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EPIC v. AI Commission

Seeking public access to the records and meetings of the NSCAI

In EPIC v. AI Commission, EPIC has filed suit to enforce the transparency obligations of the National Security Commission on Artificial Intelligence. The AI Commission, established by Congress in 2018 and chaired by former Google CEO Eric Schmidt, is charged with "review[ing] advances in artificial intelligence, related machine learning developments, and associated technologies" and making policy recommendations to Congress and the President. Yet for the first year of its existence, the Commission conducted its decisionmaking largely in secret. None of the Commission's plenary or working group meetings were open to the public during that time, and few details of those meetings were contemporaneously disclosed.

Beginning in February 2019, EPIC submitted multiple open records and meetings requests to the Commission and Department of Defense under Freedom of Information Act (FOIA) and Federal Advisory Committee Act (FACA). After both agencies failed to comply with EPIC's requests, EPIC brought suit on September 27, 2019. Although Judge Trevor N. McFadden denied EPIC's motion for a preliminary injunction on October 16, the court ruled on December 3 that the AI Commission is an "agency" and must comply with the FOIA. On January 28, 2020, the AI Commission began producing records to EPIC pursuant to the FOIA. On February 28, the DOD also began producing records to EPIC.

On June 1, 2020, the court ruled that the AI Commission is subject to the Federal Advisory Committee Act in addition to the FOIA. The court rejected the Commission's argument that it could not be subject to both statutes at once. "These different obligations are complementary, not conflicting," Judge McFadden wrote. "[A]n entity subject to FOIA and FACA would need to look backward, producing records in response to requests, and forward, chronicling its activities and continually supplementing its records." Accordingly, the court granted in part EPIC's motion for summary judgment and ordered the Commission to "provide timely notice of its meetings, to open them to the public, and to make its records available for public inspection and copying" on a rolling basis.

On March 1, 2021—following a series of FACA-mandated public meetings—the AI Commission approved its final report. The report urges Congress and the President to implement key safeguards on federal AI deployment, including mandating AI impact and risk assessments, updating standards for Privacy Act notices and privacy impact assessments, establishing an independent auditor for AI systems, empowering the Privacy and Civil Liberties Oversight Board to conduct AI oversight, and establishing a task force to recommend legal restrictions on the use of AI. However, the report fails to propose any substantive limits on AI use for Congressional enactment, as EPIC urged in comments to the Commission. "Unless express, binding limits on the use of AI are established now, the technology will quickly outpace our collective ability to regulate it," EPIC wrote. "The Commission cannot simply kick the can down the road, particularly when governments, civil society, and private sector actors have already laid extensive groundwork for the regulation of AI." Controversially, the AI Commission's final report also fails to endorse a ban on the use of autonomous weapons.

