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It is always interesting to watch the ways in which U.S. and Chinese administrative trajectories respond to similar challenges that move closer to the top of items of regulatory interest to their respective government organs. The major point of interest, beyond substantive and methodological approaches, is to consider the way that these systems manifest managerial and guidance authority within their respective political-legal orders. Even more important may be the way that responses appear occur at about the same time.
Recently issues of generative AI has become a matter of interest globally, but with specific manifestations in the US and China. In the US, the approach has been administrative-regulatory and grounded in the use of the public administrative apparatus to manage markets driven behavior within principles based frameworks. That, in turn, has specifically focused on a widely reported civil investigation demand (CID) initiated by the Federal Trade Commission (FTC File 232-3044) and directed against OpenAI and its now quite famous ChatGPT.
The company behind the popular artificial intelligence tool ChatGPT is being investigated by the Federal Trade Commission (FTC) over potentially engaging in deceptive privacy practices or harming consumers, The Washington Post reported Thursday. The agency is requesting OpenAI, the company behind ChatGPT, send over records about how it addresses risks related to its AI models, according to a 20-page memo sent to the company reported by the Post. The expansive request from the FTC represents the latest — and seemingly most direct — regulatory threat to the company since it launched ChatGPT in November. The FTC asked OpenAI to provide detailed descriptions of all complaints it had received of products making “false, misleading, disparaging or harmful” statements about people. The agency also asked for records related to a security incident the company disclosed in March that allowed some users to see payment-related information, the Post reported. (FTC probing company behind ChatGPT over data security, false information: report, The Hill 13 July 2023).
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This regulatory flank attack was focused on consumer production and security for public facing interactions between generative AI and socio-economic activity. By managing market interventions, leveraged by the herd instinct of market participants in the face of regulatory risk, the effect was meant to produce shadow regulation without the bother of regulation--application of an interpretation, then is mre efficient than regulatory modification, especially when applied against a leading market actor. This regulatory flank attack is undertaken even as the US Congress considers direct legislative (and administrative-regulatory) measures in the politically charged run-up to the 2024 presidential election (Schumer unveils new AI framework as Congress wades into regulatory space ("Schumer's SAFE Innovation framework, unveiled Wednesday, outlines four pillars that he hopes will guide future bipartisan collaboration on legislation governing AI: security, accountability, protecting our foundations and explainability")).
In China, the approach has been directly regulatory but embedded within systems of public oversight and management through interlocking systems of administrative discretion bounded by frameworks of coordination and the specific objectives of these regulatory measures. That, in turn, has been spcifically manifested in the circulation by Chinese authorities of 生成式人工智能服务管理暂行办法 [Interim Measures for the Management of Generative Artificial Intelligence Services], a coordinated collaborative effort among a significant number of critical regulatory actors affected by or managing generative AI in China. This comes after circulation of a draft in April that might have been viewed as more onerous (see discussion and text of April draft HERE).
Its overall object (the devil is in the detail of course) is to "promote the healthy development and standardized application of
generative artificial intelligence, safeguard national security and
social public interests, and protect the legitimate rights and interests
of citizens, legal persons, and other organizations" (Interim Measures supra Art. 1).
China published measures on Thursday to manage its booming generative artificial intelligence (AI) industry, softening its tone from an earlier draft, and said regulators would seek to support development of the technology. The rules, set to take effect on Aug. 15 and which Beijing described as "interim", come after authorities signalled the end of their years-long crackdown on the tech industry, whose help they seek to spur an economy recovering more slowly than expected after the scrapping of COVID-19 curbs. Analysts said they were far less onerous than measures outlined in an April draft, and that the final rules also took care to stress that China wanted to be supportive of the technology while at the same time ensure security. The Thursday statement from the Cyberspace Administration of China (CAC) said only providers who wanted to offer services to the public would need to submit security assessments, suggesting that firms working on enterprise-facing products would be given leeway. (China says generative AI rules to apply only to products for the public)
This regulatory direct intervention was focused on consumer production and
security for public facing interactions between generative AI and
socio-economic activity.
