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Canadian legislators proposed 19,600 amendments—almost certainly AI-generated—to a bill in an attempt to delay its adoption.
I wrote about many different legislative delaying tactics in A Hacker’s Mind, but this is a new one.
Artificial intelligence (AI) has been billed as the next frontier of humanity: the newly available expanse whose exploration will drive the next era of growth, wealth, and human flourishing. It’s a scary metaphor. Throughout American history, the drive for expansion and the very concept of terrain up for grabs—land grabs, gold rushes, new frontiers—have provided a permission structure for imperialism and exploitation. This could easily hold true for AI.
This isn’t the first time the concept of a frontier has been used as a metaphor for AI, or technology in general. As early as 2018, the powerful foundation models powering cutting-edge applications like chatbots have been called “frontier AI.” In previous decades, the internet itself was considered an electronic frontier. Early cyberspace pioneer John Perry Barlow wrote “Unlike previous frontiers, this one has no end.” When he and others founded the internet’s most important civil liberties organization, they called it the Electronic Frontier Foundation.
America’s experience with frontiers is fraught, to say the least. Expansion into the Western frontier and beyond has been a driving force in our country’s history and identity—and has led to some of the darkest chapters of our past. The tireless drive to conquer the frontier has directly motivated some of this nation’s most extreme episodes of racism, imperialism, violence, and exploitation.
That history has something to teach us about the material consequences we can expect from the promotion of AI today. The race to build the next great AI app is not the same as the California gold rush. But the potential that outsize profits will warp our priorities, values, and morals is, unfortunately, analogous.
Already, AI is starting to look like a colonialist enterprise. AI tools are helping the world’s largest tech companies grow their power and wealth, are spurring nationalistic competition between empires racing to capture new markets, and threaten to supercharge government surveillance and systems of apartheid. It looks more than a bit like the competition among colonialist state and corporate powers in the seventeenth century, which together carved up the globe and its peoples. By considering America’s past experience with frontiers, we can understand what AI may hold for our future, and how to avoid the worst potential outcomes.
For 130 years, historians have used frontier expansion to explain sweeping movements in American history. Yet only for the past thirty years have we generally acknowledged its disastrous consequences.
Frederick Jackson Turner famously introduced the frontier as a central concept for understanding American history in his vastly influential 1893 essay. As he concisely wrote, “American history has been in a large degree the history of the colonization of the Great West.”
Turner used the frontier to understand all the essential facts of American life: our culture, way of government, national spirit, our position among world powers, even the “struggle” of slavery. The endless opportunity for westward expansion was a beckoning call that shaped the American way of life. Per Turner’s essay, the frontier resulted in the individualistic self-sufficiency of the settler and gave every (white) man the opportunity to attain economic and political standing through hardscrabble pioneering across dangerous terrain.The New Western History movement, gaining steam through the 1980s and led by researchers like Patricia Nelson Limerick, laid plain the racial, gender, and class dynamics that were always inherent to the frontier narrative. This movement’s story is one where frontier expansion was a tool used by the white settler to perpetuate a power advantage.The frontier was not a siren calling out to unwary settlers; it was a justification, used by one group to subjugate another. It was always a convenient, seemingly polite excuse for the powerful to take what they wanted. Turner grappled with some of the negative consequences and contradictions of the frontier ethic and how it shaped American democracy. But many of those whom he influenced did not do this; they celebrated it as a feature, not a bug. Theodore Roosevelt wrote extensively and explicitly about how the frontier and his conception of white supremacy justified expansion to points west and, through the prosecution of the Spanish-American War, far across the Pacific. Woodrow Wilson, too, celebrated the imperial loot from that conflict in 1902. Capitalist systems are “addicted to geographical expansion” and even, when they run out of geography, seek to produce new kinds of spaces to expand into. This is what the geographer David Harvey calls the “spatial fix.”Claiming that AI will be a transformative expanse on par with the Louisiana Purchase or the Pacific frontiers is a bold assertion—but increasingly plausible after a year dominated by ever more impressive demonstrations of generative AI tools. It’s a claim bolstered by billions of dollars in corporate investment, by intense interest of regulators and legislators worldwide in steering how AI is developed and used, and by the variously utopian or apocalyptic prognostications from thought leaders of all sectors trying to understand how AI will shape their sphere—and the entire world.