Top News

  • EPIC's Winning Case Against AI Commission Comes to a Close: EPIC has reached a settlement agreement in EPIC v. AI Commission, bringing to a close EPIC's successful litigation to open up the proceedings of the National Security Commission on Artificial Intelligence. The Commission was charged by Congress with developing recommendations on the use of AI in national security and defense contexts. But after the Commission conducted much of its work in secret and without public input, EPIC filed an open government lawsuit against the Commission in 2019. EPIC twice prevailed in the case, securing court rulings that the Commission was subject the Freedom of Information Act and the Federal Advisory Committee Act. As a result, the Commission was forced to hold public meetings and disclose thousands of pages of records about its work to EPIC. The Commission issued its final report this spring, urging Congress and the President to implement key safeguards on federal AI deployment. However, the report failed to propose any substantive limits on AI use for Congressional enactment, as EPIC urged the Commission to do last year. EPIC's settlement with the Commission resolves EPIC's claim to attorney's fees for its work on the case. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.). (Jul. 7, 2021)
    • More top news »
  • AI Commission Report Recommends Key Safeguards, But No Binding Limits on AI Use » (Mar. 2, 2021)
    The National Security Commission on Artificial Intelligence has issued its final report on the use of AI in national security and defense settings. The report urges Congress and the President to implement key safeguards on federal AI deployment, including mandating AI impact and risk assessments, updating standards for Privacy Act notices and privacy impact assessments, establishing an independent auditor for AI systems, empowering the Privacy and Civil Liberties Oversight Board to conduct AI oversight, and establishing a task force to recommend legal restrictions on the use of AI. However, the report fails to propose any substantive limits on AI use for Congressional enactment, as EPIC urged the Commission to do last year. "Unless express, binding limits on the use of AI are established now, the technology will quickly outpace our collective ability to regulate it," EPIC wrote. "The Commission cannot simply kick the can down the road, particularly when governments, civil society, and private sector actors have already laid extensive groundwork for the regulation of AI." Controversially, the AI Commission's final report also fails to endorse a ban on the use of autonomous weapons. The report was approved at the Commission's final meeting, which was open to the public as a result of EPIC's lawsuit. EPIC successfully sued the AI Commission in order to enforce its transparency obligations, forcing the Commission to hold open meetings and disclose thousands of pages of records. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Obtains Internal AI Commission Emails From Schmidt, Others » (Jan. 20, 2021)
    EPIC, as part of the open government case EPIC v. AI Commission, has obtained additional records from the National Security Commission on Artificial Intelligence. The documents include emails from Commission chair and former Google CEO Eric Schmidt illustrating Schmidt’s close relationship with members of Congress. The records also reveal that the ethics disclosure form Schmidt filed with the Commission—a document that usually tops out at a dozen pages—was 38 pages long. EPIC’s FOIA request was recently highlighted in an American Prospect article on Schmidt’s role in Rebellion Defense, “a shadowy defense startup” that markets AI systems to the Defense Department. EPIC has twice prevailed in its open government case against the AI Commission, forcing the Commission to hold public meetings and disclose thousands of pages of records. In recent comments, EPIC called on the AI Commission to "advise Congress, as the nation's highest policymaking authority, to establish government-wide principles and safeguards for the use and development of AI." The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Urges AI Commission to Recommend Robust AI Regulation, Prioritize Protection of Rights » (Oct. 1, 2020)
    In comments to the National Security Commission on Artificial Intelligence, EPIC called on the Commission to "advise Congress, as the nation's highest policymaking authority, to establish government-wide principles and safeguards for the use and development of AI." EPIC also urged the Commission to rely on the Universal Guidelines for Artificial Intelligence and the OECD AI Principles as a foundation for AI policymaking. The Commission is due to submit a final report to Congress with recommendations for AI policy by March 2021. EPIC successfully sued the AI Commission in order to enforce its transparency obligations, resulting in multiple public Commission meetings and the disclosure of thousands of pages of records. The Commission is set to hold a virtual public meeting on October 8, 2020 at 1:30 p.m. ET.
  • EPIC Obtains Additional Records From AI Commission » (Sep. 1, 2020)
    EPIC, as part of the open government case EPIC v. AI Commission, has obtained additional records from the National Security Commission on Artificial Intelligence. The documents produced include a delegation letter from AI Commission chair and former Google CEO Eric Schmidt, as well as reports on AI research and "workforce automation." In June, a federal court ruled in EPIC's case that the AI Commission is subject to the Federal Advisory Committee Act. Judge Trevor N. McFadden ordered the Commission to hold open meetings, which the Commission did for the first time in July. The Commission approved a set of recommendations to Congress at the meeting. Judge McFadden previously ruled that the AI Commission is subject to the Freedom of Information Act, and the Commission began disclosing its records to EPIC in January. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Obtains New Records From AI Commission » (Aug. 7, 2020)
