Curious Optimism About All Those State-Level Laws Creating A Convoluted Legal Patchwork About AI

AI And The Law

As a quick background, I’ve been extensively covering and analyzing a myriad of facets regarding the intersection of AI and the law for many years. You can find my writings not only in my Forbes column but also as posted in Bloomberg Law, ABA Law Journal, The National Jurist, The Global Legal Post, Lawyer Monthly, The Legal Technologist, MIT Computational Law Journal, and so on.

There are two major perspectives on the mixture of AI and law:

• (1) Law & AI. The application of laws to the governance and regulation of AI.
• (2) AI & Law. The application of AI to perform legal reasoning.

Thus, you can apply the law to AI, and conversely, you can apply AI to the law. For my big picture overview of both of these exciting and rapidly evolving realms, see my discussion at the link here and the link here.

When it comes to applying the law to AI, the aim is to establish suitable regulations and provide appropriate governance on how AI should be devised and implemented. There are longstanding concerns that AI makers aren’t giving due attention to the ethical ramifications of their wares. Ethical issues are construed as “soft laws” and aren’t as formidable as legally enacted laws, known as “hard laws”. To level the playing field and keep AI makers on the up-and-up, some believe that we need more AI laws.

On the other side of the coin is the application of AI to the law. This consists of using AI to aid legal activities. Lawyers tap into the latest AI to devise legal strategies, brainstorm to find creative legal arguments, draft court filings, and prepare for cases by having the AI pretend to be an able adversary. For my extensive coverage on AI for legal reasoning (AILR), see the link here.

The Current Situation Legally

In terms of the AI laws in the United States, they have not yet stood the test of time, meaning that we won’t really know how well they stand up until there are court cases that test these new laws. It is too early to know whether the laws will survive legal battles waged by AI makers and other contenders. Just because AI laws are enacted does not mean they are proper. All sorts of improper provisions and constitutionally contentious stipulations are undoubtedly buried within these shiny new AI laws.

Congress has repeatedly waded into establishing an overarching federal law that would encompass AI. So far, no dice. The efforts have ultimately faded from view. Thus, at this time, there isn’t an overarching federal law devoted to these controversial AI matters. The big question will be to what degree a sweeping federal law would impact the numerous state-level AI laws. The odds are that many of the state-level laws would run afoul of a federal mandate, and a tsunami of legal cases would arise as a tussle between federal law and state law is undertaken. It surely will be a legal mess.

The crux is that there is intense and pervasive interest in using the law to govern AI. It is an abundantly burgeoning realm. AI companies would be wise to keep a close eye on what is happening in the hallways and byways of regulators and legislative bodies. I have repeatedly noted that a profitable specialty for budding lawyers is to consider concentrating on the exciting and dynamic field of AI and the law; see my predictions and suggestions at the link here.

Difficulties Aplenty

You can likely envision the challenges of the legal landscape governing AI.

Each state does its own thing. The AI laws in some states are poorly specified and legally ambiguous. States are also amending their AI laws that they previously thought were perfect. Other states that haven’t been enacting AI laws are opting to jump into the waters with both feet. They might borrow wording from other states, change it up, and put it into their legal books. Estimates suggest that there are well over 1,000 AI-related bills and laws that are in some form of consideration at the state level, ranging from pending status to actual enactment.

I’ve been extensively analyzing and explaining the disparate and at times conflicting state-level AI laws; see the link here. There are plenty of downsides to this situation. Plus, the matter is worsening. Public interest in AI laws is heightening. State-level lawmakers are becoming more familiar with AI and are joining the bandwagon on laws about AI. All told, a grand convergence is taking place toward a veritable tsunami of new AI laws across all 50 states.

Here are my top 10 reasons why this is a disconcerting situation:

• (1) Fragmentation: Massive regulatory fragmentation regarding AI and how to legislate AI in America.
• (2) Costly: Rising compliance costs that tend to favor larger AI players over smaller ones (referred to as regulatory capture).
• (3) Dampening: Potential dampening of AI innovation as AI makers react to AI legal repercussions.
• (4) Morass: Jurisdictional morass and patchwork that confound users and AI makers.
• (5) Inconsistencies: Inconsistent protections regarding AI for residents nationwide due to a dependency on state-specific borders.
• (6) Forum shopping: Possible business relocations and forum shopping by AI makers to avoid or contend with state-level AI restrictions.
• (7) Interstate defiance: Defies the fact that AI services are inherently interstate and cloud-based for nationwide use (a direct challenge to interstate commerce in the US).
• (8) User hindrance: Users must confront AI discrepancies in everyday usage and become frustrated and incensed, without even knowing that this is occurring due to state-level AI laws.
• (9) Competition: Enables foreign AI makers to make greater progress in AI, while US AI makers must contend with and get mired in the Byzantine array of state-level AI compliance requirements.
• (10) Race to the bottom: AI makers might end up aiming at the lowest common denominator in the design and shaping of AI, undercutting what AI can do and flattening or impairing AI advancements.