The Interim Measures is divided into 5 chapters (1) Chapter 1 (Articles 1-4) General Provisions; (2) Chapter 2 (Articles 5-8) Technology Development and Governance; (3) Chapter 3 (Articles 9-15) Service Specifications; Chapter 4 (Articles 16-21); and Chapter 5 (Articles 22-24) Supplementary Provisions. Some provisions of interest are suggested:
(1) Chapter 1 (Articles 1-4) General Provisions;
The scope of the Interim Measures is formally limited to "the use of generative artificial intelligence technology to provide services for generating text, pictures, audio, video, and other content to the public within the territory of the People's Republic of China" (Ibid., art. 2). While the meaning of public facing may be ambiguous at its edges, what is clear is that the Interim Measures appears to take a functionally differentiated approach to definition. Thus, Article 2 also states: "Industry organizations, enterprises, educational and scientific research institutions, public cultural institutions, and relevant professional institutions that develop and apply generative artificial intelligence technology, but do not provide generative artificial intelligence services to the domestic public, shall not be subject to the provisions of these Measures." In addition more specific measures touching on "news publishing, film and television production, and literary and artistic creation" will take precedence over the Interim Measures.
It may be important to note that the regulatory approach is one of balancing among principles of prevent-mitigation-remedy, "development and security, promoting innovation and combining law-based governance" (Article 3). Article 4 retains its objectives focus to align generative AI with the core values of the political economic model in China, as a values based, moral, economic, social, cultural, and political project. The objectives are both quite pointed at a general level but quite ambiguous (as is usual in legislation of this kind) in its specific application, providing, as is also usual, a broad scope of discretion to administrators and their regulatory organs. Article 5 speaks to the twin objectives of improving transparency the accuracy and reliability of generated content.
(2) Chapter 2 (Articles 5-8) Technology Development and Governance;
This Chapter provides objectives to be used by state organs in managing the development and deployment of generative AI in ways that are aligned with the poetical/policy objectives of the state under the leadership of the CPC. Articles 5-6 are particularly interesting in that respect. Article 7 then turns to providers. It sets out a n objectives framework in developing ans using generative AI; subject, of course of state facing accountability and guidance. For administrative purposes it ought to be kept in mind that Articles 7-8 might be read as specific application of the more general framework objectives of Article 4.
(3) Chapter 3 (Articles 9-15) Service Specifications;
Chapter 3 provides more detail allocation of responsibility, obligation, and liability aimed at Generative artificial intelligence service providers. These include the requirement that providers "sign a service agreement with the generative artificial intelligence service user (hereinafter referred to as the user) who registers for its service, clarifying the rights and obligations of both parties" (Article 9); disclose core data and "take effective measures to prevent minor users from excessively relying on or indulging in generative" (Article 10); protect use input information and use records, refrain from collecting "unnecessary personal information" or illegally retaining personally identifiable data input information and use records, and ensure that user information is not provided to others (Article 11). Providers have a duty to discover and remove illegal content (Article 14), and provide adequate complaint mechanisms (Article 15).
Chapter 4 (Articles 16-21)
This chapter clarifies certain regulatory and administrative rules and structures. Though, as is usual, enforcement is a public and administrative function, mechanisms must be provided to permit users to "complain and report to the relevant competent authorities" (Article 18). Article 19 empowers "relevant competent departments carry out supervision and inspection of generative artificial intelligence services." Providers may be expected to be subject to multiple inspections and supervision where administrative authority overlaps. But that is not clear in the statutes. Generally practice standing rules will provide a measure of coherence. Article 20 is of particular interest to foreigners:
Where the provision of generative artificial intelligence services originating from outside the territory of the People's Republic of China does not comply with laws, administrative regulations, and the provisions of these Measures, the national network information department shall notify relevant agencies to take technical measures and other necessary measures to deal with them.
The language is a bit oracular but it is likely written to provide a substantial measure of flexibility in applying countermeasures against foreigners penetrating Chinese internet and generative AI spaces. Article 21 than provides the framework for the imposition of civi and criminal measures.
Chapter 5 (Articles 22-24) Supplementary Provisions.
Article 22 provides definitions of key terms: Generative artificial intelligence technology; Generative artificial service providers; and Users of generative artificial intelligence services. Article 23 speaks to licensing requirements and requires foreign investors in generative AI comply with the provisions of laws and administrative regulations related to foreign investment. Article 24 specifies the effective date of the Measures. .
