Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
What’s in store for artificial intelligence (AI) in California? Will there be an “AI summer” hiatus as the Assembly recommends, or will legislation and regulatory proposals go forging ahead? Regardless of whether California bills to regulate the use of AI advance, the issues addressed in such legislation underscore issues employers that have adopted AI in employment decisions—or are contemplating doing so—should consider. Such topics include the intended use and benefit of an automated decision system, data privacy and the types of information or data used by the AI system, and protections in place to mitigate against the risk of inaccurate, discriminatory, and biased results of the AI system.
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”). 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 721,1 will go forward, however.
Assembly Bill 302 – Still Pending
Assembly Bill 302 would require the Department of Technology within the Government Operations Agency (the “Department”), in coordination with other interagency bodies, to conduct on or before September 1, 2024, a “comprehensive inventory” of all “high-risk automated decision systems”2 that have been proposed for use, development or procurement by, or are being used, developed or procured by, state agencies.3
The “comprehensive inventory,” which would be due by September 1, 2024, 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;
- 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; and
- the measures in place, if any, to mitigate the risks, including cybersecurity risk and the risk of inaccurate, discriminatory, or biased decisions, of the automated decision system.
On or before January 1, 2025, and annually thereafter until January 1, 2029, the Department 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 AB302, 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 SB721.
Senate Concurrent Resolution 17 – Still pending, but see below on what the Assembly has to say
Senate Concurrent Resolution No. 17 commits to two primary resolutions. First, SRC 17 expresses the California Legislature’s commitment to the five principles4 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, SRC 17 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, 2023, the 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, vice president, speaker of the 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.
Littler and its Workplace Policy Institute will continue to monitor these regulations, and those previously examined, and provide updates on any significant developments.
1 SB721 creates a working group of experts in the field of AI, computer science and data privacy who will deliver a report to the Legislature on artificial intelligence. This is important working group because it will define the term “artificial intelligence” for all future legislative purposes. Not only will the Group define AI, it will also study implications of its use, determine steps to prevent misinformation campaigns and harmful effects on children, and determine which state agencies will oversee implementation of policies recommended by the Group. These polices will affect both the public and private sectors.
2 Automated decision system is defined to mean a “computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons.” Spam email filters, firewalls, antivirus software, identity and access management tools, calculators, databases, datasets, or other compilations of data are explicitly excluded from the definition of an “automated decision system.”
A high-risk automated decision system means an “automated decision system that is used to assist or replace human discretionary decisions that have a legal or similarly significant effect, including decisions that materially impact access to, or approval for, housing or accommodations, education, employment credit, health care, and criminal justice.”
3 State agency includes “every state office, department, division, bureau, and the California State University.” Excluded are the University of California, the Legislature, the judicial branch, and any administrative or regulatory board, commission, committee, council, association, or authority consisting of more than one person whose members are appointed by the Governor, the Legislature, or both.
4 The five principles are: Safe and Effective Systems, Algorithmic Discrimination Protections, Data Privacy, Notice and Explanation, and Human Alternatives, Consideration, and Fallback.