Those are the customarily noted downsides to the existing conundrum. I realize it might be a depressing list. Sorry, it is what it is.

Thinking About The Upsides

We all know that life has lots of surprises. When you are in your darkest moments, there could be something uplifting just around the corner. Never give up. Keep on fighting. Stay in there. Be on the lookout for a sunshiny day. I’m sure you’ve heard those types of remarks your entire lifetime.

Let’s go ahead and put on our thinking caps and consider how the state-level AI laws might be a good thing. It can’t be all bad. There must be a silver lining somewhere. An optimistic viewpoint could potentially reveal aspects that few are giving due credit to.

I might liken the situation to the old tale about a village gardener. It goes something like this. A village had been pounded for weeks with unrelenting rain. The roads were muddy. The skies were persistently overcast and gloomy. Villagers were downtrodden.

But a hearty village gardener was getting up each day and enduring the rainstorms. They planted seeds throughout the village. Neighbors thought this was foolish. The rain was ruining everything. The village gardener seemed oblivious and daft.

Finally, the rain stopped. The rain-soaked soil began to sprout beautiful flowers and lush grass. It became the most amazing display the villagers had ever seen. A lesson learned for the village was that even during difficult times, preparing for the future is a wise activity. The gardener planted seeds during the dark moments, which at the time seemed doubtful, and yet in the end, it was advantageous for all.

The Upsides Of State-Level AI Laws

That’s quite an inspirational tale.

How does this apply to the state-level AI laws that fill the legal books with inconsistencies and confusion? Aha, we must rethink the situation and view it through a different lens. Perhaps these are seeds that will be helpful in inevitably finding the best path toward AI laws across-the-board.

I present my list of the ten most upbeat reasons to be okay with how things are going:

• (1) Instructive: States provide illuminating forums and real-world experimentation for AI legal governance.
• (2) Speedy: States undertake relatively fast idea-to-law AI policy developments that provide lots of angles and perspectives for us to ruminate on.
• (3) Revealing: States reveal the types of accommodations needed for state-specific AI needs.
• (4) Optimization: States might discover by happenstance or design the optimal regulatory approaches to AI.
• (5) Learning: States can learn from each other about the nature and efficacy of AI laws, allowing each to climb up a ladder toward more attuned AI legislative efforts.
• (6) Protection: States are shoring up the existing national legal gaps and omissions concerning AI, ensuring that the public is not left fully exposed while a national effort is being figured out.
• (7) Awareness: States are bolstering public awareness about the value of AI laws, which will make it easier for Congress to gain public support for a comprehensive set of national AI laws.
• (8) Conscientiousness: States are pressuring AI makers to take AI safety seriously by passing state-level AI laws, keeping them from freewheeling while a national AI legal framework is being identified and established.
• (9) Reuse: States will enable Congress to tap into state-level AI legal writings and learnings, and hopefully lead to road-tested AI laws rather than wild guesses at what might work.
• (10) Spreading Risk: States are reducing AI regulatory risk versus that of a one-size-fits-all approach at the national level, namely, a national AI law could wreak havoc across the entire nation, while a state-level AI law, if flawed, would only disfavor that particular state.

I will briefly address the set of my ten topmost upbeat reasons. Perhaps your sense of depression about the list of downbeat reasons can be overturned. Let’s see.

Explaining The Upbeats

Think of the hundreds upon hundreds of state-level AI laws as seeds. They are legal seeds. Some of them will sprout into beautiful legal aspects that will rein in AI mayhem and keep AI makers on their toes. Others will not do much and simply sit quietly on the law books. There will be some, perhaps many, that are going to be a legal nightmare and quagmire. They will have adverse unintended consequences. They will be fought bitterly in the courts.

The real world is going to put these state-level AI laws to the test of reality. You could make a strong argument that it is better that we find this out via individual states. If those AI laws that are bad weeds and destructive in their results were passed on a national level, we would all take it on the chin. By isolating the AI law experimentation to the states, the risks are generally kept within the states.

Congress can presumably take a close look at these state-level AI laws and attempt to craft a national, comprehensive set that will avoid the mistakes and embrace the ones that are meritorious. Even individual states can start doing the same, since there are other states that have already passed AI laws that another state might be contemplating enacting.

A final thought for now. Winston Churchill famously made this pointed remark: “A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.” The AI law conundrum is a difficulty that could be construed as an opportunity, if you are willing to be that kind of an optimistic person.