As With Privacy, States Not Waiting for Federal AI Law, Lawyer Says
While AI practices continue to raise privacy concerns, privacy laws may create a pathway for AI regulation, said Clark Hill privacy attorney Myriah Jaworski in a Tuesday webinar about the rise of AI liability.
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Many privacy risks arise from collecting data for training AI models, said Jaworski. “A lot of consumers are comfortable providing their personal information to businesses for one purpose," but feel differently "when they learn that their information was collected and used for a secondary purpose, such as training an AI model."
Consumers want to know when businesses are using AI tools, so lawmakers in states like California have focused on transparency, added the lawyer. This type of legislation is deeply intertwined with privacy concerns, because consumers “want to know where [AI] training data came from,” and legislators “want to give consumers the right to opt out of having their personal information used as training data,” Jaworski said.
Moreover, governments might have the authority to regulate AI without passing AI-specific laws. “If you talk to any federal or state regulator, they will tell you that they have the authority to regulate and to enforce pertaining to the use of AI tools." For example, to target AI, they may use existing laws, such as those fighting age discrimination or statutes protecting consumers and unfair discrimination laws, she said. As such, Colorado has used "existing privacy law authorities to regulate AI in the context of what's known as automated decision-making tools, extensive profiling and the ad tech or behavioral targeted advertising space.”
“The states are not waiting for a federal AI law,” Jaworski said. “They're not waiting for Congress,” which is “very similar to what we saw in the privacy world."
Still, Jaworski is optimistic that a federal AI law will happen. “We're in better footing for an AI law, because we don't have the same barriers that we do for a federal privacy law,” such as debates over including a private right of action and whether to preempt existing state privacy laws. “There is probably a lot to learn from our past with a patchwork of state privacy laws."