The question of who has standing to sue is holding up Ohio AI child porn legislation

Right now, child pornography created with artificial intelligence falls outside the bounds of Ohio law, but two Republican lawmakers are trying to change that.

Ohio’s attorney general and local prosecutors are on board. So is the Ohio Domestic Violence Network. No individual or group has voiced public opposition to the idea.

The governor even name-checked the lawmakers leading the effort during his final state of the state address.

So why is the proposal, Ohio Senate Bill 163, still held up in committee nearly a year after it was introduced?

The rundown

While S.B. 163’s most attention-grabbing changes alter the scope of child sexual abuse material, that’s not all it does. The bill makes several other changes aimed at preventing and criminalizing the use of artificial intelligence for fraud.

Under the bill, AI content would require a watermark. Knowingly removing that watermark to harm or deceive carries civil liability and a penalty of up to $10,000.

Ohio’s identity fraud statutes would also expand to include artificial depictions of a person’s image and voice. The bill makes it illegal to use an AI depiction of a person to harm their reputation or induce a third party into a financial decision.

Notably, S.B. 163’s attempt to criminalize AI-generated child sexual abuse material might run into First Amendment trouble. Legislative researchers note a national law was struck down by the U.S. Supreme Court in 2002.

But none of those provisions are the hold up. Instead, groups like the Ohio Chamber of Commerce and the Ohio Alliance for Civil Justice object to the bill’s private right of action.

Opening the floodgates?

The measure’s sponsors, Ohio state Sens. Bill Blessing, R-Colerain Twp., and Terry Johnson, R-McDermott, want to allow anyone to sue if they’re harmed by someone misusing artificial intelligence.

Critics worry that could kneecap businesses and overwhelm the court system.

Speaking on behalf of the Ohio Chamber, Kevin Shimp praised the bill’s aims but criticized its methods.

“We believe a private right of action in the emergent field of artificial intelligence can hinder economic growth and undermine the stability and predictability of our state civil justice system,” he said.

With a rapidly developing technology, he added, “a person’s unfamiliarity with a product could lead to the violation.”

And Shimp warned the bill criminalizes conduct that would be perfectly legal if done without artificial intelligence.

Shimp also pointed to the Trump administration’s recently introduced AI policy framework, which urges Congress to preempt state laws in the field. Congress has taken no such action, however, and the framework itself has no force of law.

“For us,” Shimp concluded, “it just makes the most sense to have the Attorney General be the one bringing these types of actions.”

Ohio Alliance for Civil Justice Chairman Tony Long made much the same argument.

His organization, founded in 1987, is focused on stopping “lawsuit abuse” in the civil court system. Its members include several business and trade groups that could find themselves on the wrong side of high-dollar civil court decisions.

With a nod to the Trump administration’s framework, Long asked that “a conservative approach to jurisprudence for AI products and tools be used,” and that the “enforcement of requirements contained in Senate Bill 163 should rest with the Attorney General and expert regulatory agencies.”

Long offered a convoluted example of what might go wrong.

Imagine he runs a business called Tony’s Tires, Long said, and a competitor — Wile E. Coyote of ACME — notices he’s using AI-generated content on his website.

What if that competitor hires a third party to hack the Tony Tires website and remove the watermarks?

Could Wile E. Coyote sue Tony’s Tires, get access to its business records, earn a settlement, and compete unfairly against it?

“I think it would be a preference that if there’s something wrong with the website, and perhaps an AI watermark was removed,” Long said, “to figure that out, maybe in a different process than a private right of action.”

Or avoiding capture?

One of the bill’s co-sponsors, Sen. Blessing, sits on the committee considering the measure and he pushed back during Wednesday’s hearing.

He acknowledged that some other states have vested enforcement of AI laws with the attorney general, “but I still have an issue with the regulatory capture part of that.”

To Blessing, giving all the enforcement authority to one elected official leaves that official vulnerable to political influence.

The companies working on artificial intelligence are some of the biggest in the world. The attorney general is one person.

“They always have to run for election, and they can always get a number of donations from big tech,” Blessing said. “And then all they have to do when they’re in office is literally nothing.”

“I get why the business community wouldn’t want (a private right of action),” he added. “It would have insurance costs going up for them. Nobody likes to be sued. But the cause of action really is the free market here. There’s not a conflict of interest the way that there is with the AG’s office.”

As for the Trump administration framework, Blessing said other states have passed their own AI laws and “it’s been crickets from the White House.”

States should be fighting just as aggressively for their right to regulate products like AI, he said, as they would if it was a different party in power.

“For me, I’m willing to call their bluff on something like this,” Blessing said.

“If we’re just going to accept that the White House, irrespective of its occupant, or Congress, irrespective of its occupants, can usurp what we have as our constitutional rights, then it’s never going to end.”

What’s next

Speaking after Wednesday’s hearing, committee chairman Ohio state Sen. Nathan Manning, R-North Ridgeville, said he always encourages compromise.

“Hopefully we can sit down and figure something out,” he said. “I don’t know where the committee members are, whether (the private right of action is) enough to hold it up, but certainly hopeful that we can move this legislation soon.”

Ohio Senate President Rob McColley voiced support for treating artificially produced obscene material the same as actual obscene images.

But he said he wasn’t familiar with the private right of action part of the bill and expressed confidence the committee can find a way to get to yes.

“I would trust the committee to work through that issue and hopefully deliver something to us here shortly,” he said.