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Policymakers and candidates of both parties have increased their focus on how technology is changing society, including by blaming platforms and other participants in the tech ecosystem for a range of social ills even while recognizing them as significant contributors to U.S. economic success globally.  Republicans and Democrats have significant interparty—and intraparty—differences in the form of their grievances and on many of the remedial measures to combat the purported harms.  Nonetheless, the growing inclination to do more on tech has apparently driven one key congressional committee to have compromised on previously intractable issues involving data privacy.  Rules around the use of algorithms and artificial intelligence, which have attracted numerous legislative proposals in recent years, may be the next area of convergence. 

While influential members of both parties have pointed to the promise and peril of the increasing role of algorithms and artificial intelligence in American life, they have tended to raise different concerns.  Legislative proposals from Democrats have frequently focused how deployment of algorithms and artificial intelligence affects protected classes, while Republican proposals have largely, but not exclusively, been aimed at perceived unfairness in how algorithms treat Republicans and those expressing conservative views.  For instance, Republican Whip John Thune (R-SD), the former chair of the Senate Committee on Commerce, Science, and Transportation, has sponsored the Political BIAS Emails Act (S. 4409), which would address technology companies reportedly filtering Republican campaign emails.  Meanwhile, Senator Ron Wyden (D-OR) introduced the Algorithmic Accountability Act (S. 3572) that, among other things, requires that “automated decision systems” be subject to an “evaluation of any differential performance associated with consumers’ race, color, sex, gender, age, disability, religion, family status, socioeconomic status, or veteran status.”

One of the most interesting developments is the Platform Accountability and Transparency Act.  The proposal, announced last year by Senator Chris Coons (D-Del.), Senator Rob Portman (R-OH), and Senator Amy Klobuchar (D-MN), would primarily require platforms to provide data for approved research projects.  There is a growing belief, particularly in academia, that additional research on real-world applications of artificial intelligence and other technologies should be undertaken before policy is set.  The proposal also includes a novel safe harbor that immunizes platforms from liability for releasing data for qualifying research.  Though the proposal has yet to be formally introduced, requiring additional transparency could be the next step forward in Congress.      

There are further signs of general agreement between the parties as well.  The Filter Bubble Transparency Act (S. 2024), which Senator Thune also introduced, has an equal number of Republican and Democratic cosponsors.  That legislation would impose disclosure and consumer choice requirements on platforms that use so-called “opaque algorithms.”  Additionally, this past Congress, the Senate Commerce Committee held hearings on “Disrupting Dangerous Algorithms” and “Protecting Kids Online,” which yielded bipartisan legislation in the Kids Online Safety Act (S. 3663), sponsored by Senator Richard Blumenthal (D-CT) and Senator Marsha Blackburn (R-TN).  Key provisions of that legislation include requirements that technology platforms provide an option for users to “opt out of algorithmic recommendation systems that use a minor’s personal data,” “notice about whether . . . any algorithmic recommendation systems used by the platform . . . pose any heightened risks of harm to a minor,” and public reporting on how “algorithmic recommendation systems and targeted advertising systems can contribute to harms to minors.”  The Senate Commerce Committee  approved of the legislation in July with broad bipartisan support.    Efforts to legislate in the area of algorithms and artificial intelligence are likely to continue next Congress, no matter which party controls either or both chambers.  While legislative inaction is almost always the safest bet, the predicates are in place for some sort of agreement in this space. 


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