Virginia Legislature Passes Weak AI Bill Full of Loopholes

The Virginia Legislature passed H.B. 2094, a bill that aims to protect individuals from being harmed by the use of high-risk AI systems in consequential decisions, but unfortunately fails to meet this goal.

EPIC testified in opposition to H.B. 2094 and urged lawmakers to address several key issues in the bill before passing it, including its numerous loopholes and failure to recognize algorithmic discrimination as equally harmful as discrimination by other means.

H.B. 2094’s many loopholes will allow companies to decide that their use of AI does not fit within the uses covered by the bill and that they do not have to comply. Some of the most concerning loopholes include: only regulating AI systems that are “specifically intended to autonomously make” consequential decisions; defining “consumer” to exclude workers, including overly broad exemptions for trade secrets or information that companies decide is “confidential,” “proprietary,” or that might create a “security risk”; and exempting entire industries, like insurers and health care providers, from coverage.

These exemptions will allow companies to self-select out of complying with the bill’s requirements—a dynamic that has already played out in New York City through companies’ noncompliance with Local Law 144, which has similar definitions that leave discretion about whether to comply up to the companies using the AI tools.

In addition to these many loopholes, H.B. 2094 treats algorithmic discrimination as less harmful than other types of discrimination. Despite being framed as a non-discrimination law, the bill does not prohibit algorithmic discrimination; it places only a duty of care on companies to avoid discriminating. The bill allows companies to avoid liability for discriminating as long as they meet the documentation requirements under the bill and restricts individuals’ rights to sue companies that discriminate against them using a high-risk AI system.

EPIC is disappointed that this bill fails to meaningfully protect Virginians and urges other state lawmakers tackling algorithmic discrimination to avoid similar loopholes that allow the proliferation of opaque, biased, and often error-prone systems to continue.