State Governments Take Up the AI Preemption Cause Against Localities

The group said those state measures fall into three categories, per Route Fifty:  bills that restrict local engagement with AI from foreign countries; bills that specifically focus on local regulation of AI; and bills that look to protect the so-called “right to compute.”

According to LegisScan, which tracks state legislation, bills in Ohio, South Carolina, Virginia and New Hampshire, which has two, fall into the latter category, while Montana has already enacted such legislation last year in its Right to Compute Act. That legislation imposes a very high legal standard on any local government effort to regulate AI, including any law, regulation, ordinance, rule, fee or condition.

There is no “absolute right to do anything” in this country, as “your right ends when someone else’s right begins,” LSSC’s co-Legal Team Lead Leslie Zellers told Route Fifty, pointing to laws restricting indoor smoking to protect non-smokers’ health.

“My right to compute ends when there are legitimate government reasons for regulating access to AI,” Zellers said. “Maybe it’s to protect minors, maybe it’s to protect senior citizens who may be vulnerable to scams. There are all kinds of legitimate government regulations… We are not guaranteed access to anything in the world on our computer.”

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Per LSSC, the various state bills appear to be based on model legislation developed by the conservative American Legislative Exchange Council (ALEC), which is supported by many large tech companies.

Zellers believes those companies have used their muscle to get the bills on statehouse agendas, much as they have pushed for federal preemption of state AI regulations.

“You hear the argument a lot that they don’t want a patchwork quilt of inconsistent regulation, and so they’re trying to —forgive the pun — preemptively go to the state level and say that they want to make sure that their AI services are going to be completely available to anyone in the state without limitation from local governments,” Zellers said. “Honestly, it’s just too hard for them to control what every local government does.”

Other states have considered legislation to restrict localities from adopting or engaging with AI systems based in other countries, particularly U.S. adversaries such as China and Russia, according to Route Fifty. Lawmakers in Georgia and Florida have each introduced such legislation, the latter in both chambers of its statehouse. Zellers told Route Fifty that LSSC recognizes the national security benefits of those measures, but believes the bills go too far in restricting localities’ ability to engage even with foreign AI seems considered safe.

Two states in LSSC’s tally, Illinois and New Hampshire, have considered bills that explicitly prohibit localities from regulating AI at all. The New Hampshire measure was ultimately voted down by the state legislature, but the Illinois bill is still alive.

The parallels between the federal and state preemption drives reflects a “symbiotic relationship,” according to Zellers, in which the federal government seeks willing state partners to promote policies at that local level where federal influence is harder to effect.

“What we’re seeing is a lot more interaction between the states and the federal government, whether that’s overt or implicit in their policy agenda,” she said.