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Government Accountability in the Age of AI

August 11, 2023

Prof. Cary Coglianese argues that a recent federal appellate decision “could turn out to hold the key to accountability in an era of increasingly digitized government.”

At The Hill, Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science and the nation’s foremost expert on governmental use of artificial intelligence (AI), explores “How a lawsuit about pencils can protect rights in the AI era.”

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political ScienceCoglianese argues that the Federal Circuit’s decision in Royal Brush Manufacturing v. United States “could be significant for anyone seeking to challenge agencies’ use of artificial intelligence on due process grounds.” He contends that challenges against governmental use of machine-learning algorithms “might now be able to rely on the Federal Circuit decision to gain access to information about those algorithms, even when they are developed and deployed by a private contractor who claims trade secret protection.”

Coglianese, Director of the Penn Program on Regulation (PPR), is a globally renowned expert on regulatory law, analysis, and management who has produced extensive action-oriented research and scholarship. He has consulted with regulatory organizations around the world and is a founding editor of the peer-reviewed journal Regulation & Governance. He also created and continues to serve as the faculty advisor to the PPR’s flagship publication, The Regulatory Review.

From The Hill:

A new federal appeals court ruling in a case about one of the simplest forms of technology—the pencil—could prove important for ensuring government accountability in the age of artificial intelligence.

The U.S. Court of Appeals for the Federal Circuit last month issued a decision in a trade-related case involving U.S. Customs and Border Protection (CBP). The CBP had ruled that an importer of pencils had violated trade rules, while the importer argued that CBP had violated its due process rights. The dispute might seem banal, but it has much broader implications for governmental use of machine-learning algorithms developed by private contractors.

Many government agencies need to rely on private contractors to provide the expertise and skills to support AI-decision systems. When private contractors claim trade secret protection over their algorithms, they create a kind of legal “black box” question: Does the trade secret protection claimed by contractors inevitably deny individuals or corporations their due process rights? The clear message from the Federal Circuit’s recent decision is that trade secret protection must give way to due process… .

Read the full piece at The Hill.

Read more of Coglianese’s scholarship on artificial intelligence law and policy.