Ohio State Building. (Photo: Megan Henry, Ohio Capital Journal).
Right now, child pornography created using artificial intelligence is outside the boundaries of Ohio law, but two Republican lawmakers are trying to change that.
Ohio’s attorney general and local prosecutors are on board. The Ohio Domestic Violence Network works similarly. No individual or group has expressed public opposition to the idea.
The governor even name-checked the lawmakers spearheading the effort during his recent State of the State address.
So why is Ohio Senate Bill 163 still in committee nearly a year after it was introduced?
Summary
While the most attention-grabbing changes to SB 163 change the scope of child sexual abuse material, that’s not all it does. The bill introduces several other changes aimed at preventing and criminalizing the exploit of artificial intelligence for fraud.
Under the bill, AI content would require a watermark. Knowingly removing a watermark with the intent to cause harm or defraud will result in civil liability and a fine of up to $10,000.
Ohio’s identity fraud laws will also expand to cover artificial representations of a person’s image and voice. The act prohibits the exploit of a person’s image using artificial intelligence to damage his or her reputation or induce a third party to make a financial decision.
It is worth noting that SB 163’s attempt to criminalize child sexual abuse material generated by artificial intelligence could raise First Amendment issues. Legislative scholars note that there was national law knocked down by the United States Supreme Court in 2002.
But none of these regulations constitute an obstacle. Instead, groups like the Ohio Chamber of Commerce and the Ohio Alliance for Civil Justice oppose the bill’s private right of action.
Opening the floodgates?
The measure’s sponsors, Ohio State Sen. Bill Blessing, R-Colerain Twp. and Terry Johnson, R-McDermott, want to allow anyone to sue if they are harmed by the misuse of artificial intelligence.
Critics fear it could bring companies to their knees and overwhelm the court system.
Speaking on behalf of the Ohio House, Kevin Shimp praised the bill’s goals but criticized its methods.
“We believe that a private right of action in the emerging field of artificial intelligence could hinder economic growth and undermine the stability and predictability of our state civil justice system,” he said.
He added that with rapidly evolving technology, “lack of knowledge about the product can lead to infringement.”
Shimp warned that the bill criminalizes behavior that would be completely legal if undertaken without artificial intelligence.
Shimp also drew attention to solutions recently introduced by the Trump administration AI policy frameworkwhich urges Congress to pre-empt state laws in this area. However, Congress has not taken such action, and the framework itself has no legal force.
“For us,” Shimp concluded, “it makes the most sense for the Attorney General to initiate this type of proceedings.”
Ohio Civil Justice Alliance President Tony Long made a similar argument.
His organization, founded in 1987, focuses on stopping “abuse of process” in the civil court system. Its members include several business and trade groups that may find themselves on the wrong side of costly civil court judgments.
In a nod to the Trump administration’s framework, Long asked that “a conservative approach be taken to jurisprudence regarding artificial intelligence products and tools” and that “enforcement of the requirements contained in Senate Bill 163 should be the responsibility of the Attorney General and specialized regulatory agencies.”
Long provided a convoluted example of what can go wrong.
Imagine he runs a company called Tony’s Tires, Long said, and a competitor — ACME’s Wile E. Coyote — notices that he uses AI-generated content on his site.
What happens if a competitor hires a third party to hack the Tony Tires website and remove the watermarks?
Could Wile E. Coyote sue Tony’s Tires, gain access to its business records, obtain a settlement, and unfairly compete with it?
“I think it would be better if there was something wrong with the website and perhaps the AI watermark was removed,” Long said, “to resolve it, perhaps through a process other than private right of action.”
Or evading capture?
One of the bill’s co-authors, Senator Blessing, sits on the committee considering this solution, but rejected the proposal during Wednesday’s hearing.
He acknowledged that some other states have delegated enforcement of AI regulations to the attorney general, “but I still have a problem with some of that regulatory capture.”
According to Blessing, delegating all executive powers to one elected official exposes him to political influence.
Companies working on artificial intelligence are among the largest in the world. The Prosecutor General is one person.
“They always have to run for election and they can always get some donations from big tech companies,” Blessing said. “And then all they have to do while in office is literally nothing.”
“I understand why the business community wouldn’t want (a private right of action),” he added. “It would increase insurance costs. Nobody likes to be sued. But the real cause here is the free market. There is no conflict of interest like there is with the AG’s office.”
As for the Trump administration framework, Blessing said other states have passed their own AI laws and “the white house is crickets.”
States should fight as aggressively for their right to regulate products like artificial intelligence, he said, as they would if a different party were in power.
“For me, I’m willing to call their bluff in a situation like this,” Blessing said.
“If we simply accept that the White House, no matter who occupies it, or Congress, no matter who occupies it, can usurp what we have as our constitutional rights, then this will never end.”
What’s next?
Speaking after Wednesday’s hearing, committee chairman Ohio State Sen. Nathan Manning of North Ridgeville said he always encourages compromise.
“I hope we can sit down and figure something out,” he said. “I don’t know where the committee members are and whether (private right of action) will be enough to sustain it, but I certainly hope we can introduce this legislation soon.”
Ohio Senate President Rob McColley has expressed support for treating artificially produced obscene materials in the same way as actual indecent images.
However, he said he was not familiar with the private right of action portion of the bill and expressed confidence that the commission would find a way to gain approval.
“I trust that the committee will consider this issue and I hope that it will present something to us soon,” he said.
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