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[MUSIC] It's the law fair podcast. I'm Alan Rosenstein, associate professor of law at the University of Minnesota. And a senior editor and research director at Law Fair.
Today, we're bringing you something a little different. An episode from our new podcast series, "Scaled Lost." It's a creation of law fair and the University of Texas School of Law,
where we're tackling the most important AI and policy questions.
From new legislation on Capitol Hill, to the latest breakthroughs that are happening in the labs. We cut through the hype to get you up to speed on the rules, standards, and ideas shaping the future of this pivotal technology. If you enjoy this episode, you can find and subscribe to Scaling Laws
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“When the AI overlords take over, what are you most excited about?”
It's not crazy. It's just smart. And just this year in the first six months, there have been something like a thousand laws. Who's actually building the scaffolding around how it's going to work,
how every day folks are going to use it? AI only works if society lets a work. There are so many questions have to be figured out. And nobody came to my bonus class. Let's enforce the rules of the road.
[MUSIC] Welcome back to Scaling Laws. The podcast brought to you by Laugh Fair and the University of Texas School of Law that explores the intersection of AI policy and, of course, the law. I'm Kevin Fraser, the Director of the AI Innovation and Law Program at Texas Law
and a Senior Editor at Laugh Fair. I'm joined today by my guest co-host Kate Klannick, an Associate Professor of Law at St. John's University and a Senior Fellow at Laugh Fair. Today we're joined by Kenji Ishino. Kenji is the Chief Justice Earl Warren Professor of Constitutional Law at NYU and a member
of Meta's Oversight Board. He recently authored a piece in Tech Policy Press with fellow board member, Renato Lemos, arguing that Frontier AI companies should learn from the Oversight Board's approach to independent governance. But that begs the question of what exactly we should and shouldn't learn from the Oversight Board's track record and Kate and I dive exactly into that with Kenji.
To get in touch with us, email [email protected] or follow us on ex or blue sky.
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Kenji, welcome to Scalymon's. Thank you so much for having me. So everyone's heard of the Oversight Board or presumably everyone who listens to Scalymon's has heard of the Oversight Board, but just in case that their mind has been occupied with other things for a little bit, before we dive into how the Oversight Board model may apply to the AI space.
Kenji, can you remind everyone, well, first and foremost, what your role is on the Oversight Board,
“and then just say brief overview of the Oversight Board's origin and jurisdiction?”
Fantastic, although in terms of origins, Kate might be the global expert on this. So I may have to defer to her and her excellent work. So the Oversight Board is a group of 20 individuals who are experts in some domain of social media regulation, and the board has been in existence for six plus years, and our job is to evaluate meta's content moderation decisions against both their own state at standards and against
International human rights law.
So I'm a constitutional law professor in terms of my day job.
“So Kevin, I always think about this a little bit like judicial review, right?”
So like the community standards that meta itself promulgates are like statutes.
So the first order of business is to say does this post kind of conform with the community
standard or not in terms of the ultimate decision that was made about it? But then there's a kind of secondary question, where even if the community standard was kind of totally executed to the jot and tittle and was kind of perfectly done, the community standard itself could violate international human rights norms. And so if you have a lack of notice or if you have a violation of the rights of a protected group
or there's no proportionality or some such, then we could say that the community standard itself needs to be tweaked. And so it's really that two tier decision making that we engage it.
This is a really present company included extraordinary board. It is 20 people around the globe.
And it's been tremendously exciting. Really, you know, I know, and we will get to ensure the criticism of the board monoc on the board. But it really has been one of the great kind of pleasures and honors of my professional life to be able to engage with 19 other people from around the world to try and solve a global problem with our social media. And going back to the origins of the board and Kate, you know, if you have anything to add,
please do. We didn't really begin from the city on the hill. We didn't begin with idealism. We began out of other crisis. So this is a moment when Cambridge Analytical is happening. If you can cast your mind back there or where the Rohingya Massacre was being attributed in part to Meta's lack of care with regard to its policies. And so we were really created in order to create some guard rails for the organization. And so oftentimes,
this is a part of the irritation for everyone on the board. We're kind of conflated with Meta, but we really regard ourselves as being independent of Meta and being Meta's watchdog. So what have I left out? Well, there's only so much we can dive into for the sake of a single podcast.
