Wednesday, May 8, 2024

FYI: Massachusetts AG Provides Guidance on Intersection of Artificial Intelligence and Existing State Laws

The Massachusetts Office of Attorney General ("AGO") recently issued an Advisory on the development, supply, and use of artificial intelligence ("AI").  The Advisory provides guidance in the context of the Massachusetts Consumer Protection Act,[1] Anti-Discrimination Law,[2] Data Security Law,[3] and associated regulations.


The AGO defines AI as:  "A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action."


For this definition, the AGO cites Executive Order 14110, "Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence," though the definition originates from the National Artificial Intelligence Initiative, 15 U.S.C. § 9401(3).


The AGO provides the following list of acts or practices that could be "unfair and deceptive" under the Massachusetts Consumer Protection Act:


  • Falsely advertising the quality, value, or usability of AI systems;
  • Supplying an AI system that is defective, unusable, or impractical for the purpose advertised;
  • Misrepresenting the reliability, manner of performance, safety, or condition of an AI system;
  • Offering for sale or use an AI system in breach of warranty, i.e., the system is not fit for the ordinary purposes for which such systems are used, or is unfit for the specific purpose for which it is sold where the supplier knows of such purpose;
  • Misrepresenting audio or video content of a person for the purpose of deceiving another to engage in a business transaction or supply personal information as if to a trusted business partner, as in the case of deepfakes, voice cloning, or chatbots used to engage in fraud; or
  • More broadly, failing to comply with "Massachusetts statutes, rules, regulations or laws, meant for the protection of the public's health, safety or welfare."


In the context of Massachusetts' Anti-Discrimination Law, the AGO warns against "deploying technology that discriminates against residents on the basis of a legally protected characteristic," including "algorithmic decision-making that relies on or uses discriminatory inputs and that produces discriminatory results, such as those that have the purpose or effect of disfavoring or disadvantaging a person or group of people based on a legally protected characteristic."


The AGO also advises that developers, suppliers, and users of AI remain subject to Massachusetts' data breach notification laws and the regulations setting forth the standards for the protection of personal information.


As Congress and state legislatures grapple with how to regulate AI without deterring innovation, the Advisory illustrates how state attorneys general can rely on existing laws to address many potential issues.


. . .

[1] Mass. Ann. Laws ch. 93A, § 2; 940 Code Mass. Regs. 3.00 et seq.; 940 Code Mass. Regs. 5.00 et seq.


[2] Mass. Ann. Laws ch. 151B, § 4.


[3] Mass. Ann. Laws ch. 93H; 201 Code Mass. Regs. 17.00, et seq.




Ralph T. Wutscher
Maurice Wutscher LLP
20 N. Clark Street, Suite 3300
Chicago, Illinois 60602
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Admitted to practice law in Illinois




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