The Supreme Court is Getting into the AI Fight

Yes, the group of men and women who would likely be voted as least technically inclined have waded into the AI regulation fight and this is likely only the beginning for them.

In the fight before the court right now to decide whether to abandon the Chevron deference doctrine, a 40 year old Supreme Court decision that might get completely abandoned by this court, even the justices are asking about AI.

Chevron says, in very lay terms, that deference should be given to federal agencies to make rules unless Congress said that they cannot. If the court dumps the rule, then agencies will be limited to ONLY making rules that are DIRECTLY SPECIFICED in laws Congress passes. And since the only group of people less technically savvy than the Supremes might be Congress, that could get very interesting.

For example, Congress might have to pass a law that specifically and in detail says what AI can and cannot do. Imagine that bunch of octogenarians. who can’t even start their own Zoom calls, making the rules.

Multiple justices seem to be concerned. Whether that will affect their decision on Chevron or not is unclear after 3 hours of oral arguments.

And also think about Congress coming back every couple of years and updating these laws.

That could, of course, backfire on Congress since there are definitely things they would like to make illegal but have no clue have to craft a law to do that. So they will botch it and when law enforcement tries to prosecute people for violating these poorly crafted laws they will get off completely free on appeal since the courts will say “well, you didn’t say that in the law”. Agencies will be unable to clarify Congressional action unless Congress gives them specific permission to do so, which is unlikely.

Of course, this is all early in the game since we don’t know what the Supremes will do about Chevron.

This court in particular seems to be very willing to strike down laws. If Congress does its normal Congress thing, they will likely craft laws that don’t foresee what is going to be needed next year. And both sides will take advantage of that fact.

No doubt, they will probably use AI to do that. Credit: Technology 202 Blog (subscription required)

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