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The Lawfare Podcast
Lawfare Archive: AI Regulation and Free Speech: Navigating the Government’s Tightrope
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- [00:01]
Isabel Arroyo
Nearly every News alert in 2025 has raised questions, some old, some new, about the law and national security. And now you get the chance to ask Lawfare directly. It's time for our annual Ask Us Anything Mailbag podcast, an opportunity for you to ask Lawfare this year's most burning questions. You can submit your question by leaving a voicemail at 202-643-846, or by sending a recording of yourself asking your question to askusanythinglawfairmail.com by December 16th. If you're a custodial supervisor at a local high school, you know that cleanliness is key and that the best place to get cleaning supplies is from Grainger. Grainger helps you stay fully stocked on the products you trust, from paper towels and disinfectants to floor scrubbers. Plus, you can rely on Grainger for easy reordering so you never, ever run out of what you need. Call 1-800-GRAINGER click granger.com or just stop by Grainger for the ones who get it done. The holidays are coming and I've got a Boost Mobile gift just for you. Aww, for me, Anna? Yes, Anna, you deserve a gift. The Boost Mobile Unlimited plan is just $10 a month for the first two months, then 25amonth forever with unlimited data, talk and text.
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Eugene Volokh
It's a gift.
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Isabel Arroyo
Thanks, Anna.
- [01:26]
Eugene Volokh
Anytime, Anna. The holidays are here and the best gift is for you. Offer valid@boostmobile.com after your first two months.
- [01:34]
Alan Rosenstein
You'Ll pay $25 a month unless you.
- [01:36]
Eugene Volokh
Go online or call to cancel. Requires autopay.
- [01:51]
Isabel Arroyo
Happy Thanksgiving. I'm Isabel Arroyo, intern at Lawfare, with an episode from the Lawfare archive for November 27, 2025. The rapid development of generative artificial intelligence.
- [02:02]
Alan Rosenstein
Or AI tools, has raised a wide.
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Isabel Arroyo
Range of questions about how we regulate speech.
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Alan Rosenstein
Now, as AI generated messaging features increasingly.
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Isabel Arroyo
Prominently both in political campaigns and in.
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Eugene Volokh
Federal government messaging, the question of AI.
- [02:14]
Isabel Arroyo
Generated content's relationship with the First Amendment is becoming still more salient. For today's archive, I selected an episode from November 25, 2024, in which Paul Ohm moderated a conversation between Alan Rosenstein, Chini Sharma, and Eugene Volok. They discussed the intersection of generative AI and the First Amendment, how cheap speech.
- [02:33]
Alan Rosenstein
Affects free speech, the best role for government regulation, and. It's the lawfare Podcast. I'm Alan Rosenstein, associate professor at the University of Minnesota Law School and senior editor and research director at lawfare. Today, we're bringing you a conversation from a conference on AI liability that lawfare co hosted earlier this year with the Georgetown Institute for Law and Technology.
- [03:03]
Isabel Arroyo
I'm skeptical about like a big AI law. Even if we don't get to holistic AI, AI regulation for all AI, we have agencies that address a lot of high risk industries that might be already pretty technically competent at figuring out what kind of AI is nuclear and what kind of AI is cars within their domain.
- [03:28]
Alan Rosenstein
Georgetown Law professor Paul Ohm moderated a conversation between me, Fordham Law Professor Chinny Sharma, and Eugene Volek, a senior fellow at Stanford University's Hoover Institution, on AI regulation and free speech. Navigating the government's tightrope.
- [03:42]
Paul Ohm
Eugene, I didn't embarrass you with your full biography. I think the most important line on your biography is taught Paul Ohm everything he knows about copyright law. That's really.
- [03:52]
Eugene Volokh
It's everything I know. But you know much more about it now.
- [03:55]
Paul Ohm
No, but from that moment, one thing that really has stuck with me about the early part of your career is your now landmark paper Cheap Speech and what It Will do and how it kind of in a, in a really prescient way anticipated social media and anticipated some of what happened with smartphones with a First Amendment lens. And so now I'm curious, like are you, are you, have you written, are you thinking about cheap speech 2 or automated cheap speech and what it will do? So maybe for the benefit of a sin who may not know this piece, talk about your observation then and what it might do the First Amendment law, but I want you to try and map that on to large language models or other forms of AI.
- [04:37]
Eugene Volokh
So back in 1995 I was invited to do a paper on the Internet. Now I knew a little bit about the Internet just at that point. It was basically email and some really non graphical browsers. But my view was the Internet made actually the promise of free speech and in particular freedom of the press actually available to people. It was a mechanism through which people, both large organizations of people and small individual people, could much more effectively speak to each other. And even if the technology was nascent, you could really see the writing on the wall and that it would enable things like substacks, like electronic delivery of books and a variety of other such things. And of course enabling everybody to speak where before they had to be rich or connected to spe. Speak effectively to the public has pluses as well as minuses, because all speech has pluses as well as minuses. But it was pretty clear what was going on is this is just another mechanism through which people can more effectively speak. It's not so clear with AI. Right. It's a mechanism through which speech is now generated in a way that both the authors of the software and the authors of the prompt cannot fully anticipate. So this does raise, I think, new issues of speech protection in a way that the Internet did not really raise. I mean, to the extent it did, they were pretty quickly disposed of. And Reno, the ACLU here, I think they are more complex. Nonetheless, I think that the AI output is protected by the First Amendment, although subject to some of the First Amendment exceptions. So that's my kind of quick, quick bottom line. I'm happy to explain why and when, but I don't want to.
- [06:34]
Paul Ohm
No, no. And I want to like, okay, my first set of questions are for those who haven't yet read these pieces, and I commend them to you. And they're actually both, you know, very, very easily digestible pieces in wonderful, deep ways. So I'm going to ask you some questions about that. But, but let me just continue the parlor game, right? I mean, implicit in my bringing up this article of Eugene's is, is how much should we be looking at AI as a moment that is as big.
- [07:00]
Eugene Volokh
As the dawn of the commercial Internet?
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Paul Ohm
I mean, in terms of all of the disruptions we've been talking about generally. But in terms of your paper on the challenges to the regulatory state, is this on par with. You might have been too young to remember this, but is this on par with the web browser? Or is this nothing like that? Or is it much more hair on.
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Eugene Volokh
Fire than that moment?
- [07:22]
Alan Rosenstein
So I think Chinea actually had a version of this conversation last night in the hotel bar where I was sort of waxing on insufferably about how magical AI was and how I got into this field, because two years ago I spent 20 minutes talking to ChatGPT3, which in retrospect is like a remarkably stupid model. And for the next week, like, I was just, like, walking around in a daze going, whoa, this is amazing. I'm going to spend the rest of my life doing this. And I think Chinu's response was, yeah, I wasn't that impressed. At which point I accused Chinny of being dead inside. And she was the whole thing.
- [07:52]
Isabel Arroyo
I accused him of being dumb.
- [07:54]
Alan Rosenstein
Yeah, exactly. It was great. It was the usual Chinny in my conversation. So my answer is, I think this is every bit as important, quite possibly more so. I think it's also for exactly the reasons Eugene articulated, I think much, much harder. Right. Most Internet, First Amendment cases, they're incredibly Important actually not that complicated. Right? Because it's just speech and the fact that it's speech, you know, going through the tubes, as you know the Internet is a series of tubes, right. Doesn't really change the fact that it's speech. Right. Any more than the fact that speech is over a telegraph or a radio.
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Eugene Volokh
Change instead of speech.
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Alan Rosenstein
Whereas AI is different.
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Eugene Volokh
Right?
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Alan Rosenstein
AI because it is generative raises a lot of sort of interesting questions and I hope we get to questions not just is it covered, but how is it covered? So I do think it is a massive deal. Shinny, what about you?
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Isabel Arroyo
I just like to disagree with Alan. So obviously last night I was like, you're dumb. And that was not the right response. But I do genuinely agree that this is like it's rare that I think new technology actually raises novel questions. And I do feel like the fact that AI generates content that is not perfectly predictable to the developers that built it is a very interesting phenomenon. I get frustrated when people call like, you know, 2021 or 2022 is an inflection point and now everything's changed in the world because like this has been happening behind the scenes and been developed for years and years and years and years. This isn't like magical new technology that just hit the scene. Neural nets were used in commercial sectors before LLMs came out. Generative AI is not all AI. So like I have my shtick about that and I do think that this dist from larger AI problems to focus only on the commercial end user based products that are out today. That being said, I think that when I talk to people that are like AI is going to change the world, I'm like, yes, yes. And so have a lot of other things. I do think it is important to start talking about AGI, whether it is 5, 10, 50 or 75 years down the road or maybe totally impossible. I still think it's worth having the conversation. But when I talk to people that are like AI is no different than any other technology that has hit the scene, I'm like, that also feels wrong. And so I think that like the, this is a long winded way of saying it's the very predictable answer of I think it's more complicated and it's like a both and situation.
- [10:28]
Paul Ohm
So let's dip into. I don't want to like replay all of your posts, but Eugene, one of the, one of the early kind of moves you make in the paper is you say, and this I think is well established in the doctrine, the First Amendment is about listeners, not just about speakers. And so maybe we can almost do away with the kind of frankly like philosophical question of like is this thing speaking? Is it thinking? Are the programmers? You're saying almost that may not matter in the end, right?
