United States: Everything Is Not Terminator: Using State Law Against Deceptive AI's Use Of Personal Data

Although killer drones and autonomous weapons get the most publicity when it comes to the dangers of artificial intelligence ("AI"),1 there is growing evidence of the dangers posed by AI that can deceive human beings. A few examples from recent headlines:

  • AI that can create videos of world leaders—or anyone— saying things they never said; 2
  • Laser phishing, which uses AI to scan an individual's social media presence and then sends "false but believable" messages from that person to his or her contacts, possibly obtaining money or personal information; 3 and
  • AI that analyzes data sets containing millions of Facebook profiles to create marketing strategies to "predict and potentially control human behavior." 4

The last technique was reportedly used in the 2016 American presidential election.5 The Facebook profiles in question were supposedly obtained through illicit means, giving Cambridge Analytica, the entity creating the marketing strategies, a wealth of personal data to feed to its AI for analysis. 6

The problems created by AI doing this work is immediately apparent, particularly to those involved with the technology. "The dangers of not having regulation around the sort of data you can get from Facebook and elsewhere is clear. With this, a computer can actually do psychology, it can predict and potentially control human behavior . . . It's how you brainwash someone. It's incredibly dangerous," notes Jonathan Rust, the director of the Psychometric Centre at the University of Cambridge, which did much of the research Cambridge Analytica relies on. 7 He goes on to warn, "It's no exaggeration to say that minds can be changed . . . People don't know it's happening to them. Their attitudes are being changed behind their backs." 8

Massachusetts Attorney General Maura Healey has announced that her office will investigate how Facebook and Cambridge Analytica obtained and used the personal data. 9 However, did Facebook and Cambridge Analytica actually break Massachusetts, or any state, law in a way that is enforceable? 10 If not, what does that say about the state of AI regulation and legal protection for individuals in this country?

Personal Data v. Personal Information in American Law

Data, particularly personal data, is the lifeblood of AI. 11 With enough data, AI can create original art, 12 write natural language reports and narratives, 13 and provide and improve personal assistant services through devices like Amazon's Alexa and Echo. 14 As the examples of deceptive AI above demonstrate, AI can also use personal data to mislead human users. Despite the apparent danger, American law focuses on protecting personal information in order to prevent identity theft, but is largely unconcerned with AI and personal data.

What's the difference between personal data and personal information? Personal data is a broad category of data that includes personal information. Compare the definition of personal data from the European Union's General Data Protection Regulation ("GDPR") and the definition of personal information used in Massachusetts: 15

  • Personal data: any information relating to an identified or identifiable natural person. 16
  • Personal information: a resident's first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such resident:

    • Social Security number;
    • Driver's license number or state-issued identification card number; or
    • financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account; provided, however, that "Personal information" shall not include information that is lawfully obtained from publicly available information, or from federal, state, or local government records lawfully made available to the general public.17

The EU uses personal data in an incredibly broad sense. Anything about you that can be connected to you is personal data: name, social security number, bank account, credit card, internet browsing history, Amazon purchases, social media posts and viewing habits, news articles written about and by you, tweets you are mentioned in, etc. The United States uses personal information narrowly by comparison, focusing on information that could lead to a bad actor gaining access to your credit card or finances. These definitions are consistent with the different approaches to data and privacy in the EU, where privacy and the protection of personal data are considered a fundamental right, 18 and in the United States, where one of the goals of data regulation is to ensure commerce continues to run smoothly. 19

Footnotes

1. See ampaign to Stop Killer Robots, https://www.stopkillerrobots.org/; Ban ttps://autonomousweapons.org/.

2. Supasorn Suwajanakorn, Steven M. Seitz, & Ira KemelmacherShlizerman, Synthesizing Obama: Learning Lip Sync from Audio, http://grail cs.washington.edu/projects/AudioToObama.