“So I think you've done an excellent job of setting the initial scene. One thing that I'd love to”
explore a little bit further as you raise in your recent tech policy piece from July 7th that you issued with your fellow oversight board member Renato Lemis. Lemus, excuse me, was the fact that you mentioned in that piece as well as you explained here that the oversight board is continually a sort of working progress. And of your accomplishments or of the actions you all have been able to take, you've issued more than 200 decisions and you've also issued more than 300
plus recommendations. And so as we're exploring this as a potential model to apply to AI labs and more generally the idea of private oversight or independent oversight of any other entity, can you delineate the difference between when you all issue binding decisions and when you all issue recommendations and to what extent those recommendations have actually informed Meta's practices? Great, yeah, thank you so much for saying that because I should have included that in my
intro. So the original commitment that we have according to the governing documents that Meta created was that on leave up, take down decisions, we are binding. And so as someone says, you know, I think all trans people should kill themselves, which was one of the cases I'm proud of stuff, where we said that actually it was going to complete violation and I've received
“a sign of self-indulatory policies as well as at the time your anti-trans policies, so you have to”
take it down. They've always abided by that. So in that sense, a leave up take down decision
is binding. And as you say, there've been 200 of those. Sometimes we all get a little bit hot under the collar, I will say, you know, that when we told Meta that it needed to take down the Hansen post, so this is the then Prime Minister Cambodia inciting violence in our view against his political opponents and along speech that he gave. Meta had a very different view, you know, and you know, in fairness, it was a, you know, it was a totally arguable position to say it was one clip and a
long video, and he said, you know, we'll just take the bat to that, you know, if they know, if they resist us and it's taking the bat to Southern really incitement to violence or not,
Etc, etc.
especially against past history and like, and so we said, take it down. And that was the moment,
“you know, I think every kind of governmental official or quasi governmental official, even a minister,”
it has those kind of maker break moments where you make a decision you kind of hold your breath. You know, Justice Scalia used to say this about Bush versus score, where he, you know, it should be opinion and he was so proud of the court that the country followed. And this is a moment not to compare ourselves to the Supreme Court or to that moment decision where we did hold their breath because they thought, you know, Hansen could react to this by shutting down the entire
internet and the country, or he could respond to it by a kicking face book out of Cambodia. And so it was really something that costs a company, something, but the company still abided by that. So I'm incredibly proud of both ourselves and of Meta for abiding by that agreement to say if
it's a leave up takedown, it is binding and Meta has never betrayed us on that. With regard to
the recommendations, there is a requirement to respond to the recommendations, but not to take the recommendation. So they're forced into dialogue with us, but they're not forced to do anything. That said, I hope because we are kind of both reasonable people on both sides. They've taken over 75% by our count of our recommendations. So usually you can argue or make other case towards some kind of change. You asked for an example, you know, labeling
of manipulated media was something that kind of shockingly they were doing, you know, until we pointed it out and the Biden manipulated media case. And so now that is just, you know, standard there. And the social media universe. And so that's, you know, Instagram, you know, and Facebook and recently we've moved into threads and other areas as well. So and if I could say one more thing, like in the, when I was actually interviewing for the board
and it seemed like there were like 12 layers of interviews have never gone through so many
interviews. So it's a final point telling me to have a little bit of it. I was like, you know, if you don't believe me, but like I'm not doing anymore interviews. Like, you know, you basically know me better than, you know, just the family members know me. So, you know, at this point, like we really have to fish or cut it. So they took me, thankfully, and I'm very glad that they did. But one of the things I kept asking was, are we binding, are we binding as a real tease
if there's a legitimacy here? Because I don't want to be some kind of heat shield for a matter. I don't want to be some kind of ornamental. You know, it's a lot of time. You know, I don't want to be some kind of ornamental kind of thing. You know, that they're just attaching to make themselves look better. And the insistence was that we are binding. We are binding the up-down decision. That said, I will say that if I were to measure our impact under kind of true serum, I would say
that our biggest impact has been with the recommendations, not with the up-down decisions. Because so many of the up-down decisions are just like, not go ahead of things that somehow flew under the wire, right? So, you know, the trans case, again, going back to that would be a really good example. If anyone had really properly looked at that, they would very clearly see
“that a violated the community standards. They didn't really need us to tell us to do that, right?”
