On August 9, 2019, Illinois Governor J. B. Pritzker signed into law first-of-its-kind legislation regulating the use of artificial intelligence (AI) in Illinois. As previously reported by Troutman Sanders on June 26, 2019, the Illinois legislature, in what has been described as the most momentous legislative session in decades, passed the privacy statute aimed at regulating an ever-growing issue in HR: the use of AI in the hiring process. With the Governor’s signature, the statute will become effective January 1, 2020.
While the use of AI in the employment decision-making process might sound futuristic, many U.S. companies already use AI to streamline hiring and make the process more objective, including scanning resumes, scheduling interviews, and recently, actually conducting the first round of job interviews. These AI interviewing programs have different algorithms and methods, but essentially, they measure an applicant’s facial expression, word choice, body language, and vocal tone, among other factors.
In response to the evolution of AI in the hiring context, Illinois legislators unanimously passed HB 2557 (“The Artificial Intelligence Video Interview Act”). Employers should take note that the law now requires employers who use artificial intelligence to analyze video interviews to comply with the following:
- Notice: Employers must inform applicants that AI will be used to analyze their interview videos. (A provision requiring written notice was removed from the bill.)
- Explanation: Employers must explain to the applicant how their artificial intelligence program works and what characteristics the AI uses to evaluate an applicant’s fitness for the position.
- Consent: Employers must obtain the applicant’s consent to be evaluated by AI before the video interview and may not use AI to evaluate a video interview without consent.
- Keep Confidential: Employers will be permitted to share the videos only with persons whose expertise or technology is needed to evaluate the applicant.
- Destroy Copies: Employers must destroy both the video and all copies within 30 days after an applicant requests such destruction (and instruct any other persons who have copies of the video to destroy their copies as well).
While the Act is set to take effect at the beginning of 2020, questions regarding the interpretation of the legislation are still unanswered:
- What is “artificial intelligence?” The Act, itself, does not define artificial intelligence; there is no settled definition of this term in the law. It is unknown whether machine learning alone will fall within the scope of these requirements.
- What kind of “explanation” is sufficient? The Act does not provide specifics on what level of information is sufficient to meet the statute’s explanation requirement.
- Will there be a private right of action? The Act does not prescribe any penalties for violating it, which leaves open questions of enforcement.
- What type of damages and how much? The Act does not specify what types of remedies are available, nor quantify available damages.
- What is the scope? Presumably the Act applies to every employer seeking to fill a position in Illinois and provides protections to any candidate for any position, regardless of where the interview takes place. But will this result in legal challenges?
Despite the increasing prevalence of this new technology, governments on whole have been slow to regulate AI. Illinois, comparatively, has not. Illinois has already demonstrated a willingness to engage on privacy and technology issues, most notably as the first state to enact a biometrics statute, the Biometric Information Protection Act (BIPA). BIPA requires private entities to, among other things, obtain consent from individuals before collecting their biometric information (data like fingerprints or facial scans) and develop a written policy for the storage and destruction of the biometric information. BIPA creates a private right of action for enforcement.
Troutman Sanders will be watching this new legislation and tracking legislative action or litigation that follows in its wake.