Utah Steps Forward with Simpler, Light-Touch AI Legislation

April 17, 2024, Provo Utah

In late February this year, the 45-day-long legislative session in Utah came to a close. During this session, Utah lawmakers sponsored and passed new bills regarding AI usage. To understand the implications of these new bills for Utah, we spoke to an expert in AI and legal issues, Nick Hafen, Head of Legal Technology Education at BYU Law. Hafen develops training for law students in technologies to improve their efficiency and ensure they turn technology into a strength and competitive advantage.

Hafen believes the Utah legislature generally did a good job on AI legislation this past session, with its pragmatic, simpler approach to the topic and a light legislative touch on a complex, rapidly evolving subject. We sat down with Hafen to find out his view on Utah's new AI bills, particularly SB 149, the AI Policy Act, enacted last month. It puts Utah as one of the first states in the nation to address private sector AI issues.

First, we asked Hafen to provide a summary of Utah's recently passed AI bills:

• SB 149
  • Disclosure rules: A person who uses generative AI to interact with others must, when asked, disclose the use of AI. Certain regulated professions must disclose the use of generative AI up front.
  • Office of Artificial Intelligence Policy: The bill creates The Office of Artificial Intelligence Policy under the Department of Commerce. The Office will consult with businesses and other stakeholders on regulatory issues, make rules to implement the provisions of the bill and run an AI learning laboratory program. The program’s goals are to encourage AI development in Utah, evaluate current and potential policies, and analyze the risks, benefits, and policy implications of generative AI. The bill also permits businesses to apply to the learning laboratory for regulatory mitigation, which could relieve a business from certain regulations.
  • Clarifications: The bill clarifies that a person cannot escape liability under existing laws by using generative AI to accomplish the prohibited conduct.
• SB 131 requires disclosure of the use of AI-generated content in political advertisements.
• HB 148 and HB 238 address child sexual abuse material (CSAM). Under previous law, CSAM must depict an identifiable minor. HB 238 expands the definition to include AI-generated material that appears to be CSAM but doesn’t depict an identifiable minor. HB 148 clarifies that CSAM includes AI-generated video content, not just images.
• HB 366 prohibits sole reliance on an algorithmic score for a number of decisions such as sentencing, probation, and parole.
• HB 249 prohibits governmental entities from granting legal personhood to an artificial intelligence, among other things. This bill is primarily concerned with the trend among environmentalists to gain additional protection for animals, bodies of water, or other natural features through personhood status. The debates on the bill did not address AI.

Hafen is familiar with the legal issues taken up by these bills. "These AI bills deal with topics already addressed in law schools," said Hafen. "AI classes in law schools are trendy, and I teach one at BYU, but law schools will also need to integrate AI discussions in classes not explicitly about AI and technology."

We asked Hafen if he thought the AI bills would effectively address many of the most pressing issues surrounding the subject.

“It’s tough to make many predictions about AI regulation when so much is unknown," stated Hafen from the outset. "And I’m not sure anyone could write a bill without potential problems, given that we’re all navigating in unknown territory with generative AI. Defining artificial intelligence and generative artificial intelligence has been just as tricky in Utah as it is across the world. We don’t know all the ways generative AI will be used and, therefore, we don’t know what all the potential harms are.”

Hafen says the widest-reaching AI bill passed recently, SB 149, "strikes a balance of preventing major consumer harm while allowing Utah companies to innovate and explore various uses of AI. It strikes a balance of preventing major consumer harm while allowing Utah companies to innovate and explore various uses. It anticipates change and builds in the flexibility to address it. That gives Utah a big competitive advantage over states with more onerous regulations."

SB 149 bill also creates The Office of Artificial Intelligence Policy under the Department of Commerce. This office will consult with businesses and other stakeholders on regulatory issues, make rules to implement the provisions of the bill, and run an AI Learning Laboratory program. The program’s goals are to encourage AI development in Utah, evaluate current and potential policies, and analyze the risks, benefits, and policy implications of generative AI.

The bill also permits businesses to apply to the Learning Laboratory for regulatory mitigation, which could relieve a business from certain regulations, says Hafen. This will likely encourage more professionals in all industries to become, "not just satisfactory, but proficient at using technology and AI," said Hafen.  