But the recommendations tend to go to the heart of how things like that happen. So, we would ask things like, are you aware enough of what trans phobia looks like? Because it's a kind of a line creativity going on there where it wasn't this naked. Oh, well, trans people should kill themselves. It was a curtain that was hung. And a capture was, you know, self-hanging curtains, right? So, if you put it all together, it was pretty clearly, you know, trans people should kill
themselves. But our question was, are you doing enough internal training of these moderators?
So, that they know that this kind of a line creativity goes on because it's always a escalation
where you create a policy and then someone tries to debate it. So, even though the thing that I was focused on before I stepped on the board was just this hard line, it is so order. Like,
“do you have to carry out the order? Ultimately, I think what, you know, Joe Nye, a call soft power”
has been much more effective in terms of us moving the giant battleship that is meta and one direction are the other. It's worth a commenting and kind of laughing about the company that once said move fast and break things being described as a battleship. But I'll leave that for another podcast to dive further into. Kate, I know you had some additional questions. Yeah, I just, you know, after years of watching on the Oversight Board get set up, um,
Then, uh, of course, watching it from afar and kind of, um, hearing, you know,
back channel to people that were at the Oversight Board, people who left people who are still there,
“um, kind of a lot of the things that you're saying can be really resonate, um, and I think they”
have the ring of truth to me because I hear them from so many different people and I hear them kind of and, like, mostly the same way. One of the main criticisms of the Oversight Board has been that it
takes such a small percentage of cases, which I always think has been so misguided because in the
practicality, like maybe you take like one one, you know, one out of every 100,000 cases, if that, that actually, like a lot of these things are in error, like the actual error, like they just enforce their, their, you know, the Facebook enforce the rules incorrectly and are happy to kind of to traverse themselves and like in the small instance, but what I have been really surprised by and I wouldn't have predicted is the value of recommendations to send this signal and also to
consolidate stakeholders on the other side of things, which I just think is, and I put that down as a flag because I want to actually talk about that role that it could have in AI governance, because
there is, there's all of this talk about multi-sakeholder governance, there's all of this kind of,
like, ideas and it sounds so soft, frankly. I mean, it is because you just have people that's happen to have access to these groups and this, like, way of doing things and it's people who can set up an organization or people in some people who have connections to Facebook or some people who don't.
“But the Facebook Oversight Board, the meta Oversight Board ends ended up being a really, I think,”
overall, one of the things that I've been most struck by is when I go from stakeholder stakeholder that engages with you and a lot of people who are skeptical of it, that at the five-year anniversary, a lot of them are like, "No, we actually really love it." Like, we actually really love it, and that shockingly was not just stakeholders that had been skeptical. I heard that from people that were at the upper echelons, the top 50 people in meta, saying that they had opposed it the entire time
that I was inside the company covering it and I heard about how much they were trying to kill it. And now they have, like, had this about face because actually what it is is this really wonderful way to surface more kind of reflective norms that represent not just human rights norms, but norms generally and law in such a comprehensive transparent way. And, you know,
the otherwise, how are they going to do that? The policy team loves you guys, because you basically
do all this incredibly hard thinking for them. And you're the right people to do it. Like,
“right, you know, you're thoughtful. I think you are. Like, you're thoughtful. Like, really well”
reasoned people with great, great diverse training in these areas, from diverse parts of the globe. But that being said, I do think that one of the things that I'm super interested in is that you said at the beginning that the entire point of setting up the oversight board. And I think this is kind of something that people miss was that you were, there was a response to this idea that Facebook was in this reputational hole, right? Facebook had no other choice in 2018 when Mark announced that he was
going to start setting up this board, then to try to kind of dig themselves out of this. And he hadn't very little to lose by setting this up and kind of being responsive to this. And it was imagined as a group that was going to go forward and maybe be a model for all of these other platforms for governance. And then it didn't happen. I talked to a lot of places. TikTok, you know, TikTok a few people informally at YouTube a couple places I probably can't mention. But like some
a lot of places that considered setting up a reciprocate boards and the main thing was like, we just are not hemorrhaging. Like, reputationally the way you met it is, we don't have to do this. So fast forward to like the AI movement. And so I'm really kind of curious like what you think, you know, anthropic has set up this long term, long term benefit trust. I really take your from, but what has changed? What do you think has changed? What do you think this moment has
possibly changed that would create the incentive to do for lack of a better term, the right thing. Like to really set up these these responsive arms of these incredibly incredibly important public facing companies. Yeah, and we've talked as well about Jack Balkan's piece, you know, free speech is a triangle, right? And so the game at not just governmental actors and speakers, but these companies is being incredibly important, you know, actors and the speech landscape.