    EPIC, as part of the open government case EPIC v. AI Commission, has obtained more documents from the National Security Commission on Artificial Intelligence. The records include a third-party presentation provided to the AI Commission about the use of "psychology and AI" to "help prepare an AI-enabled workforce." The presentation endorses the use of AI job screening tools like HireVue and claims that "reducing time-to-hire is as important as making good decisions." EPIC filed a Federal Trade Commission complaint last year highlighting HireVue’s unlawful failure to meet baseline standards for AI decision-making. The presentation also argues that "sociometers can be used to train AI about effective communication" in the workplace. Sociometers are "wearable electronic device[s] capable of automatically measuring the amount of face-to-face interaction, conversational time, physical proximity to other people, and physical activity levels using social signals derived from vocal features, body motion, and relative location." Separately, EPIC obtained a presentation from IARPA on "Artificial Intelligence and Threats." The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • AI Commission Holds First Public Meeting » (Jul. 20, 2020)
    The National Security Commission on Artificial Intelligence held its first public meeting on Monday. A recording is available here, and materials for the meeting can be found here. Public access to the meeting is the result of a recent court ruling in EPIC v. AI Commission that the Commission is subject to the transparency requirements of the Federal Advisory Committee Act. Judge Trevor N. McFadden ordered the Commission to hold open meetings and regularly publish its records in the future. Judge McFadden previously ruled that the AI Commission is subject to the Freedom of Information Act, and the Commission has disclosed thousands of pages of records to EPIC since January. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • Following Order in EPIC Case, AI Commission Announces First Public Meeting » (Jul. 6, 2020)
    The National Security Commission on Artificial Intelligence will hold its first public plenary meeting on July 20, the Commission said today. The announcement comes after a ruling in EPIC v. AI Commission that the Commission is subject to the transparency requirements of the Federal Advisory Committee Act. Judge Trevor N. McFadden ordered the Commission to hold open meetings and regularly publish its records in the future. Judge McFadden previously ruled that the AI Commission is subject to the Freedom of Information Act, and the Commission began disclosing its past records in January. Registration for the Commission’s July 20 meeting will open July 8. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Obtains Additional Records from AI Commission » (Jul. 6, 2020)
    EPIC, as part of the open government case EPIC v. AI Commission, has obtained more documents from the National Security Commission on Artificial Intelligence. Among the records is a report concerning best practices for advisory commissions that was delivered to the AI Commission in early 2019. Notably, the report contains no recommendations about transparency or public participation in the Commission’s work. A federal court recently ruled in EPIC’s case that the AI Commission is subject to the Federal Advisory Committee Act. Judge Trevor N. McFadden ordered the Commission to hold open meetings and regularly publish its records in the future. Judge McFadden previously ruled that the AI Commission is subject to the Freedom of Information Act, and the Commission began disclosing its prior records in January. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC v. AI Commission: Court Orders Commission to Hold Public Meetings » (Jun. 1, 2020)
    A federal court, ruling in EPIC v. AI Commission, has ordered the National Security Commission on Artificial Intelligence to open its meetings to the public. The Commission is charged with developing recommendations on the use of AI in national security and defense contexts. But after the Commission conducted much of its work in secret and without public input, EPIC filed an open government lawsuit against the Commission last year. In Monday’s decision, Judge Trevor N. McFadden ruled that the Commission is subject to the Federal Advisory Committee Act and must therefore hold open meetings and regularly publish its records. “Today, the Court holds that Congress can and did impose Janus-like transparency obligations upon the AI Commission,” Judge McFadden wrote. “No rule of law forced Congress to choose just one.” EPIC previously won a court ruling that the AI Commission is subject to the Freedom of Information Act, and the Commission recently began disclosing its past records. The case is EPIC v. AI Commission, No. 19-2906.
  • AI Commission Seeks Public Comments » (May. 29, 2020)
    The National Security Commission on Artificial Intelligence is seeking public comments on federal AI policy—a step that EPIC has repeatedly urged the Commission to take. The Commission is charged with developing recommendations on the use of AI in national security and defense contexts. But the Commission has conducted much of its work in secret and without public input, leading EPIC to file an open government lawsuit against the Commission. EPIC won a court ruling that the AI Commission is subject to the Freedom of Information Act, and the Commission has begun disclosing its records. EPIC is also litigating to enforce the Commission's obligation to hold open meetings. Public comments to the AI Commission are due by September 30, 2020.
  • EPIC Obtains New Records in Case Against AI Commission » (May. 15, 2020)
    EPIC, as part of the open government case EPIC v. AI Commission, has obtained more documents from the National Security Commission on Artificial Intelligence and the Department of Defense. The records provide the first public look at the work of the AI Commission’s closed-door working groups. Yet the records contain only a single reference to the privacy risks posed by the use of AI. The Commission's disclosure follows a court ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. The AI Commission has regularly held closed-door meetings with tech firms and defense contractors without soliciting input from the American public. EPIC is also litigating to enforce the Commission's obligation to hold open meetings. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • AI Commission Calls for Privacy, Civil Liberties Safeguards on COVID-19 Contact Tracing » (May. 6, 2020)
    The National Security Commission on Artificial Intelligence has released a set of privacy and civil liberties recommendations concerning digital contract tracing during the COVID-19 pandemic. The Commission urged that contact tracing tools must include data minimization, transparency, explicit user consent, and input from privacy and security professionals. The Commission also warned that contract tracing systems must address "challenges with inclusiveness and potential discrimination." The Commission advised Congress to establish technological standards and to require the Federal Trade Commission to regulate the technology. Since January, the Commission has released hundreds of pages of documents as part of the open government lawsuit EPIC v. AI Commission. EPIC is also litigating to enforce the Commission's obligation to hold open meetings.
