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Abstract

Legal policy and scholarship are increasingly focused on regulating technology to safeguard against risks and harms, neglecting the ways in which the law should direct the use of new technology, particularly artificial intelligence (AI), for positive purposes. This Article pivots the debates about automation, finding that the focus on AI wrongs is descriptively inaccurate because it undermines a balanced analysis of the benefits, potentials, and risks involved in digital technology. Further, the focus on AI wrongs is normatively and prescriptively flawed, as it narrows and distorts the law reforms currently dominating tech policy debates. The Law-of-AI-Wrongs focuses on reactive and defensive solutions to potential problems while obscuring the need to proactively direct and govern increasingly automated and datafied markets and societies. By analyzing a new Federal Trade Commission report, the Biden Administration’s 2022 AI Bill of Rights, President Biden’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, and American and European legislative reform efforts—including the Algorithmic Accountability Act of 2022, the Data Privacy and Protection Act of 2022, the European General Data Protection Regulation, and the new European Union Draft AI Act—this Article finds that governments are developing regulatory strategies that almost exclusively address the risks of AI while paying short shrift to its benefits. The policy focus on the risks of digital technology is based on logical fallacies and faulty assumptions, especially when failing to evaluate AI in comparison to human decision-making and the status quo. This Article presents a shift from the prevailing absolutist approach to one of comparative cost-benefit. The role of public policy should be to oversee digital advancements, verify capabilities, and scale and build public trust in the most promising technologies.

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