3. Charlie Warzel, "Infocalypse Now," Buzzfeed, February 11, 2018, https://www.buzzfeed.com/charliewarzel/the-terrifying-future-of-fake-news?utm_term=.unYkdQY8x#.jsGvbP3MO.

4. Carole Cadwalladr, "Robert Mercer: the big data billionaire waging war on mainstream media," The Guardian, February 26, 2017, https://www.theguardian.com/politics/2017/feb/26/robert-mercer-breitbart-war-on-media-steve-bannon-donald-trump-nigel-farage.

5. Carole Cadwalladr, "The Cambridge Analytica Files," The Guard- ian, March 18, 2018, https://www.theguardian.com/news/2018/m 17/data-war-whistleblower-christopher-wylie-faceook-nix-bannon-trump.

6. Matthew Rosenberg, Nicholas Confessore, & Carole Cadwalladr, "How Trump Consultants Exploited the Facebook Data of Millions," New York Times, March 17, 2018, https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html.

7. Carole Cadwalladr, supra note 4.

8. Id.

9. Jennifer Hansler, "Massachusetts AG to investigate Facebook, Cambridge Analytica," CNN, March 18, 2018, https://www.cnn.com/2018/03/18/politics/massachusetts-ag-cambridge-analytica/index.html. It seems likely that other attorneys general will pursue similar investigations, but as of this writing, Attorney General Healey is the only AG who has announced an investigation. As a result, I focus largely on her efforts in Massachusetts.

10. It is an open question as to whether Cambridge Analytica actually falls within Massachusetts' jurisdiction. I am assuming that is the case and so do not address that issue here. Also, because this article focuses on state law, I only discuss the 2012 U.S. Federal Trade Commission Decision and Order affecting Facebook as an example of a consumer protection action that states could use as a model. See In the Matter of Facebook, Inc., Docket No. C-4365, Decision and Order, U.S. Federal Trade Commission, available at https://www.ftc.gov/sites/default/files/documents/cases/2012/08/120810facebookdo.pdf ("2012 FTC Decision").

11. See Robert Seamans, "Artificial Intelligence And Big Data: Good For Innovation?," Forbes, September 7, 2017, available at https://www.forbes.com/sites/washingtonbytes/2017/09/07/artificial-intelligence-and-big-data-good-for-innovation/#5019a104ddb0 ("The most dramatic advances in AI are coming from a data-intensive technique known as machine learning. Machine learning requires lots of data to create, test and 'train' the AI.").

12. Cade Metz, "How A.I. Is Creating Building Blocks to Reshape Music and Art," New York Times, August 14, 2017, available at https://www.nytimes.com/2017/08/14/arts/design/google-how-ai-creates-new-music-and-new-artists-project-magenta.html ("The project is part of a growing effort to generate art through a set of A.I. techniques. . . . Called deep neural networks, these complex mathematical systems allow machines to learn specific behavior by analyzing vast amounts of data.").

13. Patrick Seitz, "Narrative Science Turning Big Data Into Plain English," Investors.com, August 21, 2012, http://news.investors.com/technology/082112-622940-narrative-science-takes-data-analytics-to-next-level.htm?p=full ("The possibilities are limitless for turning data into plain English articles. Government data like employment, trade and other economic statistics can be turned into readable reports 'super quick' and at 'outrageous scale.'").

14. George Anders, "Alexa, Understand Me," MIT Technology Review, August 9, 2017, available at https://www.technologyreview.com/s/608571/alexa-understand-me/ (noting that Echo devices with Alexa use "an artificial intelligence system building upon, and constantly learning from, human data . . . The more time Alexa spends with its users, the more data it collects to learn from, and the smarter it gets.").

