On May 29, 2019, the Illinois State House unanimously passed the Illinois Artificial Intelligence Video Interview Act (the “Act”). The Illinois State House previously unanimously passed the Act on May 23, 2019. Link to text of Illinois AI Video Interview Act.

The Act prohibits Illinois employers from using “artificial intelligence” as a means to evaluate job applicant’s video interview and consider the applicant’s fitness for the position unless the employer (1) notifies the applicant, (2) explains “how the artificial intelligence works” and (3) obtains (before the interview) consent to evaluation by the artificial intelligence program.

The Act also restricts employer from sharing video interviews, and also requires employers to delete the video interviews within 30 days of request by the employee.

While not yet enacted, the Act passed unanimously and is expected to be enacted. It appears to take immediate effect.

Quick observations:

1. What conduct is implicated? What does “artificial intelligence” mean? “AI” is not defined in the Act. Here, Illinois assumes that the term is self-evident, which is not necessarily true. For instance, would assigning scores to an applicant based on tone of voice, facial expressions and word choice via algorithmic means count? (seems like “yes”) What about using an algorithm to automatically create a transcript of the interview? (seems like “maybe”) What about use of an algorithm to smooth and/or edit the video to key moments? (seems like “possibly”)

2. How will an employer say “how”? The Act vaguely requires the employer to describe “how the artificial intelligence works” as well as “what general types of characteristics” the AI uses to evaluate applicants. We would expect describing the “how” would be challenging to do with any degree of specificity, particularly since the details of the algorithm are likely not fully-known to the employer (and some details possibly unknown to the vendor itself, depending on how the algorithm was developed). Due to these practical issues, this may end up being a description more of “what” the “artificial intelligence” does rather than “how” it actually does it.

3. Deletion of All Copies (Including Backups)?!. The law requires all copies of videos (expressly “including all … backups”) to be deleted within 30 days of the request. While sounding simple in concept, the vendors and customers in this space may have difficulty actually implementing this, particularly if third party cloud providers or similar are used, which may not allow complete deletion of all backups.

4. Video Use In Training Data? While this is not overt, the Act may indirectly restrict Illinois applicants’ videos from becoming part of an AI vendor’s training data. Section 10 of the Act states “An employer may not share applicant videos, except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.” Implicit in this seems to be a restriction on the use of such videos for any purpose other than evaluation of the applicants, which would result in the inability to use these applicants videos to further train any algorithm.

5. One of the First Disclosure-based Laws. Illinois has chosen to – rather than prohibit the use of AI in a particular situation – require disclosure and consent to the use of AI. We expect this trend will continue and will be a common way states will address AI-related issues, which will result in a web of disclosure obligations regarding the use of AI-related technologies.

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