Like the western frontier in the nineteenth century, the maniacal drive to unlock progress via advancement in AI can become a justification for political and economic expansionism and an excuse for racial oppression.
In the modern day, OpenAI famously paid dozens of Kenyans little more than a dollar an hour to process data used in training their models underlying products such as ChatGPT. Paying low wages to data labelers surely can’t be equated to the chattel slavery of nineteenth-century America. But these workers did endure brutal conditions, including being set to constantly review content with “graphic scenes of violence, self-harm, murder, rape, necrophilia, child abuse, bestiality, and incest.” There is a global market for this kind of work, which has been essential to the most important recent advances in AI such as Reinforcement Learning with Human Feedback, heralded as the most important breakthrough of ChatGPT.
The gold rush mentality associated with expansion is taken by the new frontiersmen as permission to break the rules, and to build wealth at the expense of everyone else. In 1840s California, gold miners trespassed on public lands and yet were allowed to stake private claims to the minerals they found, and even to exploit the water rights on those lands. Again today, the game is to push the boundaries on what rule-breaking society will accept, and hope that the legal system can’t keep up.
Many internet companies have behaved in exactly the same way since the dot-com boom. The prospectors of internet wealth lobbied for, or simply took of their own volition, numerous government benefits in their scramble to capture those frontier markets. For years, the Federal Trade Commission has looked the other way or been lackadaisical in halting antitrust abuses by Amazon, Facebook, and Google. Companies like Uber and Airbnb exploited loopholes in, or ignored outright, local laws on taxis and hotels. And Big Tech platforms enjoyed a liability shield that protected them from punishment the contents people posted to their sites.
We can already see this kind of boundary pushing happening with AI.
Modern frontier AI models are trained using data, often copyrighted materials, with untested legal justification. Data is like water for AI, and, like the fight over water rights in the West, we are repeating a familiar process of public acquiescence to private use of resources. While some lawsuits are pending, so far AI companies have faced no significant penalties for the unauthorized use of this data.
Pioneers of self-driving vehicles tried to skip permitting processes and used fake demonstrations of their capabilities to avoid government regulation and entice consumers. Meanwhile, AI companies’ hope is that they won’t be held to blame if the AI tools they produce spew out harmful content that causes damage in the real world. They are trying to use the same liability shield that fostered Big Tech’s exploitation of the previous electronic frontiers—the web and social media—to protect their own actions.
Even where we have concrete rules governing deleterious behavior, some hope that using AI is itself enough to skirt them. Copyright infringement is illegal if a person does it, but would that same person be punished if they train a large language model to regurgitate copyrighted works? In the political sphere, the Federal Election Commission has precious few powers to police political advertising; some wonder if they simply won’t be considered relevant if people break those rules using AI.
Like The United States’ historical frontier, AI has a feel of American exceptionalism. Historically, we believed we were different from the Old World powers of Europe because we enjoyed the manifest destiny of unrestrained expansion between the oceans. Today, we have the most CPU power, the most data scientists, the most venture-capitalist investment, and the most AI companies. This exceptionalism has historically led many Americans to believe they don’t have to play by the same rules as everyone else.
Both historically and in the modern day, this idea has led to deleterious consequences such as militaristic nationalism (leading to justifying of foreign interventions in Iraq and elsewhere), masking of severe inequity within our borders, abdication of responsibility from global treaties on climate and law enforcement, and alienation from the international community. American exceptionalism has also wrought havoc on our country’s engagement with the internet, including lawless spying and surveillance by forces like the National Security Agency.
The same line of thinking could have disastrous consequences if applied to AI. It could perpetuate a nationalistic, Cold War–style narrative about America’s inexorable struggle with China, this time predicated on an AI arms race. Moral exceptionalism justifies why we should be allowed to use tools and weapons that are dangerous in the hands of a competitor, or enemy. It could enable the next stage of growth of the military-industrial complex, with claims of an urgent need to modernize missile systems and drones through using AI. And it could renew a rationalization for violating civil liberties in the US and human rights abroad, empowered by the idea that racial profiling is more objective if enforced by computers.The inaction of Congress on AI regulation threatens to land the US in a regime of de facto American exceptionalism for AI. While the EU is about to pass its comprehensive AI Act, lobbyists in the US have muddled legislative action. While the Biden administration has used its executive authority and federal purchasing power to exert some limited control over AI, the gap left by lack of legislation leaves AI in the US looking like the Wild West—a largely unregulated frontier.The lack of restraint by the US on potentially dangerous AI technologies has a global impact. First, its tech giants let loose their products upon the global public, with the harms that this brings with it. Second, it creates a negative incentive for other jurisdictions to more forcefully regulate AI. The EU’s regulation of high-risk AI use cases begins to look like unilateral disarmament if the US does not take action itself. Why would Europe tie the hands of its tech competitors if the US refuses to do the same?