- [10:55]
Eugene Volokh
It may not matter or may not matter that much. So let's just get concrete. Imagine that the government were to say there could be federal government, state government, whatever the government says. We don't like the fact that AI programs are outputting certain kinds of answers to certain kinds of prompts, certain kinds of responses. So we're going to make it illegal for the AI companies to allow that. Now an interesting question. To what extent will they have some defense saying we really tried really hard, but, but somebody jail, Jailbreaked. Is there jailbreak or jailbreak? I don't know, I don't know the software bracket that because you know, you can have defenses of a reasonable mistake or some such. But look, we don't want them outputting racist material or we don't want them outputting anti police material, or we don't want them outputting pro Hamas material. Let's say, can the government do that? Now of course one possible response is the First Amendment and it says, look, you know, we're perfectly fine with human beings outputting things. We're even fine with corporations outputting things because corporations are ultimately human beings. And if they somebody wants to write something for the corporation that then the corporate managers endorses the voice of the corporation that's protected. But this is just software generating it and that's not protected. I'm inclined to say that that would be unconstitutional. Why? So one possible answer is there is a right of the speaker involved. The speaker is the company. The company creates the software that outputs it. The company trains the software, sometimes just trains it on the underlying corpus which it may not even anticipate what the output would be like. But often it custom trains it through reinforcement learning, through human feedback or whatever else you've got. You know, they may say yeah, it outputs certain kinds of viewpoints because that those are the viewpoints we want them to output. So that's one possibility. But I think even independently of that there are listener rights. And let me just give you one specific case. It turns out it's the first case. A trivia question. Speaking of building, in the previous panel, when was the first time the Supreme Court struck down a federal statute on First Amendment class? Turns out it happened in 1965, pretty late. The case is La Montvilly Postmaster General and it involved a law that said if you want to get mailings from foreign countries, generally from foreign governments, of communist propaganda. You can get them. You just need to go to the post office and say, I want to be a. I am willing to get this material. And the court struck it down not on the grounds that foreign foreigners from overseas, especially foreign governments, have First Amendment rights. Maybe they do, but it's far from clear that they do. But on the grounds that the recipients have rights to receive them without having to go get on a list of people who like communist propaganda. Right. So I think the rationale would apply here as well in two ways. At least two ways. One is somebody may say, you know, I want to read this racist argument or I want to read this pro Hamas argument. And this is a good way of getting this argument. And therefore this is something that, that I should be able to access and you can't block me from it. You, the government in a viewpoint based way or content based or whatever the First Amendment rules are. But another possibility is listeners as speakers. Right? One of the reasons people use LLMs is to get information that they could then or get text that they could then edit some and then repost further. So a person may say, I'm not just a listener, I'm a speaker. I asked it to compose a Facebook post that would make this argument and I'm entitled to get that free from government. So that's why I think there would be First Amendment protection. Note, such protection is not absolute, just like protection for human speech is not absolute. So returning to the first panel, libel, for example, if the company outputs libelous material, you know that's not protected by the First Amendment when humans do it. It's hard to see why we'd be protected when AIs do it. Likewise, there are interesting questions. What happens if it outputs information that is false but physically harmful? It tells you some mushroom is safe to eat and it turns out it's poisonous. Or then the variety of other kinds of such questions, those would have to be filtered through First Amendment law. But my point is there is a First Amendment protection. It's not just like the government can with regard to non speech products, say we're going to regulate them because we think it's in the national interest.
- [15:48]
Alan Rosenstein
So I want to almost entirely agree with what Eugene said before. I disagree slightly.
- [15:53]
Eugene Volokh
Where's the fun of that?
- [15:54]
Alan Rosenstein
Yeah, I'll get to it. I want to mostly agree with what Eugene said and I want to go maybe even further and say I suspect that this listener theory, whether listeners as listeners or listeners as speakers, is going to very quickly become the sort of conventional wisdom among both academics and especially judges when this gets to the courts, precisely because it allows everyone to sidestep the very much more complicated, both technically and sort of conceptually, in both technical and conceptual sense. The question of, are these AI models thinking, are they speaking? To what extent are they, you know, is ChatGPT speaking for OpenAI or Sam Altman? That's too hard. Right. Whereas the listener answer is very straightforward.
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Eugene Volokh
Right.
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Alan Rosenstein
It's pretty obvious.
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Eugene Volokh
Right.
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Alan Rosenstein
And I think it's definitely true. And yet the thing that I think still makes it more complicated than just saying that is because the doctrine does distinguish the level of First Amendment protection sometimes of what kind of speech the listener has access to. And here's what I mean. So it's one thing to say, and here I do agree here with Eugene, that this stuff is definitely First Amendment protected in the sense that the First Amendment applies here. Right. This is not a case where the First Amendment just doesn't apply and therefore you can do anything. Yet there are cases that distinguish, for example, between listeners having access to speech itself versus listeners having access to a tool that they then use for speech purposes. Right. So one can imagine, for example, that the law might treat a restriction on, for example, text that a listener can get differently than it might restrict access that a listener might have to, let's say, a typewriter, a tool for speech. And so I do wonder. This is good. This is a face that means there will be a response. This is good. Getting Eugene to scrunch his face is like one of my main goals in life. So just saying the first of them is implicated here, Might a court still say it's implicated? But really this is a tool for speech, nonsense, speech itself. And therefore we might allow under intermediate scrutiny. Maybe the appropriate thing is intermediate scrutiny. Yeah. No, it's clearly I'm wrong here.
- [18:01]
Eugene Volokh
Well, so as a general matter, speaking often requires a wide range of tools. One tool is the printing press and its technological errors. Right. The Internet is a tool. A bullhorn may be a tool. Right. A camera is a tool for creating a particular kind of speech, as well as a tool for kind of viewers to capture something just for their own purposes. But there are other things which aren't physical tools. Like it requires other things. Like if you're going to have a demonstration, you have to be physically there. And you might block roads or entrances or whatever else. The law, I don't think, treats tool assisted speech really that differently from things that are not conventionally seen as Tool assisted. Rather, what it distinguishes as a general matter is between restrictions that are justified by the by the non content features of the tool or of the speech and those that are justified by the content. So for example, the bullhorn is a very powerful tool for speaking, but the government can say we will restrict you from using the bullhorn in certain places at certain times outside a hospital, let's say, or at night in a residential area. But that's not because it's restricting a tool, because it can also restrict things we don't think of as tools. Like we could say we can restrict you from demonstrating on the street, at least unless you have a parade permit. It's not that your demonstration is a tool, it's that it's a content neutral restriction that passes the more relaxed standard available there, I think. So as a result, it's true. If the government were to say we're going to put a tax on AI large language models because they consume so much electricity that they create externalities that we need this tax in order to deal with. It's an interesting question whether it could be unjustifiable. In any case, there's special rules have to do with taxes on the press. But at least you could say, okay, that's a content neutral rationale. But I had to really work hard to get this one because there are very few content neutral rationales for regulating LLMs. Right. As a general matter, if the government wants to regulate an LLM, it's because it doesn't like the output that the LLM will produce. So the fact that it's a tool, it seems to me, would no more justify those content based regulations or even lower the level of scrutiny than if the government were to say, you know, if you want to buy a typewriter and use it to convey these messages, we're going to put a tax on it or otherwise restrict it. That's my view.
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Isabel Arroyo
So is it fair to say safety audits or mandatory reporting requirements would be seen as content neutral on LLMs?
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Eugene Volokh
So I think I know what you mean by safety audits, but before responding I want to make sure I do.
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Isabel Arroyo
A couple of the bills. Right now the EUAI are like mirroring the EUAIX call for or mandate on companies of a certain size to have safety audits.
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Eugene Volokh
Okay, but safety, I take it, doesn't mean, oh, you know, I start typing it, I get a shock because it broke the keyboard. Right? That's not the safety we're talking about. The safety is a con. Is this stems from a concern about the Content. Right. Almost invariably when people talk about LLM safety, it's a worry that the LLM will output material that is harmful. To some people, it's because it conveys harmful viewpoints. To some people, it's that it's harmful because it's false. It could be that it's harmful because it tells me to eat the wrong mushroom. That is actually a physical harm, but it is a harm that flows from the content of the output. Am I right that the safety audits would all be having to do with that?
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Isabel Arroyo
Not always.
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Eugene Volokh
Well, give me an example of a safety audit that aims at a harm that is unrelated to the content of the output.
- [21:53]
Paul Ohm
The LLM could be an endless scroll. Right. It's just like we don't want people to be addicted and so we want mandatory, you know, we think it's best practice to give people a break every 20 minutes.
- [22:06]
Eugene Volokh
Oh, that's an interesting point. I appreciate it. It's a question that's coming up right now with the social media platforms. That's where people are most concerned about. It's not clear to me that that is a content neutral rationale. It's true. It doesn't single out some particular subject matter, but the concern is that the content is so appealing to people that they're spending too much time on. But yeah, in principle you could. At the very least, that's a, that's a plausible case for content neutrality. I haven't heard of any safety audits that are aimed at that. That we're just afraid that people will fall in love with their LLMs and then stop having human relationships, stop eating. Right. Maybe that's the consensus. I mean, open AI safety audits today about.
