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"Without new protections," they warned, "today's supercharged, AI-powered algorithms risk reinforcing and magnifying the discrimination that marginalized communities already experience."
U.S. Senate Majority Leader Chuck Schumer and Sen. Ed Markey on Monday sent a letter urging the Biden administration to pursue additional action to protect civil rights and liberties related to federal agencies' use of artificial intelligence.
While recognizing the "strong steps" that the administration has already taken—such as President Joe Biden's October 2023 executive order—Schumer (D-N.Y.) and Markey (D-Mass.) stressed to Office of Management and Budget (OMB) Director Shalanda Young that "more must be done" to mitigate, prevent, and eliminate algorithmic bias and discrimination.
Specifically, the pair is pushing OMB to "require all federal agencies that use AI for consequential decisions to establish a civil rights office, if they do not already have one; ensure all civil rights offices are staffed with experts in algorithmic discrimination; and encourage federal agencies to establish additional safeguards to prevent algorithmic discrimination."
As the Biden White House explained in its 2022 Blueprint for an AI Bill of Rights, "Algorithmic discrimination occurs when automated systems contribute to unjustified different treatment or impacts disfavoring people based on their race, color, ethnicity, sex (including pregnancy, childbirth, and related medical conditions, gender identity, intersex status, and sexual orientation), religion, age, national origin, disability, veteran status, genetic information, or any other classification protected by law."
"Biased algorithms have increasingly been used to make or influence decisions, imposing real harm on Black, Brown, immigrant, and other marginalized communities."
The ACLU earlier this year sued Biden's National Security Agency in hopes of uncovering how it is using AI, and emphasized concerns that the NSA's use of such tools could harm civil rights and liberties.
The senators wrote Monday that "by ensuring that agencies have the resources, personnel, and policies to detect and mitigate bias, we can ensure that the AI age does not come at the expense of already marginalized and vulnerable communities."
"Without new protections," they warned, "today's supercharged, AI-powered algorithms risk reinforcing and magnifying the discrimination that marginalized communities already experience due to poorly trained and tested algorithms."
The senators highlighted how "biased algorithms have increasingly been used to make or influence decisions, imposing real harm on Black, Brown, immigrant, and other marginalized communities," citing examples from mortgage applications, hiring and employment, government benefits, and healthcare.
Earlier this year, OMB issued guidance regarding government use of AI tools, which Damon T. Hewitt, president and executive director of the Lawyers' Committee for Civil Rights Under Law, called "a significant step to implement meaningful safeguards."
Noting that the guidance directs agencies to "cease use of any AI that the agency finds cannot adequately mitigate unlawful discrimination," the senators argued that "OMB should also work with agencies to set strict guidelines to prevent algorithmic discrimination within relevant agency jurisdiction."
The OMB, they said, should push agencies to require recipients of federal funds and contracts "to complete pre-development, pre-deployment, and ongoing impact assessments to identify, mitigate, prevent, and eliminate biased AI," as well as "to allow individuals to opt out of AI-powered algorithms used in consequential decisions and instead request human decision-makers."
The senators also urged the office to pressure U.S. agencies to "fund the development of common, accessible resources for auditing algorithms—including open-source tools—for bias, discrimination, and other harms," and to "develop guidance on best practices for mitigating the development and deployment of biased AI-powered algorithms."
"Finally, because a regulation is only as strong as its enforcement, OMB should support federal agencies that take robust enforcement against any company found to violate these rules," the senators wrote, calling on Young to convene inspectors general to coordinate on best practices.
Reporting on the letter, Axiosnoted Monday that "Schumer's bipartisan AI roadmap fell short for civil rights organizations that wanted stronger language on algorithmic bias and discrimination."
Meanwhile, Markey has been a key force behind both the Algorithmic Justice and Online Platform Transparency Act and the Facial Recognition and Biometric Technology Moratorium Act.
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms.
President Biden has already accomplished an incredible amount to help create a federal judiciary that works for everyone. From the confirmation of more than 200 qualified and diverse lifetime judges (and counting) to advancing a long-overdue conversation about modernizing and reforming our Supreme Court so that we can one day trust that it provides equal justice for all, we are making important progress. At a time when the extremist majority on our nation’s highest court has rolled back the progress we have made—taking away the fundamental right to abortion, removing a vital tool for eliminating unfair barriers to educational opportunity, weakening voting rights for communities of color, and more—the task of improving a damaged judiciary is daunting.
