The Federal Trade Commission’s investigations into anti-competition issues within the artificial intelligence (AI) industry have sparked a debate over whether oversight of AI should primarily fall under the FTC or the Department of Justice (DOJ).
Considering the DOJ’s experience scrutinizing Google’s search engine among other merits, the Department emerges as the most suited to oversee this rapidly developing industry. Unlike the FTC, the DOJ is equipped to undertake a broad range of relevant civil and criminal investigations. This divide in scope reflects in their roles during the Biden administration, where they’ve shared tech industry regulatory responsibilities.
The clearance process, through consultation on each case, determines which agency gets principal authority over specific matters. Utilizing this approach, the DOJ and FTC handle mergers and antitrust issues, leading to decisions such as the authority of antitrust law enforcement on all Google-related cases being given to the DOJ, whereas the FTC supervises Meta Platforms Inc. and Amazon.com Inc. However, consensus is yet to be reached on who should take the lead on AI.
Under Section 6(B) of the FTC act, the Commission can mandate entities to file annual or special reports. Also, the FTC can demand information about conduct and market studies without requiring an active case against a company or industry. Although this represents a powerful oversight feature, it pales against the better-suited DOJ, which has greater experience with AI and also holds jurisdiction over non-profit entities. The FTC’s limited jurisdiction over nonprofits could become an issue, especially given the fact that leading AI companies like OpenAI are organized as a nonprofit.
The DOJ’s experience stems from its role in anti-competitive issues related to internet search engines and markets which could be affected by AI, including non-AI tech industries. Early versions of AI and machine learning, such as internet search engines, are areas where the DOJ already has substantial experience. As such, the DOJ would face far less of a learning curve as compared to the FTC.
Suggestions that Google might leverage advanced AI to consolidate long-term market dominance raise further justification for DOJ’s leadership. Google’s historical engagement in anti-competitive practices to make its products default for consumers is a concern that AI could aggravate. For instance, it spent more than $26 billion in 2021 to become the default search engine across several platforms. Fears are rising as well that these practices could be duplicated for its Gemini AI chatbot.
While cooperation between the DOJ and FTC in AI oversight should be encouraged as in antitrust issues, the DOJ’s extensive experience and better adaptation make it the suitable leader for regulation. The role of the DOJ as a direct part of the executive branch, considering the Biden administration’s signals for a whole-government approach to AI, affirms this position. In contrast, the independent FTC could potentially divert from established priorities.
Opinion by Ediberto Román, a law professor at Florida International University College of Law, focusing on antitrust, civil rights/social justice, constitutional law, and immigration policy.