Earlier today, the Federal Trade Commission (“FTC”), the Department of Justice Civil Rights Division (“DOJ”), the Consumer Financial Protection Bureau (“CFPB”), and the Equal Employment Opportunity Commission (“EEOC”) released a joint statement regarding the agencies’ commitments to the core principles of fairness, quality, and justice, pledge to “vigorously” protect individual’s rights, and authority to regulate the use of automated systems and artificial intelligence (“AI”).

The statement summarizes the ways in which these agencies have already started to regulate the use of automated systems and AI to prevent its harmful use:

• FTC: In 2022, the FTC issued a report evaluating the use and impact of AI in combatting online harm, including concerns that AI can be inaccurate, biased, and discriminatory by design. The FTC has warned that AI with discriminatory impact or the advertising of AI using unsubstantiated claims could be a violation of the FTC Act. The FTC has also reached settlement with companies requiring the destruction  of algorithms allegedly trained on improperly collected data.
• DOJ: In 2023, the DOJ filed a statement of interest in federal court explaining that the Fair Housing Act applies to algorithm-based tenant screening services.
• CFPB: In 2022, the CFPB published a circular confirming that federal consumer financial laws and requirements, including laws regarding credit decisions, apply regardless of the technology used to make the decisions.
• EEOC: In 2022, the EEOC issued a technical assistance document explaining how the Americans with Disabilities Act applies to AI when it is used to make employment-related decisions about applicants and employees.

The statement also discusses how automated systems and AI may contribute to unlawful discrimination and otherwise violate federal law:

• Problematic datasets. The underlying data could have errors or incorporate historical bias, resulting in skewed results.
• Problematic models. The underlying algorithmic models could be developed based on flawed assumptions about users, context, and practices, and lack transparency.

The key takeaway is that these agencies are all actively scrutinizing automated systems and AI, and prepared to bring enforcement action against alleged violators. Companies need to carefully review their practices when using these technologies