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Alan Rosenstein
I mean, I think that's. It's not mostly what they're about. You're right. It's mostly about, oh my God, this LLM. When you ask it how to make a nuclear reactor, a nuclear bomb in your basement, it gives you, you know, here's a three easy steps. But I actually do think, you know this question of design. Right. Which is coming up in the platform. You're right. Coming up in these platform cases also going to come in AI really soon. I mean, just literally this week, OpenAI released its advanced voice model, which was, you may recall, six months ago, they announced this really remarkable voice model you could really talk to. Sounds suspiciously like Scarlett Johansson from the movie Her.
- [23:27]
Paul Ohm
Not anymore.
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Alan Rosenstein
Not anymore. Not anymore. But the vibe is very similar and it pushed it all out to ChatGPT. If you have the plus, if you pay the $20 a month. So on my phone right now, I can pull this up and there's an interesting question. Will people get addicted to this? I think some will. And you can imagine this being an issue. And then the question is. Yeah. Is the nature in which the content is presented, is that itself content based or content neutral?
- [23:54]
Eugene Volokh
So it's an interesting question. Those are the right questions to ask under First Amendment law. Right. So once you say something is subject to First Amendment protection, then pretty much the first question ends up being, are you trying to restrict it because of content? Or to be precise, things that flow from the communicative impact, that it conveys certain information or conveys certain ideas or the like. Or for things that are unrelated, like it causes eye strain or it causes people to lose sleep, not because they're lose sleep because they're upset at what they read, but lose sleep because they spend too much time on it, let's say. So then if you conclude that it's content neutral, then generally the government has fairly broad latitude to restrict that, so long as it leaves open ample alternative channels for communication. On the other hand, if it's content based, and as a general matter, it can't be restricted unless it fits within one of the existing exceptions, like for libel or building a nuclear bomb. I mean, if the first step is find some uranium in your basement, maybe it turns out it's not that harmful. But there actually is pre Internet or pre case law, certainly pre AI case law, very little of it, but still about whether or not that can be restricted. But the theory would be there's some exception for speech that is so harmful because it allows the creation of weapons of mass destruction, let's say. But that would be the analysis you'd have to go through.
- [25:23]
Paul Ohm
So let's stick with the First Amendment, since I didn't want to, like, box out the other people on the panel. And you clearly are not feeling boxed out, so.
- [25:30]
Alan Rosenstein
So Ginny and I will not be boxed out. So that's not our. It's not how we.
- [25:34]
Paul Ohm
Not your style. Yeah. So there was another argument you made in your piece, Eugene, where you were responding to a provocative argument. So the argument you were responding to was large language models are just picking tiles out of a Scrabble bag.
- [25:48]
Eugene Volokh
Right, Right.
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Paul Ohm
And so the idea that anyone could be. I think this was in the context of defamation.
- [25:53]
Alan Rosenstein
Yeah.
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Paul Ohm
The idea that anyone could be defamed. I don't know. I'm just playing out this argument I didn't see is ridiculous because no one's going to believe that these are assertions of fact.
- [26:02]
Eugene Volokh
Right.
- [26:02]
Paul Ohm
When they're just tiles.
- [26:03]
Eugene Volokh
Right.
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Paul Ohm
I don't know if I'm characterizing that argument right, but then what's your response?
- [26:06]
Eugene Volokh
Well, that is certainly an argument. I've hear variants of it. Ouija board monkeys at typewriters. You can Magic eight Ball. And my answer was the. I don't think the Magic eight Ball Corporation was getting billions of dollars from people who were planning to commercialize Magic 8 balls.
- [26:22]
Isabel Arroyo
There is a TikTok trend about Magic 8 balls. So maybe they're getting.
- [26:25]
Eugene Volokh
Oh, fair enough. They're getting something. So it's true that if people just sort of see something as a toy, as a game, and it happens to output something that says, volok has been convicted of killing dogs, then in that case they would probably laugh and say, funny that it should output this, but wouldn't take it at all seriously. But if you've got, say, a search engine which has enough confidence in the quality of the output, not perfect confidence, but enough that it outputs things like at the top of a search by default, gives this, then unsurprisingly, I think most readers would assume that this is not perfect, but reliable enough that it's way beyond the picking towels out of the Scrabble bag scenario. And once that's. So, it turns out libel law is familiar with situations where people rely on things that are not completely reliable. The classic example is rumor, right? That everybody knows rumors aren't always true, but they also know. They also know that rumors aren't completely random. So they're sometimes true and people believe them. And if I spread a rumor, even if I preface it saying rumor has it that Joe Schmo has been convicted of killing dogs, then in that case, that could be liable. Even if we might say, in a perfect world, listeners would say, that's. I'm not going to pay any attention to that. That's just a rumor. In the real world, people do pay attention to such things, and thus liability follows reality.
- [28:02]
Paul Ohm
This is the form of a question that's. I could have just Googled it, but this is more efficient. I mean, Eugene, among other things, you track these defamation cases closer than anyone. I learned about all of them when you post the Cyberprof our listserv. So what's the most advanced one cases gotten? Have there been motions about the First Amendment question yet?
- [28:21]
Eugene Volokh
So there are two. One is in federal district court in Maryland. The plaintiff is pro se. You know, this is a great opportunity for someone to take this up, represent him. You may Win or lose. But this is really cutting edge. So it's Jeffrey Battle. He spells it Jeffery. And he says when you. This turns out to be important, I.
- [28:43]
Alan Rosenstein
Was gonna say.
- [28:47]
Eugene Volokh
Play along with me here. So Jeffrey Battle says, I went to Bing and I entered my name. And I get the following says Jeffrey Battle is the. Is a retired Air Force officer who now has a business under the name of the aerospace professor doing consulting in aerospace, used to teach at Embry Riddle University. So far, it's quite accurate. However, Battle was also convicted of levying war in the United States and sentenced to 18 years in federal prison. Whether the part about Battle being convicted, Jeffrey, Jeffrey, not Jeffery, is also true. The falsity comes in the two words, however, comma, Battle. There are two people named Battle. As it happens, they have different first names, although it's very similar. Although similar questions would arise if. If they had the same name. And the problem is that Bing merged the two together. And the. However common Battle is a signal to readers those two are the same thing. If this had been a newspaper that did it, it would be a very solid libel case. Right. They could say, you know, we didn't intend to do this. Although he also says he let Microsoft know about this. And they said, though, we're going to try to fix it. And they didn't. At least for a month, they didn't. So that might be knowledge or recklessness as to false. That's one case, and right now it's not going. It hasn't gone anywhere beyond the original pleadings, even though it's been pending for a long time, in part because he's pro se. The other case is Walters v. OpenAI. Mark Walters is a commentator, a gun rights commentator, and apparently somebody else who, as it happens, knew him. But I don't think there was any collusion at the outset. Asked Chad GPT 3.5. What happened in this complaint, which is a complaint, Second Amendment Foundation, I want to say, versus Ferguson, the attorney general of Washington. And out comes, oh, this is a lawsuit against Mark Walters for embezzling from the Second Amendment Foundation. It's not a lawsuit against Mark Walters. Walters is not even mentioned in the lawsuit. It's not about embezzlement. It's a facial challenge to Washington gun control law. Somehow it creates this gets filed in Georgia Superior Court. By the way, when your law professor, your super professor said, this is the most important class you're going to take in law school, that person was right. What happens is OpenAI removes it to federal court, which is for The I think for the usual reasons that are often given probably the right move for them, sort of cutting edge legal theory, probably more likely to be better handled by a federal, by a federal judge. And then it gets remanded back because OpenAI is not a corporation. It is an LLC. And for diversity purposes, the citizenship of an LLC is the citizenship of all of its members. And if the members of LLCs, then it's their members and then it struggles all the way down. So it end up being remanded back to Georgia Superior Court. They file a motion to dismiss on various grounds, including I believe first amendment grounds. And the judge in a one line order, which is quite common in state court, although not as much in federal court, denies the motion. So the case is still progressing in Georgia Superior Court in Gwinnett County. Those are the two cases that I.
- [32:06]
Paul Ohm
Know of in the U.S. any follow ups on libel? I'm going to move past libel.
- [32:11]
Alan Rosenstein
Okay. I just can't. I can't. How could you bring civil procedure into this? How could you bring civil procedure? This is a safe space. And here I have to think about, about diversity jurisdiction for Al. How could you?
- [32:22]
Eugene Volokh
The lawyer's true superpower is we have the power to turn everything into every question into a question about procedures.
- [32:30]
Paul Ohm
Okay, so question about the regulatory state. We're going to work. And I actually have a few questions at the end that are going to combine the two papers. Just, I like, I like setting myself up with high expectations that I cannot meet. For those who have not thought much about the regulatory state and how it applies to technology companies generally, not just AI, this is such a useful primer. I mean, you cover so much waterfront so efficiently, and then you do this pro and con list about whether we want agencies, whether we think they're the right regulators for this moment. And so your pros are expertise, speed, agility, scope, and democratic responsiveness. And your cons are lack of resources, political challenges, legal constraints, and overreach. And like so many of the final exams in my class, you don't weigh the pros against the cons. You just leave this hanging. And so at the risk of like overgeneralizing, like you could pick one agency or one context if you want, as you do at the end of your paper. Worth, worth it, worth the candle. Are these pros pro enough that they outweigh some of these constraints? So, like, are you bullish about the.
