Congress is pushing forward with a data regulation bill that would trap Americans in a hidden tangle of quotas inside private software, says Stewart Baker, an influential lawyer in Washington, DC.
The progressive bill has emerged from the Democrats’ campaign to banish claimed discrimination from “Artificial Intelligence” (AI) software, Baker told Breitbart News.
The bill seeks to end “disparate impact” discrimination against the population groups touted by progressives by ensuring that AI companies face lawsuits if they do not level the outcomes of software “algorithms” used by many Main Street companies, Baker said.
But the demand for computer-enacted group leveling required by the American Privacy Rights Act of 2024 will ensure endless corporate discrimination against many individuals, Baker said, adding:
Anytime he applies for a job, anytime he asks for medical coverage, anytime he wants insurance … or if he wants to buy a house and get a mortgage, he will make an application and it will be run through a [software] process that says, “We need to make sure that we have balanced the successful applicants by race, gender, by sexual preference … We have an algorithm that makes these decisions. Don’t worry. It’s bias-free and certified as bias-free!”
“It is a remarkably ambitious effort to smuggle quotas into places in American life where they’ve never been, to overrule [the U.S. Supreme Court’s] Harvard decision, and make it almost impossible to undo,” Baker told Breitbart News.
The bill’s regulation of decision-making software also opens a new world for big government and Beltway technocrats, he said. “It is to technocracy what AI is to a desktop computer … it’s an opportunity to impose values [via software] without the messiness of having [citizens]… voting you down.”
“It’s the same phenomenon” by which social media companies and claimed fact-checkers regulate the free speech of Americans, he added.
In an article for Reason.com, Baker warned:
The provision could be adopted without scrutiny in a matter of weeks; that’s because it is packaged as part of a bipartisan bill setting federal privacy standards — something that has been out of reach in Washington for decades. And it looks as though the bill breaks the deadlock by giving Republicans some of the federal preemption their business allies want while it gives Democrats and left-wing advocacy groups a provision that will quietly overrule the Supreme Court’s Harvard decision and impose identity-based quotas on a wide swath of American life.
This tradeoff first showed up in a 2023 bill that Democratic and Republican members of the House commerce committee approved by an overwhelming 53-2 vote. That bill, however, never won the support of Sen. Cantwell (D-WA), who chairs the Senate commerce committee. This time around, a lightly revised version of the bill has been endorsed by both Sen. Cantwell and her House counterpart, Cathy McMorris Rodgers (R-WA).
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At bottom, it’s as simple as that. If you use an [software] algorithm for any important decision about people—to hire, promote, advertise, or otherwise allocate goods and services—you must ensure that you’ve reduced the risk of disparate impact.
The Supreme Court is moving against the legal status of quotas, mostly clearly with a 2023 decision barring racial quotas in university admissions. Those quotas emerged from the 1960s effort to end racial bias by promising affirmative action as a defense against lawsuits.
But this bill does not formally impose quotes — it only threatens companies if their private database numbers produce patterns and decisions that progressives dislike, Baker said:
This is an effort to outsource the imposition of quotas in a way that makes it hard for people to realize that they’re being hurt, and almost impossible to figure out who they should sue
Conservatives and moderates will oppose the hidden quotas, but will face a tough legal battle if the bill becomes law, he said:
There will be an [legal] argument that because it encourages — well, practically mandates — quotas that this would violate equal protection [required by the constitution]. But I think [the bill] has been designed to say “No, no, no, we’re just trying to make sure that we don’t get biased results from algorithms, and obviously, the Equal Protection Clause doesn’t like bias.” So you’d have to find [a judge] who is willing to say that all of disparate impact [legal] doctrine is constitutionally suspect. I’m not sure we’ve got a court that will say that … And the mechanism by which it happens [in software] is complicated enough that a lot of this will happen without even people who are disadvantaged knowing enough to to sue.
But businesses will use quota software because they want to avoid lawsuits and bad publicity, he added:
Business has been on board with quotas since the 1970s. As long as they are guaranteed that they won’t be sued, that’s all they ask for — “Tell us how many of any particular class you want us to hire, and we’ll just hire them as long as we’re promised that no one will call us racist, and no one will sue us.” The law provides an assurance that is what is going to happen
The bill is being pushed by Senate and House committee chairs from Microsoft Corp.’s home state of Washington, Baker told Breitbart News.
Sen. Maria Cantwell (D-WA), who chairs the Senate’s commerce committee, is touting the bill for protecting “Americans’ Civil Rights”:
Stops companies from using people’s personal information to discriminate against them.
Allows individuals to opt out of a company’s use of algorithms to make decisions about housing, employment, healthcare, credit opportunities, education, insurance or access to places of public accommodation.
Requires annual reviews of algorithms to ensure they do not put individuals, including our youth, at risk of harm, including discrimination.
Retiring Republican Rep. McMorris Rodgers “is all over this,” said Baker. “It’s on her website, she’s in love with it.”
Ironically, McMorris Rodgers is also trying to expand online speech via a separate bill that would end the Sec. 230 law that regulates Internet speech:
…the legislation seeks to encourage Congress and stakeholders to work together over the next 18 months to evaluate and enact a new legal framework that will allow for free speech and innovation while also incentivizing these companies to be good stewards of their platform…
The quota bill, said Baker, “Is great for [big-government] progressives … because this is another technical lever that allows them to push a known unpopular — or at least not majority position — by these [hidden] technical tools.”
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