We don’t imprison humans preemptively based on the capability to commit crime. Why regulate AI that way?

The Trump administration has reportedly been looking into reviving a Biden-era approach to regulating the release of new AI models, reversing one of its earliest decisions to give the industry free rein. Just earlier this week, reports surfaced that over 60 of President Trump’s allies sent him a letter urging him to take a more hands-on approach to AI, with pre-release testing and approval. Then, on Thursday, Trump abruptly postponed the signing of an executive order that would’ve provided for more oversight – signaling the ongoing debate over AI regulation. The approach under consideration, first proposed in 2023, focuses on the wrong target. Like much of the current regulatory momentum across jurisdictions, it focuses on how AI systems are built and how they perform on tests — not on their behavior and impact once deployed in the real world. We’ve already seen similar initiatives crop up. Consider the European Union AI Act. Under this policy, before a “high-risk” system can enter the market, its developers must complete a conformity assessment documenting that the system meets requirements for accuracy, robustness, and data governance based on its intended purpose, defined up front at the time of classification. While that act mandates post-deployment monitoring, its center of gravity remains firmly ex ante. Many state-level proposals in the U.S. also emphasize capability-based regulation and pre-deployment certification. All of these approaches share a common premise: that risk can be determined in advance, based on capabilities and pre-deployment testing, without observing how a system actually behaves. These policies reflect a regulatory instinct borrowed from consumer products — fix the capability, certify the output, call it safe. But consider the absurdity of applying that logic to human beings. Every person on earth is capable of committing crime. We don’t imprison everyone as a precaution. We regulate the act, assign liability