  • EPIC v. AI Commission: Internal Report Alludes to 'Mass Surveillance,' 'Streets Carpeted with Cameras' » (Apr. 7, 2020)
    In a FOIA lawsuit, EPIC has obtained more documents from the Commission on Artificial Intelligence. The records include internal correspondence and an unattributed report about China's social scoring, facial recognition tools, and AI-based surveillance. The internal report highlights the "draconian" consequences of China's AI use but states that "Mass surveillance is a killer application" for AI and that "having streets carpeted with cameras is good infrastructure for smart cities[.]" The Commission's disclosure to EPIC follows a ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. The AI Commission held over 200 secret meetings with tech firms, defense contractors, and others. EPIC is also litigating to enforce the Commission's obligation to hold open meetings. The case is EPIC v. National Security Commission on AI, No. 19-2906 (D.D.C.).
  • EPIC Celebrates Sunshine Week with 2020 FOIA Gallery » (Mar. 16, 2020)
    In celebration of Sunshine Week, EPIC has unveiled the 2020 FOIA Gallery. Since 2001, EPIC has annually published highlights of EPIC's most significant open government cases. For example, last year EPIC filed the first lawsuit in the country for the public release of the Mueller Report. The federal court rebuked Attorney General Barr and agreed to review the complete Mueller Report to determine what additional material must be released. EPIC also prevailed in EPIC v. the Commission on AI. A federal court ruled that the Commission on Artificial Intelligence is subject to the FOIA. Following the court's decision, the AI Commission released documents about its activities to EPIC. In this year's FOIA gallery, EPIC also highlighted pre-trial risk assessment reports, documents about Justice Kavanaugh's role in the warrantless surveillance program, a DHS drone status report, the Census data transfer plan, and more than 29,000 complaints against Facebook pending at the FTC.
  • EPIC Urges Court to Open Meetings, Records of AI Commission » (Mar. 10, 2020)
    EPIC has filed a reply brief in EPIC v. AI Commission urging a federal court in Washington, DC to enforce the Commission's obligation to hold open meetings and publish its records on a regular basis. The court previously ruled that the AI Commission must comply with the Freedom of Information Act. In briefs with the court, EPIC explained that the Commission must also comply with the Federal Advisory Committee Act, citing the law enacted by Congress. "It is not for the Government or the courts to second-guess that legislative choice simply because the AI Commission's transparency obligations flow from two statutes rather than one," EPIC wrote. In a recent report for Congress and the President, the Commission recommended weakening privacy safeguards for Americans but never consulted with the public as the Federal Advisory Committee Act would require. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC v. AI Commission: Court Orders Rapid Disclosure of Records » (Mar. 9, 2020)
    In EPIC's open government case concerning US AI policy, a federal court has ordered the National Security Commission on Artificial Intelligence to process 800 pages of records a month for disclosure to EPIC. The order follows the court's previous ruling in EPIC v. AI Commission that the Commission is subject to the Freedom of Information Act. The Commission recently released a report to Congress that criticizes the EU General Data Protection Regulation and calls for greater "government access to data on Americans." Before issuing its report, the Commission held more than two hundred secret meetings with tech firms, defense contractors, and others but did not gather opinions from the American public. EPIC is also litigating to enforce Commission's obligation to hold open meetings.
  • VICTORY - Court Rules US AI Commission Must Disclose Records to EPIC » (Dec. 3, 2019)
    A federal court has ruled that the National Security Commission on Artificial Intelligence is an agency subject to the Freedom of Information Act. EPIC has sought to make the activities of the AI Commission open to the public, and EPIC sued the Commission when it ignored EPIC's FOIA request. In subsequent briefing, EPIC made clear that the Commission is subject to FOIA under the plain text of the law. Judge Trevor N. McFadden, writing in EPIC v. AI Commission, rejected the Commission's arguments that it is exempt from the law. "[L]ike a stranger offering candy to a child, the Government invites the Court not to read [the FOIA] literally," the court wrote. "The Government has not convinced the Court that it should ignore what Congress said." In 2018, EPIC and leading scientific organizations, including AAAS, ACM and IEEE, and nearly 100 experts urged the White House to ensure a public process for the development of AI policy.
  • EPIC to Court: AI Commission Must Comply With FOIA » (Nov. 8, 2019)
    EPIC told a federal court this week that the National Security Commission on Artificial Intelligence must comply with the Freedom of Information Act. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of” AI in a national security setting. But the Commission has operated largely in secret and claims that it is exempt from open government laws. The Commission has received almost 200 closed-door briefings, with no published agendas and no public minutes. EPIC, which filed suit against the Commission in September, explained that Congress left “no doubt that the AI Commission is subject to the FOIA.” The Commission recently released a report to Congress, which criticized the EU General Data Protection Regulation and called for greater "government access to data on Americans." EPIC’s case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Seeks More Details on Secretive AI Commission Report » (Nov. 6, 2019)