The fundamental problem with frontiers is that they seem to promise cost-free growth. There was a constant pressure for American westward expansion because a bigger, more populous country accrues more power and wealth to the elites and because, for any individual, a better life was always one more wagon ride away into “empty” terrain. AI presents the same opportunities. No matter what field you’re in or what problem you’re facing, the attractive opportunity of AI as a free labor multiplier probably seems like the solution; or, at least, makes for a good sales pitch.
That would actually be okay, except that the growth isn’t free. America’s imperial expansion displaced, harmed, and subjugated native peoples in the Americas, Africa, and the Pacific, while enlisting poor whites to participate in the scheme against their class interests. Capitalism makes growth look like the solution to all problems, even when it’s clearly not. The problem is that so many costs are externalized. Why pay a living wage to human supervisors training AI models when an outsourced gig worker will do it at a fraction of the cost? Why power data centers with renewable energy when it’s cheaper to surge energy production with fossil fuels? And why fund social protections for wage earners displaced by automation if you don’t have to? The potential of consumer applications of AI, from personal digital assistants to self-driving cars, is irresistible; who wouldn’t want a machine to take on the most routinized and aggravating tasks in your daily life? But the externalized cost for consumers is accepting the inevitability of domination by an elite who will extract every possible profit from AI services.
None of these harms are inevitable. Although the structural incentives of capitalism and its growth remain the same, we can make different choices about how to confront them.
We can strengthen basic democratic protections and market regulations to avoid the worst impacts of AI colonialism. We can require ethical employment for the humans toiling to label data and train AI models. And we can set the bar higher for mitigating bias in training and harm from outputs of AI models.
We don’t have to cede all the power and decision making about AI to private actors. We can create an AI public option to provide an alternative to corporate AI. We can provide universal access to ethically built and democratically governed foundational AI models that any individual—or company—could use and build upon.
More ambitiously, we can choose not to privatize the economic gains of AI. We can cap corporate profits, raise the minimum wage, or redistribute an automation dividend as a universal basic income to let everyone share in the benefits of the AI revolution. And, if these technologies save as much labor as companies say they do, maybe we can also all have some of that time back.
And we don’t have to treat the global AI gold rush as a zero-sum game. We can emphasize international cooperation instead of competition. We can align on shared values with international partners and create a global floor for responsible regulation of AI. And we can ensure that access to AI uplifts developing economies instead of further marginalizing them.
This essay was written with Nathan Sanders, and was originally published in Jacobin.
Artificial intelligence will change so many aspects of society, largely in ways that we cannot conceive of yet. Democracy, and the systems of governance that surround it, will be no exception. In this short essay, I want to move beyond the “AI-generated disinformation” trope and speculate on some of the ways AI will change how democracy functions—in both large and small ways.
When I survey how artificial intelligence might upend different aspects of modern society, democracy included, I look at four different dimensions of change: speed, scale, scope, and sophistication. Look for places where changes in degree result in changes of kind. Those are where the societal upheavals will happen.
Some items on my list are still speculative, but none require science-fictional levels of technological advance. And we can see the first stages of many of them today. When reading about the successes and failures of AI systems, it’s important to differentiate between the fundamental limitations of AI as a technology, and the practical limitations of AI systems in the fall of 2023. Advances are happening quickly, and the impossible is becoming the routine. We don’t know how long this will continue, but my bet is on continued major technological advances in the coming years. Which means it’s going to be a wild ride.
So, here’s my list:
When I teach AI policy at HKS, I stress the importance of separating the specific AI chatbot technologies in November of 2023 with AI’s technological possibilities in general. Some of the items on my list will soon be possible; others will remain fiction for many years. Similarly, our acceptance of these technologies will change. Items on that list that we would never accept today might feel routine in a few years. A judgeless courtroom seems crazy today, but so did a driverless car a few years ago. Don’t underestimate our ability to normalize new technologies. My bet is that we’re in for a wild ride.