So, you know, everything that you said was music to my ears, you know, thank you for your kind words. But I also totally agree with you that my biggest worry is that we are not going to see
The groundswell of activity that we saw to create the meta oversight board un...
an analogous crisis in the AI domain. So, you know, one who argued that there happened some crises in the AI domain. I'm thinking about the allegations of about, you know,
“chatbot encouraging self-harm and suicide and the like. But I think it's going to take something”
of an even larger scale, you know, whether it's, you know, national defense or something really wide scale, that is going to be the wake-up call that says, we need to create a board. So, it's just, you know, sadly human nature, like we can have the most idealistic and best intentions, but I don't think we get our act together institutionally until the kind of rubber hits the road. And so, as I said earlier, we were not board out of idealism, we were board out of other crisis.
And my side prediction is that we'll take a similar, you know, event, right, in the AI domain for people to wake up and say, well, wait a minute, who is, you know, holding people accountable here. "Boo, you know, you know, you know, I have your mobile room, your whole world has been murdered, me!" "I'm not my husband!" "Phew, just a old trauma." "With mobile functions in real life, Frank, just a mobile room for 10 Euro emunat,
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the KickBasep, just download and take a look. Good kick and fun! So, Kenji, there's so much we can dive into with respect to whether the oversight board maps well into the AI space first and foremost, I think the most obvious issue is content moderation is one thing, right? And as you noted and as Kate noted, calling a strike or a ball in the context of should you be able to say you want to kill trans people? For all intents and purposes as we've
discussed here, pretty dang easy to decide that question. Yes, that is a horrible use of the platform and is prohibited under international law and the community standards. For something like,
“should we develop an AI agent that's going through a place 10,000 jobs in a period of three days?”
This is obviously a over exaggeration, but for those sorts of decisions having anybody that has the requisite degree of expertise and background and knowledge and time and resources is incredibly difficult. So you and Renato highlighted three things that you want to see from anybody that is
in this kind of independent regulatory space for AI. First and foremost, you highlight having a
credible body of overseers who are both independent and representative. Second, you say that they need to have meaningful oversight such that there's a credible, external body of standards. And then third, you say that there needs to be transparency about what the decisions are, how they're made and how they're responded to by the company. So we've got this nice three-part framework and I think just about everyone listening to the podcast would say,
yes, yes, and yes, all of those things sound great. But of course, as you all have experienced at the oversight board and as anyone who develops policy has experienced, the difficulty is that rubber meeting the road mentality. And for something where right now, as listeners have heard me say on many occasions, we're still at the national anthem of this ball game, right? We haven't even
Thrown the first pitch, only 3.
what problems and what crises may be ahead. You know, there's very real issues right now, but it's going to get so much wilder. And so I wonder, you said, you're one of 20. And you all have a pretty substantial budget. All things considered. We can get into a funding, perhaps later. But do we need five different oversight boards? Do we need 15 different oversight boards? Or do you imagine a sort of single entity being able to play this role not only for
a single lab, but perhaps across labs, because one other thing that's interesting about the oversight boards origins was some degree of optimism that the model would then spread to other platforms, and that you all would become the oversight board for Facebook and for this other social media platform and so on and so forth. So let's just start with, do we need multiple oversight
“boards? Or is this a model that you think can scale in some other way to govern AI?”
