State attorneys general from across the country met in Colorado for the Attorney General Alliance (AGA) Annual Meeting last week, along with AG staff and the legal and business communities. In opening the conference, Nevada AG Aaron Ford (2024 AGA Chairman) highlighted the importance of non-partisan collaboration and bipartisan dialogue. That theme of collaboration carried throughout the various panels and presentations, even as they covered a wide range of topics—including opportunities for states to collaborate with each other, with federal or local law enforcement counterparts, and with the business community.
Throughout the meeting, robust discussions about AI, antitrust enforcement, organized retail crime, and protecting children online demonstrated that AG perspectives on these evergreen subjects are evolving just as quickly as the marketplace, and that businesses across all sectors are well served to stay informed of state AG enforcement concerns and priorities.
Key takeaways from the conversations most pertinent to the business community are highlighted below.
AGs Recognize Potential of AI, Balance Threats Against Opportunities
AI continued to feature prominently at the AGA meeting, just as it did last year. However, while last year’s conversation focused more on the threats presented by AI and how best to regulate it, this year’s discussion acknowledged the significant opportunities these innovative technologies present, and the importance of remaining globally competitive as AI impacts every sector.
New Hampshire AG John Formella engaged in a discussion with Jon Palmer, General Counsel at Microsoft, regarding the “new AI economy”—which cuts across all industries—and how AI can be used responsibly to fuel growth and opportunity. AG Formella shared that AGs are interested in the innovation made possible by AI, and how public and private partnerships might help develop public understanding of AI not just as a threat, but also as an opportunity. He acknowledged a bipartisan consensus that AI should be embraced in order for the United States to remain globally competitive. Further, AG Formella noted that a balance can be struck between AGs’ enforcement role and enabling competition—while regulators should remind themselves that AI presents opportunities, the private sector must also remind itself that AI can present serious threats.
South Carolina AG Alan Wilson then moderated a panel on Ethical Use of AI. Recognizing that AI is an innovative technology with the potential to change the world as we know it, AG Wilson observed that “AI is to us in 2024 what the Internet was to all of us in 1994.” However, some of those changes are not positive—as stated in a bipartisan letter from 54 AGs to Congress last fall, AGs are deeply concerned about the use of AI to proliferate child sexual abuse material (CSAM), and support regulation to protect children from exploitation. The panelists agreed that generative AI is here to stay, and is already widely used, including by some AG offices and other law enforcement agencies.
Virginia AG Jason Miyares, in conversation with David Zapolsky, SVP, Global Public Policy & General Counsel at Amazon, discussed the significant benefits of machine learning and large language models, and the stifling impact that conflicting regulations may have on innovation. AG Miyares opined that, in considering AI regulations, legislators must consider any unintended consequences. He and Mr. Zapolsky agreed that nations or states risk missing out in the global marketplace if they create too many barriers to accessing these emerging technologies.
U.S. DOJ Collaborating with States, Other Federal Agencies to Ramp Up Antitrust Enforcement
Illinois AG Kwame Raoul engaged in a fireside chat with Doha Mekki, Principal Deputy Assistant Attorney General in the U.S. DOJ Antitrust Division, about the Biden administration’s approach to antitrust enforcement and opportunities for states to collaborate with the DOJ. Ms. Mekki highlighted President Biden’s Executive Order on Promoting Competition in the American Economy, which sets forth a “whole-of-government” approach to competition, and invites other federal agencies to uphold competition as a value in all of their enforcement work. While the FTC and DOJ enforce the primary federal antitrust statutes, there are also other competition laws throughout the U.S. code which can be enforced by, for example, the DOT and USDA.
AG Raoul and Ms. Mekki discussed recent examples of federal-state collaboration, including the DOJ filing an amicus brief in AG Raoul’s recent antitrust case involving staffing agencies, and the DOJ joining a multistate antitrust lawsuit against the NCAA which recently settled. Ms. Mekki noted that the DOJ tends to weigh in on state proceedings as amici or in a statement of interest where there are questions of legal interpretation, rather than issues arising from the facts of a particular case, such as the DOJ’s Statement of Interest recently filed in Colorado AG Phil Weiser’s lawsuit to block the Kroger-Albertson’s merger. Conversely, they also noted that states often join in the DOJ’s merger challenges.
Finally, AG Raoul and Ms. Mekki discussed the current focus on mergers and acquisitions in the healthcare space—which makes up nearly 20% of the nation’s GDP—where antitrust enforcers agree that not enough has been done to prevent anticompetitive activity. Ms. Mekki noted that the DOJ has recently stood up a Task Force on Health Care Monopolies and Collusion, to identify and address antitrust issues in the healthcare market. In closing, Ms. Mekki extended an open invitation to state AGs to reach out and partner with the DOJ in prosecuting antitrust violations.
Bipartisan Efforts to Protect Youth Online Continue
As President of the National Association of Attorneys General this year, Oregon AG Ellen Rosenblum has launched a Presidential Initiative entitled America’s Youth: AGs Looking Out for the Next Generation. At the AGA meeting, AG Rosenblum built on presentations made at other AG conferences this year by moderating a panel by that same title, featuring panelists from academia, the National Center for Missing and Exploited Children, and the Center for Humane Technology.
While the Initiative encompasses three topics of importance to protecting youth—technology, healthy bodies and healthy minds, and financial literacy—this panel focused on the threats presented by technology, including CSAM, exploitation, bullying, and the introduction of harmful products such as vaping. AG Rosenblum emphasized the importance of bringing tech and social media companies to the table to address these topics, and thanked those companies in attendance for their participation.
From a regulation perspective, the panelists suggested that existing state and federal laws criminalizing child pornography should be updated to expressly criminalize CSAM created with AI, given the rise in online extortion of youth through the use of AI-generated “deepfake” images. AG Rosenblum also noted that a bipartisan coalition of 43 AGs recently submitted comments on the FTC’s proposed amendments to the Children’s Online Privacy Protection (COPPA) Rule, in favor of further restrictions on the use and monetization of children’s personal information. And, the panelists discussed the potential application of common law privacy torts (in addition to state privacy regulations) to hold parties accountable for invasive online conduct, including the tort of false light potentially applying to deepfakes. AG Rosenblum noted that we may see forthcoming complaints, or amendments to existing lawsuits, that incorporate common law claims.
This topic will also be the focus of the upcoming NAAG Presidential Initiative Summit hosted by AG Rosenblum in Portland, Oregon, in September.
Organized Retail Crime Working Group Heralds Success of INFORM Consumers Act
The AGA’s Organized Retail Crime (ORC) working group reported that, one year after the federal INFORM Consumers Act came into effect, there has been nearly a thirty percent reduction in the amount of stolen property being listed on online marketplaces. While ORC can be charged under existing theft statutes, many states have passed or are considering ORC-specific legislation which, among other things, can provide funding for cross-jurisdictional ORC task forces that are often coordinated through the AG’s office. And, several states have passed their own versions of the INFORM Consumers Act, which are civil statutes focused on high-volume third party sellers. The panelists agreed that, whether required by statute or not, transparency and communication between retailers, third-party platforms, and law enforcement is critical to rooting out organized retail crime.
