AI product management · Industry brief

The European Commission designated ChatGPT a "very large online search engine" under the Digital Services Act (DSA) as of August 31, creating a regulatory precedent that exposes tensions in EU digital regulation. The classification subjects ChatGPT to DSA obligations that do not apply to rival AI providers like Anthropic, potentially tilting the competitive playing field. This contrasts with the Commission's April Digital Markets Act (DMA) review, which took a wait-and-see approach rather than expanding "core platform services" to include standalone AI. The mismatch raises questions about regulatory coherence: the DSA uses identical definitions for online search engines as the DMA, yet the Commission identified "virtual assistants" as the possible DMA category for AI services during its review. Italian authorities further illustrate the problem—the Italian Communications Authority and Italian Competition Authority disagreed over whether AI agents with optional search features qualify as intermediary services under the DSA. The underlying issue is that AI applications combine multiple functions (search, platforms, marketplaces, assistants) that resist existing regulatory taxonomies, creating risks of incoherent enforcement and "strategic designation" across overlapping regimes.

Associate Dean Daryl Lim discussed emerging antitrust issues in AI markets at an American Bar Association panel on September 10, 2026, examining how copyright and content-licensing arrangements shape competition among search and AI platforms. Lim addressed the Department of Justice's statement of interest in the New York Times–OpenAI litigation, highlighting concerns that mandatory licensing could raise barriers to entry and entrench large AI firms, and discussed how exclusivity clauses, most-favored-nation agreements, collective licensing, and other training-data market arrangements can affect entry and innovation in AI governance (American Bar Association Antitrust Law Section webinar, moderated by David Lerch of O'Hagan Meyer).

The SEC and CFTC have prioritized AI-related misconduct as a standalone enforcement focus, with both agencies confirming that existing regulatory frameworks apply with full force to AI-enabled activities. The SEC created the Cyber and Emerging Technologies Unit in February 2025 specifically to investigate "AI washing"—false claims about AI capabilities—leading to enforcement actions including a April 2025 parallel civil and criminal case against a tech startup CEO who raised $42 million on fraudulent AI claims, and an April 2026 DOJ indictment against executives of a Nasdaq-listed company. A critical emerging issue involves autonomous AI trading agents: Robinhood's Agentic Trading platform has raised questions about investment-adviser and broker-dealer classification for autonomous systems and how antifraud provisions apply when no individual formed the relevant intent, prompting the CFTC to launch an Innovation Task Force in early 2026 to develop regulatory frameworks for AI and autonomous systems. Compliance guidance indicates companies should ensure public AI capability statements are accurate and substantiated, review programs against updated DOJ enforcement cooperation frameworks, and monitor the CFTC and SEC task forces for emerging autonomous systems guidance.