CDT Urges Colorado to Tighten Rules on Automated Decision-Making Law

A narrower definition of 'de minimis factor'

The central request concerns when an automated decision-making technology (ADMT) counts as only a minor influence on a consequential decision. CDT says the meaning of "de minimis factor" in the final rules should not be too broad or vague, because that would let too many covered entities decide their systems fall outside the law. If those entities skip the transparency requirements, CDT argues, the Attorney General's office will lack the information needed to detect evasion.

The proposed rules define a de minimis factor as one that is not substantial in a consequential decision, with a non-exhaustive list of considerations. CDT says this approach has several flaws. It points out that the list uses the term "Consequential Decision maker," which is neither defined in the proposed rules nor used in the ADMT Act. The term also appears in Rules 6.1 and 6.2, which set out a rebuttable presumption that an ADMT materially influences a decision. CDT asks that it be defined to cover both first-party deployers and third parties deploying on their behalf.

CDT also says the list can be gamed. A deployer could, for example, review an ADMT output alongside other information and still systematically defer to it without acknowledging that. Another consideration, about data volume or complexity a deployer cannot reasonably review in time, could encourage deployers to include more or more complex data than needed to qualify for exemption.

Its proposed fix is to replace the definition with one stating that a de minimis factor plays "a significantly smaller role than all other relevant factors" reviewed by the deployer. The wording is CDT's, as written in its comments. CDT also wants Rule 6.1(B)(3) clarified so that a deployer who largely defers to an ADMT, or reviews only information consistent with its output, cannot call that output de minimis.

Exemptions, advertising and upstream developers

CDT notes that the ADMT Act's definition exempts tools used solely to summarize, organize, translate, draft, route, or present information for human review or administrative processing. It asks the Attorney General to acknowledge that such tools can still influence a human reviewer, and that covered entities should make efforts to ensure their outputs do not materially influence decisions in a biased way.

On the definition of "consequential decision," CDT says the statute's advertising exception lacks the qualifications attached to other exemptions. It urges the Attorney General to avoid the broadest reading, since fully exempting advertising would run counter to the statute's objectives. The rules should state that advertisements remain subject to Colorado's civil rights and consumer protection laws even when they comply with the ADMT Act.

Responding to the office's request for feedback on "financial or lending service," CDT suggests citing the definition of "consumer financial product or service" in 12 U.S.C. 5481(5). According to CDT, this would bring in decisions on loan servicing, payment instruments and payment processing products, and credit counseling and debt management services.

For developers, CDT says the example in Rule 4.2(D)(1) is less relevant to that rule and instead illustrates Rule 4.2(B)(1). It proposes an example showing that an upstream developer cannot avoid compliance by claiming its product is not meant for a covered ADMT while acting against that claim. One case it gives is a company that bars such integration in its acceptable use policy while promoting the product's usefulness for consequential decisions in covered domains.

What it means

CDT describes the ADMT Act as currently the strongest comprehensive legislation on automated decision-making in the country, though less protective for consumers than the earlier Senate Bill 24-205. It calls the Department of Law's proposed rules promising. The comments are a contribution to the rulemaking, and the source does not indicate how the Attorney General will respond.

The comments also begin a section on deployer obligations, including the notice a consumer must receive under Sec. 6-1-1704(1) when a covered ADMT is used. The source text ends partway through that section. For companies that build or use automated tools in areas like lending, the debate over definitions such as "de minimis factor" will help determine whether their systems fall under the law.