ATR Op-Ed in The Washington Times: “Congress Urged to Preempt State AI Regulations”

On September 21, 2024, The Washington Times published an op-ed by ATR’s Federal Affairs Manager for Telecommunications, James Erwin. 

The piece highlights the urgent need for Congress to invoke the Commerce Clause and enact federal preemption of state interference within artificial intelligence (AI) regulation. Drawing inspiration from the Internet Tax Freedom Act of 1998, Erwin argues that just as Congress took decisive action to protect nationwide internet access, it must now safeguard the AI innovation from intrusive state laws. 

In the op-ed, Erwin notes two state laws that showcase “lawmakers haphazardly interfering in interstate commerce using technologies they clearly do not understand.” In Illinois, recent legislation has restricted the use of AI in hiring practices, diluting the future efficiency of job creators statewide. Similarly, in California, a newly passed bill would make developers liable for “harmful” uses of their models, which would “effectively crush AI innovation.” 

Without adequate Congressional intervention, Erwin warns of the national implications of harmful state legislation originating within innovation hotspots: 

“The California bill would be especially destructive because the Golden State still accounts for the largest share of the tech industry. Onerous regulations imposed there could hit the entire country. Other states passing contradictory regulations would create an inefficient patchwork of state laws, making it impossible to do business with AI in the United States.”

However, Erwin outlines an opportunity for Congress to institute a federal preemption standard, arguing that: 

“Though AI models may be developed in Silicon Valley, they do not stay there and will be increasingly used across multiple states…AI development is plainly interstate commerce, which the federal government is empowered to regulate by the commerce clause of the U.S. Constitution.

“If Congress enacted a federal preemption of AI regulation, claiming for itself the exclusive right to regulate AI development, it would overrule any California law that would discourage innovation nationwide and prevent a patchwork of state laws that would be impossible for developers to navigate. Congress should exercise this power to ensure all Americans can benefit from AI breakthroughs.” 

Erwin insists that such a move would reflect past congressional efforts to safeguard innovation for nascent technologies, especially in preventing taxation of the internet: 

“Not only is federal preemption both constitutional and good policy, but it also has precedent from the Internet Tax Freedom Act…Congress recognized the possibility of rent-seeking of state, local, and federal jurisdictions off the growing internet economy and acted decisively to keep internet access and online commerce cheap and available to most Americans.”

“Like the Internet Tax Freedom Act, a federal AI preemption bill would stop bad state laws without requiring Congress to impose its own regulations. Congress can preempt states by claiming exclusive jurisdiction over interstate commerce and then choosing not to regulate it.”

In order to prevent a harmful patchwork of state regulation from further harming AI innovation, Erwin urges Congress to embrace a national preemption standard. He concludes that: 

“Congress should replicate the success of the Internet Tax Freedom Act’s success in AI to preempt state legislatures’ worst anti-innovation instincts. It would prevent bad laws, avoid a patchwork of incompatible state regulations, and allow Congress to address incremental concerns as they arise. It is both constitutional and precedented. If the United States wishes to remain on the cutting edge of technology, Congress should act now to keep it that way.” 

Read the full op-ed here.