers the informational interests of the electorate. However, it is uncertain whether courts will determine that notifying the electorate that an ad was created with AI is as sufficiently an important governmental interest as informing the electorate as to who financed or approved of an ad, as mandated by the current FECA disclaimer requirements.
Exacting scrutiny also requires a court to evaluate the burden on speech. As the Court appeared to rely on the fact that FECA’s current disclaimer requirements did not prevent anyone from speaking, if such a requirement is so burdensome that it impedes the ability of a candidate or group to speak—for example, if a required disclaimer comprises a relatively long period of time in an ad—it could violate the First Amendment. Citizens United v. FEC, 558 U.S. at 366–71.
Possibly casting further doubt on the constitutionality of an AI disclaimer requirement, the Court recently invalidated a state disclosure law under a potentially more rigorous standard of exacting scrutiny that requires a “narrow tailoring” to a sufficiently important governmental interest. Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373, 2389 (2021). While Bonta is not a campaign finance case, some lower courts have since applied this version of exacting scrutiny in cases challenging campaign disclaimer laws. In evaluating an AI disclaimer requirement under this potentially more rigorous standard, a court might be less likely to uphold the law. Nonetheless, some appellate courts have approved of campaign finance disclaimer laws even under this narrow tailoring standard. See No on E v. Chiu, 62 F.4th 529, 533 (9th Cir. 2023) and Gaspee Project v. Mederos, 13 F.4th 79, 95–96 (1st Cir. 2021), cert. denied 142 S. Ct. 2647 (2022).
In contrast to a disclaimer requirement, it appears that courts would likely determine that a prohibition on AI- generated campaign ads is unconstitutional under the First Amendment. In evaluating a prohibition on certain campaign communications, the Supreme Court applied a “strict scrutiny” standard of review. Strict scrutiny requires the government to show that the law is the least restrictive means to achieve a compelling interest, which is a difficult standard to meet. Hence, applying strict scrutiny, the Court invalidated a FECA provision that prohibited corporations and unions from directly funding independent expenditures and electioneering communications. Citizens United v. FEC, 558 U.S. at 372. Accordingly, it appears that a prohibition on AI-generated campaign ads would likely be invalidated under a strict scrutiny standard of review unless the government could show that the law achieves a compelling government interest.
Should Congress consider legislation to amend FECA establishing an AI disclaimer requirement, the Supreme Court’s campaign finance jurisprudence may be relevant in evaluating the constitutional bounds of such legislation. For example, the Court upheld the facial validity of FECA’sdisclaimer requirements against a First Amendment challenge, determining that the disclaimer requirements “bear[] a sufficient relationship to the important governmental interest of ‘shedding the light of publicity on campaign financing.’” McConnell v. FEC, 540 U.S. 93, 231 (2003). Similarly, the Court upheld FECA’s disclaimer requirements as applied to a film regarding a presidential candidate and related promotional broadcast ads. Quoting Buckley and McConnell, the Court in Citizens United determined that while disclaimer requirements may burden the ability to speak under the First Amendment, they “impose no ceiling on campaign-related activities” and “do not prevent anyone from speaking.” According to the Court, FECA’s disclaimer requirements “provid[e] the electorate with information” and “insure that the voters are fully informed” about who is speaking. Moreover, they facilitate the ability of a listener or viewer to judge more effectively the arguments they are hearing, the Court observed. Citizens United v. FEC, 558 U.S. 310, 368 (2010).
2) Here is the second AI CRS report (4 Augus 2023) by Laurie A. Harris: 'Artificial Intelligence: Overview, Recent Advances, and Considerations for the 118th Congress'.
Download CRS_Report_ AI_Overview_Advances_4August2023
I will publish only the Summary. This report is more comprehensive than the first one.
Summary
Artificial intelligence (AI)—a term generally thought of as computerized systems that work and react in ways commonly thought to require intelligence—can encompass a range of technologies, methodologies, and application areas, such as natural language processing, facial recognition, and robotics. The concept of AI has existed for decades, with the term first being coined in the 1950s, followed by alternating periods of much development and lulls in activity and progress.A notable area of recent advancement has been in generative AI (GenAI), which refers to machine learning (ML) models developed through training on large volumes of data in order to generate content. Technological advancements in the underlying models since 2017, combined with the open availability of these tools to the public in late 2022, have led to widespread use. The underlying models for GenAI tools have been described as “general-purpose AI,” meaning they can be adapted to a wide range of downstream tasks. Such advancements, and the wide variety of applications for AI technologies, have renewed debates over appropriate uses and guardrails, including in the areas of health care, education, and national security.
AI technologies, including GenAI tools, have many potential benefits, such as accelerating and providing insights into data processing, augmenting human decisionmaking, and optimizing performance for complex systems and tasks. GenAI tools, for example, are increasingly capable of performing a broad range of tasks, such as text analysis, image generation, and speech recognition. However, AI systems may perpetuate or amplify biases in the datasets on which they are trained; may not yet be able to fully explain their decisionmaking; and often depend on such vast amounts of data and other resources that they are not widely accessible for research, development, and commercialization beyond a handful of technology companies.
Numerous federal laws on AI have been enacted over the past few Congresses, either as standalone legislation or as AI- focused provisions in broader acts. These include the expansive National Artificial Intelligence Initiative Act of 2020 (Division E of P.L. 116-283), which included the establishment of an American AI Initiative and direction for AI research, development, and evaluation activities at federal science agencies. Additional acts have directed certain agencies to undertake activities to guide AI programs and policies across the federal government (e.g., the AI in Government Act of 2020, P.L. 116- 260; and the Advancing American AI Act, Subtitle B of P.L. 117-263). In the 117th Congress, at least 75 bills were introduced that either focused on AI and ML or had AI/ML-focused provisions. Six of those were enacted.
In the 118th Congress, as of June 2023, at least 40 bills had been introduced that either focused on AI/ML or contained AI/ML-focused provisions, and none has been enacted. Collectively, bills in the 118th Congress address a range of topics, including federal government oversight of AI; training for federal employees; disclosure of AI use; export controls; use- specific prohibitions; and support for the use of AI in particular sectors, such as cybersecurity, weather modeling, wildfire detection, precision agriculture, and airport safety.
A primary consideration under debate in the United States and internationally is whether and how to regulate AI technologies. The European Union’s draft Artificial Intelligence Act would broadly take a risk-based approach to regulatory requirements and prohibitions for certain uses. In the United States, previously introduced legislation has sought to require impact assessments and reporting for automated decision systems—including but not limited to AI systems—in critical areas (e.g., health care, employment, and criminal justice). Other perspectives on AI regulation have suggested a sector-specific approach with interagency coordination. A general concern for Congress might be how to approach AI regulatory efforts in a way that balances support for innovation and beneficial uses while minimizing current and future harms.
Additional considerations for the 118th Congress might include whether the current federal government mechanisms are sufficient for AI oversight and policymaking, the role of the federal government in supporting AI research and development, the potential impact of AI technologies on the workforce, disclosure of AI use, testing and validation of AI systems, and potential ways to support the development of trustworthy and responsible AI.
Enjoy!
The graphic and quote are from Bernard Marr & Co.
“Before we work on artificial intelligence why don’t we do something about natural stupidity?” - Steve Polyak
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