What’s in store for artificial intelligence (AI) in California? Will there be an “AI summer” hiatus as the state assembly recommends, or will legislation and regulatory proposals go forging ahead?
Regardless of whether California’s bills to regulate the use of AI advance, the topics addressed in such legislation underscore issues employers should consider. Such topics include the intended use and benefit of an automated decision systems, data privacy and the types of information or data used by the AI systems, and protections in place to mitigate against the risk of inaccurate, discriminatory, and biased results from the AI systems.
The following is an overview of which bills are dead and which are still pending while the legislature is on its summer recess.
Senate Bill 313: Dead Bill for Now
This bill would have enacted the California AI-ware Act, which sought to establish—within the Department of Technology—the Office of Artificial Intelligence. The AI Office would have possessed the power and authority to guide the design, use, and deployment of automated systems by a state agency to ensure that all AI systems are designed and deployed in a manner that is consistent with state and federal laws pertaining to privacy and civil liberties, and minimizes bias.
This bill will not go forward this session. Because we are in the first year of the two-year session, however, there is a possibility this bill will be revisited after the new year. A related bill, Senate Bill 721, will go forward, however.
Assembly Bill 302: Still Pending
Assembly Bill 302 would require the state to conduct on or before Sept. 1, 2024, a comprehensive inventory of all high-risk automated decision systems that have been proposed for use, development or procurement by, or are being used, developed or procured by, state agencies.
The comprehensive inventory would need to include a description of all of the following:
- Any decision the automated decision system can make or support and the intended benefits of that use, as well as the alternatives to any use of AI.
- The results of any research assessing the efficacy and relative benefits of the uses and alternatives of the automated decision system.
- The categories of data and personal information the automated decision system uses to make its decisions.
- The measures in place to mitigate the risks, including cybersecurity risk and the risk of inaccurate, discriminatory, or biased decisions, of the automated decision system.
On or before Jan. 1, 2025, and annually thereafter until Jan. 1, 2029, the state Department of Technology would have to submit a report of the comprehensive inventory to the Assembly Committee on Privacy and Consumer Protection and the Senate Committee on Governmental Organization. It remains to be seen how the department’s inventory and report would align with the SB 721 working group, also studying and reporting on AI. The focus of AB 302, however, seems to be solely on high-risk automated decision systems already in use, rather than the overall future use of AI itself, which is the focus of SB 721.
Senate Concurrent Resolution 17 – Still pending
Senate Concurrent Resolution No. 17 commits to two primary resolutions. First, it expresses the California Legislature’s commitment to the five principles promulgated in the White House’s Blueprint for an AI Bill of Rights, guiding the use, design, and deployment of automated systems in a manner intended to protect the rights of the public while leveraging the benefits of AI. Second, the senate resolution affirms the legislature’s commitment to examining and implementing these principles in its own legislation and policies related to the use and deployment of automated systems in California.
Assembly Joint Resolution 16: The AI Summer
On May 4, the state assembly proposed an Assembly Joint Resolution (AJR 16) that urges the United States government to impose an immediate moratorium on the training of AI systems more powerful than GPT-4 for at least six months to allow time to develop AI governance systems.
The series of findings and statements spelled out in this resolution are vast. To quote part of the resolution: “Society has hit pause on other technologies with potentially catastrophic effects on society. We can do so here. Let’s enjoy a long AI summer, not rush unprepared into fall.”
The assembly is sending copies of this resolution to the President Joe Biden, Vice President Kamala Harris, speaker of the U.S. House of Representatives, majority leader of the U.S. Senate, and to each representative from California in Congress.
With all of the federal proposals regarding use of AI, this is a particularly strong statement for California’s legislature to make.
Alice Wang is an attorney with Littler in San Francisco. Joy C. Rosenquist is an attorney with Littler in Sacramento, Calif. ©2023. All rights reserved. Reprinted with permission.
