The FTC Would Like To Decide Which AI Answers Are Too Woke, And Is Calling That Consumer Protection

from the the-woke-police dept

On Friday this week the FTC’s open comment period regarding its “Policy Statement Addressing AI Accuracy” will close, which means that a bunch of very smart, very busy people are wasting a ton of time this week writing up comments that will mostly be ignored by the FTC — but still matter for the record. The whole thing is so ridiculous that a former FTC lawyer has sarcastically requested that the FTC publish a quarterly “schedule of values” so AI companies at least know which ideologies they’re required to support to keep Donald Trump happy.

It’s an unconstitutional sham from an FTC whose chairman, Andrew Ferguson, quite openly sees his job as putting his thumb on the scale of speech to favor the MAGA worldview. Ferguson has been doing this since the very start of his tenure and it doesn’t appear to be slowing down now.

He couches his policy and investigatory efforts in the language of legitimate FTC authority, but nobody’s really fooled about what’s going on. Here, when he talks about “objectivity and accuracy” in responses from AI engines, everyone knows what he’s actually doing is crafting a policy that will let the FTC punish AI systems for giving “woke” answers that the MAGA world disagrees with.

The mechanism at work is blatantly obvious: the FTC is taking its Section 5 authority over “unfair and deceptive” practices — generally meant to go after companies engaging in outright fraud or deception to trick consumers — to claim that if an AI’s output is deemed to be too woke or not pro-MAGA enough, then the FTC will accuse the company of being “unfair or deceptive” in its marketing.

The draft policy statement builds its whole case on the idea that users trust what AI tools tell them — which conveniently becomes the hook for worrying that those trusting users might get fed something MAGA world doesn’t like. Thus making it “deceptive.” Yes. Really. In the actual world, the FTC’s Section 5 deception authority requires that a company make a representation that’s actually false, and materially so. Here, the Commission simply asserts — with no evidence at all — what consumers “reasonably expect,” and then appoints itself the judge of whether any given output matches.

As they have marketed their remarkable breakthroughs to the public, AI companies have spent years representing explicitly and implicitly that their systems aim to produce the best output—output that faithfully and accurately achieves users’ stated objectives and the built-in objectives that users expect in the AI system—that is possible within their technological and resource constraints. Because of these representations and the inherent nature of the products and services in question, consumers have a reasonable expectation that AI systems aim to give truthful and accurate outputs. Consumers have no basis to believe that AI systems aim to produce outputs that are distorted by undisclosed ideological objectives.

Nonetheless, an AI company might be tempted to alter or steer the output of its systems contrary to consumers’ reasonable expectations for various reasons, including attempted compliance with a state law, such as Colorado’s recently revised Artificial Intelligence Act. But steering an AI system in this manner may deceive consumers in violation of Section 5 of the FTC Act. That is true even if the deceptive steering is done in an effort to comply with state laws. Of course, a company may be able to avert potential deception by making truthful, non-misleading representations about the aims of its model. But such representations would need to make clear that the AI company is prioritizing objectives different than those consumers requested or would otherwise expect.

This is all a bit of shadow puppetry, where the FTC wraps its “AI outputs should never be too woke” argument in language that pretends to fit a traditional FTC mandate.

But this is all wildly unconstitutional, as even a cursory reading of how the First Amendment works would show. As the Supreme Court recently highlighted in Moody v. NetChoice, internet companies have clear First Amendment protections in their editorial decision making regarding what they choose to show — or not show — users of their services. From that ruling:

…this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

Yet, that’s exactly what this proposed FTC policy is setting up: if AI tools don’t produce properly MAGA-fied outputs, the FTC might go after them, claiming that the outputs are not in line with “consumers’ expectations” (as determined by the MAGA FTC) and thus, “unfair and deceptive.”

And while a “policy statement” from the FTC is not binding law, it’s clearly designed to publicly state what kinds of views will get you investigated by the FTC, in an attempt to create chilling effects that pressure AI companies to pre-censor their bots. This is also why the comment period is basically a formality. Ferguson has no obligation to do anything regarding the comments, as there’s no official rule being promulgated.