Yeah, that's so amazing. Thank you for that. So let me begin because there are two things that
tie together. So one is, you said, in our three criteria, perfectly correctly, that one of our criteria was that there has to be some, well, first of all, credible body of people, external body of law or standards at the company can't change on its own. And then finally like transparency, right? And it's that transparency that did us in and Kate, you know, you know, this better than anyone, but, you know, I kept thinking rather than I evenly, like, oh, well, I know a lot of people,
like, oh, you know, through other things like diversity and inclusion work, you know, I know a lot of people at the companies that we can reach out to, like, did, you know, PayPal, let's reach out to those people. And of course, we got sort of one door slammed in our face
“after another. And as I thought about it, I thought, like, hey, why would they join an organization”
that was seen as Madness creature? Because Madda would, first of all, they're confidentiality issues
and, like, how good are the firewalls, et cetera, et cetera. And then second of all, there's this notion of any kind of credit really redounce to Madda in the first instance. And so why would you allow a competitor to take a victory lap around you? But then the last thing that I didn't think of was that we were victims of our own principles because we thought, you know, this has to be a public good. It has to be published set of opinions that anyone can read. Like, we can't ask people
to pay for it. We can't hide it. We can't just send confidential advisor opinions to Madda. We have to, you know, publish it to the world. What we realize is that people, and I know this because I have a conversation with the people who say, like, we love your opinions. We totally free ride off of you. There's absolutely no reason why we need to sign up for Madda, even without
the first two issues because this is a public good and we could just, you know, download it and,
you know, learn what we need to learn from it and then we're done, right? So they get all the benefits without any of the downsides. So in an ideal world, right, this would be baked in from the beginning. So the question of how many oversight boards there needs to be. In fact, is an outgrowth of that point, which is to say, if individual companies, like, let's say, anthropic, you know, says tomorrow, you know, we want to let other people into this public benefit
trust, kind of arrangement, and it really needs to be, you know, a multiple company oversight institution. Our experience tells us that that's not going to work, right? So if that's a model, then you're going to need one per company, right? Which is like great, right? So in an ideal world, you know, much as I hate criticizing my own institution. If the oversight board was starting today, it would not be solely metafunded. Like everyone would pay into it, understanding that there
were hangier crisis, and a logs are going to be spreading all over, you know, other platforms as well, right? And then it would represent many platforms. Even then, I don't think it should be one body, because I don't think, right, you know, one body should have that much authority or power, and there should be some given taken pre-collog. And of course, you know, I didn't say this earlier, but I'm a firm believer to one of the questions that you put to me and your breathe,
that self-governance and, you know, regulation are not mutually exclusive. Like I absolutely believe that we're operating the shadow of the law and that regulation is ultimately good. I need to be
“a huge, you know, factor, right, in the regulation of AI. Right, and I think highlighting also that”
there is some degree of self-governance that's already underway in the AI space. So we've had open AI's model spec, Claude's Constitution, as these documents that attempt to identify redlines
For their models, as well, as well as values to embed within these models.
the folks who were charged with drafting those documents, though, they'll admit, hey, you know,
it was a pretty insular group in a pretty ad hoc fashion that went about developing these safeguards, and as you've flagged also, there's a bit of an awkward moment when you're charged with interpreting the own rules that meta has promulgated in the community standards that they've promulgated. And so when we actually analyze to what extent is self-governance right now doing
“its job, I think that's a key question we have to grapple with because when folks here,”
Claude's Constitution or model spec, they think, oh, wow, they're doing it. They're doing the thing. This is great. We're seeing action be taken, and one model that Kate and I were discussing
was this idea of the long-term benefit trust, which all of the sudden is hotter than Kool-Aid
here in Austin. And so I know we want to explore that further in Kate. I know you had some particular ideas to dive into with respect to LTBT's. Yeah, so, um, Kenji, I kind of want to supposition something and just see what you think of it, because as a con-law professor, someone who's been on the oversight board, but there's this huge difference in my mind between platform governance and things like the oversight board, and even the metaphor that permeated the setup of the
“oversight board, which is like these, the spring court. And the long-term benefit trust, which is”
this idea that, um, anthropic setup in like late 2023, that was essentially, you know, it was a,
I'm not going to get into the details of it, but there was a stage. There were different types of
people that were appointed from different types of places to be on their board. With the idea that you would kind of like hold them to this public benefit type of idea, and it would be at the corporate governance level. So it would be at this level of where the money was being made, and so they would have kind of this, like, very kind of real power. Now, what's really fascinating to me is that AI is kind of gravitating to this language around constitutions and corporate governance,