Many businesses are concerned about the legal implications of AI usage due to current laws, which tend to change, and there is a lot of gray area relating to AI in the legal sphere right now. Hafen suggests that “regulatory uncertainty makes investors and entrepreneurs hold back. Overregulation can stifle innovation, and lawmakers often forget to think about all the innovations we don’t have because regulations discourage innovation generally.”

Despite these concerns, Hafen remains optimistic; he suggests that the new law “anticipates changes and builds flexibility to address them. That gives Utah a big competitive advantage over states with more onerous regulations.

"The regulatory environment can be a big advantage for Utah with the AI Office and Learning Lab, including potential regulatory mitigation, established by SB 149," said Hafen.

He said there is a lack of technology-literate professionals in several industries, including the legal industry, but that things are improving in that regard.

He said BYU Law is staying at the front of the AI and law intersection. The leadership of the Law School and Law Library have been very interested in AI and supportive of efforts to train students and faculty on it.
BYU Law provides sample generative AI policies for professors to include in their syllabi, but allows them to set policy rather than the Law School setting a global policy for all professors. Clinics and skills-based classes differ from classes on substantive law, and the ways they use AI will differ.

BYU law provides sample generative AI policies for professors to include in their syllabi, but allowing them to set policy rather than the Law School setting a global policy for all professors teaching AI legal issues. Clinics and skills-based classes differ from classes on substantive law, and the ways they use AI will differ.

He mentioned that Dean David Moore asked him to create a course on AI, which he's been teaching this semester. It brought in guest speakers including developers of legal AI, practitioners from law firms and in-house, and representatives from the Utah Dept. of Commerce (who crafted SB 149) to speak to the class. BYU students have used a number of general-use and legal-specific generative AI tools and compared them across different types of tasks. They’ve built their own GPTs with OpenAI. They’re writing research papers on various subjects within AI and law.

In the Law School’s technology training program, the Tech Initiative (LTI), Hafen and his colleagues have offered hands-on training with generative AI tools as well as guest speakers with law firm and data science backgrounds talk about how to use AI and the effects it will have on the practice of law and these students’ careers. The instructors for the first-year legal research and writing course have discussed generative AI and how to include it in their instruction.

BYU's Law Library has offered three training sessions for faculty on AI use in academia and legal practice. Hafen provided two of them, and a practitioner from a top law firm provided the third.

Several Future of Law speakers addressed AI’s impact on the legal industry:

• Nikki Shaver (CEO, Legaltech Hub)
• Dazza Greenwood (Founder, law.mit.edu)
• Greg Slater (VP and Senior Director, Global Regulatory Affairs at Intel)
• Edward Lee (Professor of Law, Director, Program in Intellectual Property Law at Chicago-Kent School of Law)

Hafen presented on generative AI and legal research at last month's 2024 State and Local Government Conference at BYU Law, a conference focused on attorneys who work for or with governmental entities.

In mid-February Hafen presented on the intersection of technology, legal education, and access to justice at the annual ABA Techshow in Chicago, alongside several leading legal tech voices in academia: Dyane O’Leary (Suffolk), Sarah Schendel (Suffolk), Jeff Ward (Duke), and Wesley Oliver (Duquesne).

"Utah already has a successful legal innovation sandbox, the Utah Office of Legal Services Innovation, and a general regulatory sandbox, the Utah Office of Regulatory Relief," said Hafen. "Companies that want to try something new know that Utah is less risky than a lot of other states because of these programs.”

Are there unknowns that legislators are still worried about?

Definitely. But Hafen stated reassuringly, “In general, Utah is ahead of the curve in terms of taking action on AI, and I think Utah’s legislation gives businesses some confidence that they’ll find a friendly regulatory regime here.” 
 
For more information on recently passed bills across the US, please see this NCSL summary.

See TechBuzz coverage of the formation of the Utah Policy Innovation Lab focused on AI, announced in June 2023.

For more information about BYU Law's legal initiatives visit BYU Law's website.

Assistant Dean of Communications, Lynnett Rands, Nick Hafen (center in blue), BYU interns, and Mark Tullis. (Interns from left to right, Trevor Smith, Griffin Croft, Benson Grotegut, Nolan Jeppesen and Luke Howard)