News & Insights

State AGs, Staff Discuss Algorithms & Organized Retail Crime at Symposium

By: Emily Yu

On April 18, 2023, the National Association of Attorneys General (NAAG) held its annual Attorney General Symposium in Philadelphia, PA.  State AGs, AG office staff, and private sector attendees gathered to hear from panelists and to discuss the most pressing issues of the times, including those most relevant to businesses—algorithms and organized retail crime (ORC).  Key takeaways from these two business-critical panels are highlighted below.

Regulating Algorithms: The How and Why

Colorado Chief Deputy AG Natalie Hanlon Leh moderated this panel featuring New Jersey’s Chief Innovation Officer, the Senior Advisor for Algorithmic Justice at the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA), and the Director of the Warren Center for Network and Data Sciences.

The panelists started off explaining the basics of algorithms, the ethical issues raised by algorithms, and how algorithms can be used (and are already being used) by government entities.  Although the panelists did not think that algorithms’ use of historical data would lock us in the past, nor that AI could affect the data used in algorithms, they did caution that systems operators should be mindful of the data that goes into algorithms, to avoid what coders would refer to as a “garbage in, garbage out” scenario.

The panel also considered whether generative AI implicates communications decency laws governing social media platforms, cited the recent warnings issued by the FTC about AI use, and discussed the EU’s AI Act.  Businesses that use AI in any way would be well-advised to familiarize themselves with federal policymaking efforts, including potential AG comments in response to the NTIA’s AI Accountability Policy Request for Comment.

One AG asked what AGs should be doing, or asking state legislatures to do, and whether there are “rogue AI companies” that AGs should go after to send a signal to the industry.  The panel’s view was that regulators should exercise caution unless and until there are clearer definitions of “fairness” or “privacy,” because without such definitions there is no way to measure how fair a technology is, or how much privacy a technology provides.  The panel suggested that AGs should continue to expand their expertise around technology generally and empower their teams to use resources available to public servants, such as New Jersey’s Innovation Skills Accelerator program and Innovate(US).  Businesses are also encouraged to educate both their leaders and their staff on the inner workings, and benefits and risks, of AI.

Organized Retail Crime Joint Session with Attorney General Alliance

Illinois AG Kwame Raoul moderated the session with panelists from the U.S. Department of Homeland Security’s Homeland Security Investigations component, the National Retail Federation (NRF), and the Georgia AG’s office.

The panel began with an explanation of the differences between ORC and shoplifting, and current efforts to combat ORC, with the panelists emphasizing the importance of public-private partnerships.  The panel cited the recent NRF report on ORC, which retail businesses are encouraged to read.  The panelists also discussed legislative responses to ORC, such as the INFORM Consumers Act, which businesses in the online marketplace space will be required to comply with starting June 27, 2023, as well as the recently-introduced Combatting ORC Act.

A key takeaway from the panel was that businesses and government entities alike can collectively raise the profile of ORC issues by emphasizing the differences between ORC and shoplifting in their messaging.  Lastly, the panelists stressed the importance of retail businesses collaborating with loss prevention experts to help strengthen efforts to combat ORC.