    Following the release of a report by the US Commission on Artificial Intelligence, EPIC is seeking specific information about recommendations that could impact the privacy rights of Americans. EPIC previously sued the Commission to make public its records and meetings. Now EPIC wants to know why the Commission criticized the EU General Data Protection Regulation and why the Commission wants to amend U.S. privacy laws to allow "government access to data on Americans." EPIC is also curious why the Commission selectively published the names of organizations and businesses it consulted. The Commission is chaired by former Google CEO Eric Schmidt. EPIC filed suit against the Commission earlier this year to ensure transparency and public participation. The Commission has held more than 200 closed-door meetings. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C).
  • AI Commission Finalizes Report to Congress in Secret » (Nov. 1, 2019)
    The National Security Commission on Artificial Intelligence held yet another closed-door meeting last week to finalize its upcoming report to Congress and the President. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully denying the public access to its meetings and withholding nearly all of its records. In September, EPIC filed an open government lawsuit against the AI Commission to ensure transparency and public participation. The Commission's report is due to be released next week. EPIC’s case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • EPIC Challenges Closed Door Meetings of US AI Commission » (Sep. 27, 2019)
    EPIC has filed an open government lawsuit against the National Security Commission on Artificial Intelligence, following the Commission’s repeated failure to make its records and meetings open to the public. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI in the United States. EPIC filed multiple requests for access to Commission meetings and records. But the Commission has operated almost entirely in secret, even as it prepares to submit recommendations to Congress and the President. “Public access to the records and meetings of the AI Commission is vital to ensure government transparency and democratic accountability.” The Commission is chaired by former Google CEO Eric Schmidt and dominated by representatives of large tech firms, including Microsoft, Amazon, and Oracle. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).
  • Secret AI Policy Meetings Continue » (Sep. 19, 2019)
    The National Security Commission on Artificial Intelligence is holding yet another closed-door meeting today—at least the fourth such meeting in the Commission's short existence. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully refusing to publish any meeting notices or to allow any public participation. Last week, EPIC renewed its request to access Commission records and meetings. The Commission is dominated by representatives of large tech firms, including Google and Microsoft. EPIC has urged Congress to ensure that the Commission operates transparently.
  • EPIC Renews Request for Information About National AI Commission » (Sep. 16, 2019)
    EPIC has renewed its request with the National Security Commission on Artificial Intelligence for records and access to Commission meetings. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully refusing to publish any meeting notices or to allow any public participation. The Commission is dominated by representatives of large tech firms, including Google and Microsoft. EPIC previously requested records about the AI Commission and has urged Congress to ensure that the Commission operates transparently.
  • U.S. AI Commission Releases Initial Report, Priorities Ignored, Secret Meetings Continue » (Aug. 1, 2019)
    The National Security Commission on Artificial Intelligence, following months of closed-door meetings, has released a four-page initial report. The disclosure follows an EPIC Freedom of Information Act request seeking the report and related records. Created by Congress in 2018, the AI Commission is tasked with considering “the methods and means necessary to advance the development of” AI to address national security and defense needs. But the Commission’s initial report makes no mention of the risks of AI, “international humanitarian law, and escalation dynamics," despite Congress’s express instructions to address these concerns. The report also contains no discussion of protecting privacy and civil liberties, as is required by an Executive Order concerning "American Leadership on Artificial Intelligence." Representatives of large tech firms, including Google and Microsoft, dominate the Commission. According to the report, the Commission has held 13 plenary and working group meetings in secret—a clear violation of the Federal Advisory Committee Act.
  • US AI Commission Holds Secret Meeting on National AI Policy » (Mar. 15, 2019)
    The National Security Commission on Artificial Intelligence held its first meeting this week, in secret. The Commission is tasked with advising the federal government on artificial intelligence. The Commission was established by the National Defense Authorization Act. Federal law requires commissions to operate transparently, yet the AI Commission provided no notice of the meeting and no opportunity for public participation. Last year, EPIC—joined by nearly 100 experts and leading scientific organizations including AAAS, ACM, FAS, and IEEE—successfully petitioned the White House Select Committee on Artificial Intelligence to incorporate public input in the committee's work. EPIC is now seeking the public release of the documents distributed at the AI Commission meeting.
  • EPIC Seeks Release of Overdue AI Commission Report » (Feb. 22, 2019)
    EPIC has submitted an open records and meetings request concerning the National Security Commission on Artificial Intelligence. Congress established the AI Commission in August "to review advances in artificial intelligence" and ordered the Commission to publish a report by February 9. Yet no information has been disclosed about the Commission's plans, operations, or findings to date. The Commission includes executives from Google, Amazon, Microsoft, and Oracle and several former Department of Defense officials. Last year, EPIC—joined by nearly 100 experts and leading scientific organizations including AAAS, ACM, FAS, and IEEE—successfully petitioned the White House Select Committee on Artificial Intelligence to incorporate public input in the committee's work. EPIC has also proposed the Universal Guidelines for Artificial Intelligence as the basis for AI legislation. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries. EPIC previously urged lawmakers to appoint AI Commission members who support the Universal Guidelines.

