AG Campbell Issues Advisory Providing Guidance on how Massachusetts Consumer Protection and Other Laws Apply to Artificial Intelligence

April 16, 2024 — Press Release

Advisory clarifies that AI developers, suppliers, and users must comply with Massachusetts’ existing state consumer protection, anti-discrimination, and data privacy laws     

BOSTON – Amidst a widespread increase in businesses’ use of artificial intelligence and algorithmic decision-making systems (“AI”), including in consumer-facing contexts, Attorney General Andrea Joy Campbell today issued an advisory to provide guidance to developers, suppliers, and users of AI regarding their obligations under state consumer protection, anti-discrimination, and data security laws. The advisory clarifies that existing state consumer protection, anti-discrimination, and data security laws apply to emerging technology, including AI systems, just as they would in any other context.     

AI broadly refers to machine-based systems that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action. While AG Campbell acknowledges the potential societal benefits of legally compliant AI usage and encourages innovation, including through AI, the advisory seeks to address the risks of AI by clarifying the application of existing laws and regulations to AI. 

“There is no doubt that AI holds tremendous and exciting potential to benefit society and our Commonwealth in many ways, including fostering innovation and boosting efficiencies and cost-savings in the marketplace. Yet, those benefits do not outweigh the real risk of harm that, for example, any bias and lack of transparency within AI systems, can cause our residents,” said AG Campbell. “As AI usage becomes more common, this advisory serves as an important notice that our state’s consumer protection, anti-discrimination, and data privacy laws apply to AI, just as they would within any other applicable context, and my office intends to enforce these laws accordingly.”   

“Decision-making and recommendation models that use artificial intelligence are a black box for consumers that stands between consumers and their ability to secure housing, credit and public benefits, among other life essentials. It is also well-known that the harm caused by AI models disproportionately impacts communities of color and other protected groups, said Shennan Kavanagh, director of litigation at the National Consumer Law Center.  “The Massachusetts Attorney General’s Office’s enforcement initiatives will protect consumers from unfair, deceptive and discriminatory conduct stemming from the use of AI.” 

The advisory presents the below non-exhaustive list of acts and practices that may be considered to be unfair and deceptive under the Massachusetts Consumer Protection Act: 

• Falsely advertising the quality, value, or usability of AI systems  
• Supplying an AI system that is defective, unusable, or impractical for the purpose advertised 
• Misrepresenting the reliability, manner of performance, safety, or condition of an AI system 
• Offering for sale or use an AI system in breach of warranty, in that the system is not fit for the ordinary purposes for which such systems are used, or that is unfit for the specific purpose for which it is sold where the supplier knows of such purpose 
• Misrepresenting audio or video content of a person for the purpose of deceiving another to engage in a business transaction or supply personal information as if to a trusted business partner as in the case of deepfakes, voice cloning, or chatbots used to engage in fraud  
• Failing to comply with Massachusetts statutes, rules, regulations or laws, meant for the protection of the public’s health, safety or welfare 

Additionally, the advisory clarifies that the Commonwealth’s anti-discrimination laws prohibit AI developers, suppliers, and users from using technology that discriminates against individuals based on a legally protected characteristic, such as technology that relies on discriminatory inputs and/or produces discriminatory results that would violate the state’s civil rights laws. The advisory also clarifies that AI developers, suppliers, and users must take appropriate steps to safeguard personal data utilized by AI systems and comply with the state’s data breach notification requirements, both in accordance with applicable laws and regulations. 

The full advisory and guidance may be viewed here.  

Additional Statements of Support:  

Ivan Espinoza-Madrigal, Executive Director, Lawyers for Civil Rights 

“Lawyers for Civil Rights applauds the Attorney General’s leadership on AI issues. AI is quickly being developed and integrated across sectors from business to government and beyond. Far too often, we are seeing algorithms being used to exclude protected classes and face recognition technology that doesn’t work for Black people. This shouldn’t happen. Since technology is not exempt from long-standing legal standards and protections, we must monitor developments surrounding AI to make sure that vulnerable communities are not unfairly targeted or excluded.” 

Todd Kaplan, Senior Attorney, Consumer Rights Unit, Greater Boston Legal Services 

“Greater Boston Legal Services’ (GBLS’) clients often suffer the adverse effects of AI when they are unfairly denied credit, tenancies, and homeownership opportunities. These automated and AI-assisted decisions frequently fail to accurately gauge our clients’ creditworthiness or their ability to be responsible tenants. We endorse Attorney General Campbell’s Artificial Intelligence Advisory and applaud her efforts to shed light on the potential harm caused by these AI systems.” 

Chrissy Lynch, President, Massachusetts AFL-CIO 

“Without safeguards in place, the rapid evolution and deployment of artificial intelligence will increase economic inequality, violate civil, consumer and workers’ rights, and undermine our democracy. Transparency, oversight, and governance of digital technologies are crucial. Attorney General Campbell’s AI Advisory is the first of much-needed guidance released in the Commonwealth that directly addresses the risks and potential negative impacts around the widespread implementation of AI systems.” 

Jim Rooney, President and CEO, Greater Boston Chamber of Commerce 

“As we navigate the impact of AI in everyday business practices, I am pleased that Attorney General Campbell issued an advisory that provides guidance for businesses. Understanding how to use AI while adhering to Massachusetts laws and regulations in a predictable fashion is critical to our business community’s collective success moving forward.” 

Marcelo Suárez-Orozco, Chancellor, University of Massachusetts Boston 

“At UMass Boston’s Paul English AI Institute, we prioritize applied AI to enhance discovery, knowledge, and well-being. AI holds tremendous potential, but its advancement must not undermine consumer protection, data privacy, or anti-discrimination efforts. Attorney General Andrea Joy Campbell’s advisory is essential, ensuring AI technologies advance public good without sacrificing individual rights or safety. By reinforcing existing laws’ relevance to AI, the advisory serves as a vital reminder to developers and users alike: ethical innovation and legal compliance are critical as AI becomes a staple in our daily lives.” 

Olu Ibrahim, Founder and CEO, Kids in Tech  

“As Founder and CEO of the nonprofit, Kids in Tech, I support the Attorney General’s advisory on how state consumer protection and other laws apply to AI. Kids in Tech excites, educates, and empowers youth from low-income families throughout Massachusetts to learn about technology and explore engineering concepts to embrace future opportunities in growing STEAM industries. As AI assumes an even more significant role in our society, it is crucial for children to grasp both the mechanics of the technology and its broader implications, now more than ever. Artificial intelligence is transforming the human experience, and this advisory presents a vision for an ethical integration and humane code guiding its development in a rapidly changing world.”