Acquiring Ethical AI

61 Pages Posted: 18 Nov 2020

Date Written: Oct. 1, 2020


Artificial intelligence (AI) is transforming how government operates. Federal agencies use the technology for law enforcement, adjudication, rulemaking, inhouse management, and the delivery of public services. Algorithmic governance brims with promise and peril. Under the right conditions, AI systems can solve complex problems, reduce administrative burdens, and optimize resource allocations. Under the wrong conditions, AI systems can lead to widespread discrimination, invasions of privacy, and the erosion of democratic norms. The United States has pledged its commitment to principles of “ethical AI,” including transparency, accountability, fairness, and human rights. But proselytizing is not actualizing. A burgeoning literature has emerged to square algorithmic governance with the precepts of constitutional and administrative law. Federal procurement law, however, remains a dangerous blind spot in the reformist agenda. The government’s pent up demand for AI systems far exceeds its inhouse capacity to develop, field, and monitor this powerful technology. Accordingly, many if not most of the tools of algorithmic governance will be procured by contract from the technology industry.

This Article intervenes with a principled and pragmatic agenda for acquiring ethical AI. First, it provides an original account that aligns the ambition of algorithmic governance, the imperative of ethical AI, and the complexities of procurement law. Second, the Article argues that procurement law is not only uniquely situated, but also well suited, to serve as a checkpoint and catalyst for ethical algorithmic governance. Third, the Article prescribes a set of concrete regulatory reforms to center ethical AI throughout the procurement process: from acquisition planning through market solicitation, negotiation, and contractual award.

The outsourcing of algorithmic governance raises a host of challenges that constitutional law and administrative law are ill equipped to handle. Procurement law will not solve all the challenges of algorithmic governance. Just as surely, the challenges of algorithmic governance cannot be solved without procurement law.

Keywords: artificial intelligence, machine learning, AI ethics, procurement, algorithmic governance, administrative law

Suggested Citation

Rubenstein, David S., Acquiring Ethical AI (Oct. 1, 2020). Florida Law Review, Vol. 73, 2021, Available at SSRN:

David S. Rubenstein (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1682 (Phone)

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