AI companies would need to reveal testing protocols and what guardrails they implemented to the California Department of Technology. If the tech causes “critical harm,” the state’s attorney general can litigate against the company.
Wiener’s bill arrives in the midst of a growth in state bills addressing artificial intelligence, as policy makers across the country grow nervous that years of inaction in Congress have resulted in a lack of regulation that benefits the tech industry. However, California, home to many of the world’s largest technology companies, plays a distinctive role in setting precedent for tech industry guardrails.
“You can’t work in software development and ignore what California is saying or doing,” said Lawrence Norden, the senior director of the Brennan Center’s Elections and Government Program.
Federal legislators have held numerous hearings on AI and proposed several bills, but none have been adopted. Advocates for AI regulation are now worried that the same pattern of debate without action that occurred with previous tech issues like privacy and social media will recur.
“If Congress at some point is able to pass a strong pro-innovation, pro-safety AI law, I’ll be the first to cheer that, but I’m not holding my breath,” Wiener said in an interview. “We need to get ahead of this so we maintain public trust in AI.”
Wiener’s party has a supermajority in the state legislature, but tech companies have fought hard against regulation in the past in California, and they have strong allies in Sacramento. Nevertheless, Wiener says he believes the bill can be approved by the fall.
“We’ve been able to approve some exceedingly tough technology-related policies,” he said. “So, yes, we can approve this bill.”
California isn’t the only state pushing AI legislation. There are 407 AI-related bills in effect across 44 U.S. states, according to an analysis by BSA the Software Alliance, an industry group that includes Microsoft and IBM. That’s a dramatic increase since BSA’s last analysis in September, which found states had introduced 191 AI bills.
Several states have already approved bills into law that address severe risks of AI, including its potential to worsen hiring discrimination or create deepfakes that could disturb elections. About a dozen states have approved laws that mandate the government to study the technology’s impact on employment, privacy, and civil rights.
However, as the most populous U.S. state, California has unique power to set standards that have repercussions across the country. For decades, California’s consumer protection regulations have basically functioned as national and even international standards for everything, from harmful chemicals to cars.
For example, in 2018, after years of debate in Congress, the state approved the California Consumer Privacy Act, setting rules for how tech companies could gather and use people’s personal information. The United States still lacks a federal privacy law.
Wiener’s bill mainly builds off an October executive order by President Biden that uses emergency powers to mandate companies to perform safety tests on potent AI systems and disclose those results to the federal government. The California measure goes further than the executive order, to explicitly require hacking protections, safeguard AI-related whistleblowers, and mandate companies to conduct testing.
The bill will likely be met with criticism from a large section of Silicon Valley that argues regulators are moving too aggressively and risk enshrining systems that make it difficult for start-ups to compete with big companies. Both the executive order and the California legislation single out large AI models — something that some start-ups and venture capitalists criticized as shortsighted of how the technology may develop.
Last year, a debate raged in Silicon Valley over the risks of AI. Prominent researchers and AI leaders from companies including Google and OpenAI signed a letter stating that the tech was on par with nuclear weapons and pandemics in its potential to cause harm to civilization. The group that organized that statement, the Center for AI Safety, was involved in drafting the new legislation.
Tech workers, CEOs, activists, and others were also consulted on the best way to approach regulating AI, Wiener said. “We’ve done enormous stakeholder outreach over the past year.”
The crucial thing is that there’s a real conversation about the risks and benefits of AI taking place, said Josh Albrecht, co-founder of AI start-up Imbue. “It’s good that people are considering this at all.”
Experts anticipate that the pace of AI legislation will accelerate as companies release more and more powerful models this year. The proliferation of state-level bills might result in greater industry pressure on Congress to pass AI legislation, as complying with a federal law might be simpler than responding to a patchwork of different state laws.
“There’s a huge benefit to having clarity across the country on laws governing artificial intelligence, and a strong national law is the best way to provide that clarity,” said Craig Albright, BSA’s senior vice president for U.S. government relations. “Then companies, consumers, and all enforcers know what’s required and expected.”
Any California legislation could have a key impact on the development of artificial intelligence more broadly because many of the companies developing the technology are based in the state.
“The California state legislature and the advocates that work in that state are much more attuned to technology and to its potential impact, and they are very likely going to be leading,” said Norden.
States have a long history of moving faster than the federal government on tech policy. Since California passed its 2018 privacy law, nearly a dozen other states have enacted their own laws, according to an analysis from the International Association of Privacy Professionals.
States have also sought to regulate social media and children’s safety, but the tech industry has contested many of those laws in court. Later this month, the Supreme Court is scheduled to hear oral arguments in landmark social media cases over social media laws in Texas and Florida.
At the federal level, partisan battles have diverted lawmakers from creating bipartisan legislation. Senate Majority Leader Charles E. Schumer (D-N.Y.) has established a bipartisan group of senators focused on AI policy that’s likely to soon introduce an AI framework. However, the House’s efforts are far less advanced. At a Post Live event on Tuesday, Rep. Marcus J. Molinaro (R-N.Y.) said House Speaker Mike Johnson (R-La.) called for a working group on artificial intelligence to help move legislation.
“Too often we are too far behind,” Molinaro said. “This last year has really caused us to be even further behind.”