OVERVIEW OF A.I. LAWS IN THE USA
But-for a labor relations law in Illinois, Nevada laws on different types of autonomous vehicles, and a handful of optometry laws that include artificial intelligence in medical assessment tools, the U.S. is the “wild west” for artificial intelligence (or AI).
Illinois is the only state to regulate the use of artificial intelligence and only with respect to employment interviews. Illinois’ role as a pioneer in technology law is not unsurprising as it was also the first state to pass biometric information privacy laws in 2008.
No doubt that privacy, consumer rights, and security laws apply to artificial intelligence. However, with the ability to analyze human behavior, communicate like a human, recognize and respond to audio and images, recognize patterns, and engage in cognitive decisions, it is interesting that neither the federal government nor 49 of the 50 states choose to regulate the use of AI. See below:
I. FEDERAL LAWS:
15 USCS § 7501: National Nanotechnology Program
Program activities shall ensure that ethical, legal, environmental, and other appropriate societal concerns, including the potential use of nanotechnology in enhancing human intelligence and in developing artificial intelligence are considered during the development of nanotechnology.
15 USCS § 7504: Quadrennial external review of the National Nanotechnology Program
The National Research Council shall conduct a one-time study to assess the need for standards, guidelines, or strategies for ensuring the responsible development of nanotechnology, including, but not limited to artificial intelligence.
50 USCS § 3369: Encouragement of cooperative actions to detect and counter foreign influence operations.
Congress determined that technological advances, such as artificial intelligence, makes it increasingly difficult to detect fraudulent accounts and deceptive material on social media platforms.
Code of Federal Regulations
15 CFR 917.21 National needs and problems (National Sea Grant Program Funding and Projects). The program administrator shall investigate the wider application of remotely operated and artificial intelligence techniques for vehicles for undersea activities.
II. STATES WITHOUT LAWS, PENDING BILLS, OR COMMISSIONS ON AI
These twenty-four states do not mention, regulate, or assign meaning to artificial intelligence in statute: Alaska, Arkansas, Connecticut (previous unsuccessful attempts to pass legislation), Delaware (previous unsuccessful attempts to pass legislation), Florida, Georgia, Iowa, Kansas, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Carolina, West Virginia, Wisconsin, and Wyoming.
III. STATES WITH PENDING LEGISLATIVE BILLS, EXISTING STUDIES, OR COMMISSIONS
The following thirteen states have pending legislation, established commissions, or studies focused on artificial intelligence:
Alabama: Established May 2019, Alabama Commission on Artificial Intelligence and Associated Technologies.
Arizona: Proposed bill on autonomous vehicles using artificial intelligence.
Hawaii: 2019 Artificial Intelligence Advisory Committee to investigate how to implement, develop, and regulate artificial intelligence.
Massachusetts: The Massachusetts Technology Collaborative shall conduct a study on the autonomous vehicle industry and issue recommendations on how to advance the state’s competitiveness in the emerging industries of analytics, robotics, artificial intelligence, and navigational software (2017).
New Jersey: Pending bill to require the Commissioner of Labor and Workforce Development to conduct a study and issue a report on the impact of artificial intelligence on economic growth. 2020 Bill Tracking NJ A.B. 195.
New York: NY CLS Pub A § 3102-e Emerging technology industrial classifications includes “artificial intelligence” in the definition of emerging technologies studied by the New York state science and technology foundation. Furthermore, 2019 N.Y. SB 3971 was an act creating a temporary state commission to study and investigate how to regulate artificial intelligence, robotics, and automation.
Rhode Island: Pending legislative proposals to include artificial intelligence devices to remotely conduct eye assessments for health care.
South Dakota: Pending legislation to prohibit artificial intelligence systems to be used in conjunction with portable recording systems, including video and audio, that are used to identify or verify a person. 2020 Bill Text SD S.B. 100.
Tennessee: Two pending house bills proposing to study impact of artificial intelligence on agriculture and workforce.
Utah: Emerging Technology Talent Initiative, Utah Code Ann. § 53B-26-301 creates a board to develop and provide funding for expanded programs in deep technology, which includes artificial intelligence.
Vermont: Act No. 137 creates the Artificial Intelligence Task Force (effective 2018).
Virginia: Two pending house bills proposing to study impact of artificial intelligence on agriculture and workforce.
Washington: Rev. Code Wash. (ARCW) § 43.___.___ (added by 2020 c 332 § 1) (Effective June 11, 2020) seeks to use emergency technologies such as artificial intelligence to benefit the disenfranchised areas of its communities without negative effects or civil rights violations.
IV. STATES THAT MAY INCLUDE AI IN DEFINITION OF ELECTRONIC AGENT FOR COMMERCIAL TRANSACTIONS:
The following seven states include the same comment based on a Harvard Law Review article suggesting that “artificial intelligence” may be included in the statutory definition of “electronic agent” in commercial transactions: Colorado - C.R.S. 24-71.3-102; Idaho - Idaho Code § 28-50-102; Indiana - Burns Ind. Code Ann. § 26-2-8-102; North Carolina - N.C. Gen. Stat. Section 66-312; Pennsylvania - 73 P.S. § 2260.103; Tennessee - Tenn. Code Ann. § 47-10-102; and Virginia - Va. Code Ann. § 59.1-480.
V. STATES THAT INCLUDE AI IN MEDICAL DEFINITIONS/STATUTES
The following three states include artificial intelligence in the definition of certain medical devices:
Kentucky: KRS § 367.680 Consumer Protection in Eye Care statute includes artificial intelligence devices in the definition of “assessment mechanisms.”
Maryland: Md. Health-General Code Ann. § 13-4004 allows artificial intelligence testing to be used for cancer screening by fire department employees or volunteers.
Oklahoma: 59 Okl. St. § 646.1 practice of optometry statute includes artificial intelligence devices in the definition of “assessment mechanisms.”
VI. STATES WITH MISCELLANEOUS MENTIONS OF AI IN STATE STATUTES
California: Cal Ed Code § 75008 Research and Development Unit of California Community College Act tasks its Research and Development Unit to use technology, data science, behavioral science, machine learning, and artificial intelligence to build out student supports, such as virtual help desks.
Ohio: ORC Ann. 4768.01 includes artificial intelligence in the types of automated valuation models used by real estate appraisers.
Nevada: Repealed a previous definition of “Artificial Intelligence” passed in July 2013. However, Nev. Rev. Stat. Ann. § 482A.030-036 recognizes autonomous vehicles, driver-assistive platooning technology, dynamic driving task, and fully autonomous vehicles (all forms of artificial intelligence).
Texas: Tex. Gov’t Code § 2054.601 Use of Next Generation Technology statute requires each state agency and local government to consider using next generation technologies, including cryptocurrency, blockchain technology, and artificial intelligence in its administration of services.
VII. ONLY STATE WITH LAWS DIRECTLY REGULATING USE OF AI:
Illinois Artificial Intelligence Video Interview Act
820 ILCS 42/5 Disclosure of the use of artificial intelligence analysis.
An employer that asks applicants to record video interviews and uses AI analysis of the videos must:
(1) Notify each applicant before the interview that artificial intelligence may be used.
(2) Advise the applicant before the interview on how artificial intelligence works and what general types of characteristics it uses to evaluate applicants.
(3) Obtain, before the interview, consent from the applicant to use AI. Absent consent, AI cannot be used.