Markey, Schumer Demand Civil Rights Protections for Federal Use of AI

U.S. Senate Majority Leader Chuck Schumer and Sen. Ed Markey on Monday sent a letter urging the Biden administration to pursue additional action to protect civil rights and liberties related to federal agencies' use of artificial intelligence.

While recognizing the "strong steps" that the administration has already taken—such as President Joe Biden's October 2023 executive order—Schumer (D-N.Y.) and Markey (D-Mass.) stressed to Office of Management and Budget (OMB) Director Shalanda Young that "more must be done" to mitigate, prevent, and eliminate algorithmic bias and discrimination.

Specifically, the pair is pushing OMB to "require all federal agencies that use AI for consequential decisions to establish a civil rights office, if they do not already have one; ensure all civil rights offices are staffed with experts in algorithmic discrimination; and encourage federal agencies to establish additional safeguards to prevent algorithmic discrimination."

As the Biden White House explained in its 2022 Blueprint for an AI Bill of Rights, "Algorithmic discrimination occurs when automated systems contribute to unjustified different treatment or impacts disfavoring people based on their race, color, ethnicity, sex (including pregnancy, childbirth, and related medical conditions, gender identity, intersex status, and sexual orientation), religion, age, national origin, disability, veteran status, genetic information, or any other classification protected by law."

"Biased algorithms have increasingly been used to make or influence decisions, imposing real harm on Black, Brown, immigrant, and other marginalized communities."

The ACLU earlier this year sued Biden's National Security Agency in hopes of uncovering how it is using AI, and emphasized concerns that the NSA's use of such tools could harm civil rights and liberties.

The senators wrote Monday that "by ensuring that agencies have the resources, personnel, and policies to detect and mitigate bias, we can ensure that the AI age does not come at the expense of already marginalized and vulnerable communities."

"Without new protections," they warned, "today's supercharged, AI-powered algorithms risk reinforcing and magnifying the discrimination that marginalized communities already experience due to poorly trained and tested algorithms."

The senators highlighted how "biased algorithms have increasingly been used to make or influence decisions, imposing real harm on Black, Brown, immigrant, and other marginalized communities," citing examples from mortgage applications, hiring and employment, government benefits, and healthcare.

Earlier this year, OMB issued guidance regarding government use of AI tools, which Damon T. Hewitt, president and executive director of the Lawyers' Committee for Civil Rights Under Law, called "a significant step to implement meaningful safeguards."

Noting that the guidance directs agencies to "cease use of any AI that the agency finds cannot adequately mitigate unlawful discrimination," the senators argued that "OMB should also work with agencies to set strict guidelines to prevent algorithmic discrimination within relevant agency jurisdiction."

The OMB, they said, should push agencies to require recipients of federal funds and contracts "to complete pre-development, pre-deployment, and ongoing impact assessments to identify, mitigate, prevent, and eliminate biased AI," as well as "to allow individuals to opt out of AI-powered algorithms used in consequential decisions and instead request human decision-makers."

The senators also urged the office to pressure U.S. agencies to "fund the development of common, accessible resources for auditing algorithms—including open-source tools—for bias, discrimination, and other harms," and to "develop guidance on best practices for mitigating the development and deployment of biased AI-powered algorithms."

"Finally, because a regulation is only as strong as its enforcement, OMB should support federal agencies that take robust enforcement against any company found to violate these rules," the senators wrote, calling on Young to convene inspectors general to coordinate on best practices.

Reporting on the letter, Axios noted Monday that "Schumer's bipartisan AI roadmap fell short for civil rights organizations that wanted stronger language on algorithmic bias and discrimination."

Meanwhile, Markey has been a key force behind both the Algorithmic Justice and Online Platform Transparency Act and the Facial Recognition and Biometric Technology Moratorium Act.