This essay previously appeared on the Harvard Kennedy School Ash Center’s website.
Susan Landau published an excellent essay on the current justification for the government breaking end-to-end-encryption: child sexual abuse and exploitation (CSAE). She puts the debate into historical context, discusses the problem of CSAE, and explains why breaking encryption isn’t the solution.
If an AI breaks the rules for you, does that count as breaking the rules? This is the essential question being taken up by the Federal Election Commission this month, and public input is needed to curtail the potential for AI to take US campaigns (even more) off the rails.
At issue is whether candidates using AI to create deepfaked media for political advertisements should be considered fraud or legitimate electioneering. That is, is it allowable to use AI image generators to create photorealistic images depicting Trump hugging Anthony Fauci? And is it allowable to use dystopic images generated by AI in political attack ads?
For now, the answer to these questions is probably “yes.” These are fairly innocuous uses of AI, not any different than the old-school approach of hiring actors and staging a photoshoot, or using video editing software. Even in cases where AI tools will be put to scurrilous purposes, that’s probably legal in the US system. Political ads are, after all, a medium in which you are explicitly permitted to lie.
The concern over AI is a distraction, but one that can help draw focus to the real issue. What matters isn’t how political content is generated; what matters is the content itself and how it is distributed.
Future uses of AI by campaigns go far beyond deepfaked images. Campaigns will also use AI to personalize communications. Whereas the previous generation of social media microtargeting was celebrated for helping campaigns reach a precision of thousands or hundreds of voters, the automation offered by AI will allow campaigns to tailor their advertisements and solicitations to the individual.
Most significantly, AI will allow digital campaigning to evolve from a broadcast medium to an interactive one. AI chatbots representing campaigns are capable of responding to questions instantly and at scale, like a town hall taking place in every voter’s living room, simultaneously. Ron DeSantis’ presidential campaign has reportedly already started using OpenAI’s technology to handle text message replies to voters.
At the same time, it’s not clear whose responsibility it is to keep US political advertisements grounded in reality—if it is anyone’s. The FEC’s role is campaign finance, and is further circumscribed by the Supreme Court’s repeated stripping of its authorities. The Federal Communications Commission has much more expansive responsibility for regulating political advertising in broadcast media, as well as political robocalls and text communications. However, the FCC hasn’t done much in recent years to curtail political spam. The Federal Trade Commission enforces truth in advertising standards, but political campaigns have been largely exempted from these requirements on First Amendment grounds.
To further muddy the waters, much of the online space remains loosely regulated, even as campaigns have fully embraced digital tactics. There are still insufficient disclosure requirements for digital ads. Campaigns pay influencers to post on their behalf to circumvent paid advertising rules. And there are essentially no rules beyond the simple use of disclaimers for videos that campaigns post organically on their own websites and social media accounts, even if they are shared millions of times by others.
Almost everyone has a role to play in improving this situation.
Let’s start with the platforms. Google announced earlier this month that it would require political advertisements on YouTube and the company’s other advertising platforms to disclose when they use AI images, audio, and video that appear in their ads. This is to be applauded, but we cannot rely on voluntary actions by private companies to protect our democracy. Such policies, even when well-meaning, will be inconsistently devised and enforced.
The FEC should use its limited authority to stem this coming tide. The FEC’s present consideration of rulemaking on this issue was prompted by Public Citizen, which petitioned the Commission to “clarify that the law against ‘fraudulent misrepresentation’ (52 U.S.C. §30124) applies to deliberately deceptive AI-produced content in campaign communications.” The FEC’s regulation against fraudulent misrepresentation (C.F.R. §110.16) is very narrow; it simply restricts candidates from pretending to be speaking on behalf of their opponents in a “damaging” way.
Extending this to explicitly cover deepfaked AI materials seems appropriate. We should broaden the standards to robustly regulate the activity of fraudulent misrepresentation, whether the entity performing that activity is AI or human—but this is only the first step. If the FEC takes up rulemaking on this issue, it could further clarify what constitutes “damage.” Is it damaging when a PAC promoting Ron DeSantis uses an AI voice synthesizer to generate a convincing facsimile of the voice of his opponent Donald Trump speaking his own Tweeted words? That seems like fair play. What if opponents find a way to manipulate the tone of the speech in a way that misrepresents its meaning? What if they make up words to put in Trump’s mouth? Those use cases seem to go too far, but drawing the boundaries between them will be challenging.