- [33:36]
Isabel Arroyo
I'll give my answer. And I feel like Alan and I are going to differ on this, which just goes to show, like, yeah, it's on brand, but I would say it is worth it. I do think that, and it's kind of similar to what a lot of the panelists on the first panel said. I think that right now there is a need to move in this space. And I think that my concern that agency rules will be wrong and then we won't be able to retract them are not as high as my concerns that the EUI act is going to end up being an act that created a loophole that's bigger than the mandates. But I also think it is like it matters which agency it is. Some agencies are better than other agencies. Add investigations and enforcements. It also matters because I think some agencies, the judiciary is more antagonistic to some agencies than other agencies. I think that some agencies more than other agencies have like better political capital with Congress and so have, you know, are more likely to get the resources they need to do things. But all of that aside, I think that I would like more regulation but to undercut my own position. It's an empirical question that I don't think anyone on this panel has the answers to, which is like is agency enforcement actually effective in influencing change across an industry as opposed to specific enforcement against one company? And then even in terms of specific enforcement against one company, is agency action actually able to get long lasting change or is it kind of a one moment in time penalty or casting light on an issue that passes and it's like business as usual?
- [35:23]
Eugene Volokh
Yeah.
- [35:24]
Alan Rosenstein
So no, that's great. So a couple of thoughts. So I'm going to stand, I'm going to, I'm going to stick up for a second for the not doing the weighing of the pros and cons. And I mean the real reasons, this.
- [35:36]
Isabel Arroyo
Is the classic I reject the premise.
- [35:38]
Alan Rosenstein
I reject the premise. I mean the real answer is because it would too hard. But the more principled answer that I just made up on the spot is that I think that it is important to be very tentative to the point of sometimes just staying silent on these bottom line, normative, evaluative questions because it underscores how early we are in what. Again, going back to sort of your first question, I think it was a really transformative technology. I mean, if you were to ask at the beginning of the Industrial revolution, what should the role of the lobby, I think the most honest answer would be, here are 17 considerations. I'll get back to you. Right. But I'm just not in a position to tell you. And you know, as the steam engine is suddenly developed, what the Role of the law should be. Right. And even if you don't think that AI is like the steam engine, I think it's, I think hopefully it's. I can convince everyone, even some of the skeptics that it's something at least it's like the railroad. Right. Which is to say, you know, maybe not an earth shatter technology, but like a really big deal technology already. Right. Even if we don't make any more advances. Right. Which we will. If you just look at the scaling law grass. Even if we just stopped today. Right. Just the effect of that ramifying through the industry and society and economy over the next 10 years would be massive. Right. And I think again, if you were to ask what should the law do with railroads in 1860, you'd be like, I don't know, we'll have to wait and see. And part of it is this empirical question. You got to go agency by agency, sort of specific thing, thing by thing.
- [36:59]
Isabel Arroyo
But also technology by technology. Like you brought up steam railroad, but we've also brought up the analogies of cars. Like I think that David made this point earlier, like regulation of cars has not quelled the thirst for cars in America. I think that it depends on the technology and how high the demand for the technology is and how inclined suppliers are to kind of overcome regulation. To be like, no, I think we could regulate the crap out of AI and OpenAI is still likely to continue producing AI and we're likely to continue consuming AI.
- [37:27]
Alan Rosenstein
Yeah, I think, I think that's right. And that gets to the second point, which is to say, yes, regulation is worth it or not worth it. It depends on what you're comparing it to.
- [37:36]
Eugene Volokh
Right.
- [37:37]
Alan Rosenstein
So I actually totally agree with Chini that compared to courts and the common law, I think that regulation at the very least should be as important. I'm not going to say it's more important. Right. I mean courts have a lot of wisdom, common law has a lot of wisdom. I'm not such a technocrat that I think that everything should be done from the Department of AI here in D.C. but for these reasons of scope, speed, potential for technical expertise, I think you have to get the agencies involved where maybe I disagree with Chinny. Right. And this is like one of the many reasons it's so much fun to work together on this sort of stuff is, you know, without putting words into your mouth, Chinny, I think it is a fair statement to say that you are generally a little more concerned about harms of AI and I am a little more concerned. Right. About the potential benefits and the risk to innovation. Right. We're both concerned about.
- [38:25]
Isabel Arroyo
I do think innovation's overrated.
- [38:26]
Alan Rosenstein
Yeah, I think we're both concerned about both things, but sort of, you know, you're more of the safety person. I'm more of the like, you know, AI accelerationist. So where I think you and I may disagree is I am concerned about premature regulation. I'm concerned about it whether or not.
- [38:41]
Eugene Volokh
It'S from the courts.
- [38:42]
Alan Rosenstein
I'm concerned about whether or not it's from the agencies. Right. I do think. I think you got to let them cook a little bit.
- [38:50]
Isabel Arroyo
I don't actually disagree with that. I do like the laboratories of experiments.
- [38:54]
Paul Ohm
Wait, I'll disagree with that. So, so, so let's, let's talk about the automobile.
- [39:00]
Alan Rosenstein
Yeah, right.
- [39:00]
Paul Ohm
So we let that cook for a couple of decades. Lots of people were killed.
- [39:07]
Isabel Arroyo
Alan's like, no problem.
- [39:08]
Paul Ohm
You're like, I mean, none of your direct ancestors. So maybe.
- [39:13]
Alan Rosenstein
No, you know, but I am against automobile. Only that.
- [39:17]
Paul Ohm
Not only that, but maybe similar to what we're doing with AI, the federal government decided to like, intervene to make certain things easier for car manufacturers. And so we ended up with the interstate highway system, which begot the suburbs. Right. I mean, there is an argument that we waited too long with cars and that we kind of screwed up some things fundamentally that if we had, you know, with all appropriate humility, intervened a little bit earlier or didn't do things quite the way we did, we'd have a better world in some ways.
- [39:46]
Alan Rosenstein
Yeah, no, I think so. There are two questions there. Right. So the first is the counterfactual question of take some technology like cars. Did we in fact wait too long? Right. Should it have taken Ralph Nader pointing to Ford Pinto's blowing up for us to get our act together? Right. And that's an interesting question. And there are all these counterfactuals and you have to ask, okay, well, how many. How much life was improved by having cars or so many? I don't know the answer to that question. Fair point. But the second counterfactual is what is the right comparator? Because you can say, right, okay, fine, we waited too long on cars. But maybe I might respond and say, sure, but cars is the wrong example. Nuclear power is the right example. Right. You know, we over rotated way too much on restricting nuclear power. We overlearned the lesson of Chernobyl. Right. We certainly overlearned the lesson of Three Mile Island.
- [40:34]
Eugene Volokh
Right.
- [40:35]
Alan Rosenstein
Which by the way, is back because of AI Fun coincidence. Right. And in Fact, you know, we, you know, we've contributed just by our, you know, insane aversion to nuclear, a full, you know, 0.3 degrees of global warming just based on that, which is a big deal and God knows how many deaths because instead of nuclear, we burned a bunch of coal and put that.
- [40:54]
Eugene Volokh
Crap into the air. Right.
- [40:56]
Alan Rosenstein
So if that's the right comparator.
- [40:58]
Eugene Volokh
Right.
- [40:58]
Alan Rosenstein
And I think there are reasons to think that AI could be the sort of, you know, science and welfare, advancing technology, that nuclear power could have been. That's, that's the issue. So again, I think, I think all we can do, maybe this kind of a meta point is we should just, we should just identify what our priors are. And maybe my priors are a little more techno optimist and maybe your priors are a little more techno pessimistic realist, how you want to call it. But then just hold those priors very lightly and be good Bayesian updaters and just be willing every day to sort of relook and say, you know, today I'm feeling better about it, today I'm feeling worse about it, but just not, not to commit too much right off the top. Now that's easy for an academic to say, right? It's harder for, I don't know if David is still here, but it's harder for a government official or a judge who has to make a decision and we're not deciding is itself a decision not to decide. But you know, I like being an.
- [41:51]
Isabel Arroyo
Academic, I think that's the feature of regulatory law is that you can make the decision with at least less consequence long term than some of the other modes of regulation that we have. I actually think that tort is also good at this because you can have one case in one jurisdiction, a different case in a different jurisdiction, and they can have similar facts and come out differently. And you can see how we like the results of that. But again, this is kind of like to my earlier point about not all AI is generative AI like the car analogy and the nuclear energy analogy might be apt for different kinds of technologies, different kinds of use cases. And then another feature of the regulatory world is that we have a lot of different agencies that even if we don't, I'm skeptical about like a big AI law. Even if we don't get to holistic AI regulation for all AI, we have agencies that address a lot of high risk industries that might be already pretty technically competent at figuring out what kind of AI is nuclear and what kind of AI is cars within their domain. And I think that like I'm never going to remember the acronym. The national highway and Transportation Services nhtsa. Yeah, I need to do better at remembering the pronunciation of the acronyms as if they're words is like trying to do a good job of pulling together stakeholders and technologists to understand what's going on with autonomous vehicles and different kinds of autonomous vehicles. And telecom is brought in because like autonomous vehicles need to communicate over spectrum. And so like what kind of spectrum bands do they need to use? So it's like a, it's not just an AI question and it's not just a car question. It's like a multidisciplinary question.
