US: First Amendment Questions for AI Transparency Laws

(Bahrad A. Sokhansanj, Mackenzie Arnold – Lawfare) A bipartisan group of lawmakers in the U.S. House of Representatives recently introduced the AI Foundation Model Transparency Act, which would direct the Federal Trade Commission to set transparency requirements for the data used to train high-impact foundation models. Developers would need to provide information about where training data comes from, how models are trained, and whether user data is collected during use. The bill joins a growing roster of artificial intelligence (AI) transparency measures at the state and federal level, including California’s Assembly Bill (AB) No. 2013, which requires developers to publish high-level summaries of their training data; California’s Senate Bill (SB) 53, which requires frontier AI developers to publish safety frameworks and make public disclosures about risk assessment and mitigation measures; and New York’s RAISE Act, which imposes requirements similar to SB 53. The basic idea behind AI transparency laws is straightforward: As AI plays a larger role in public life, the public should have access to basic information about how these systems are built and the risks they pose. But laws requiring companies to publish information about their AI systems can face First Amendment scrutiny. Legislators drafting disclosure requirements will need to do so with an eye toward how courts may evaluate those laws. Under U.S. law, when the government compels a company to publish information about its products or services, it regulates the company’s speech. That means transparency laws trigger First Amendment scrutiny. If companies challenge these laws in court, the outcome can turn on what level of scrutiny a court applies—a question currently being litigated in a challenge to California’s AB 2013. How courts answer this question will matter far beyond AB 2013. While AI transparency laws remain viable, First Amendment doctrine is becoming less predictable, and drafting choices matter more than many policymakers assume. The questions that the U.S. Court of Appeals for the Ninth Circuit now confronts will not only affect AB 2013 but also may shape how courts evaluate other AI transparency laws going forward. – First Amendment Questions for AI Transparency Laws | Lawfare