And don’t sleep on the FTC’s statement regarding Colorado’s (admittedly questionable) law, which seems to serve no real purpose other than to try to backdoor its way into Trump’s desire to magically block state AI laws, which is something he cannot unilaterally do. Remember, while there have been efforts in Congress to preempt state laws, that has not come to pass. But here the FTC is telling companies, in writing, that complying with an enacted state law creates federal liability exposure, entirely because the FTC policy (not even a full rulemaking) says so.

Last week we had former FTC lawyer Keith Fentonmiller lay out how obviously unconstitutional all of this is. It’s the FTC trying to dictate editorial policies of private companies. The First Amendment does not allow that. Aaron Rieke, another former FTC lawyer, put it even more starkly (and hilariously) in a recent LinkedIn post, designed to look like a letter in response to this open comment period, but which cuts through all the bullshit and says, in effect, “look, if you want us to only push the preferred ideology, can you at least tell us which talking points we should bless, and which we should suppress”:

Dear Commissioners:

I write in enthusiastic support of the proposed policy statement, and with one modest request for clarification.

The statement wisely prohibits steering AI outputs toward undisclosed “ideological objectives” while preserving companies’ freedom to implement “prudent guardrails.” As a consumer who relies daily on these systems — having been assured, deceptively it now seems, that they are “helpful” — I confess I cannot always tell these apart. The distinction appears to reside not in companies’ conduct but in the values they pursue.

I therefore respectfully request that the Commission publish, and update quarterly, a schedule of values, each designated either “Ideology” (deceptive if undisclosed) or “Common Sense” (no disclosure required). The proposed statement offers a promising start — “equity” is evidently Column A, while cybersecurity occupies Column B — but leaves substantial compliance uncertainty regarding, e.g., deference to law enforcement, patriotism, and politeness.

Absent a complete schedule, companies must simply guess which viewpoints the government currently disfavors and speak at their peril. I assume the Commission has already concluded that a federal schedule of approved and disapproved values raises no First Amendment concerns. Publishing the schedule would helpfully memorialize that conclusion.

Such a schedule would also generate efficiencies for future administrations, who would need only swap the column headers.

Thank you for your leadership in ensuring that American AI remains free from government influence over its viewpoints, as determined by the government.

Respectfully submitted,

A Consumer, Acting Reasonably in the Circumstances

While sarcastic, it makes the point better than any of the earnest comments will. An FTC that can punish AI tools for failing to parrot the administration’s ideological preferences is an FTC acting as a censor, and we’d all be a lot better off coming out and saying so, rather than pretending there’s some legitimate intent or purpose behind this effort.

Ferguson’s FTC has been focused almost exclusively on abusing the power of the Commission (remember, Donald Trump fired the Democratic Commissioners and has made zero effort to replace them despite the law requiring two commissioners from the minority party) to win culture war arguments and punish those deemed insufficiently loyal. The new policy and comment period is just more of the same. It’s entirely about Trump & Ferguson setting the sloppy groundwork for them to whine and complain about AI tools accurately calling bullshit on MAGA propaganda as being “unfair and deceptive.”

None of this should be happening. It’s an attack on the First Amendment so obvious that the FTC isn’t even bothering to disguise it well. But, because of the political world we live in today, everyone has to pretend to take it seriously, to pretend that the FTC will read their comments carefully, weigh the pros and cons of various approaches on this policy, and come out with some final policy that people should take seriously.

The FTC has no business investigating the editorial judgments of companies, and its facade about consumer expectations and deceptive practices is a joke. People and organizations ought to still submit comments, if only to establish opposition to this farce on the record. But what a waste of time and brainpower from people who have approximately a thousand more productive things to do.

Filed Under: 1st amendment, ai, andrew ferguson, editorial policies, free speech, ftc, section 5, unfair and deceptive