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Notes -
How NOT to Regulate the Tech Industry
Hot on the heels of my comment describing the UK's effort to finally rid the IoT market of extremely basic vulnerabilities like "has a default password", Colorado jumps in like Leroy Jenkins to show us how, exactly, tech regulation shouldn't be done. SB 205 is very concerned with "algorithmic discrimination", which it defines as, "any condition in which the use of an artificial intelligence system results in an unlawful differential treatment or impact that disfavors an individual or group of individuals on the basis of their actual or perceived age, color, disability, ethnicity, genetic information, limited proficiency in the English language, national origin, race, religion, reproductive health, sex, veteran status, or other classification protected under the laws of this state or federal law."
Right off the bat, it seems to be embracing the absolute morass of "differential treatment or impact", with the latter being most concerning, given how incomprehensible the similar "disparate impact" test is in the rest of the world. This law makes all use of algorithms in decision-making subject to this utterly incomprehensible test. There are rules for developers, telling them how they must properly document all the things to show that they've apparently done whatever magic must be done to ensure that there is no such discrimination. There are rules for deployers of those algorithms, too, because the job is never done when you need to root out any risk of impacting any group of people differently (nevermind that it's likely mathematically impossible to do so).
Their definitions for what types of algorithms this law will hit are so broad that they already know they captured far too much, so they go on a spree of exempting all sorts of already-existing things that they know about, including:
If your idea for a mundane utility-generating algorithm didn't make the cut two weeks ago, sucks to be you. Worse, they say that these things aren't even exempted if they "are a substantial factor in making a consequential decision". I guess they also exempt things that "perform a narrow procedural task". What does that mean? What counts; what doesn't? Nobody's gonna know until they've taken a bunch of people to court and gotten a slew of rulings, again, akin to the mess of other disparate impact law.
Don't despair, though (/s). So long as you make a bunch of reports that are extremely technologically ill-specified, they will pinky swear that they won't go after you. Forget that they can probably just say, "We don't like the look of this one TPS report in particular," and still take you to court, many of the requirements are basically, "Tell us that you made sure that you won't discriminate against any group that we're interested in protecting." The gestalt requirement can probably be summed up by, "Make sure that you find some way to impose quotas (at least, quotas for whichever handful of groups we feel like protecting) on the ultimate output of your algorithm; otherwise, we will blow your business into oblivion."
This is the type of vague, awful, impossible regulation that is focused on writing politically correct reports and which actually kills innovation. The UK's IoT rules might have had some edge cases that still needed to be worked out, but they were by and large technically-focused on real, serious security problems that had real, practical, technical solutions. Colorado, on the other hand, well, I honestly can't come up with words to describe how violently they've screwed the pooch.
Does this mean insurance companies are forbidden from discriminating by age and sex e.g. for car insurance?
That particular form of discrimination has already cleared its legal hurdles, as far as I know.
Which is bizarre. If women paid higher rates it never would have stood up to challenge.
The law is saying you can't use all these actuarial ways to determine risk. In many states, you can't even use credit reports or arrest records.
Why is there this special carve out to discriminate against men?
Because men think it's gay to organize and demand things. Simple as.
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Who cares?
That's a literal question: Which people care about men being discriminated against, how much do they care about it, and what can they do based on those feelings?
Men's Rights activism is a powerless joke, and equal rights activism has died off and been replaced by a dozen individual interest groups. The people that care don't matter, and the people that matter don't care.
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Disparate impact is severely curtailed for insurance in general, it’s a topic of some annoyance in critical justice theory circles and there are academic articles advocating for limits on “excessive” (defined broadly” disparate impact.
Insurance discrimination is not merely disparate impact. It is disparate treatment. In most (though not all) states you are straightforwardly charged more if you are male than if you are female. The most famous case of a person changing their legal gender to save money (over $1000) on their car insurance is Canadian but it would work in much of the US as well.
Yes, but the point is that disparate impact is explicitly tolerated in insurance more broadly. Insurance providers are not required to ensure that the average premium paid by or payout made to a black person is equal to that paid by or made out to a white person. Real-world indicators for sociocultural groups are obviously in many cases baseline parts of actuarial calculations even when insurers strictly ensure nothing is too egregious or obvious.
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