Background

The Privacy Risks Posed by the Use of AI

Artificial intelligence presents unique threats to privacy, human rights, and democratic institutions. The deployment of AI systems tests long-standing privacy safeguards governing the collection and use of personal data. For example, privacy laws require data minimization—the requirement that only necessary data be retained. Yet “[i]n the search for new connections and more precise analyses, it is tempting to give [a] system access to as much data as possible.” China, for instance, uses sophisticated AI surveillance technology to profile and control Muslim minority populations. Automated decisionmaking and profiling with AI systems can produce biased and inaccurate decisions, with serious consequences for the persons improperly targeted. Similarly, unrepresentative data sets can produce flawed AI models.

There is a clear need for human rights protections for AI systems in the national security context, where public oversight is often limited. Yet there are already indications that the U.S. Intelligence Community has failed to invest in vital AI safeguards. In May 2019, the Inspector General for the Intelligence Community highlighted a lack oversight for the use of AI, warning that “[i]nvestment asymmetry between mission performance and intelligence oversight in AI efforts could lead to an accountability deficit. . . . [T]here is little indication that investments in oversight of AI are currently a high priority.”

Privacy, security, and discrimination are not the only civil liberties and human rights issues raised by use of AI systems. International AI policy frameworks—including the OECD AI Principles (to which the United States is a signatory) and the Universal Guidelines for Artificial Intelligence—set out explicit rights and responsibilities concerning the use of AI systems. These include transparency and identification requirements, testing requirements, fairness, data quality, public safety, contestability, reliability, termination, and more.

Public Participation in AI Policymaking

The vast majority of AI policymaking around the world is conducted transparently and relies on public participation. National governments and international organizations routinely seek public input on AI policy. Europe’s High-Level Expert Group on Artificial Intelligence—a group of academic, civil society, and industry representatives—held a public consultation on Europe’s draft Ethics Guidelines for AI. The Council of Europe invited public comment on a draft recommendation concerning the human rights impacts of algorithmic systems. The Organization for Economic Cooperation and Development (“OECD”) established the Artificial Intelligence Group of Expert, representing OECD member organizations, held several meetings, sought comments from civil society, and produced the OECD Principles on Artificial Intelligence, which were endorsed by 42 nations and the G20.

Governments around the world have conducted transparent consultations on AI policy. Japan conducted a public consultation and published a draft AI research and development guidelines to prompt international debate over AI policymaking. The Australian government published proposed AI ethics framework for public consultation. And Canada and France made a joint public proposal for an international panel on artificial intelligence. All told, Australia, Canada, China, Denmark, EU Commission, Finland, France, Germany, India, Italy, Japan, Kenya, Malaysia, Mexico, New Zealand, Nordic-Baltic Region, Poland, Russia, Singapore, South Korea, Sweden, Taiwan, Tunisia, UAE, United Kingdom, and the U.S. have publicly released national AI strategies.

In the United States, EPIC—joined by leading scientific organizations and nearly 100 experts—filed a petition calling for public participation in federal efforts to develop AI policy. The coalition stated:

The reach of AI is so vast, so important, and encompasses so many issues, it is imperative that the Administration provide the American public the opportunity to comment on proposed policy initiatives impacting the American public. AI has the potential to improve our society, but only if proper policies are in place to provide the guidance needed to address the potential risks that accompany the potential benefits.
The National Science Foundation subsequently announced it would seek public comment on AI policy.

The National Institute of Standards and Technology published a plan for developing technical AI standards and sought public comments. The Office of Management and Budget solicited public comment about the use of federal data for AI research and development. And the President’s Executive Order on Maintaining American Leadership in Artificial Intelligence states that “[m]aintaining American leadership in AI requires a concerted effort to promote advancements in technology and innovation, while protecting American technology, economic and national security, civil liberties, privacy, and American values and enhancing international and industry collaboration with foreign partners and allies.”

The Formation and Structure of the AI Commission

Congress created the National Security Commission on Artificial Intelligence through the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“NDAA”), Pub. L. No. 115-232, ยง 1051, 132 Stat. 1636, 1962-65 (2018), signed into law on August 13, 2018. The NDAA directs the AI Commission “to review advances in artificial intelligence, related machine learning developments, and associated technologies.” The AI Commission is “an independent establishment of the Federal Government” that is “in the executive branch.” The AI Commission “shall be composed of 15 members” appointed “for the life of the Commission” by the Secretary of Defense, the Secretary of Commerce, and the chairs and ranking members of six congressional committees. The Commission “shall terminate on October 1, 2020.”