Congress has a role to play as well. Senator Klobuchar and colleagues have been promoting both the existing Honest Ads Act and the proposed REAL Political Ads Act, which would expand the FEC’s disclosure requirements for content posted on the Internet and create a legal requirement for campaigns to disclose when they have used images or video generated by AI in political advertising. While that’s worthwhile, it focuses on the shiny object of AI and misses the opportunity to strengthen law around the underlying issues. The FEC needs more authority to regulate campaign spending on false or misleading media generated by any means and published to any outlet. Meanwhile, the FEC’s own Inspector General continues to warn Congress that the agency is stressed by flat budgets that don’t allow it to keep pace with ballooning campaign spending.
It is intolerable for such a patchwork of commissions to be left to wonder which, if any of them, has jurisdiction to act in the digital space. Congress should legislate to make clear that there are guardrails on political speech and to better draw the boundaries between the FCC, FEC, and FTC’s roles in governing political speech. While the Supreme Court cannot be relied upon to uphold common sense regulations on campaigning, there are strategies for strengthening regulation under the First Amendment. And Congress should allocate more funding for enforcement.
The FEC has asked Congress to expand its jurisdiction, but no action is forthcoming. The present Senate Republican leadership is seen as an ironclad barrier to expanding the Commission’s regulatory authority. Senate Majority Leader Mitch McConnell has a decades-long history of being at the forefront of the movement to deregulate American elections and constrain the FEC. In 2003, he brought the unsuccessful Supreme Court case against the McCain-Feingold campaign finance reform act (the one that failed before the Citizens United case succeeded).
The most impactful regulatory requirement would be to require disclosure of interactive applications of AI for campaigns—and this should fall under the remit of the FCC. If a neighbor texts me and urges me to vote for a candidate, I might find that meaningful. If a bot does it under the instruction of a campaign, I definitely won’t. But I might find a conversation with the bot—knowing it is a bot—useful to learn about the candidate’s platform and positions, as long as I can be confident it is going to give me trustworthy information.
The FCC should enter rulemaking to expand its authority for regulating peer-to-peer (P2P) communications to explicitly encompass interactive AI systems. And Congress should pass enabling legislation to back it up, giving it authority to act not only on the SMS text messaging platform, but also over the wider Internet, where AI chatbots can be accessed over the web and through apps.
And the media has a role. We can still rely on the media to report out what videos, images, and audio recordings are real or fake. Perhaps deepfake technology makes it impossible to verify the truth of what is said in private conversations, but this was always unstable territory.
What is your role? Those who share these concerns could submit a comment to the FEC’s open public comment process before October 16, urging it to use its available authority. We all know government moves slowly, but a show of public interest is necessary to get the wheels moving.
Ultimately, all these policy changes serve the purpose of looking beyond the shiny distraction of AI to create the authority to counter bad behavior by humans. Remember: behind every AI is a human who should be held accountable.
This essay was written with Nathan Sanders, and was previously published on the Ash Center website.
Imagine a future in which AIs automatically interpret—and enforce—laws.
All day and every day, you constantly receive highly personalized instructions for how to comply with the law, sent directly by your government and law enforcement. You’re told how to cross the street, how fast to drive on the way to work, and what you’re allowed to say or do online—if you’re in any situation that might have legal implications, you’re told exactly what to do, in real time.
Imagine that the computer system formulating these personal legal directives at mass scale is so complex that no one can explain how it reasons or works. But if you ignore a directive, the system will know, and it’ll be used as evidence in the prosecution that’s sure to follow.
This future may not be far off—automatic detection of lawbreaking is nothing new. Speed cameras and traffic-light cameras have been around for years. These systems automatically issue citations to the car’s owner based on the license plate. In such cases, the defendant is presumed guilty unless they prove otherwise, by naming and notifying the driver.
In New York, AI systems equipped with facial recognition technology are being used by businesses to identify shoplifters. Similar AI-powered systems are being used by retailers in Australia and the United Kingdom to identify shoplifters and provide real-time tailored alerts to employees or security personnel. China is experimenting with even more powerful forms of automated legal enforcement and targeted surveillance.
