Regulating Algorithms: What and When

The regulation of algorithmic decisions, ranging from advanced credit scoring to employment screening, presents unique challenges and novel opportunities for achieving regulatory goals. We propose a framework for algorithmic regulation that emphasizes the importance of temporal stages in the regulatory pipeline: ex-ante (pre-training), ex-interim (post-training but pre-deployment), and ex-post (post-deployment). Regulators can choose both the pipeline stage targeted by the legal rule (“rule timing”) and the stage at which compliance is assessed (“scrutiny timing”). We situate emerging and proposed AI regulations within this framework and analyze the tradeoffs between different regulatory regimes. We highlight how ex-interim rules offer a unique opportunity in algorithmic settings compared to the rigidity of ex-ante rules or the bluntness of ex-post rules and explore the considerations that guide whether regulators might scrutinize ex-interim rules before or after deployment. We conclude this chapter by outlining an agenda for developing effective tools to regulate AI.