The Chairman of the Commission is Eric Schmidt, the former executive chairman of Alphabet Inc. and the former chairman and chief executive officer of Google Inc. The Vice Chairman of the Commission is Robert O. Work, former Deputy Secretary of Defense. As of December 2019, the Commission also includes:

  • Safra Catz, chief executive officer of Oracle
  • Steve Chien, supervisor of the Artificial Intelligence Group at Caltech’s Jet Propulsion Lab
  • Mignon Clyburn, Open Society Foundation fellow and former FCC commissioner
  • Chris Darby, chief executive officer of In-Q-Tel
  • Ken Ford, chief executive officer of the Florida Institute for Human and Machine Cognition
  • Jose-Marie Griffiths, president of Dakota State University
  • Eric Horvitz, director of Microsoft Research Labs
  • Andy Jassy, chief executive officer of Amazon Web Services
  • Gilman Louie, partner at Alsop Louie Partners
  • William Mark, director of SRI International’s Information and Computing Sciences Division
  • Jason Matheny, director of the Center for Security and Emerging Technology and former Assistant Director of National Intelligence
  • Katharina McFarland, consultant at Cypress International and former Assistant Secretary of Defense for Acquisition
  • Andrew Moore, head of Google Cloud AI

Under the NDAA, the AI Commission is to “consider the methods and means necessary to advance the development of artificial intelligence, machine learning, and associated technologies by the United States to comprehensively address the national security and defense needs of the United States.” Congress has designated nine AI-related subjects for the Commission to review, including “ethical considerations related to artificial intelligence and machine learning as it will be used for future applications related to national security and defense.” Since it launched, the Commission has organized itself into four specialized working groups and has “decided to pursue Special Projects on three cross-cutting issues[.]” One of the Commission’s special projects concerns “the responsible and ethical use of AI for national security[.]”

EPIC's FOIA Request and Lawsuit

In the first year of its existence, the AI Commission held dozens of plenary and working group meetings and received more than 100 briefings. The Commission met as a whole five times over that period: March 11, 2019; May 20, 2019; July 11, 2019; October 24, 2019; and January 15, 2020. None of these meetings were noticed in the Federal Register or open to the public, and the AI Commission published few details of those meetings contemporaneously.

Accordingly, EPIC filed two separate Freedom of Information Act/Federal Advisory Committee Act requests with the Department of Defense and the AI Commission. On Feb. 22, 2019, EPIC requested from the DOD:

(1) Copies of all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the National Security Commission on Artificial Intelligence or any subcomponent thereof;
(2) A copy of the “initial report on the findings and . . . recommendations” of the National Security Commission on Artificial Intelligence required by section 1051(c)(1) of the National Defense Authorization Act for FY 2019; and
(3) Access to, and advance Federal Register notice of, all meetings of the National Security Commission on Artificial Intelligence and any subcomponent thereof.

On Sep. 11, 2019, EPIC requested from the AI Commission:

(1) Copies of all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the National Security Commission on Artificial Intelligence and/or any subcomponent thereof;
(2) Contemporaneous access to, and advance Federal Register notice of, all meetings of the National Security Commission on Artificial Intelligence and any subcomponent thereof, including but not limited to the Commission’s September 2019 and November 2019 plenary meetings.

On September 27, 2019—following the failure of both the AI Commission and the DOD to expedite EPIC's requests and failure to provide responsive records—EPIC filed suit against the AI Commission, Commission Chair Eric Schmidt, and the DOD in the U.S. District Court for the District of Columbia.

EPIC's Interest

EPIC is one of the leading organizations in the country with respect to the privacy and human rights implications of AI use. In 2015, EPIC led an international campaign for “algorithmic transparency,” a practice which reduces bias and helps ensure fairness in automated decisionmaking. In 2018, EPIC led the drafting of the Universal Guidelines for Artificial Intelligence, a framework for AI governance based on the protection of human rights. The Universal Guidelines have been endorsed by more than 250 experts and 60 organizations in 40 countries. In 2019, EPIC published the EPIC AI Policy Sourcebook, the first compendium of AI policy frameworks and related AI resources.

EPIC regularly shares AI expertise and policy recommendations with Congressional committees, federal agencies, and international organizations. EPIC is currently seeking the release of a 2014 Department of Justice report to the White House concerning the use of predictive analytics and risk assessment algorithms in the criminal justice system. The DOJ has warned that assessments based on sociological and personal information rather than prior bad acts is "dangerous" and constitutionally suspect, citing the disparate impacts of risk assessments and the erosion of consistent sentencing.

Commission Documents

Initial Correspondence

First AI Commission Production (Jan. 27, 2020)

On January 27, 2020, the AI Commission produced 105 pages of records to EPIC. The records include an email exchange pertaining to a footnote in the Commission's Interim Report (footnote 179) that sharply criticizes the European Union's General Data Protection Regulation (GPDR). However, the AI Commission redacted the names of the parties to that email. The records produced also include NSCAI staff emails citing favorably to an article by former National Security Agency Counsel Glenn S. Gerstell.

Second AI Commission Production (Feb. 28, 2020)

On February 28, 2020, the AI Commission made a second production of records to EPIC. The records show that the AI Commission was previously aware of EPIC's work on AI, including EPIC's calls to eliminate algorithmic bias and ensure the transparency and accountability of AI systems. However, the Commission's recent report to Congress did not endorse these requirements, instead criticizing the EU General Data Protection Regulation and calling for greater "government access to data on Americans."