Breathalyzers are another example of automatic detection. They estimate blood alcohol content by calculating the number of alcohol molecules in the breath via an electrochemical reaction or infrared analysis (they’re basically computers with fuel cells or spectrometers attached). And they’re not without controversy: Courts across the country have found serious flaws and technical deficiencies with Breathalyzer devices and the software that powers them. Despite this, criminal defendants struggle to obtain access to devices or their software source code, with Breathalyzer companies and courts often refusing to grant such access. In the few cases where courts have actually ordered such disclosures, that has usually followed costly legal battles spanning many years.
AI is about to make this issue much more complicated, and could drastically expand the types of laws that can be enforced in this manner. Some legal scholars predict that computationally personalized law and its automated enforcement are the future of law. These would be administered by what Anthony Casey and Anthony Niblett call “microdirectives,” which provide individualized instructions for legal compliance in a particular scenario.
Made possible by advances in surveillance, communications technologies, and big-data analytics, microdirectives will be a new and predominant form of law shaped largely by machines. They are “micro” because they are not impersonal general rules or standards, but tailored to one specific circumstance. And they are “directives” because they prescribe action or inaction required by law.
A Digital Millennium Copyright Act takedown notice is a present-day example of a microdirective. The DMCA’s enforcement is almost fully automated, with copyright “bots” constantly scanning the internet for copyright-infringing material, and automatically sending literally hundreds of millions of DMCA takedown notices daily to platforms and users. A DMCA takedown notice is tailored to the recipient’s specific legal circumstances. It also directs action—remove the targeted content or prove that it’s not infringing—based on the law.
It’s easy to see how the AI systems being deployed by retailers to identify shoplifters could be redesigned to employ microdirectives. In addition to alerting business owners, the systems could also send alerts to the identified persons themselves, with tailored legal directions or notices.
A future where AIs interpret, apply, and enforce most laws at societal scale like this will exponentially magnify problems around fairness, transparency, and freedom. Forget about software transparency—well-resourced AI firms, like Breathalyzer companies today, would no doubt ferociously guard their systems for competitive reasons. These systems would likely be so complex that even their designers would not be able to explain how the AIs interpret and apply the law—something we’re already seeing with today’s deep learning neural network systems, which are unable to explain their reasoning.
Even the law itself could become hopelessly vast and opaque. Legal microdirectives sent en masse for countless scenarios, each representing authoritative legal findings formulated by opaque computational processes, could create an expansive and increasingly complex body of law that would grow ad infinitum.
And this brings us to the heart of the issue: If you’re accused by a computer, are you entitled to review that computer’s inner workings and potentially challenge its accuracy in court? What does cross-examination look like when the prosecutor’s witness is a computer? How could you possibly access, analyze, and understand all microdirectives relevant to your case in order to challenge the AI’s legal interpretation? How could courts hope to ensure equal application of the law? Like the man from the country in Franz Kafka’s parable in The Trial, you’d die waiting for access to the law, because the law is limitless and incomprehensible.
This system would present an unprecedented threat to freedom. Ubiquitous AI-powered surveillance in society will be necessary to enable such automated enforcement. On top of that, research—including empirical studies conducted by one of us (Penney)—has shown that personalized legal threats or commands that originate from sources of authority—state or corporate—can have powerful chilling effects on people’s willingness to speak or act freely. Imagine receiving very specific legal instructions from law enforcement about what to say or do in a situation: Would you feel you had a choice to act freely?
This is a vision of AI’s invasive and Byzantine law of the future that chills to the bone. It would be unlike any other law system we’ve seen before in human history, and far more dangerous for our freedoms. Indeed, some legal scholars argue that this future would effectively be the death of law.
Yet it is not a future we must endure. Proposed bans on surveillance technology like facial recognition systems can be expanded to cover those enabling invasive automated legal enforcement. Laws can mandate interpretability and explainability for AI systems to ensure everyone can understand and explain how the systems operate. If a system is too complex, maybe it shouldn’t be deployed in legal contexts. Enforcement by personalized legal processes needs to be highly regulated to ensure oversight, and should be employed only where chilling effects are less likely, like in benign government administration or regulatory contexts where fundamental rights and freedoms are not at risk.
