Week in Review

IN THE NEWS

• The Biden-Harris Administration issued an executive order to strengthen artificial intelligence (AI) regulation. The executive order focuses on safety and security standards, privacy protections, equity and civil rights, consumer safety, and worker support. The directive invokes the Defense Production Act, stipulating that companies creating AI systems, especially those that may risk national security, must disclose their safety test outcomes to the U.S. government. The order seeks to modernize the government’s AI infrastructure by providing guidelines to federal agencies on using AI and hiring AI experts.
• The Federal Aviation Administration released new memes to address the rise in unruly passenger incidents. The agency added a Halloween-themed meme featuring a couples costume of an unruly passenger and a police officer to emphasize the high cost of prohibited behavior, including potential jail time and fines of up to $37,000 per violation. The Federal Aviation Administration enforces a zero-tolerance policy for unruly passengers and refers severe cases to law enforcement.
• The U.S. Department of Health and Human Services (HHS) issued a proposed rule to discourage “information blocking” by health care providers and health systems. Though already prohibited by federal regulation, some health care providers intentionally interfere with access and use of electronic health records due to high costs of maintaining digital records. HHS’s proposed rule seeks to ensure that patients have access to their health information by deterring information-blocking. The proposed rule strengthens consequences for blocking information from patients, including exclusion from federal funding payments and participation in health care programs.
• The U.S. Department of Justice issued guidance explaining the application of the Americans with Disabilities Act’s “integration mandate” to public employment and day treatment services. The integration mandate requires state and local governments to provide the most integrated services possible, rather than segregated services that do not allow people with disabilities to work alongside people without disabilities. The guidance is intended to help local governments understand their nondiscrimination obligations and help people with disabilities understand their rights under the law.
• The Federal Housing Administration (FHA) published comprehensive guidance for seniors who choose to age “in place” in their homes. The guidance consolidates policies for the FHA’s Home Equity Conversion Mortgage program, which allows homeowners to withdraw a portion of their home’s equity to finance home maintenance or general living expenses. More than 60,000 senior homeowners use the program to age in place. FHA Deputy Assistant Secretary for Single Family Housing Sarah Edelman, said the guidance includes “updated language that delivers greater clarity about our existing policies.”
• The Federal Trade Commission (FTC) amended a rule that protects consumers from financial data breaches. The rule originally required security programs for protecting customer information collected by non-banking financial institutions, such as mortgage brokers. The amendment mandates that those institutions report specific data breaches and security events to the FTC. The amendment also requires institutions to notify the FTC within 30 days of discovery of significant data breaches of customers’ unencrypted information.
• The U.S. Department of Labor announced a proposed rule updating the definition of an investment advice fiduciary under the Employee Retirement Income Security Act. The proposal is intended to protect retirement investors by requiring investment advisers to adhere to high standards of care and loyalty when acting in a fiduciary role under federal pension laws. Acting Secretary of Labor Julie Su said the “rule ensures that savers of all income levels can work confidently with investment professionals to grow their nest egg and prepare for the joyful retirement they deserve.”

WHAT WE’RE READING THIS WEEK

• In a recent article in the Yale Journal on Regulation, Amelia Fletcher, a professor at the University of East Anglia and her coauthors explored consumer protection in the world of online markets and large digital platforms. Fletcher and her coauthors discussed the economic rationale for consumer protection, differences between online and offline markets, and the concerns these differences may create for both consumers and regulators. Fletcher and her coauthors suggested various policy solutions, including prohibiting fake reviews and ratings and requiring increased transparency for social media influencers about their endorsements.
• In a recent article in the University of Pennsylvania Law Review, Andrew Selbst, assistant professor of law at UCLA and Solon Barocas, a principal researcher at Microsoft, contended that the FTC is uniquely positioned to make AI less discriminatory. According to Selbst and Barocas, some companies use AI services that systematically perform worse on certain demographic groups, but that anti-discrimination laws provide an imperfect remedy to this harm. Selbst and Barocas argued that the FTC’s existing authority under Section 5 of the FTC Act to curb unfair trade practices can protect consumers from businesses that use discriminatory AI.
• In a recent report, the National Academies of Science, Engineering, and Medicine discussed federal policies to promote health equity. The National Academies contended that the federal government should better coordinate federal agencies and incorporate more community voices to support state, local, and tribal governments in mitigating health disparities. Specifically, the National Academies recommended that the President create a standing federal entity empowered with “advisory, coordinating, and regulatory powers” to improve racial, ethnic, and tribal equity.

EDITOR’S CHOICE

•  In an essay in The Regulatory Review, Richard J. Pierce, Jr., a professor at the George Washington University Law School, argued that the Internal Revenue Service should take action to avoid the adverse effects of the Inflation Reduction Act on clean energy markets. Pierce explained that the Inflation Reduction Act will create a clean energy market dominated by a few large firms because only a few firms are likely to have the expertise necessary to obtain the subsidies to enter clean energy markets. Pierce claimed the Internal Revenue Service could mitigate this effect by ensuring that all rules related to clean energy products and services are easy to understand and implement.