First DOD Production (Mar. 6, 2020)

On March 6, 2020, the Department of Defense made its first production of records to EPIC. The records disclosed concern the DOD's role in the initial setup and funding of the AI Commission.

Third AI Commission Production (Mar. 31, 2020)

On March 31, 2020, the AI Commission made a third production of records to EPIC. The records produced include internal correspondence and a report about China's social scoring, facial recognition tools, and AI-based surveillance. The internal report highlights the "draconian" consequences of China's AI use but states that "Mass surveillance is a killer application" for AI and that "having streets carpeted with cameras is good infrastructure for smart cities[.]"

Fourth AI Commission Production (Apr. 30, 2020)

On April 30, 2020, the AI Commission made a fourth production of records to EPIC. The records produced provide the first public look at the AI Commission's closed-door working group meetings.

Second DOD Production (May 8, 2020)

On May 8, 2020, the Department of Defense made a second production of records to EPIC. The records disclosed concern the DOD's role in the initial setup and funding of the AI Commission.

Fifth AI Commission Production (May 29, 2020)

On May 29, 2020, the AI Commission made a fifth production of records to EPIC. The records produced include more details of the Commission’s closed-door working group meetings and a briefing about best practices for advisory commissions.

Sixth AI Commission Production (June 30, 2020)

On June 30, 2020, the AI Commission made a sixth production of records to EPIC. The records produced include more details of the Commission’s closed-door working group meetings and a report about public-private partnerships for the Commission’s July 11, 2019 plenary meeting.

ODNI Production (July 23, 2020)

On July 23, 2020, the Office of the Director of National Intelligence made a production of records to EPIC that had been referred by the AI Commission. The production consisted of a presentation by Intelligence Advanced Research Projects Activity on “Artificial Intelligence and Threats.”

Seventh AI Commission Production (July 31, 2020)

On July 31, 2020, the AI Commission made a seventh production of records to EPIC. The records include a third-party presentation provided to the AI Commission about the use of “psychology and AI” to “help prepare an AI-enabled workforce.” The presentation endorses the use of AI job screening tools like HireVue and claims that “reducing time-to-hire is as important as making good decisions.” The presentation also argues that “sociometers can be used to train AI about effective communication” in the workplace. Sociometers are “wearable electronic device[s] capable of automatically measuring the amount of face-to-face interaction, conversational time, physical proximity to other people, and physical activity levels using social signals derived from vocal features, body motion, and relative location.”

Eighth AI Commission Production (August 28, 2020)

On August 28, 2020, the AI Commission made an eighth production of records to EPIC. The records include a delegation letter from AI Commission chair and former Google CEO Eric Schmidt, as well as reports on AI research and "workforce automation."

Ninth AI Commission Production (September 30, 2020)

On September 30, 2020, the AI Commission made a ninth production of records to EPIC.

Tenth AI Commission Production (October 30, 2020)

On October 30, 2020, the AI Commission made a tenth production of records to EPIC.

Eleventh AI Commission Production (November 30, 2020)

On November 30, 2020, the AI Commission made an eleventh production of records to EPIC. The records included emails from AI Commission members Safra Catz, Eric Horvitz, and Andrew Jassy. The records also revealed that Eric Schmidt, chair of the Commission and former CEO of Google, filed a 38-page ethics disclosure form.

Twelfth AI Commission Production (December 31, 2020)

On December 31, 2020, the AI Commission made a twelfth production of records to EPIC. The records included emails from AI Commission members Andrew Moore and Eric Schmidt.

Thirteenth AI Commission Production (January 29, 2021)

On January 29, 2021, the AI Commission made a thirteenth production of records to EPIC. The records consisted of emails from AI Commission chair Eric Schmidt.

Fourteenth AI Commission Production (February 26, 2021)

On February 26, 2021, the AI Commission made a fourteenth production of records to EPIC. The records consisted of emails from AI Commission members Eric Schmidt and Safra Catz, a report on enterprise risk management, and a memo from the Office of Management & Budget.

OSTP Production (March 18, 2021)

On March 18, 2021, the Office of Science and Technology Policy made a production of records to EPIC that had been referred to the OSTP by the AI Commission. The records consisted of a redacted presentation about U.S. AI policy.

NSF Production (March 19, 2021)

On March 19, 2021, the National Science Foundation made a production of records to EPIC that had been referred to the NSF by the AI Commission. The records included information about the NSF's work on AI.

Legal Documents

EPIC v. NSCAI, No. 19-2906, __ F. Supp. 3d __ (D.D.C. Dec. 3, 2019)

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