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AI Governance in a Rapidly Advancing Landscape

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In the swiftly evolving landscape of artificial intelligence (AI) governance, navigating the intricacies of policy, ethics, and technology integration has become paramount. As AI technologies continue to advance at an unprecedented pace, governments, organizations, and individuals grapple with the complexities of harnessing its potential while mitigating associated risks.

On March 28, 2024, the Office of Management and Budget (OMB) issued and released Memorandum M-24-10, titled “Enhancing Governance, Innovation, and Risk Management in Federal Agencies’ Adoption of Artificial Intelligence.” This memorandum provides federal agencies with guidance on the necessary risk management measures that the government must implement for its utilization of artificial intelligence.

The recent AI directive from OMB sets out basic risk management protocols for  systems deemed to have safety or rights implications. Crucially for private-sector employers utilizing AI in their recruitment processes, Memorandum M-24-10 provides an extensive catalog of employment-related AI applications considered to have potential rights implications. Consequently, these applications are required to adhere to the memo’s prescribed minimum risk management procedures.

It also includes a list of AI applications presumed to affect rights those utilized for “biometric identification for one-to-many identification in publicly accessible spaces” and any application aiming to “Identify or gauge emotions, cognitive states, impairment, or deception in humans.”

The OMB provides instructions to federal agencies on their utilization of AI. For AI applications deemed to have implications on rights, the OMB instructs federal agencies to “evaluate the data’s quality utilized in the AI’s design, development, training, testing, and operation, and its suitability for the AI’s intended function.”

Employer Guidance

Officials from the Department of Labor, including the Solicitor of Labor and the Acting Director of OFCCP, have recently announced their intention to release a “more comprehensive, value-driven document” containing “principles and best practices” applicable to both AI-utilizing employers and developers of AI tools.

By late April 2024, we expect that the details outlined in OMB Memorandum M-24-10 will offer an early glimpse into the “principles and best practices” that the Department of Labor intends to release for private employers.

Employers who are presently employing AI in their labor and employment procedures should, at the very least, assess and contemplate whether their existing AI risk management protocols are in line with the latest OMB guidance, which sets forth minimum standards for the federal government’s use.

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