Congress is advancing a data regulation bill that would entangle Americans in covert quotas within private software, according to Stewart Baker, a prominent lawyer in Washington, DC.
The progressive bill stems from Democrats’ efforts to eliminate perceived discrimination from “Artificial Intelligence” (AI) software, Baker explained.
The legislation aims to eradicate “disparate impact” discrimination against groups favored by progressives by mandating that AI companies be liable if their algorithms, which are employed by numerous Main Street companies, do not equalize outcomes, Baker noted.
However, the requirement for algorithm-driven group leveling in the American Privacy Rights Act of 2024 would perpetuate corporate discrimination against many individuals, Baker warned:
Whenever someone applies for a job, requests medical coverage, seeks insurance, or attempts to buy a house and get a mortgage, their application will be processed by a software that ensures balancing successful applicants by race, gender, and sexual preference. This algorithm is claimed to be bias-free and certified as such.
“It is a remarkably ambitious attempt to integrate quotas into various facets of American life where they have never existed, effectively overruling [the U.S. Supreme Court’s] Harvard decision and making it nearly impossible to reverse,” Baker told Truth Voices.
The regulation of decision-making software by this bill also creates new avenues for big government and technocrats, he stated. “It is to technocracy what AI is to a desktop computer. It offers a way to impose values through software without the complications of democratic rejection,” he said.
He likened it to how social media companies and self-proclaimed fact-checkers regulate Americans’ free speech.
In an article for Reason.com, Baker cautioned:
The provision might be passed with minimal scrutiny in a few weeks because it’s part of a bipartisan bill establishing federal privacy standards, a long-sought goal in Washington. The bill appears to resolve the deadlock by offering Republicans some federal preemption while providing Democrats and left-wing advocacy groups with a provision that could secretly overturn the Supreme Court’s Harvard decision and enforce identity-based quotas across American society. This compromise first emerged in a 2023 bill that Democratic and Republican members of the House commerce committee approved overwhelmingly. That bill, however, failed to gain the support of Sen. Cantwell (D-WA), the chair of the Senate commerce committee. This time, a slightly revised bill has been endorsed by both Sen. Cantwell and her House counterpart, Cathy McMorris Rodgers (R-WA). … Essentially, if a software algorithm is used for important decisions—whether to hire, promote, advertise, or allocate goods and services—you must ensure it reduces the risk of disparate impact.
The Supreme Court has been moving against the legal status of quotas, notably with a 2023 decision prohibiting racial quotas in university admissions, which originated from the 1960s attempt to end racial bias through affirmative action as a legal defense.
However, this bill doesn’t explicitly impose quotas; it merely threatens companies if their internal data produces results and decisions that progressives disapprove of, Baker observed:
This is an attempt to outsource quota imposition covertly, making it difficult for people to realize they are being harmed and to determine whom they should sue.
Conservatives and moderates will resist the covert quotas but will face significant legal challenges if the bill becomes law, he noted:
There will be a legal argument that the encouragement, or effective mandate, of quotas would violate equal protection requirements under the Constitution. However, the bill is likely designed to argue that it merely ensures algorithms produce unbiased results, aligning with the Equal Protection Clause’s opposition to bias. Therefore, finding a judge willing to deem all disparate impact legal doctrine constitutionally suspect could be challenging. The complexity of software mechanisms may lead to many disadvantages occurring without sufficient awareness for legal action.
Businesses will adopt quota software to avoid lawsuits and negative publicity, he added:
Since the 1970s, businesses have accepted quotas as long as they are protected from lawsuits. They comply with hiring requirements as long as they are assured against accusations of racism and lawsuits. This bill provides such assurance.
The bill is championed by Senate and House committee chairs from Microsoft Corp.’s home state of Washington, Baker informed.
Sen. Maria Cantwell (D-WA), who chairs the Senate’s commerce committee, promotes the bill for protecting “Americans’ Civil Rights”:
Prevents companies from using personal information for discriminatory purposes. Allows individuals to opt out of algorithmic decision-making in areas such as housing, employment, healthcare, credit opportunities, education, insurance, or public accommodation access. Requires annual reviews of algorithms to ensure they do not expose individuals, including youth, to harm or discrimination.
Republican Rep. McMorris Rodgers “enthusiastically supports this,” Baker noted. “It’s highlighted on her website; she strongly advocates for it.”
Ironically, McMorris Rodgers is also working to expand online speech through a separate bill aimed at reforming Sec. 230, which impacts Internet speech:
…the legislation seeks to prompt Congress and stakeholders to develop a new legal framework over the next 18 months that balances free speech and innovation while ensuring platform accountability.
The quota bill, according to Baker, “is advantageous for [big-government] progressives as it serves as another technical tool to push unpopular positions covertly through technical means.”
