What Is AI? State Lawmakers Search for a Legal Definition
Key Takeaways
States are actively working to define "artificial intelligence" in law, but no universal definition has emerged yet. Different states are taking different approaches, from broad definitions that cover any system simulating human intelligence to narrower ones focused on specific decision-making functions.
Some lawmakers are sidestepping the term "AI" altogether, opting instead for phrases like "automated system" or "automated decision making" to target specific harms. How states define the actors behind AI systems is a related challenge that legislatures are working through in parallel.
The definition a state chooses matters a lot for businesses. A broad definition could pull in algorithms and automated tools that companies have used for years, well before generative AI entered the mainstream.
How states are defining deployers and high-risk systems shows that the definitional debate extends beyond AI itself. Getting these terms right is foundational to building any workable regulatory framework.
Companies that rely on algorithmic decision-making should pay close attention to how Colorado and other states are drawing these definitional lines, since the scope of future AI regulation will depend heavily on how the technology is defined in the first place.
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We've established that artificial intelligence (AI) is the issue du jour in state capitols today and that state lawmakers are solidly in the education stage of the policymaking process around AI regulation. But it's helpful to take a step back and ask what are we even talking about? What is "artificial intelligence"?
The Challenge of Defining Artificial Intelligence
Policymakers and industry insiders have yet to settle on a universal definition. Google, whose researchers have led much of the academic development on AI over the years, defines AI broadly as "a field of science concerned with building computers and machines that can reason, learn, and act in such a way that would normally require human intelligence or that involves data whose scale exceeds what humans can analyze."
How States Are Defining AI in Proposed Legislation
But lawmakers need a more precise and narrow definition of AI in order to regulate the technology in legislation. So far, states have proposed various definitions.
Rhode Island and Michigan's Technical Approach
For example, a Rhode Island bill (RI HB 6285) defines AI as "any technology that can simulate human intelligence, including, but not limited to, natural language processing, training language models, reinforcement learning from human feedback and machine learning systems." A pending bill (MI HB 5143) in Michigan 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."
New York's Alternative Framework Using Automated Systems
The recently introduced "New York Artificial Intelligence Bill of Rights" (NY AB 8129) sidesteps the issue by not using the term AI within the bill itself (despite the title) and instead defines an "automated system." While the definition the bill supplies for automated systems is detailed (and includes "artificial intelligence techniques"), the legislative intent intro spells it out more succinctly as "any system making decisions without human intervention."
Broad vs Narrow Definitions and Their Regulatory Impact
One option for lawmakers is to broadly define AI, which could pull many established and vetted technologies into the AI regulatory target. This includes many techniques used way before ChatGPT and image generators like DALL-E burst onto the public consciousness last year. Another option will be to define AI, or use another term like "automated system" or "automated decision making," that's narrowly tailored to the legislative provision or regulatory goal lawmakers are seeking to solve. For example, in the legislation signed into law this week by Gov. Hochul (see details below), New York lawmakers didn't need to define AI in order to outlaw "deepfakes." They simply added "an image created or altered by digitization" to the state's unlawful dissemination or publication of an intimate image statute.
What This Means for Industry and Future Policymaking
Settling on a definition of AI or defining the technology into actionable subsets will be a fundamental job of policymakers and industry moving forward. And for companies that have used algorithms to make decisions for years, keeping an eye on how states are defining these terms will be paramount to keep established techniques out of the regulatory crosshairs.
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