- [43:34]
Eugene Volokh
I just want to add an extra thing to the mix which I'm sure you folks have thought about, but it hasn't really appeared as to. I said the administrative agency question, what about the state versus federal question? Right. When we're talking about tort law, of course that's all state with some variation among states. And yet it can apply to, to national and transnational companies. Cars, you know, historically they've been regulated at the state level as well as at the federal level in some measure. And what's more, there are particular political difficulties in Washington D.C. with creating a new agency or creating a new statute or whatever. But we've got 50 states, some of which are deep red, some of which are deep blue. And if they decide they want to do they want to create a new agency, they can do it pretty quickly. And the. And there may be not the same kind of ad law constraints at the state level as there are at the federal level. Different states have very different approaches to the restraints on agencies.
- [44:42]
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Eugene Volokh
It's a gift.
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Isabel Arroyo
Thanks, Anna.
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Eugene Volokh
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Alan Rosenstein
You'Ll pay $25 a month unless you.
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Eugene Volokh
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Alan Rosenstein
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Alan Rosenstein
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- [46:31]
Alan Rosenstein
So I thought about this some. So on the one hand, I think it is a great I actually do think laboratory democracy is a very cool thing and I think we actually have laboratories of experiments.
- [46:41]
Paul Ohm
Yeah.
- [46:42]
Alan Rosenstein
And I think it is a good thing. And absolutely states should be experimenting with all sorts of things. Right? And they are. Right. But I think they have to be extremely careful about regulating about stuff in which they have a specific and can articulate their specific state interest, rather than regulating about things that are both not particularly in their state interest and especially in ways that might affect AI across the country.
- [47:10]
Paul Ohm
Are you making a policy argument or a con law argument?
- [47:12]
Alan Rosenstein
So I'm making primarily a policy argument, but maybe there's a con law argument here. So the policy argument. And I think Dean Ball was in the audience, but I think he had to leave. So he and I wrote a piece for Lawfare a few months ago saying when SB 1047 was about to be passed through the California legislature, that Congress should seriously consider federal law preempting state safety legislation. Right. Because the sort of legislation that I think SB 1047 is trying to get at is trying to prevent, you know, not like specific harms to individual Californians, but trying to prevent AI being able to create nuclear weapons, let's say. Right. And in our view, that is not primarily a California based concern. That is a concern for the nation as a whole. And the problem with something like California doing that is because the spillover effect, because the AI labs happen to be located largely in California, would be spillover effects nationally. And if you're concerned about innovation and geopolitical competition. That's the sort of thing that should be decided at the national level. Now this is without prejudice to the substantive question of what should the AI safety standards be? And is sacrificing some innovation worth a marginal decrease in the risk of AI causing nuclear war? Right, like that's a totally separate conversation. Now that's a policy argument. There's a constitutional version of that policy argument, which is that the doctrine known as the dormant commerce clause says that at a certain point state regulations, even for otherwise legitimate, non protectionist purposes of, you know, interstate, of out of state commerce. Right. Or even potentially maybe intra state commerce can be struck down even in the absence of federal legislation that preempts that because of the particularly bad effect on interstate commerce. Now, the health of that doctrine is extremely contested. There was this case from a few years ago about California. It's usually California cases in dormant commerce clause. I'm actually trying to pick on California because California is a. I think California.
- [49:17]
Isabel Arroyo
Wants to be picked on.
- [49:18]
Alan Rosenstein
Well, it definitely does, but it's just because California is such a massive economy. It's like the fifth biggest economy in the world. Anything California does has a California effect. And there was this case about California regulating pork production and went to the Supreme Court. And I've read that case four times. I'm still not sure what the case actually says. But you know, I would argue either on policy or constitutional grounds for there to be some limits actually on in particular California, because that's what's going to matter the most.
- [49:43]
Isabel Arroyo
I'm asking a purely rhetorical question, not a leading question. But is there not like taking my lawyer hat off and just being like a practical or like political person? Is there not value to California using its might in the. I regulate all tech companies and that's going to regulate across the country to say like we're going to do this and this is going to put pressure on the national level to like address this question, to preempt. Because like now it's like the stakes have been raised.
- [50:12]
Alan Rosenstein
Yeah, no, no, that's. It's an interesting, there's an interesting like second order question here, right of state as forcing Congress to act. And maybe it's like net neutrality.
- [50:21]
Isabel Arroyo
It's like work. Yeah, yeah. Medium well.
- [50:23]
Alan Rosenstein
Yeah, you may be right. I mean there may be sort of Congress is so deadlocked that as a second best answer to Congress getting its act together. You know, you need states to screw things up potentially so Congress can act. And that may be the answer to the dormant commerce clause argument. And Honestly, why many people don't like the dormant commerce clause is because Congress could always act to just do this under its regular commerce clause powers. But I think there's still the policy question. I still think it would be better that these kinds of issues were decided at the national level. The thing I wanted to say was there are counterarguments here, right. People often point to California's role in increasing auto emission standards and the California effect because if you're a car company, you're not going to make a California a really environmentally effective California car and then have some less effective car for the rest of the country because of scale. But the problem with that analogy, I've always found, is it begs the question that California is setting good, all things considered, auto emission standards relative to the increase in cost that does. Now, I think in the car example, there's a good argument to me that it does. But I think the problem is that this question of AI safety legislation is extremely contentious. And the whole question is what is the right balance? And so that's my, that's my, sorry, overlong take on the state federal thing.
- [51:35]
Paul Ohm
Yeah, it's so funny. I'm looking at my, like 17 questions, trying to pick the one more question I want to ask because I do want to get to your question in about seven minutes. And remember, a student has to go first. I mean, this is going to feel like a real, like, point of personal privilege question. But the one topic we haven't talked much about today is privacy. And I'm a privacy scholar. And I actually think I can combine your two papers in a sense.
- [51:59]
Eugene Volokh
Let's see if I can pull this.
- [52:00]
Paul Ohm
Off, which is someone today talked a lot about the idea that ad personalization is very likely to be coming soon to a large language model near you.
- [52:10]
Alan Rosenstein
Right.
- [52:11]
Paul Ohm
I can't imagine how annoying that's going to be. Like, yeah, I'll tell the story to your son, but first let me tell you about this juice box.
- [52:18]
Alan Rosenstein
He should be buying.
- [52:20]
Paul Ohm
And it feels like.
- [52:21]
Eugene Volokh
I'm sorry, will the annoying thing be the ads or that they're personalized? Probably both, because maybe the ads, if they know me well enough, they'll actually give me an ad that I like.
- [52:30]
Isabel Arroyo
I'm annoying, though, because then I spend money.
- [52:32]
Paul Ohm
There's no such thing. Anyone who ever says I like personalized ads has been fooled by the ad industry to say something they don't really believe because they don't ever click on them. I love unpersonalized ads where they think I'm a 35 year old pregnant woman. That is my happiest day because I've beaten the machine. And then Leo Horstrilovitz when I said this once said, yeah, but Paul, they realize you love that and so that's why they're.
- [52:53]
Alan Rosenstein
And also Paul, it's because you too deserve the foot massage water. Foot massage device.
- [52:57]
Paul Ohm
No, but so my question on the regulatory state is first of all, the FTC seems like the home for worrying about this, but does this even rank? I mean today Alan's been talking about death, destruction, nuclear power. Is privacy something that we should even factor in these conversations? And then for Eugene, I want to hear more about commercial speech doctrine and whether or not it's likely that some of these pro privacy regulations might work because a court, it's hard to imagine the Supreme Court would say intermediate scrutiny.
- [53:33]
Eugene Volokh
Or something like this.
- [53:34]
Paul Ohm
So I don't know which of those you want to take first.
- [53:36]
Alan Rosenstein
Okay, so I'll do a quick thing on the privacy thing. So, so, so I think that there's two part if I think about it. So the first question is the substantive question of how important is privacy versus other things. Right. My gimmick is that I'm like the anti privacy law professor because it's just fun to go to privacy conferences and see what happens. But, but you know, I think we could just have a range of views of what is the actual privacy interest, what is the harm of the privacy intrusion, what is the benefit you might get to it right on net. On the one hand, you might think it's really bad that all these AIs will know everything about you. That's a horrible privacy intrusion. On the other hand, it's kind of amazing that you can ask very sensitive questions to an AI rather than have to go talk to maybe a human being. So maybe on net is privacy improving. So there's a whole substantive set of questions there. But then there's this institutional question of who should decide. And I actually think that getting to this question of how should regulatory agencies think about AI interventions, I think I kind of like the FTC doing privacy stuff because it's somewhat narrow and somewhat tractable. I mean it itself is very complicated. But the thing kind of, I think the sort of the kind of guiding the North Star of institutional design question should be you should have specialized agencies narrowly focusing on stuff that they have expertise in. Right. Like the scariest thing I could imagine is a department of Artificial Intelligence intelligence. Like that's, I think the last thing that anyone would want because they're not going to be Very effective. It's going to be very abstract, it's not going to work. Whereas if the FTC has been doing privacy law, right, and they've been doing privacy law for 30 years in certain domains, and now ChatGPT presents that question in a slightly new technical context, I am much more comfortable with the FTC taking a bite at that apple than at the FTC doing AI law generally.