15. It should be noted that although there are federal laws governing some specific types of personal data (Health Insurance Portability and Accountability Act, Children's Online Privacy Protection Act, Fair Credit Reporting Act Fair, etc.), there is no federal law governing personal data or personal information broadly. Massachusetts, in addition to being the state where Attorney General Healey is beginning an investigation, is recognized as having one of the toughest, if not the toughest, data privacy requirements in the United States. Kevin D. Lyles, Maricio Paez, & Alfred Cheng, Massachusetts Law Raises the Bar for Data Security, Jones Day, February 2010, http://www.jonesday.com/massachusetts_law_raises.

16. Council Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, 2016 O.J. (L119) 1, Art. 4(1) ("GDPR").

17. Mass. Gen. Laws ch. 93H, § 1 (2018). Similar definitions exist in 47 other states. See Alaska Stat. § 45.48.010 et seq. (2018); Ariz. Rev. Stat. § 18-545 (2018); Ark. Code §§ 4-110-101 et seq. (2018); Cal. Civ. Code §§ 1798.29, 1798.82 (2018); Colo. Rev. Stat. § 6-1-716 (2018); Conn. Gen Stat. §§ 36a-701b, 4e-70 (2018); Del. Code tit. 6, § 12B-101 et seq. (2018); Fla. Stat. §§ 501.171, 282.0041, 282.318(2)(i) (2018); Ga. Code §§ 10-1-910, -911, -912 (2018); § 46-5214 (2018); Haw. Rev. Stat. § 487N-1 et seq. (2018); Idaho Stat. §§ 28-51-104 to -107 (2018); 815 ILCS §§ 530/1 to 530/25 (2018); Ind. Code §§ 4-1-11 et seq., 24-4.9 et seq. (2018); Iowa Code §§ 715C.1, 715C.2 (2018); Kan. Stat. § 50-7a01 et seq. (2018); KRS § 365.732 (2018), KRS §§ 61.931 to 61.934 (2018); La. Rev. Stat. §§ 51:3071 et seq. (2018); Me. Rev. Stat. tit. 10 § 1346 et seq. (2018); Md. Code Com. Law §§ 14-3501 et seq. (2018); Md. State Govt. Code §§ 10-1301 to -1308 (2018); Mo. Rev. Stat. § 407.1500 (2018); Mont. Code §§ 2-6-1501 to -1503, 30-14-1701 et seq., 33-19-321 (2018); Neb. Rev. Stat. §§ 87-801 et seq. (2018); Nev. Rev. Stat. §§ 603A.010 et seq., 242.183 (2018); N.H. Rev. Stat. §§ 359-C:19 et seq. (2018); N.J. Stat. § 56:8-161 et seq. (2018); 2017 H.B. 15, Chap. 36; N.Y. Gen. Bus. Law § 899-AA (2018); N.Y. State Tech. Law 208 (2018); N.C. Gen. Stat. §§ 75-61, 75-65 (2018); N.D. Cent. Code §§ 51-30-01 et seq. (2018); Ohio Rev. Code §§ 1347.12, 1349.19, 1349.191, 1349.192 (2018); Okla. Stat. §§ 74-3113.1, 24-161 to -166 (2018); Oregon Rev. Stat. §§ 646A.600 to .628 (2018); 73 Pa. Stat. §§ 2301 et seq. (2018); R.I. Gen. Laws §§ 11-49.3-1 et seq. (2018); S.C. Code § 39-1-90 (2018); Tenn. Code §§ 47-18-2107, 8-4-119 (2018); Tex. Bus. & Com. Code §§ 521.002, 521.053 (2018); Utah Code §§ 13-44-101 et seq. (2018); Vt. Stat. tit. 9 §§ 2430, 2435 (2018); Wash. Rev. Code §§ 19.255.010, 42.56.590 (2018); W.V. Code §§ 46A-2A-101 et seq. (2018); Wis. Stat. § 134.98 (2018); Wyo. Stat. §§ 40-12-501 et seq. (2018) (collectively, the "State Data Breach Laws").

18. European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, Art. 8 ("EU Charter of Fundamental Rights").

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Originally published in The Journal of Robotics, Artificial Intelligence & Law

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