Protecting Consumer Data, Guarding Against 'High-risk Artificial Intelligence'
By Martin Davis
EDITOR-IN-CHIEF
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Our region has heard a lot about data centers over the past couple of years. Most of those issues have revolved around energy usage, water requirements, financial boons to localities, and their enormous physical footprint.
What people know less about is why they’re needed. In short — artificial intelligence. Data centers make what is collectively called “AI” possible, and its importance to our lives is critical both at a local level (using ChatGPT, for example, or streaming videos or most any anytime to you chat with a company online to resolve a problem) and at national and international levels (See “The AI War with China Is Coming” in The Bulwark).
Behind it all is data. Lots of it. But what about your data? do you have any rights over how that data is being used?
Attorney General Jason Miyares is drawing attention to that question via a press release about Data Privacy Day.
“Data Privacy Day is a good day to celebrate the rights that Virginians have to their own personal data under Virginia law,” said Miyares. “In a fast-moving digital landscape, my Office’s Consumer Privacy Unit is tasked with making sure that Virginians’ consumer data rights are being protected.
The Consumer Privacy Unit has been operational since 2023, and grew out of the Virginia Consumer Data Protection Act. Virginia was the second state in the union to pass such a law. California was the first. (For a comparison of the California and Virginia laws, see Bloomberg Law.)
“Data Privacy Day is a good day to remind people to keep their information safe,” Donna Wertalik, a professor at Virginia Tech, told the Advance. “Be careful what you share online — don’t put out credit card numbers, say you’re going on vacation, etc, on a public facing site like Facebook.”
The problem is bigger than most people realize. According to Wertalik, since 2020 scams have increased 94%.
And the Virginia Consumer Data Protection Act is an important part of helping consumers. “It holds companies accountable,” Wertalik told the Advance. “We are living in the wild west when it comes to AI and scams. Be especially aware of online shopping, social media and apps.”
Raising awareness is key to Wertalik’s work. In addition to being a professors, she is also cofounder and cohost of Voices of Privacy, a site geared to the public that seeks to “raise the general awareness of information privacy issues, and inform and educate individuals in society so they can make informed choices about what to share or not share.”
There are those, however, who say the VCDPA needs more teeth.
“For most Virginians, [the law] doesn’t help,” said Irene Leech, an associate professor of consumer studies at Virginia Tech, “because each of us has to go to each business ourselves. And each of those businesses has a process to go through that vary by business site.”
Outpacing Laws and Regulations
In addition to working to protect consumer data, there are several laws before the General Assembly this session aimed at trying to reign in the potential risks of “high-risk artificial intelligence.”
High-risk artificial intelligence derives from the European Union’s AI Act, which outlined four levels of AI: 1) Unacceptable, 2) High, 3) Limited, and 4) Minimal.
The EU’s AI act defines high risk as AI technology used for “employment, management of workers and access to self-employment (e.g. CV-sorting software for recruitment procedures),” and “law enforcement that may interfere with people’s fundamental rights (e.g. evaluation of the reliability of evidence)” among others.
According to House Bill 2094,
“High-risk artificial intelligence system” means any artificial intelligence system that is specifically intended to autonomously make, or be a substantial factor in making, a consequential decision. A system or service is not a "high-risk artificial intelligence system" if it is intended to (i) perform a narrow procedural task, (ii) improve the result of a previously completed human activity, (iii) detect any decision-making patterns or any deviations from pre-existing decision-making patterns, or (iv) perform a preparatory task to an assessment relevant to a consequential decision.
Related bills include House Bill 2121, which would require AI developers “to document their technology’s origin and history of development and make that information publicly accessible,” per a story in the Virginia Mercury. And HB2250 “would allow consumers to authorize a company to opt out of allowing others to use their personal information.”
Adam Thierer, who is a senior research fellow at the R Street Institute in Washington, D.C., and lives in Spotsylvania County filed testimony with the House Communications, Technology, and Innovation Committee opposing HB 2094.
His concerns are based on the bill’s being “essentially modelled after E.U. AI policy,” which he describes as “destructive European laws” that he says are at “odds with America’s traditional technology policy model.”
He also says that the problem HB 2094 is trying to solve, “AI discrimination,” could be managed by current federal and state civil rights laws, as well as consumer protection regulations, that currently exist.
Stay with the Advance as we continue to track these bills, and others, through the current General Assembly.
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