- [55:17]
Eugene Volokh
That's what I'll say about that. So I think that there are two questions here. One just about commercial speech generally. Commercial speech usually, I oversimplify here shorthand for commercial advertising. And it's pretty well settled that misleading commercial advertising is constitutionally unprotected. It's not enough just to say, oh, we think it's misleading, there's got to be some real evidence. But if there is sufficient evidence, it's unprotected and non misleading commercial advertising is subject to less protection, although it's ebbed and flowed starting with the late 70s. In the late 70s it looked like it would get a lot. Then in the 80s there were a bunch of cases that said no, it actually would get quite modest protection. And ever since then there's been quite a bit of protection. Not absolute protection, of course, but also not as much as for non commercial speech. That's not commercial advertising, but considerable. So if, let's say OpenAI starts serving up ads and they're misleading, whether because it bought misleading ads or it hallucinated things into those ads, that would be regulable. If, however, let's say it is producing ads that are not misleading but personalized, and somebody says, well, that's bad. It's bad to have personalized ads. I think courts would look at it quite skeptically and say these are constitutionally protected in some measure. It's not enough just to say they're icky or they're bad, or they might get you maybe too effective at getting you things to buy, that just means they're persuasive. So it may be very difficult to do that. But let me turn to the privacy issue and step back and try to merge it a little bit with the liability stuff we talked about earlier. So there's this phenomenon I Talked about about 10 years ago, way outside of AI, of tort law versus privacy. Tort law is sometimes seen as a protector for privacy because there are various privacy torts that are aimed at protecting that. But the law of negligence and related liability doctrines is also potentially a threat to privacy. Just to give one example. In a lot of cases now, if somebody is injured or criminally attacked on someone's property, say in a parking lot of a mall. It's now a routine claim they were negligent in not putting up cameras because as the technology got cheaper and more and more effective, the claim was that you should take reasonable measures to protect us by using cameras became much more plausible. And the objection that, well, wait a minute, maybe we shouldn't have more surveillance. That's a hard objection. It could be factored into the analysis, but often is. So let me give you the following hypothetical fact pattern. Somebody uses an AI program to ask something like what substances are poisonous but not easily detectable in an autopsy. Now there are a couple of possible reasons for that. One is you want to commit mercy. Another is you're a novel and in fact there are novels you can read that presumably talk about it. Another is you're just curious. Another is you're training to be a medical examiner and you're looking or a police officer or a private detective and you're looking for this kind of. So presumably if somebody says well we're going to sue the company for putting out this output, it'll be very difficult to show, even apart from the first Amendment that they're being negligent in just providing information. But if they know a lot about you, then it becomes much more plausible to say, well, that the user had asked these various queries like how do I deal with a spouse I can't stand? Do you have any advice on that? Well, that didn't work. Anything else? No, that didn't work either. How about undetectable poisons? Right. Then you could come up with an argument. You know, your software is so fancy and so technical, so technically sophisticated. Somebody can even has actually shown that they can predict at some degree of probability based on your past queries and this one, whether in fact you're looking for criminal purposes. You should have done that. One possible answer is great. We want there to be such rules that pressure AI companies into sorting people this way because we want them to provide output to the novelists but not to the would be murderers. Another possibility might be to say, well wait a minute, we don't want to create legal, legal obligations on these platforms or legal pressure that requires them to build a psychological profile of us and then decide whether we, whether we seem like trustworthy people or dangerous people. That's something that I don't think is, is being much talked about. But that is actually an important question. Question at the intersection of privacy, free speech, tort liability and probably regulation.
- [60:14]
Paul Ohm
When the third consideration, of course, is there's some DA somewhere in the country who's about to subpoena. Oh, yeah, yeah, that history, too.
- [60:21]
Eugene Volokh
Privacy question. About what? About the. The records. Just whether they can be turned over in criminal or in civil case.
- [60:27]
Paul Ohm
So for those who don't know the Seymour case out of Colorado, the DA just went to Google and said, who's been searching for this particular thing? And Google gave it up. Eventually, out of all their users in all the world, who was searching for.
- [60:40]
Isabel Arroyo
This particular string, which, like, theoretically, the Stored Communications act should have had something to say there.
- [60:45]
Paul Ohm
Yeah, but warrants surpass everything, right? As long as you get a warrant, you know, the company has to comply.
- [60:50]
Alan Rosenstein
So.
- [60:51]
Paul Ohm
Okay, so it's Q and A time. I have lots of questions that I will ask. If you don't, the way we're going to do this is you stand up at the microphone, but we are going to invoke the wiser rule. And I see a lot of students in the room. One of you's got a brilliant question. Are you a student? All right, awesome. Come on up.
- [61:07]
Eugene Volokh
Yeah. My name is Natasha Shapiro. I'm a1L here at Georgetown Law.
- [61:11]
Alan Rosenstein
Even better.
- [61:11]
Eugene Volokh
I'm also with the minority staff of.
- [61:14]
Alan Rosenstein
The Finance committee for the U.S. senate.
- [61:16]
Eugene Volokh
Man. Okay, so I have two advantages. We went small already in talking about, well, if we don't regulate at the federal level, so then California might make standards for the whole world, at least for the United States. I guess I want to go big, especially thinking about that a lot of the AI regulation right now, at least the discussion about what AI regulation should look like is taking place in sort of international consortiums. Is there a way and is there a need to sort of preempt the actions of other states, especially in light of that even our allies have vastly different approaches to free speech, to libel, to all of the issues that we talked about.
- [62:00]
Alan Rosenstein
So, yes, there's a big international component, and let's divide the world into friends and not friends. So when it comes to the sort of competitor nations, and here the big obvious one is China. Right. I think it's totally reasonable to say AI is the technology of the future. We are totally uninterested in having our both knowledge and hardware used to sort of help adversary nations with this. And so we're going to export control the heck out of. Out of all of this. Right. I mean, you know, this is a big thing that companies like Nvidia, for example, have to deal with. But I think that's. I think that's Absolutely appropriate. You know, with respect to the other countries. I mean, Europe is interesting here. You know, often it's very easy to kind of poo poo European tech regulators because you can just say, well, Europe doesn't really have its own tech sector of any interest and so sure they can regulate because like, what do they care? It's actually not true for AI. I mean, Mistral is a very impressive. Mistral is very impressive. And so I think the Europeans have real skin in the game here. And but at the same time, I actually am not that convinced that the Brussels effect is actually going to be as pronounced for AI as it has been for platforms. Certainly early indications don't suggest that it will be. OpenAI is just happy to not allow a lot of its most advanced capabilities in Europe. So I can talk to the fancy voice model right now, but if you're in Europe, you cannot. And I think OpenAI is just betting that they can win this particular game of chicken and they may well be able to in part because you don't quite have the same, I don't know, network effect is the exact right term here. But you know, the reason that we all ended up after European, you know, I forget which European law it was. You know, you go to any website, you have to click 17, yes, I'll.
- [63:42]
Eugene Volokh
Accept your stupid cookies. Right.
- [63:43]
Alan Rosenstein
Unclear what this accomplished is because there are, there are good reasons for companies to just have one standard. Right. I do wonder if for AI it's actually maybe easier for just to have much more localized AI systems. And fine, the Europeans can have a worse version and the Americans can have the better version. And so that's what's going on there.
- [64:06]
Eugene Volokh
If I could offer a related but slightly different answer, perhaps. I think a lot depends on how aggressive various foreign countries are going to be about this. And you know, I disagree with the Thai view, as I understand it, that people should go to prison for many years for insulting their king. Right. I think it's bad. I would be very good, very nice if they abandoned it. But if the Thai government says, look, you guys are wiz is a geolocation, you can geolocate to 99% reliability. We don't insist perfect reliability, but if somebody is using this software from Thailand, then you better make sure that it doesn't say anything to insult the king again to a high level of reliability, you know, I think AI companies might deal with that. Likewise, if the Turks say, if you have to, you can't say things that support whatever Doan's enemies are or if things are normalized eventually with Russia, but Russia remains much more restrictive than America. If the Russians do the same or if the Europeans do the same in various ways, but they could be more aggressive, right? They could say look, it upsets us that the King is being insulted even in America by Americans to Americans or it upsets us that supposed hate speech is being conveyed by Americans to Americans. So we are going to basically threaten to jail any employees you have in our country and seize any assets you have in our country. Well then in that case they would be exporting their rules to us and constraining what Americans can see. I think if that happens, I think it's very important and probably a proper role for the government to try to stimulate, although I certainly wouldn't want to try to code it to have a all US based AI company that says we pledge to have assets only in America and please, only in America. And as a consequence we can assure, assure you that we're in no way beholden to any foreign country that tells us what we may or may not produce.
- [66:10]
Isabel Arroyo
Realistically though, is that possible given AI supply chain and the vast majority of like people building training data sets are overseas.
- [66:20]
Eugene Volokh
So, so I think it's an interesting question. I think a lot has to do with the open source question.
- [66:24]
Paul Ohm
Yeah, I was going to say the same thing, right. Like Meta, Meta has commoditized pre training of the foundation models. In a sense like Meta's Grand Gambit seems to have worked. And so you know, 401 that just came out is not a pre trained model. It's a bunch of really fancy fine tuning. And so in a funny way, if you're Thailand, just use the latest llama, you get a bunch of your smartest computer scientists to fine tune the heck out of it and it probably will stop. Right, and so you said they'll have worse AI. I'm not sure they are.
- [66:50]
Eugene Volokh
No, no. But Thailand may say we have the Thai AI. In fact, AI is part of our name. Right. But it's not good enough for us because lots of our citizens are using that. The other interesting point of course is it doesn't have to be 100%. I mean imagine that there is this movement and the Philippines says look, we are thinking about having people doing various kind of low cost training things we have. I think it's about 100 million people in the Philippines now. A good deal of them speak English, let's say, and this is what we're going to offer. We promise not to leverage any of our control in this situation. So let us into your little walled garden, your big walled garden, the American walled garden. We'll provide these services. We'll promise not to interfere with that. So I think there would be mechanisms for doing that, I think.
