The ongoing legal quandaries in the rapidly evolving field of generative AI (“GenAI”) include a critical question: can Section 230 of the Communications Decency Act (CDA) provide protection for GenAI-generated content, thereby shielding GenAI providers from possible third-party liability?
On June 14, 2023, a breakthrough was seen when Senators Richard Blumenthal and Josh Hawley proposed the “No Section 230 Immunity for AI Act”. As detailed on Hawley’s official senate webpage, this bipartisan legislation is designed to specifically exclude most of the CDA immunity for an interactive computer service provider if the activity giving rise to the claim involves the use or provision of GenAI.
The proposed legislation would wipe out immunity for “publishers” under §230(c)(1) for claims associated with the use or provision of GenAI by an interactive computer service. Nonetheless, immunity for “Good Samaritan” actions under § 230(c)(2)(A), which shields service providers and users from liability for claims resulting from their good faith attempts to restrict access to “objectionable” content, would remain intact.
The bill outlines GenAI in a broad scope, defining it as “an artificial intelligence system that can generate new text, video, images, audio, and other forms of media based on input provided by a person.”
However, as the bill’s CDA exemption extends to any interactive computer service that involves the use of GenAI, this could potentially cover computer-based services integrated with GenAI, which may surpass the drafters’ intent. The bill was crafted to foster an “AI platform accountability” framework and to remove immunity from “AI companies” for civil or criminal proceedings involving the use of GenAI. Thus, it’s suggested that the proposed law aims to eliminate CDA immunity for “AI companies”, not for all services that incorporate some GenAI functionality.
This provokes a significant question: Would a court consider a GenAI platform or a computer service with GenAI functionality to be the information content provider or creator of its output, therefore accountable for the creation or development of the information provided (with no CDA immunity)? Or would it merely be seen as a publisher of third-party content based on third-party training data (with potential CDA Section 230 immunity)?
Arguably, GenAI tools, by their very definition, “generate” content, suggesting they should not benefit from CDA immunity for claims stemming from the outputted content. Conversely, one might argue that a GenAI tool is essentially an algorithm that organizes third-party training data into a useful form in response to a user prompt and should thus be shielded by CDA immunity. As highlighted on Montague’s blog, the Supreme Court has recently avoided commenting on CDA immunity as it applies to a social media platform’s algorithmic organization or display of content. The introduction of a bill specifically designed to exclude GenAI providers from CDA publisher immunity suggests that the senators may have stepped into this complex legal arena, intentionally or not.
Will the bill advance? Only time will tell. As discussed in this other Montague’s blog entry, despite Congress’ poor track record in passing CDA-related legislation, GenAI appears to be an area of bipartisan concern. The legislative journey of this bipartisan-sponsored bill will be observed closely to gauge its chances of approval in a divided Congress.
The legislation could redefine the boundaries of GenAI usage, as it seemingly targets “AI companies” (a term yet to be clearly defined), and not just any service that incorporates some GenAI functionality. The consequences could be extensive, potentially affecting a wide range of providers and platforms, from large tech companies to smaller startups, that incorporate AI systems in their offerings.
The debate around GenAI and its potential ramifications also raises essential questions about the nature of content creation and responsibility in the era of AI. This is an evolving field, and we will continue to see legal challenges as AI and machine learning technologies become more widespread.
The legislation’s progress, if any, may also potentially reshape future discussions about CDA immunity. This could affect a broad array of digital platforms beyond those using GenAI, impacting the current landscape of online content and its regulation.
In the meantime, companies that rely on GenAI should closely follow this legislation and prepare for potential changes in their legal landscape. The results could have a profound impact on the broader technology industry, and in particular, on the development and deployment of AI and related technologies. With many unanswered questions and potential legal complexities, the issue of GenAI and CDA immunity remains a key topic to watch in the coming months.
In conclusion, the potential passage of the “No Section 230 Immunity for AI Act” could significantly reshape the landscape of AI and technology industries. While the future of the bill remains uncertain, its mere introduction indicates a growing recognition in the political sphere of the complexities and potential implications of generative AI. This signals a shift in the broader conversation around AI accountability and the legal responsibilities of AI companies.
Whether this bill advances or not, the questions it raises and the debates it sparks will likely continue to influence legislation and policy discussions moving forward. In this sense, it is a harbinger of future discourse and potential regulation in the rapidly evolving AI field. We are likely to witness an increased focus on AI accountability, transparency, and the boundaries of responsibility when it comes to AI-generated content.
As AI continues to permeate every facet of our lives and businesses, regulations that clearly define and govern the limits and responsibilities of AI usage will become increasingly crucial. As we look forward, it seems inevitable that further legislation will be proposed to address the continually evolving challenges and opportunities presented by AI technology.
In this dynamic and unpredictable context, it is important for businesses to keep abreast of potential legal changes, understand their implications, and adapt their strategies accordingly. As the discourse around AI accountability deepens, the key will be to balance technological innovation with legal and ethical considerations to create an environment conducive to growth while protecting consumers and businesses alike.
Ultimately, the intersection of AI and law continues to be a rapidly changing frontier – a challenging, yet exciting, space to navigate. The future is likely to hold further debates, evolutions, and possibly, breakthroughs. We can expect AI to continue challenging our current legal frameworks and prompting us to revisit and revise our understanding of concepts like liability, responsibility, and authorship in the digital age.