whereas, like, meta-gravitated to kind of this very right-space framework, and they're slightly different. And what is because, like, you know, you're really talking about like the users and user voice, and like that type of idea in a platform governance setting, like the one that the oversafe board does, but the long-term benefit trusts the idea of governance the AI level isn't really about, like, you're right to speak on a platform, right, or you're right to be heard,
and right to be listened to, it's really truly kind of about the safety of humanity. It's about kind of people having, you know, this is, it's a much kind of more holistic existential question. And so it's kind of interesting to me, and I wonder if you have thought much about the fact that, like, there is this, there is this, you know, uptake in this idea that's more corporate governance-based, then it is kind of traditionally, you know, right-space, or things like that. And if there's room
for both in the AI context, or you think that it's correctly based in the corporate governance,
“the corporate governance kind of stature? Yeah, again, thank you for that. So, I think there's definitely”
room for both. And in fact, the pieces of the oversight board model that I think are most transferable to the AI context are the three governance principles that I was talking to Kevin about. So I really view those points not to be about individual rights, but much more to be about what structure of governance would we need to assure that we get good outcome. So that's sort of thought number two. Number one, thought number two is I really don't like the sponginess of
individual rights or ethics or the like. And the one thing that I have really loved about the oversight board is that we hang our hat on international human rights law. So I would like the rights piece of this to not just be as Kevin was saying like a cloistered group of philosophers talking. I mean, it's it's wonderful. You know, I have a STEM kid and he made these kids. I'm like delighted for my humanities kid that philosophy is like the most employable major now
apparently in the world. But I'm kidding, of course, but I don't think it's a good idea for people to leave it at the level of ethics because it's too subjective and it's too insular. Whereas when we look at international human rights law, that is a diverse global body of law that we have iteratively constructed over decades and feels much more stable and much more like
Common language of rights so we could all have.
and if we're tilted too much over one wing, then we're in trouble. And I can't resist. I mean, the Comma guy at me says, you know, Greece with my colleague, Rick Hills and many others that and I'm sure, well, I suspect you tell me, Kate, that you would agree with this too, that, you know, even though we divide constitutional law into structure and rights, those two pieces are so intercated with each other that they're really impossible to talk about and pacificated
way without it's impossible to talk about law in a sophisticated way without talking about the
“other, right? So like, I always say to my students like, well, then who protects your rights?”
You know, because if it's a court, it's one thing, if it's Congress, then we have a separate provision of the Constitution, you know, section five of the 14th Amendment that guarantees equal
protection rights, et cetera, et cetera. So the structural pieces and the rights pieces are always
already kind of intertwined with each other in a way that makes me a little bit, you know, nervous or allergic to conversations that say, is this a rights problem or is this a structural problem? It's always going to be both. Yeah, so I kind of want to just follow up on that really quickly, which is such an, which I would put it slightly differently. I would be like, it would kind of be like, it's an enforcement question. It's a question of how exactly whether structural or
rights based, the structure might dictate who is doing the enforcement or how it kind of takes
“place, but the actual enforcement of these types of things is a huge part of this. And one of the”
interesting things is like we were talking about the very head of the show that Kevin asked set up these questions about the binding nature and this question of how impactful these kinds of recommendations are, but one of the things that I'm super interested in is, of course, the corporate governance structure of the long-term benefit trust, you know, we watched with the the blip, basically as they call it, the moment when Sam Alman was fired and then was brought back from like the trust and
like the entire board termed over and there was all of these types of things, these questions of kind of like how really kind of public benefit corporation be enforced. And if this, if you, this was exactly the moment that like the trustees thought that he was deferring from the public benefit and so they fired him. And so then there's a riot of like kind of that the employees and that he
“comes back, I really do wonder like what is so much better about the long-term benefit trust in your”
mind than just any type of public benefit corporation or any type of corporate board that has to in some way kind of balance shareholder rights in some type of capacity is, you know, even if it's just kind of written on paper. Yeah, I mean, I want to be cautious here because I really respect and profit, but I have the same hesitation, which is we were talking about sort of open source code. I would really like open source governance and the fact that the public benefit trust documents
are not publicly available is really alarming to me, right? So the oversight board does, you know, publish all of its charters and you know, underlying documents for anyone to see. And so the fact that this public benefit trust is being governed by principles that we ourselves are not per beat to kind of violates my transparency norm and so it it puts up some of my antennas. All that said, you know, Kate, I mean, maybe I'll turn this back to both of you. I mean, to me, the