- [67:48]
Paul Ohm
All right, let's try and get through a few more. No, no. That was great.
- [67:51]
Eugene Volokh
I love that.
- [67:52]
Isabel Arroyo
Hi, thank you so much. I'm Shira from Meta, but I actually have a question about, really related, I think, to this question about the kind of international component of all of this. So Alibaba has recently released an open source model and has produced. There have been chatbots produced from it. I've been playing around with them and from, from what I can tell just from dogfooding, it seems as though there are certain, I assume, output controls, although I don't know that. I don't know technically how they've. How they accomplish this, where they just, they just won't provide certain outputs about politically sensitive issues for China. So specifically, you ask it about Tiananmen Square and it responds, I can't respond to that issue. What do we do? Like, how do I think about this?
- [68:37]
Eugene Volokh
Right. So this does raise actually a version of the Lamont v. Postmaster General problem. Right. Which is also now pending in this fair city in the TikTok case. Right?
- [68:46]
Isabel Arroyo
Right, exactly.
- [68:47]
Eugene Volokh
Do we have whatever the normal First Amendment rules are, Is there some extra power that the government has to try to restrict things that are substantially affecting American. American public discourse? Maybe that's one way of distinguishing Lamont be Postmaster General. Like, you know, foreign propaganda being mailed into the US in 1960, 65, probably not that big a deal just because very few people read it. But if it's something that's TikTok, some, an important platform like that, or an LLM, let's say that lots of people are using and they get. Not just that, of course. This is like the 13th chime of the clock. Not only is it wrong itself, but it casts doubt on all that preceded it. Right. If it just says no about Tiananmen Square, what other more subtle things there might be would there be? Should there be a different First Amendment rule for that saying, look, even if it does interfere in some measure with American listeners and American speakers ability to communicate this way, given all the other options they might have that don't have these kinds of possibilities of foreign influence, would we be able to restrict that? I don't know what the right answer is, but again, I think that the TikTok case from the D.C. circuit and a especially that goes out to the Supreme Court may very well have spillover effects on the very question you were describing.
- [70:08]
Alan Rosenstein
And to be clear, I think you're absolutely right to be clear. It's not that there's a TikTok case, and it will tell us something about this AI question. The TikTok case is an AI question. It is an AI case because one of the two justifications, and what I think everyone recognizes is the real justification, in a sense, which is the TikTok algorithm's potential for interfering with the ecosystem. The algorithm is AI, and this gets back to Chinny's point. Right. AI means many things, and generative AI is only one of those things. The algorithm is a very complicated machine learning something, something. Right. And so, yeah, I think that's the question.
- [70:44]
Paul Ohm
Can I just comment on both questions? What I find fascinating is, I mean, you started out by saying there aren't the same network effects, and then you took it back, and then Eugene was basically describing a balkanized set of large language models. And for 25 years, you were never allowed to say anything supportive about the balkanized Internet. I mean, there was this kind of libertarian strand in the foundation of our debate, where, if you ever pictured a world where anyone's Internet was not as capable as our Internet, you just broke the first. I think we're much more comfortable with balkanized digital sovereignty and where it's trade war all the way down and where it's geopolitics at the highest level. You're not, based on the look on your face. And by the way, I'm one of the few published authors who have written, like, a love letter to the balkanized Internet. So I'm just happy that the rest of the world is catching up to me. But it's fascinating to me. It's.
- [71:31]
Eugene Volokh
Yeah, I've been. I've been a heretic for a long time. Yeah. Oh, really?
- [71:36]
Paul Ohm
I didn't know this about you. We should have formed a club.
- [71:38]
Alan Rosenstein
We're the two people.
- [71:39]
Eugene Volokh
Exactly.
- [71:40]
Paul Ohm
So in a funny way, it's funny to me that, like, that libertarian argument, even if it makes you squirm a little bit, isn't, you know, table stakes. It used to be you can't say a bad thing about the global Internet that we have. Yeah, go ahead if you want to. You look like you're desperate to.
- [71:56]
Isabel Arroyo
Well, if I may offer, I think one of the fundamental challenges with the Balkanization of the Internet is understanding how certain services work. So there are. Obviously, if you're thinking about data storage, then that might work in a Balkanized environment. It's less effective and in fact maybe more destructive in an environment where the service itself itself is communication. So if you're going to balkanize Internet from one of meta services, for example, like WhatsApp, the result may be that you certainly, you just simply cannot communicate with someone in a different jurisdiction. So it'll be interesting to see how this plays out for AI. Certainly we are thinking about this a lot in terms of bias. You know, where is the data that we're training on coming from and what's the value of training on data from more diverse sources? But I think there'll be other ways it plays out too.
- [72:47]
Paul Ohm
Let you have the last word on that.
- [72:49]
Eugene Volokh
Thanks.
- [72:49]
Paul Ohm
Thank you.
- [72:50]
Alan Rosenstein
Hi, my name's Sunny, I'm part of an org called Encode Justice. We're one of the three co sponsors of SB 1047. So this is going to be slightly pointed question and so I think whenever I hear about people talking about federal preemption of state law when it comes to AI safety, I feel like this always just mystifies me a lot because.
- [73:09]
Eugene Volokh
I think it goes like, there's two big things.
- [73:11]
Alan Rosenstein
One is like it goes really counter to the whole laboratories of democracy federalist kind of mindset that we've practiced in the US for many other things.
- [73:19]
Eugene Volokh
But also there's like very real political.
- [73:21]
Alan Rosenstein
Realities of like Congress is barely even able to pass a continuing resolution, much less like actually legislate on major issues. And so I always. Is the beef with California specifically, is it like you just, you know, if.
- [73:34]
Eugene Volokh
This happened in Mississippi, would it be, be okay?
- [73:36]
Paul Ohm
Like I'm genuinely, can I, can I. I'm going to break the fourth wall and, and show you all. If you haven't moderated a lot of panels, this is a moderator's trick. If you don't know the answer to something, you blame it on the students. So scene. There are students in the audience and we've now talked about the California bill twice. Do, do one of you mind summarizing like the key points of the bill just so we know what we're talking about?
- [73:58]
Alan Rosenstein
Oh no, it's a moving target. I, I have, I have honestly lost track.
- [74:02]
Paul Ohm
But can you just, just a couple of high level points?
- [74:06]
Alan Rosenstein
Sure. Well, it's a, the bill has like three major things. The first thing that it does, which is the most controversial I think, and the thing that gets talked about a lot is that it puts on certain liability standards for frontier model developers above a certain amount of money and a.
- [74:21]
Eugene Volokh
Certain amount of compute.
- [74:22]
Alan Rosenstein
These regulations would target like the largest model developers and kind of put on a reasonable care standard for catastrophic risk, which are like your chemical, biological, radiological, nuclear weapons or critical infrastructure damage.
- [74:34]
Eugene Volokh
And the other two things that it.
- [74:35]
Alan Rosenstein
Does is it puts on whistleblower. It gives whistleblower protections to people from.
- [74:40]
Eugene Volokh
The lab so that they can report.
- [74:41]
Alan Rosenstein
To the California attorney General if they.
- [74:43]
Eugene Volokh
Find anything that they think is kind of controversial.
- [74:45]
Alan Rosenstein
And the last thing it does is.
- [74:46]
Eugene Volokh
Establishes a public computing framework for California.
- [74:49]
Alan Rosenstein
Is that a fair character?
- [74:49]
Isabel Arroyo
That's a beautiful summary.
- [74:51]
Alan Rosenstein
I feel like I've given this speech a million times now, so can I.
- [74:54]
Eugene Volokh
Just mention, just to set the stage, the fact is that we believe in laboratories of democracy. We have lots of things that are governed by state law and we believe in uniformity. We have lots of things that are governed by uniform federal law. So I think it's a mistake to assume that everything needs to be because we have federalism, everything needs to be available for state action. It's a mistake to assume that because we have the Congress, everything needs to, or because in theory everything is more efficient if there's one rule, everything needs to be preempted. So for example, it's generally believed, I think, by copyright, by people who know something about copyright, that it's a good thing there's one federal copyright law throughout the country and that if a state says no, no, no, no, we want to experiment some more with development of different approaches to copyright, different length of the term, different scope of coverage and such, generally speaking, we're kind of skeptical of that. Likewise, my understanding is that with a few exceptions, things having to do with broadcasting are federal and generally you don't leave it to states, among other things, because there could be broadcasters that are operate in a tri state area. Right. On the other hand, there are lots of things which you might think, well, why don't we do it in a uniform way that we don't do uniform way. So for example, just even in the area of speech and communicative torts, there are different libel law rules and the same New York Times is in principle subject to the libel law rules of the 50 states, depending on where the people they're covering live and whether their articles are sufficiently focused on those people's behavior in those states. So I just, I just want to flag. On the one hand I, I totally understand the value of that of, of having different state approaches. But at the same time we shouldn't be mystified by the idea that why not federalize? Because in some areas we do think that Federal preemption is the right thing.