It’s no surprise that the public’s trust in the judiciary is declining, as reports persist about some Supreme Court justices’ deeply concerning unethical behavior. Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful. As we live in this reality, we must also do the work to foster a federal judiciary that respects, recognizes, and advances our civil and human rights.
Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful.
It is incumbent on every generation to protect the progress made and work toward a more inclusive and thriving democracy and society in which everyone is treated with respect and dignity. Unfortunately, in the past few years alone, a manufactured and coordinated campaign has taken us back—but we are not backing down. We are fighting for a better future where our rights, our lives, and our future are respected. For this to happen, our Supreme Court justices must be held to the highest ethical standards, and Congress must explore all options to improve how the Court functions and thus examine its structure, including limiting the amount of time justices can actively serve. In the next few months, there’s also important work that must be done that will make a real difference in our lives. Federal judges decide important cases from who can access health care to whose votes are counted. And for our democracy to endure, we need highly qualified, fair-minded individuals in courtrooms across our nation who will advance equal justice for all.
President Biden, Senate Majority Leader Chuck Schumer, and Senate Judiciary Committee Chair Dick Durbin have helped to make a significant impact, stewarding more than 200 confirmations of lifetime judges and justices to our federal courts. This includes ushering in the most diverse slate—both demographically and professionally—of federal judges in history. Nearly two-thirds of these confirmed judges are women, nearly two-thirds are people of color, and more than 40 percent have significant experience protecting people’s civil and human rights. Of course, President Biden appointed Justice Ketanji Brown Jackson, the first Black woman and first former public defender to serve on our nation’s highest court, and her service to date has been remarkable. A few weeks ago, President Biden also announced his support for long-needed changes to the Supreme Court, including a binding code of conduct for Supreme Court justices.
Transforming our federal judiciary so it not only looks like America but also recognizes and respects the rule of law—and how laws impact people's lives—has been a cornerstone of President Biden’s administration. Together we have changed the default of who is considered fair and qualified for the federal bench because we know that a judiciary staffed with brilliant people committed to equal justice—people whose experiences have been historically excluded—yields better decisions and is more reflective and representative of America. We celebrate this remarkable progress. But we cannot relent.
Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
The jurists who President Biden has appointed will be serving for decades to come—far outlasting his impressive four years in office. To honor his legacy and to ensure justice is served in more corners of our country, progress must accelerate. Over the next few months, senators must urgently prioritize the confirmation of diverse judges who possess a deep commitment to our civil and human rights.
Now that the Senate has returned, we urge senators to seize every opportunity to make an immediate and lasting difference. The Democratic-led Senate, under the leadership of Majority Leader Schumer, has already confirmed several nominees this week and has now confirmed 209 lifetime nominees during the Biden administration. Dozens more are awaiting action in committee or on the Senate floor. This includes numerous nominees with critical civil and human rights experience, including experience defending religious freedom and protecting the rights of working people and those involved in the criminal-legal system. Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
For some comparison, President Trump during his one term in office was able to confirm 234 nominees to lifetime judgeships with the avid assistance of then-Majority Leader Mitch McConnell. In the final months of his one term, the Republican-led Senate confirmed 30 judicial nominees, including a Supreme Court justice. We can exceed the previous administration both in numbers and quality—and we must. While we have a long way to go until we have equal justice, it’s imperative that Schumer accelerate this progress and continue to use every moment over the next few weeks and months to fill as many judicial seats as possible. With focus and determination, the Senate can leave President Biden the legacy of appointing a stunning number—more than the last administration—of superbly qualified judicial nominees.
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms. We need to take all necessary steps to strengthen our judiciary so that our multiracial democracy can thrive and equal justice prevails.
President Biden’s legacy deserves no less. And our future depends on it.
"You don't have to agree with the tactics of climate activists to understand the importance of defending their rights to protest and to free speech."
Rich Western countries have cracked down on non-violent climate protests with harsh laws and lengthy prison sentences, in violation of international law and the civil rights they champion globally, according to a report released Monday by Climate Rights International.