question is always not is the oversight board perfect or is this benefit trust perfect because
of course we're not and they're not and no one ever will be. It's really a compared to what question and I want I want to take that serious. It don't want to say in that disposal or everything because of course it's better that the oversight board exists than that it not because one could say, oh, well, the fact that the oversight board exists gets matter more credibility than it should and it protects it for a regulation. I've seen no evidence of that. I've seen no evidence of the
existence of the oversight board. It's performed any kind of sheet heat shield function for matter. I've seen no evidence that it has slowed, you know, the DSA from going online or other attempts to regulate social media. I don't think the existence of individual regulation is going to prevent these lawmakers from stepping in and saying there's certain problems that only we have because they're collective action rates to the bottom type problems that only we have the authority
to stamp out and so it's just an institutional confidence issue. But, you know, at the risk of over simplifying, right, I do think that if the question is compared to what, then the issue would be
is the oversight board better than regulation and then the million dollar question is, are we preempting
or even slowing down regulation and then the answer to me seems to be even being empathetic? No, so that seems like a false choice and so then it really does become a is the oversight board
Better for existing and dealing with the cases.
matters operations, but that is way more than anyone else in the world outside of matter has,
right? So if we're using that in order to, you know, shove our human rights values through there to make some metaphors, how can that be a bad thing, right, compared to it not existing at all?
“That's why I think your metaphor for open source governance is so compelling and is”
particularly true with respect to AI because it's not only speech, but it's the economy and it's our culture and it's our politics and it's the concentration of power and it's all of these things and so a sort of governance and layers has to be the solution where we're thinking about novel checks and balances, but one other thing I wanted to call out with respect to the long-term benefit trust and similar models that I would just encourage listeners to dive into whenever these
things get released is number one transparency, as you pointed out, if labs are complaining that a voluntary framework by the administration is Clint Destine and being kept secret from public observation, transparency on their part is welcome and they are free to share as much information as they like. My radical own take is that I think labs should publish their org charts and show their decision workflows before reaching major decisions, that to me seems like basic common sense transparency,
that is necessary in this context, but one other thing that you and Ronaldo point out is that the trustees on the "long-term" and I'm doing scare quotes for those who aren't listening are watching, the long-term benefit trust has trustees that only serve one-year terms and if you're only serving a one-year term, that is a short term incentive structure, right, where you're just thinking about decisions you can make here and now versus incentivizing that longer term perspective and
something that I want to touch base with you as well is how we're actually going to incorporate future impacts of AI on communities that aren't even using AI yet, right? You can go and you can look at where is AI actually adopted and there are whole communities the world over that of
incredible numbers of young people who are going to be the majority of AI users in the future
and yet our governing institutions rarely look like them, but when it comes to making sure that we
“are scrutinizing these self-governance mechanisms, I think we have to really go back to those incentive”
structures and so long as those incentive structures don't in line with what we expect that governing institution to accomplish, I think it's some degree of governance theater in some aspects. Yeah, again, you know, hard to agree with that, you know, except for one-to-one caveat, which actually stunned me, which is that I looked at a university study that said like 30% of undergraduates don't use AI and it was for environmental reasons, largely, of saying, you know,
every time you use it, you kill a treaty and so we're just going to be socially responsible, which made me think, wow. So this idea that, you know, younger generations, well, inevitably have greater optic of AI. I think it's largely true, right, but I just wanted to, so then I don't seem like too much of like a softball guest here, you know, enter that point of caution or disagreement. But like I, otherwise, I entirely agree with you, which is to say, you know, these governance issues
are the really core issues and so if you have individuals who aren't affected, are affected by AI, but aren't at the table, right? You know, I just recently heard an AI speaker, you know, come in and say, you know, if you're not at the table, you're on the menu, so watch out, right? And so I do think
“that there's a lot of that. I think one thing I would throw back, though, is to say that, you know,”
I think we're having a kind of, and putting on my law professor hat now. I think we're having the law of the horse debate all over again. So Frankie Sturbrook famously said about the internet, not about AI, that we don't need a law of the internet anymore, that we need a law of the horse. You both, of course, know that. And he said, you know, if you're selling a horse, then the law contract will govern it. If you've been trampled by a horse, then, you know, the law of tour will cover
it. And so, you know, basically this new thing can actually be absorbed by different principles.