What makes these US and Chinese approaches particularly interesting are their similarities and differences. Both appear to be focused on public consumption of AI products, and their overall effects on the nature and character of social, political and economic relations. Both appear to reserve other regulatory spaces for the use of AI elsewhere in social operations. But while the US engages in indirect regulatory measures--using the disciplinary strictures and interpretive flexibility built into the mandate of the FTC, the Chinese have sought direct legislation. And yet in both cases administrative discretion is accorded a central role. In the case of the US, administrative discretion through the mechanics of enforcement drive behavior accountability that may eventually be encased in legislation; in China hard law produces a structure for the broad exercise of discretion by regulatory organs.
The text of in the original Chinese and a crude English translation follows below.
Interim Measures for the Management of Generative Artificial Intelligence Services
Netcom China 2023-07-13 00:01 Posted on BeijingState Internet Information Office
National Development and Reform Commission, People's Republic of China
Ministry of Education of the People's Republic of China
Ministry of Science and Technology of the People's Republic of China
Ministry of Industry and Information Technology of the People's Republic of China
Ministry of Public Security of the People's Republic of China
State Administration of Radio and Television
make
No. 15
The "Interim Measures for the Management of Generative Artificial Intelligence Services" has been reviewed and approved at the 12th office meeting of the State Internet Information Office in 2023 on May 23, 2023, and has been approved by the National Development and Reform Commission, the Ministry of Education, the Ministry of Science and Technology, the Industry and the The Ministry of Information Technology, the Ministry of Public Security, and the State Administration of Radio and Television agree, and it is hereby promulgated and will come into force on August 15, 2023.Zhuang Rongwen, director of the State Internet Information Office
Zheng Shanjie, Director of the National Development and Reform Commission
Minister of Education Huai Jinpeng
Minister of Science and Technology Wang Zhigang
Minister of Industry and Information Technology Jin Zhuanglong
Minister of Public Security Wang Xiaohong
Cao Shumin, director of the State Administration of Radio and Television
July 10, 2023
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Interim Measures for the Management of Generative Artificial Intelligence Services
Chapter I General Provisions
Article 1 In order to promote the healthy development and standardized application of generative artificial intelligence, safeguard national security and social public interests, and protect the legitimate rights and interests of citizens, legal persons, and other organizations, according to the "People's Republic of China Cybersecurity Law", "People's Republic of China Data Security Law, "Personal Information Protection Law of the People's Republic of China", "Science and Technology Progress Law of the People's Republic of China" and other laws and administrative regulations, formulate these measures.
Article 2 These Measures apply to the use of generative artificial intelligence technology to provide services for generating text, pictures, audio, video, and other content to the public within the territory of the People's Republic of China (hereinafter referred to as generative artificial intelligence services).
If the state has other regulations on the use of generative artificial intelligence services to engage in activities such as news publishing, film and television production, and literary and artistic creation, those regulations shall prevail.
Industry organizations, enterprises, educational and scientific research institutions, public cultural institutions, and relevant professional institutions that develop and apply generative artificial intelligence technology, but do not provide generative artificial intelligence services to the domestic public, shall not be subject to the provisions of these Measures.
Article 3 The state adheres to the principles of attaching equal importance to development and security, promoting innovation and combining law-based governance, adopts effective measures to encourage the innovation and development of generative artificial intelligence, and implements inclusive prudence and classified and hierarchical supervision of generative artificial intelligence services.
Article 4 The provision and use of generative artificial intelligence services shall abide by laws and administrative regulations, respect social morality and ethics, and abide by the following provisions:
(1) Adhere to the core values of socialism, and must not generate incitement to subvert state power, overthrow the socialist system, endanger national security and interests, damage national image, incite secession, undermine national unity and social stability, promote terrorism, extremism, promote Content prohibited by laws and administrative regulations such as ethnic hatred, ethnic discrimination, violence, obscenity, and false harmful information;
(2) In the process of algorithm design, training data selection, model generation and optimization, and service provision, take effective measures to prevent discrimination based on ethnicity, belief, country, region, gender, age, occupation, health, etc.;
(3) Respect intellectual property rights, business ethics, keep business secrets, and not use algorithms, data, platforms and other advantages to implement monopoly and unfair competition;
(4) Respect the legitimate rights and interests of others, not endanger the physical and mental health of others, and not infringe on others' portrait rights, reputation rights, honor rights, privacy rights, and personal information rights;
(5) Based on the characteristics of service types, take effective measures to improve the transparency of generative artificial intelligence services and improve the accuracy and reliability of generated content.