AI will inevitably change the course of law. It already has. But we don’t have to accept its most extreme and maximal instantiations, either today or tomorrow.
This essay was written with Jon Penney, and previously appeared on Slate.com.
In my latest book, A Hacker’s Mind, I wrote about hacks as loophole exploiting. This is a great example: The Wisconsin governor used his line-item veto powers—supposedly unique in their specificity—to change a one-year funding increase into a 400-year funding increase.
He took this wording:
Section 402. 121.905 (3) (c) 9. of the statues is created to read: 121.903 (3) (c) 9. For the limit for the 2023-24 school year and the 2024-25 school year, add $325 to the result under par. (b).
And he deleted these words, numbers, and punctuation marks:
Section 402. 121.905 (3) (c) 9. of the statues is created to read: 121.903 (3) (c) 9. For the limit for
the2023-24 school year and the 2024–25school year, add $325 to the result under par. (b).
Seems to be legal:
Rick Champagne, director and general counsel of the nonpartisan Legislative Reference Bureau, said Evers’ 400-year veto is lawful in terms of its form because the governor vetoed words and digits.
“Both are allowable under the constitution and court decisions on partial veto. The hyphen seems to be new, but the courts have allowed partial veto of punctuation,” Champagne said.
Definitely a hack. This is not what anyone thinks about when they imagine using a line-item veto.
And it’s not the first time. I don’t know the details, but this was certainly the same sort of character-by-character editing:
Mr Evers’ Republican predecessor once deploying it to extend a state programme’s deadline by one thousand years.
A couple of other things:
One, this isn’t really a 400-year change. Yes, that’s what the law says. But it can be repealed. And who knows that a dollar will be worth—or if they will even be used—that many decades from now.
And two, from now all Wisconsin lawmakers will have to be on the alert for this sort of thing. All contentious bills will be examined for the possibility of this sort of delete-only rewriting. This sentence could have been reworded, for example:
For the 2023-2025 school years, add $325 to the result under par. (b).
The problem is, of course, that legalese developed over the centuries to be extra wordy in order to limit disputes. If lawmakers need to state things in the minimal viable language, that will increase court battles later. And that’s not even enough. Bills can be thousands of words long. If any arbitrary characters can be glued together by deleting enough other characters, bills can say anything the governor wants.
The real solution is to return the line-item veto to what we all think it is: the ability to remove individual whole provisions from a law before signing it.
It’s become fashionable to think of artificial intelligence as an inherently dehumanizing technology, a ruthless force of automation that has unleashed legions of virtual skilled laborers in faceless form. But what if AI turns out to be the one tool able to identify what makes your ideas special, recognizing your unique perspective and potential on the issues where it matters most?
You’d be forgiven if you’re distraught about society’s ability to grapple with this new technology. So far, there’s no lack of prognostications about the democratic doom that AI may wreak on the US system of government. There are legitimate reasons to be concerned that AI could spread misinformation, break public comment processes on regulations, inundate legislators with artificial constituent outreach, help to automate corporate lobbying, or even generate laws in a way tailored to benefit narrow interests.
But there are reasons to feel more sanguine as well. Many groups have started demonstrating the potential beneficial uses of AI for governance. A key constructive-use case for AI in democratic processes is to serve as discussion moderator and consensus builder.
To help democracy scale better in the face of growing, increasingly interconnected populations—as well as the wide availability of AI language tools that can generate reams of text at the click of a button—the US will need to leverage AI’s capability to rapidly digest, interpret and summarize this content.
There are two different ways to approach the use of generative AI to improve civic participation and governance. Each is likely to lead to drastically different experience for public policy advocates and other people trying to have their voice heard in a future system where AI chatbots are both the dominant readers and writers of public comment.
For example, consider individual letters to a representative, or comments as part of a regulatory rulemaking process. In both cases, we the people are telling the government what we think and want.
For more than half a century, agencies have been using human power to read through all the comments received, and to generate summaries and responses of their major themes. To be sure, digital technology has helped.
In 2021, the Council of Federal Chief Data Officers recommended modernizing the comment review process by implementing natural language processing tools for removing duplicates and clustering similar comments in processes governmentwide. These tools are simplistic by the standards of 2023 AI. They work by assessing the semantic similarity of comments based on metrics like word frequency (How often did you say “personhood”?) and clustering similar comments and giving reviewers a sense of what topic they relate to.