And I think that's actually a kind of heartening point, right, which is to say, I work in civil rights a law. So this is a place where almost knowledgeable, where I look at the huge effects of inequality that AI could have because every Fortune 500 company that I know is using AI in hiring promotion, recruitment, advancements, you know, et cetera, et cetera, like eightfold or workday or or what have you. But disparate impact law is actually very good at screening this kind of stuff out.
You could have these case decisions like the Walters case that say like AI do...
any kind of intent, at least in the case of defamation, right, that's state court in Georgia. So,
“you know, take that with a grain of salt. But disparate impact doesn't require any kind of intent.”
And so if you have a workday or eightfold and it just proportionally weeds out, people with disabilities, because say you don't make eye contact enough in your video AI interview or age, right, because it has these, you know, correlations that's developed through its training data about age and competency or race or gender or the like, then you're going to get nailed on disparate impact graphs, right. So the one area, and there's a case as again, I'm sure many
of you know, it's called Mobley and versus Workday and the North District of California,
which everybody is watching very, very, very careful to see whether or not the law of the horse
premise of we don't need a law of the horse because we have disparate impact will play out. So that's one thing that could protect us. But going back to your side of the larger Kevin,
“I was at a faculty workshop and I'll just name her because I think she would stand by this”
and would be, and should be proud of this comment. But Kathy Strandberg, for some privacy issues, said the one place where I think we do kind of need a law of the horse is privacy, right, because the extent kind of privacy laws just didn't understand the kind of scale and truceiveness, right, that AI could engage and buy, you know, scraping our data and, you know, doing the mosaic thing of putting together a portrait of us. And one of the most fascinating lawsuits in this
domain is the Ficra lawsuit, which I think is less well understood than the discrimination title set on type lawsuits where out in the gold and Jenny A and the former EOC commissioner is bringing this and she's saying, if you're scraping my data to create a profile, it's to whether on employable and you don't give me a chance to robot that when you collect it from things that are not easily and publicly available, like say, my credit score, then the fair credit reporting act,
you know, structures apply and so therefore you could be liable on that basis as well. So, you know, that's an interesting, I'm watching that case really closely as well to see whether or not they can secure us some gains at privacy. But I'm with Strandberg, Professor Strandberg, intuitively, and thinking that privacy might be the one domain that's different from my neck of
“the woods, which is a quality. Yeah, and I think what is really going to be a question for us to”
answer on this law of the horse inquiry is the extent to which AI's technical elements expose more fields than just privacy as things that require updates because one of my grave concerns right now is you can go to SF and you can hear people using terms talking about spinning up agents raising their hand that they have 100 agents working on their behalf and using lingo that the rest of the country would not understand. And what I worry is that too much governance
being concentrated in one community or one geographic community is going to leave everyone else who used to be able to enforce the law of the horse, for example, stranded. And so if we don't have that sort of epistemic understanding being distributed enough across folks who can hold truth to power and contest decisions that are being made, well then that's really where you run into some governance challenges. And so I know Kenji, you're studying these issues, Kate,
you're studying these issues. I've got to get back to writing and have some students to go teach about this law of the horse and AI and all that jazz. So Kenji, unfortunately, we're going to have to leave it there. But this was so much fun having you on. Thank you for joining and walking through your excellent tech policy press article. Oh, the joy to be with you. Thank you so much for having me. Scaling law is a joint production of law fair in the University of Texas School of Law.
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