Chapter II Technology Development and Governance
Article 5 Encourage the innovative application of generative artificial intelligence technology in various industries and fields, generate positive, healthy, and positive high-quality content, explore and optimize application scenarios, and build an application ecosystem.
Support industry organizations, enterprises, educational and scientific research institutions, public cultural institutions, and relevant professional institutions to cooperate in generative artificial intelligence technology innovation, data resource construction, transformation and application, and risk prevention.
Article 6 Encourage the independent innovation of basic technologies such as generative artificial intelligence algorithms, frameworks, chips, and supporting software platforms, carry out international exchanges and cooperation on an equal footing and mutual benefit, and participate in the formulation of international rules related to generative artificial intelligence.
Promote the construction of generative artificial intelligence infrastructure and public training data resource platforms. Promote the collaborative sharing of computing power resources and improve the utilization efficiency of computing power resources. Promote the orderly opening of public data classification and classification, and expand high-quality public training data resources. Encourage the adoption of secure and trusted chips, software, tools, computing power and data resources.
Article 7 Generative artificial intelligence service providers (hereinafter referred to as providers) shall carry out pre-training, optimization training and other training data processing activities in accordance with the law, and abide by the following provisions:
(1) Use data and basic models with legitimate sources;Article 8 Where data labeling is carried out during the research and development of generative artificial intelligence technology, the provider shall formulate clear, specific, and operable labeling rules that meet the requirements of these Measures; carry out data labeling quality assessment, and conduct sampling verification of the accuracy of the labeling content; Conduct necessary training for labeling personnel, enhance awareness of respecting and abiding by the law, and supervise and guide labeling personnel to carry out labeling work in a standardized manner.
(2) Where intellectual property rights are involved, the intellectual property rights enjoyed by others shall not be infringed;
(3) Where personal information is involved, the consent of the individual shall be obtained or other circumstances stipulated by laws and administrative regulations shall be complied with;
(4) Take effective measures to improve the quality of training data, and enhance the authenticity, accuracy, objectivity, and diversity of training data;
(5) Other relevant provisions of laws and administrative regulations such as the "Network Security Law of the People's Republic of China", "Data Security Law of the People's Republic of China", "Personal Information Protection Law of the People's Republic of China", and relevant regulatory requirements of relevant competent authorities.
Chapter III Service Specifications
Article 9 Providers shall assume the responsibilities of producers of network information content in accordance with the law and fulfill their network information security obligations. If personal information is involved, the responsibility of the personal information processor shall be assumed in accordance with the law, and the obligation to protect personal information shall be fulfilled.
The provider shall sign a service agreement with the generative artificial intelligence service user (hereinafter referred to as the user) who registers for its service, clarifying the rights and obligations of both parties.
Article 10 Providers shall clarify and disclose the applicable population, occasions, and uses of their services, guide users to scientifically and rationally understand and use generative artificial intelligence technology in accordance with the law, and take effective measures to prevent minor users from excessively relying on or indulging in generative artificial intelligence Serve.
Article 11 The provider shall fulfill the obligation to protect the user's input information and use records in accordance with the law, shall not collect unnecessary personal information, shall not illegally retain input information and use records that can identify the user's identity, and shall not illegally provide the user's information to others. input information and usage records.
The provider shall accept and process the individual's requests for viewing, copying, correcting, supplementing, and deleting their personal information in a timely manner in accordance with the law.
Article 12 Providers shall mark images, videos, and other generated content in accordance with the "Regulations on the Administration of Deep Synthesis of Internet Information Services".
Article 13 Providers shall provide safe, stable, and continuous services in the course of their services to ensure users' normal use.
Article 14 When a provider discovers illegal content, it shall promptly take disposal measures such as stopping generation, stopping transmission, and elimination, take measures such as model optimization training to make rectification, and report to the relevant competent department.
If the provider discovers that the user is using the generative artificial intelligence service to engage in illegal activities, it shall take warnings, restrict functions, suspend or terminate the provision of services and other disposal measures in accordance with the law, keep relevant records, and report to the relevant competent authority.
