The Illinois legislature has been surging with new legislation the past couple of months. Among the flurry of laws created in what has been described as the most momentous legislative session in decades is a privacy statute that regulates an ever-growing issue in HR: the use of artificial intelligence, or “AI,” in the hiring process.
While this might sound futuristic, many U.S. companies already use AI to streamline hiring and make the process more objective, including scanning résumés, scheduling interviews, and recently, actually conducting the first round of job interviews. These AI interviewing programs have different algorithms and methods, but essentially they measure an applicant’s facial expression, word choice, body language, and vocal tone, among other factors.
On May 29, in response to these developments, Illinois legislators unanimously passed HB 2557 (“The Artificial Intelligence Video Interview Act”). Should the Act become law, it will require employers who use artificial intelligence to analyze applicant-submitted videos to comply with the following:
- Notice: Employers will have to inform potential employees that they are using AI to analyze their videos. (A provision requiring written notice was removed from the bill.)
- Explanation: Employers will be required to explain to the applicant how their artificial intelligence program works and what general characteristics the program uses to evaluate applicants.
- Consent: Employers will be required to obtain the applicant’s consent before using AI to analyze the video.
- Keep Confidential: Employers will be permitted to share the videos only with persons whose expertise or technology is needed to evaluate the applicant.
- Destroy Copies: Employers must destroy both the video and all copies within 30 days after an applicant requests such destruction (and instruct any other persons who have copies of the video to destroy their copies as well).
Provided the Governor does sign HB 2557 into law (he has 60 days in which to do so), several questions remain about how it will function:
- What is “artificial intelligence”? The bill itself does not define artificial intelligence, and there is no settled definition of this term in the law.
- What kind of “explanation” is sufficient? The bill does not provide specifics on what level of information is sufficient to meet the statute’s explanation requirement.
- Will there be a private right of action? The bill does not prescribe any penalties for violating it, which leaves open questions of enforcement.
- What type of damages and how much? The bill does not specify what types of remedies are available, nor does it quantify available damages.
Despite the increasing prevalence of this new technology, governments on whole have been slow to regulate AI. Illinois, comparatively, has not. Illinois has already demonstrated a willingness to engage on privacy and technology issues, most notably as the first state to enact a biometrics statute, the Biometric Information Protection Act (“BIPA”). BIPA requires private entities to, among other things, obtain consent from individuals before collecting their biometric information (data like fingerprints or facial scans) and develop a written policy for the storage and destruction of the biometric information. BIPA creates a private right of action for enforcement.
Troutman Sanders will be watching this bill and will provide updates if it passes.