The evolving use of artificial intelligence (AI) across different industries has thrust states into a difficult and rapidly developing regulatory arena. State Attorneys General have and will continue to play an essential role in state responses to and regulation of AI technology. In the past year, state AGs have engaged with AI issues both individually and in collaborative efforts spanning multiple state AG offices. AI-related activity by state AGs has included pre-enforcement and enforcement actions, state legislative and policy development, and partisan and bipartisan coalition letters to Congress and federal agencies:
In March 2020, former Vermont Attorney General TJ Donovan filed an action against Clearview AI asking the court to order the company to stop collecting Vermonters’ photos and facial recognition data due to alleged violations of the Vermont Consumer Protection Act and Data Broker Law. In a statement, Donovan said he was “disturbed” by the company’s business practices, which he said includes collecting and selling children’s facial recognition data. In December 2023, Vermont failed to prevail on its summary judgment motion, meaning Vermont must prove the allegations to a jury.
In June 2023, a bipartisan coalition of Attorneys General issued a comment letter to the National Telecommunications and Information Administration (NTIA) regarding NTIA’s AI policies. The letter recommended a governance framework to regulate high-risk uses of AI, and included specific recommendations for (i) establishing transparency standards for AI decision-making systems; (ii) establishing independent testing standards for AI systems; (iii) requiring regular testing and impact assessments; and (iv) requiring external, third-party audits.
In December 2023, South Dakota Attorney General Marty Jackley issued legislation with the South Dakota Deartment of Health to make the creation of AI-generated child pornography a felony crime. The bill passed in January 2024.
In January 2024, a coalition of 26 Democratic Attorneys General issued a comment letter to the Federal Communications Commission (FCC) about the implications of emerging AI technology to the Telephone Consumer Protection Act. The comment letter urged the FCC to treat any type of AI technology that generates a human voice as an “artificial voice” under the TCPA, which would require “callers” to obtain express written consent prior to initiating a call that uses an AI-generated voice.
In February 2024, Minnesota Attorney General Keith Ellison released a report concerning the impact of social media and AI on young people. The report, which was commissioned by the Minnesota Legislature, made certain recommendations to Minnesota lawmakers about the regulation of AI, such as “mandating transparency about product experimentation” to “help society play a meaningful role in AI model development.” The report noted that “[t]he Minnesota Attorney General’s Office, along with other state attorneys general, has been seriously concerned about the impact of AI on children, specifically identifying the risks of revealing private information and enabling ‘deepfakes’ of children’s voices and images, including in sexualized contexts.”
In February 2024, a coalition of 20 Republican Attorneys General issued a comment letter in response to a U.S. Department of Commerce’s request for information about the regulation of AI. The letter criticized the Biden Administration’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, stating that it “moves in the wrong direction” and “opens the door to using the federal government’s control over AI for political ends, such as censoring responses in the name of combatting ‘disinformation.’” The letter called on the Biden Administration to “work with Congress and states across the political spectrum to find bipartisan solutions that can help our country harness the power of AI and use it for the good of all, rather than only for one political party or specific groups of people.”
We will continue to monitor state AG activity in the AI space for important developments and updates.
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