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Modern AI tools have been compared to magic oracles, we ask it a question and it synthesizes vast amounts of information to give us an answer.
What this regulation will achieve isn't restricting the AI from having a disparate impact, it is restricting the AI from synthesizing that information and then telling the truth. Certain categories of question are impossible to ask, or impossible to get a correct answer about, without risking disparate impact.
Consider: take /r/rateme and turn it into a prediction algorithm. Go through the thousands upon thousands of posts and figure out how to spit out an approximation of how Reddit would rate your pictures, without posting your pictures to Reddit. Useful tool, now instead of embarrassing myself asking a bunch of strangers to rate my pictures, I can just do a couple clicks on an online tool and it will spit out what Reddit would have told me anyway. Advances for privacy! I can run the test iteratively, and use different pictures for an online dating profile, or even different haircuts or physique choices edited in, based on the output, and figure out how to make myself more attractive.
But, such an algo would either instantly cross the line of acceptability, or it would need to be dishonest. Because it can't give black people lower ratings, it can't give Asian women higher ratings and Asian men lower ratings, it can't give trans people lower ratings. It's not even clear, based on the angles used to wedge queers into civil rights law intended to protect women, that it can ding effeminate men or butch women. It can't ding you for wearing a yarmulke, even though I can guarantee you that wearing a yarmulke will lower your dating odds. It would be impossible to create such an oracle and not have a disparate impact. So, we've created a tool to grow our knowledge, but that field is permanently restricted, some areas of knowledge must remain unknowable under Colorado law.
You’ve lost me.
I’m not arguing for this law. I’m arguing that disparate impact is useful, even necessary, to achieve goals about disparate treatment. Given that I find the latter legitimate, I’m willing to give more slack to the former.
Let’s say an unsavory developer made your hypothetical product with one change. Like Golden Gate Claude, it tries to work one topic into its answers, except instead of a bridge, it’s Puerto Ricans. This tool just hates ‘em. Any time real Reddit would have come up with a sick burn, it’s now directed at this one nationality. It never has anything good to say about them, and tries its best to convince users to hate and fear (looking like) them. Textbook disparate treatment, right?
Now prove it. How are you going to show that this oracle is a huge racist? Examples? Good luck. Statistical comparison to real Reddit? Thin ice. You’re left with “I know it when I see it,” which is a pretty rough standard for lawsuits.
Of course, the point is moot, because an edgy fashion AI isn’t doing any direct harm. It’s not illegal in the same way as denying a loan or a promotion. But that’s true of your hypothetical, too. Neither of them makes a “consequential decision,” so neither must remain unknowable under this law.
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