Think of this approach as collapsing public opinion. They take a big, hairy mass of comments from thousands of people and condense them into a tidy set of essential reading that generally suffices to represent the broad themes of community feedback. This is far easier for a small agency staff or legislative office to handle than it would be for staffers to actually read through that many individual perspectives.
But what’s lost in this collapsing is individuality, personality, and relationships. The reviewer of the condensed comments may miss the personal circumstances that led so many commenters to write in with a common point of view, and may overlook the arguments and anecdotes that might be the most persuasive content of the testimony.
Most importantly, the reviewers may miss out on the opportunity to recognize committed and knowledgeable advocates, whether interest groups or individuals, who could have long-term, productive relationships with the agency.
These drawbacks have real ramifications for the potential efficacy of those thousands of individual messages, undermining what all those people were doing it for. Still, practicality tips the balance toward of some kind of summarization approach. A passionate letter of advocacy doesn’t hold any value if regulators or legislators simply don’t have time to read it.
There is another approach. In addition to collapsing testimony through summarization, government staff can use modern AI techniques to explode it. They can automatically recover and recognize a distinctive argument from one piece of testimony that does not exist in the thousands of other testimonies received. They can discover the kinds of constituent stories and experiences that legislators love to repeat at hearings, town halls and campaign events. This approach can sustain the potential impact of individual public comment to shape legislation even as the volumes of testimony may rise exponentially.
In computing, there is a rich history of that type of automation task in what is called outlier detection. Traditional methods generally involve finding a simple model that explains most of the data in question, like a set of topics that well describe the vast majority of submitted comments. But then they go a step further by isolating those data points that fall outside the mold—comments that don’t use arguments that fit into the neat little clusters.
State-of-the-art AI language models aren’t necessary for identifying outliers in text document data sets, but using them could bring a greater degree of sophistication and flexibility to this procedure. AI language models can be tasked to identify novel perspectives within a large body of text through prompting alone. You simply need to tell the AI to find them.
In the absence of that ability to extract distinctive comments, lawmakers and regulators have no choice but to prioritize on other factors. If there is nothing better, “who donated the most to our campaign” or “which company employs the most of my former staffers” become reasonable metrics for prioritizing public comments. AI can help elected representatives do much better.
If Americans want AI to help revitalize the country’s ailing democracy, they need to think about how to align the incentives of elected leaders with those of individuals. Right now, as much as 90% of constituent communications are mass emails organized by advocacy groups, and they go largely ignored by staffers. People are channeling their passions into a vast digital warehouses where algorithms box up their expressions so they don’t have to be read. As a result, the incentive for citizens and advocacy groups is to fill that box up to the brim, so someone will notice it’s overflowing.
A talented, knowledgeable, engaged citizen should be able to articulate their ideas and share their personal experiences and distinctive points of view in a way that they can be both included with everyone else’s comments where they contribute to summarization and recognized individually among the other comments. An effective comment summarization process would extricate those unique points of view from the pile and put them into lawmakers’ hands.
This essay was written with Nathan Sanders, and previously appeared in the Conversation.
It’s been a big month for US data privacy. Indiana, Iowa, and Tennessee all passed state privacy laws, bringing the total number of states with a privacy law up to eight. No private right of action in any of those, which means it’s up to the states to enforce the laws.
In an open letter, seven secure messaging apps—including Signal and WhatsApp—point out that the UK’s Online Safety Bill could destroy end-to-end encryption:
As currently drafted, the Bill could break end-to-end encryption,opening the door to routine, general and indiscriminate surveillance of personal messages of friends, family members, employees, executives, journalists, human rights activists and even politicians themselves, which would fundamentally undermine everyone’s ability to communicate securely.
The Bill provides no explicit protection for encryption, and if implemented as written, could empower OFCOM to try to force the proactive scanning of private messages on end-to-end encrypted communication services—nullifying the purpose of end-to-end encryption as a result and compromising the privacy of all users.
In short, the Bill poses an unprecedented threat to the privacy, safety and security of every UK citizen and the people with whom they communicate around the world, while emboldening hostile governments who may seek to draft copy-cat laws.
Both Signal and WhatsApp have said that they will cease services in the UK rather than compromise the security of their users worldwide.
Sidebar photo of Bruce Schneier by Joe MacInnis.