More states look to preempt local AI laws, report finds

In recent months, much of the attention around preempting laws and regulations on artificial intelligence has focused on the federal government stopping states. But there is evidence that some states are also looking to prevent their local governments from regulating AI.

The Local Solutions Support Center, a group that tracks abusive preemption laws and looks to strengthen local democracy, found that nine states have considered 12 bills designed to limit local governments’ ability to regulate AI. LSSC said those bills largely fall into three categories: ones that restrict engagement with AI from foreign countries; ones that specifically focus on local regulation of AI; and others that look to protect the so-called “right to compute.”

Bills in New Hampshire — which has two — as well as Ohio, South Carolina and Virginia fall into the latter category, with Montana having already signed such legislation last year in its Right to Compute Act. The legislation imposes a very high legal standard on any local government effort to regulate AI, including any law, regulation, ordinance, rule, fee or condition.

LSSC said the bills, which are in various stages of debate in their respective states, appear to be based on a model bill from the conservative American Legislative Exchange Council.

Leslie Zellers, LSSC’s co-Legal Team Lead, said there is no “absolute right to do anything” in this country, as “your right ends when someone else’s right begins,” hence laws like a ban on indoor smoking to protect non-smokers’ health. It is a similar story for AI, she said.

“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.”

Zellers said it appears that big technology companies and “corporate special interests” have flexed their muscles to get these bills moving through state houses, similar to how they have tried to get the federal government to back off from any kind of regulation.

“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. Honestly, it's just too hard for them to control what every local government does,” she said.

For its part, ALEC says the right to compute should be protected under a state’s constitution as a “fundamental right to own and make use of technological tools, including computational resources.”

“Any government restrictions on the lawful use of computational resources — including but not limited to hardware, software, algorithms, machine learning, cryptography, platforms, services, and quantum applications — must be narrowly tailored and demonstrably necessary to fulfill a compelling government interest,” the group continued.

Separately, states have explored legislation that would restrict localities from engaging with AI made in foreign countries, including U.S. adversaries. Georgia and Florida, the latter in both chambers of its legislature, have proposed laws in this area. While LSSC recognized “positive aspects” of these bills, including the emphasis on protecting national security and privacy, they also lamented that it still preempts localities from engaging in any way with a foreign-made AI, even if it is safe.

Meanwhile, two states — Illinois and New Hampshire — have attempted to pass bills to explicitly prevent local governments from regulating AI. The latter attempt has already failed, but Zellers said it is part of an effort by tech companies and agreeable politicians to clear the regulatory road ahead so they can have their products be used with no guardrails.

“In this case, in the AI category, I do think it's the corporate special interests trying to get ahead of this and trying to ensure access so that they can build the data centers, and then they can basically sell their product without any limits on it, and get some preemption thrown into the bargain,” Zellers said.

There is a connection between the existing federal preemption effort and this seemingly growing state preemption effort of local AI regulations, Zellers said. She said it shows a “symbiotic relationship” where the federal government wants certain policies but can only effectuate them at the state level, so it recruits willing partners to help them out. That’s the case in other areas like voting rights, the redrawing of district lines, immigration and other policy priorities, she said.

Those efforts, be they in AI or myriad other areas, will continue, Zellers said.

“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.