Article 15 The provider shall establish and improve the complaint and report mechanism, set up a convenient complaint and report portal, announce the handling process and feedback time limit, accept and handle public complaints and reports in a timely manner, and give feedback on the handling results.
Chapter IV Supervision and Inspection and Legal Responsibilities
Article 16 Departments of cybersecurity and informatization, development and reform, education, science and technology, industry and informatization, public security, radio and television, press and publication, etc., shall strengthen the management of generative artificial intelligence services in accordance with the law according to their respective responsibilities.
Relevant national competent departments are to improve scientific supervision methods compatible with innovation and development, and formulate corresponding classification and classification supervision rules or guidelines based on the characteristics of generative artificial intelligence technology and its service applications in relevant industries and fields.
Article 17 Those who provide generative artificial intelligence services with public opinion attributes or social mobilization capabilities shall conduct security assessments in accordance with relevant state regulations, and perform algorithm filing, modification, and cancellation filing procedures in accordance with the "Internet Information Service Algorithm Recommendation Management Regulations".
Article 18 If users find that generative artificial intelligence services do not comply with laws, administrative regulations and the provisions of these Measures, they have the right to complain and report to the relevant competent authorities.
Article 19 The relevant competent departments carry out supervision and inspection of generative artificial intelligence services according to their duties, and the provider shall cooperate in accordance with the law, explain the source, scale, type, labeling rules, algorithm mechanism, etc. of the training data as required, and provide necessary Technical, data and other support and assistance.
Relevant institutions and personnel involved in the security assessment and supervision and inspection of generative artificial intelligence services shall keep state secrets, commercial secrets, personal privacy and personal information known in the performance of their duties confidential in accordance with the law, and shall not disclose or illegally provide them to others.
Article 20 Where the provision of generative artificial intelligence services originating from outside the territory of the People's Republic of China does not comply with laws, administrative regulations, and the provisions of these Measures, the national network information department shall notify relevant agencies to take technical measures and other necessary measures to deal with them.
Article 21 Where a provider violates the provisions of these Measures, the relevant competent authority shall, in accordance with the "Network Security Law of the People's Republic of China", "Data Security Law of the People's Republic of China", "Personal Information Protection Law of the People's Republic of China", "People's Republic of China The Science and Technology Progress Law and other laws and administrative regulations shall be punished; if there is no provision in the law or administrative regulations, the relevant competent department shall give a warning, circulate a criticism according to its duties, and order corrections within a time limit; if it refuses to make corrections or the circumstances are serious, it shall be ordered to suspend the provision of Related Services.
If a violation of public security management is constituted, public security management penalties shall be given according to law; if a crime is constituted, criminal responsibility shall be investigated according to law.
Chapter V Supplementary Provisions
Article 22 The meanings of the following terms in these Measures are:
(1) Generative artificial intelligence technology refers to models and related technologies that have the ability to generate text, pictures, audio, video and other content.
(2) Generative artificial intelligence service providers refer to organizations and individuals that use generative artificial intelligence technology to provide generative artificial intelligence services (including providing generative artificial intelligence services by providing programmable interfaces, etc.).
(3) Users of generative artificial intelligence services refer to organizations and individuals who use generative artificial intelligence services to generate content.
Article 23 Where laws and administrative regulations stipulate that the provision of generative artificial intelligence services shall obtain relevant administrative licenses, the providers shall obtain licenses in accordance with the law.
Foreign investment in generative artificial intelligence services shall comply with the provisions of laws and administrative regulations related to foreign investment.
Article 24 These Measures shall come into force on August 15, 2023.
Please indicate the source of the reprint: "Netcom China" WeChat public account
Reviewer: Li Jiamin
Editor: Wang Yutong
Proofreading: Zhao Yaqi
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生成式人工智能服务管理暂行办法
第15号
《生成式人工智能服务管理暂行办法》已经2023年5月23日国家互联网信息办公室2023年第12次室务会会议审议通过，并经国家发展和改革委员会、教育部、科学技术部、工业和信息化部、公安部、国家广播电视总局同意，现予公布，自2023年8月15日起施行。
生成式人工智能服务管理暂行办法
第一章 总 则
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