- [76:58]
Alan Rosenstein
Yeah. And, and, and beautifully put. And I think this answers the, the question totally reasonable is, would I be so exercised if this was Mississippi? And the answer is no, because it wouldn't matter. Right? No, I'm not trying to rag on Mississippi. It just is a empirical fact that right now Mississippi, as far as I know, does not have any leading AI labs in it. Right. If that were to change, then I would say the same thing about Mississippi. The end of the day, you know, laboratory democracies are great until those laboratories create externalities whose negative effects are greater than the benefits. Right. Now you may say, well, I don't think the negative effects are greater than the benefits because I think AI safety is so important. Right. But my point is this should be decided at the congressional level. Now, the other question you put is, or the other argument, just totally reasonable, is, and I think this was kind of something, what Trini was pointing out as well is don't we have gridlock? Does it make it impossible? Don't we need states to do this?
- [77:47]
Eugene Volokh
Sure.
- [77:47]
Alan Rosenstein
But I actually think the gridlock is perhaps somewhat overstated because we do know that Congress that's definitely controversial.
- [77:53]
Isabel Arroyo
Well, I mean, Alan is full of hot days.
- [77:56]
Alan Rosenstein
But think of it this way, right. You know, think of how quickly the TikTok bill was, was passed. Right. I mean, when Congress decides it really wants to do something, it is in fact capable of acting.
- [78:07]
Isabel Arroyo
That was in response to a lot of state action. In part, I think it was a.
- [78:11]
Eugene Volokh
Response to the Republicans and the Democrats agreeing.
- [78:14]
Isabel Arroyo
Yeah.
- [78:14]
Eugene Volokh
I think that's the thing that you need to have buy in from both sides of the aisle in Congress today. But one, and maybe you can't, maybe you don't want to, but if you can, then, then things could happen. Maybe they would happen with regard to threats.
- [78:27]
Isabel Arroyo
But if California passes the bill.
- [78:29]
Eugene Volokh
Yes.
- [78:30]
Isabel Arroyo
Then isn't it, if we do think it needs to be preempted at a federal level, wouldn't we get some sort.
- [78:36]
Eugene Volokh
Of bipartisan agreement that Congress could be especially enforced by state? That's also true. You're quite right about that. I'm just saying there are things that Congress, or echoing what Alan is saying, there are things Congress will do. It's just you can't do it from just one side of the aisle.
- [78:51]
Alan Rosenstein
And I think that when you look at, you know, I think when a lot of AI safety folks express frustration with Congress not acting, I think that frustration is totally reasonable. But I think the answer is Congress isn't not acting on this issue because, you know, everyone agrees, but they can't get it together. It's because I think the main. The main leaders in Congress simply just on a substantive level, don't agree with the agenda, however righteous it may be of the AI safety community. Right. So when Senate Majority Leader Schumer released the AI Senate roadmap thing, it didn't include any discussion really of AI safety. Now you can say that's a terrible thing. That's a bad document. Right. And that's fine. But he didn't not do that because he couldn't talk about AI safety. He just doesn't agree with AI safety. So that's the issue. Right. I just don't think there's a lot of appetite for this sort of AI safety legislation that, you know, would do meaningful amount to restrict the risks and in the process, because there's a real tradeoff here, might potentially harm innovation.
- [79:51]
Isabel Arroyo
I do want to say, like, obviously lobbying is a very powerful tool. It's the presence of like, billions of dollars of lobbying in D.C. is impactful. It's more likely to happen at the federal level than maybe at the state level, or more effective at the federal level than at the state. State level. Because Schumer did start out his whole roadmap. I'm going to have a bunch of fora on this with I want to make safe and trustworthy AI.
- [80:14]
Alan Rosenstein
That's true. But that assumes that lobbying isn't democracy. That's my. That's. That's another.
- [80:18]
Isabel Arroyo
Oh, my God.
- [80:19]
Paul Ohm
So many controversial takes are Congress is super effective and yay, lobbying. All right, this might be our last question.
- [80:29]
Isabel Arroyo
Great. Yeah, thanks for the great panel. I'm Ken. I'm Andrea Beers. I work on AI governance and safety at Georgetown center for Security and Emerging Technology. I'm going to ask sort of the obvious AI agents and free speech question. So we've talked about how it's plausible that the output of generative AI systems can count as speech. How does this change in the case of AI agents, where that output might take the form of code or other instructions that are translated directly into actions in the real world? As a motivating case for this, it seems to me to be quite plausible that an AI agent might decide that to accomplish its goal, it might be a good idea to hack into a system. Say, like, produce code that will end up hacking into a system.
- [81:14]
Eugene Volokh
Yeah. So I've always taken very skeptical view of the broad versions of code as speech. I agree that certain kinds of source code might be speech when they're basically communicated to other people in order that they may read them. And there is other interesting questions having to do with things like the 3D printed guns debate, because it turns out that some of the 3D printer instructions are actually comprehensible to humans. Like, they look like blueprints. So blueprints may well be speech. But my view was always when something is not communicated to a human, it doesn't have to be by a human. But if it's not communicated to a human, or at the very least, let's say there's no human in the mix, that's action, that's not speech. So if I write a program that creates code and then executes code, and that then communicates the code to somebody else's computer, where it's automatically executed as well, all of those things, it seems to me, you know, it's a good question whether it should be regulated, but I don't think the First Amendment has anything really to say about them. Now, I'm not completely certain about that as a descriptive matter, in part because the 3D printed guns question has led to a good deal of disagreement among lower court judges and of course hasn't reached the Supreme Court. But at least what you're describing at that level, it seems to me that's not something. And I say this as someone with a fairly broad view of the First Amendment, but that it seems to me something outside of the First Amendment.
- [82:46]
Paul Ohm
Quick follow up. I'm intrigued then. I love that I have you on the record here. Not under oath, though, but I think.
- [82:51]
Eugene Volokh
I blogged about it. Yeah.
- [82:52]
Paul Ohm
No, but a lot of people make who believe in the code is speech argument. Also make a lot of the one line in Sorrel where Justice Kennedy, on the way to invalidating a Vermont law that was about keeping pharma away from doctors, says basically, and I don't remember the exact words, but data is speech in this very freestanding way. But a lot people made a lot of. Yeah, so.
- [83:13]
Eugene Volokh
So I do think that data is speech is corrective. It's shorthand for when people are communicating to each other that's protected, even if it's not. We're communicating opinions, but we're communicating facts or even communicating arrays of facts. So if I am sending you information that you're going to use because you read it and you make decisions based on it, kind of it. It's communicative by me to you, me as a human, you as a human, then yes, in that respect, data is speech, which is exactly what was happening.
- [83:47]
Isabel Arroyo
But it's not.
- [83:48]
Paul Ohm
It's not the noun data. I mean, I think people have read that more broadly.
- [83:51]
Eugene Volokh
Robot data.
- [83:52]
Alan Rosenstein
No, no.
- [83:53]
Paul Ohm
But my point is, it's what you do with the data that.
- [83:55]
Eugene Volokh
Yes. So data is speech is shorthand for communications from human to human, or human organization to human. Organization of, of information doesn't lose its speech protection simply because we label it data, simply because it's not opinionated, simply because it's a large array of facts.
- [84:15]
Alan Rosenstein
Yeah, and I 100% agree with that. And this is why, whatever my skepticism of, let's say, SB 1047, I get very frustrated when people argue that SB 1047 would, whatever its policy merits, be an unconstitutional infringement on the First Amendment. Because model developers have a right to communicate, for example, open source parameters. Right. Because again, I think that that is not speech, precisely because. Not that data isn't speech, but because when you are sending a billion parameters or trillion parameters, you're not communicating between humans in the standard way.
- [84:51]
Eugene Volokh
Somebody will sit and read negative 0.7 parameters. Let's have a debate about this. Exactly.
- [84:58]
Paul Ohm
Okay. It's a sign. Thank you very much for your question. It's a sign of how rich the conversation was that I didn't even get to ask about Chevron and Loki Bright. I mean, these are all things we should talk about as we're milling around afterwards. Please join me in thanking this wonderful panel today.
- [85:19]
Alan Rosenstein
The lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfair material supporter through our website lawfairmedia.org support. You'll also get access to special events and other content.
- [85:35]
Isabel Arroyo
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- [86:03]
Eugene Volokh
Conditions apply.
- [86:07]
Alan Rosenstein
Content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work@lawfaremedia.org the podcast is edited by Jan Patya and your audio engineer. This episode were the good people at the Georgetown Institute for Law and technology. Our theme song is from Alibi Music. As always, thank you for listening.
- [86:53]
Paul Ohm
Blood donation is now more inclusive More.
- [86:56]
Eugene Volokh
People are able to donate blood with the American Red Cross through FDA guidelines.
- [87:01]
Paul Ohm
That eliminate eligibility questions based on sexual orientation.
- [87:04]
Eugene Volokh
The Red Cross celebrates this historic change.
- [87:07]
Paul Ohm
And welcomes those who may be newly eligible to donate blood. There's a place for everyone in the.
- [87:12]
Eugene Volokh
Mission of the Red Cross. The Red Cross is committed to achieving.
- [87:16]
Paul Ohm
An inclusive blood donation process that treats all potential donors with equality and respect, while maintaining the safety of the blood supply. Join us and help save lives. To learn more and make your appointment.
- [87:28]
Eugene Volokh
To donate blood, visit redcrossblood.org LGBTQ that's redcrossblood.org LGBTQ.