Massachusetts AG Campbell Issues Advisory on Artificial Intelligence | Foley Hoag LLP – State AG Insights

Last month, we recapped the recent activity of state Attorneys General in the artificial intelligence (AI) space, including relevant enforcement actions, state legislative and policy development, and coalition letters to Congress and federal agencies.

On April 16, Massachusetts AG Andrea Campbell issued a legal advisory providing guidance to developers, suppliers, and users of AI on their obligations under state and federal consumer protection, anti-discrimination, and data security laws. Among other things, the advisory describes:

• Examples of specific acts or practices related to AI that are “unfair and deceptive” within the meaning of the Massachusetts Consumer Protection Act and associated regulations (including false advertisement of AI systems, misrepresentations of the reliability or condition of AI systems, and misleading audio or video content like deep fakes, voice cloning, or chatbots when used to engage in fraud);
• The requirement that AI systems must comply with the Commonwealth’s existing data security laws, personal information protection standards, and data breach notification obligations; 
• How the Commonwealth’s Anti-Discrimination Law prohibits deployment of AI in a discriminatory manner, such as through the use of algorithmic decision-making that relies on discriminatory inputs or produces discriminatory results; and
• The enforcement power of state AGs in connection with these and other laws applicable to AI.

The Massachusetts AG’s Office is the first AG’s Office in the country to issue such an advisory. The advisory is a leading example of how state AGs aim to apply existing legal frameworks to emerging AI technology while new, AI-specific laws are still in development. AG Campbell’s guidance is indicative of a nuanced approach to enforcement that focuses on ensuring that AI developers create transparent systems that accommodate the inherent risks and potential negative impacts to end-users of AI technology.

“There is no doubt that AI holds tremendous and exciting potential to benefit society and our commonwealth in many ways, including fostering innovation and boosting efficiencies and cost-savings in the marketplace. Yet, those benefits do not outweigh the real risk of harm that, for example, any bias and lack of transparency within AI systems, can cause our residents,” Campbell said in the advisory press release. “As AI usage becomes more common, this advisory serves as an important notice that our state’s consumer protection, anti-discrimination, and data privacy laws apply to AI, just as they would within any other applicable context, and my office intends to enforce these laws accordingly.”  

We will continue to monitor activity by state AGs in the AI space, including whether any other states will follow suit to provide similar targeted guidance.