CRI, an advocacy group based in California, found that Australia, Germany, France, the Netherlands, Sweden, the United Kingdom, and the United States had used heavy-handed measures to silence climate protesters in recent years. The measures aren't in keeping with the freedoms of expression, assembly, and association enshrined in international law, the report says.
"You don't have to agree with the tactics of climate activists to understand the importance of defending their rights to protest and to free speech," Brad Adams, CRI's executive director, said in a statement.
"Governments too often take such a strong and principled view about the right to peaceful protest in other countries—but when they don't like certain kinds of protests at home they pass laws and deploy the police to stop them," Adams toldThe Guardian.
“These defenders are basically trying to save the planet... These are people we should be protecting, but are seen by governments & corporations as a threat to be neutralised. In the end it’s about power & economics”
- @MaryLawlorhrdshttps://t.co/WPunhbDhCq
— Dr. Aaron Thierry (@ThierryAaron) September 10, 2024
The CRI report details relevant international law, disproportionate actions taken against climate protestors, and draconian new laws established in four of the countries studied. It also lays out recommendations and proposed reforms. CRI was founded in 2022 with a mission that states, "Progress on climate change cannot succeed without protecting human rights—and the fight for human rights cannot succeed without protecting our planet against climate change."
The examples of government crackdowns on climate protesters are numerous. In October 2022, Just Stop Oil activists Morgan Trowland and Marcus Decker climbed the cables of a major bridge in England and remained there for two days, causing police to stop traffic across the bridge. They called for the U.K. to stop licensing new oil and gas projects in the North Sea.
Trowland and Decker were each subsequently sentenced to more than 30 months in prison under a 2022 law passed by the Conservative government that led the country at the time. The sentencing prompted concern from a United Nations special rapporteur. An op-ed published Tuesday in The Guardian by Linda Lakhdhir, CRI's legal director, indicated that the Labour Party, now in power in the U.K., has not made a total break from the Conservatives policies.
A similar U.K. case involved Just Stop Oil's disruption of traffic on a highway in November 2022. Five campaigners, including Roger Hallam, well-known as a co-founder of Extinction Rebellion, had spoken on a Zoom call designed to increase participation in the direct action. This July, they were each sentenced to at least four years in jail, with Hallam receiving a five-year sentence—the longest sentences ever given in the country for non-violent protest, The Guardianreported.
Michel Forst, the U.N.'s special rapporteur on environmental defenders, attended part of the trial and called the sentencing a "dark day for peaceful environmental protest."
The attempt to silence climate protest has gone well beyond the U.K. In late August, a German court sentenced a 65-year-old man to nearly two years in prison for blocking a road as part of a protest. An Australian protester was given 15 months in prison for blocking one lane in a five-lane road for 28 minutes in 2022.
In April 2023, Joanna Smith was one of two protesters who put water-soluble paint on the protective case of a sculpture at the National Gallery of Art in Washington, D.C. She faced unexpectedly harsh federal charges—for two felonies—that could have landed her in prison for five years, and ended up making a plea deal for a 60-day sentence. Her fellow protestor, Timothy Martin, has a trial scheduled for November.
The report makes the following four general recommendations for governments:
The final recommendation stems from the fact that some jurisdictions and judges have prevented climate activists from stating the reasons for their civil disobedience in court. A U.K. judge, Silas Reid, has repeatedly denied climate protesters the ability to explain their motivations to juries, and even jailed two of them for contempt of court when they did so anyway.
The U.S. has not passed a harsh federal bill along the lines of the 2022 U.K. law, but many states have placed anti-protest laws on the books in recent years, and other state legislatures have considered measures, the report says. A 2019 Texas law strengthened penalties for protests around pipelines and other fossil fuel infrastructure, and a 2020 Tennessee law did so for "inconvenient" protests.
Harsh penalties are not the only danger that environmental defenders face. Nearly 200 environmental defenders were killed across the world in 2023, according a report released Tuesday by Global Witness.
Crackdowns on non-violent protest in rich Western countries extend beyond the issue of climate. Pro-Palestinian campus protests in the U.S. have also seen harsh crackdowns in the past year, with fears among campaigners that anti-protest measures could increase.
The report posits that governments should take a different approach to such civil disobedience, given its importance in spurring social change in the past.
"Governments should welcome peaceful protests as the sign of an engaged citizenry," the report says. "Those who engage in peaceful protest should, at a minimum, be assured that their rights will be respected."