SECTION 5. The General Laws, as so appearing, are hereby amended by inserting after chapter 151F the following chapter:

CHAPTER 151G. Unlawful Algorithmic Discrimination

Section 1. Definitions

For the purposes of this chapter, all definitions set forth in section 1 of chapter 151B shall apply unless otherwise specified. Any term not explicitly defined in this section shall be interpreted following its plain and ordinary meaning, consistent with the purpose and intent of this chapter. The following terms shall, unless the context clearly requires otherwise, have the following meanings: —

“Affirmative action plan", efforts to expand an applicant, participant, or customer pool to raise the likelihood of increasing diversity or redressing historic discrimination, consistent with Massachusetts and federal law.

“Automated system”, any system, software, or process that uses computation as whole or part of a system to determine outcomes, make or aid decisions, inform policy implementation, collect data or observations, or otherwise interact with individuals and/or communities. Automated systems include, but are not limited to, systems derived from machine learning, statistics, or other data processing or artificial intelligence techniques, and exclude passive computing infrastructure.

“Passive computing infrastructure”, any intermediary technology that does not influence or determine the outcome of decision, make or aid in decisions, inform policy implementation, or collect data or observations, including web hosting, domain registration, networking, caching, data storage, or cybersecurity.

“Algorithmic eligibility determination”, a determination based in whole or in significant part on an automated system to decide whether an individual or class of individuals qualifies for a fundamental opportunity;

“Algorithmic targeting determination", a determination based in whole or in significant part on an automated system to determine an individual’s receipt of advertising, marketing, solicitations, or offers for a fundamental opportunity;

“Artificial intelligence”, a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Artificial intelligence systems use machine and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.

“Automated decision system”, a tool or a suite of tools that uses artificial intelligence or another automated system to make an algorithmic eligibility determination, algorithmic targeting determination, recommendation, classification, or categorization;

“Covered entity”, any person, business, organization, or government agency that is subject to the jurisdiction of the Commonwealth of Massachusetts, excluding an individual acting at their own direction and in a non-commercial context.

“Fundamental opportunity”, access to, security and authentication relating to, eligibility for, cost of, terms of, or conditions related to any of the following:

(a) Employment, including hiring, pay, independent contracting, worker management, promotion, and termination.

(b) Education and vocational training, including assessment, proctoring, promotion of academic integrity, accreditation, certification, admissions, and provision of financial aid and scholarships.

(c) Housing and lodging, including rental and short-term housing and lodging, home appraisals, rental subsidies, and publicly supported housing.

(d) Essential utilities, including electricity, heat, water, municipal trash or sewage services, internet, telecommunications service (including mobile phone service), and public transportation.

(e) Healthcare, including mental healthcare, dental, vision, reproductive, and gender-affirming care.

(f) Credit, banking, and other financial services.

(g) Insurance.

(h) Actions of the criminal justice system, law enforcement or intelligence operations, child protective services, child welfare, and family services, including risk and threat assessments, situational awareness and threat detection, investigations, watchlisting, bail determinations, sentencing, administration of parole, surveillance, use of unmanned vehicles and machines, and predictive policing.

(i) Government benefits and services, as well as identity verification, fraud prevention, and assignment of penalties related to such benefits.

(j) adoption services.

“Protected characteristics”, race, color, religious creed, national origin, sex, gender identity, sexual orientation,  genetic information, pregnancy, or a condition related to said pregnancy including, but not limited to, breastfeeding, lactation or the need to express breast milk for a nursing child, ancestry or status as a veteran of any individual, and other characteristics protected by chapter 151B. The term “protected characteristic” shall also be construed to include any combination of two or more protected characteristics.

“Regular”, a frequency for audits which is reasonable given the system being audited and which shall be at least every ninety days.

“Timely”, within thirty days of any substantial change or update to an automated decision system.

Section 2. Ban on Algorithmic Discrimination

(a) A covered entity shall not use an automated decision system to make or inform decisions pertaining to fundamental opportunities in a manner that has the purpose or effect of discriminating against a person or class of persons on the basis of a protected characteristic. 

(b) Nothing in this Act shall prohibit covered entities from using individuals’ personal information to plan, guide, or implement an affirmative action plan that is otherwise compliant with Massachusetts and federal law.

(c) Nothing in this Act shall prohibit covered entities from using an automated decision system for the purpose of self-testing to identify, prevent, or mitigate discrimination, or otherwise ensure compliance with obligations, under Massachusetts or federal law.

Section 3. Requirements for Covered Entities Using Automated Decision Systems Pertaining to Fundamental Opportunities

(a) Covered entities using automated decision systems to make or inform decisions pertaining to fundamental opportunities must:

(1) conduct regular and/or timely audits to detect and mitigate any discriminatory purposes or effects;

(2) maintain documentation of the system's design, training and evaluation data, decision-making processes, audit outcomes, and any actions taken as a result of an audit;

(3) provide clear notice to persons when such systems are being used in a decision-making process pertaining to their access to a fundamental opportunity or terms or conditions thereof; and

(4) allow the persons to opt out of the use of the automated decision system. Methods to opt out shall be no more cumbersome than the steps required to trigger use of the system. No person shall be penalized in any way for opting out of the use of any automated decision system.

(5) require in writing that any service provider providing an automated decision system implement and maintain measures reasonably designed to ensure that the service provider complies with requirements of this Act.

(6) Make available, in a manner that is clear and readily available on the entity’s website or in a public use case inventory, a statement summarizing:

(I) The automated decision systems being used to make or inform decisions pertaining to fundamental opportunities, including the process by which the automated decision system is used in relation to fundamental opportunities;

(II) The datasets used in the development of the automated decision system, including but not limited to:

(i) The sources or owners of the datasets,

(ii) The size of the datasets,

(iii) The nature of the information collected in the datasets,

(iv) Whether the datasets include any data protected by copyright, trademark, or patent, or whether the datasets are entirely in the public domain,

(v) The methods of dataset acquisition, including whether the datasets were purchased or licensed by the entity,

(vi) Whether the datasets include personal information as defined in Chapter 93H, Section 1, and

(vii) The time period during which the datasets were collected, including a notice if the collection is ongoing.

(III) How the covered entity manages known or reasonably foreseeable risks of algorithmic discrimination that may arise from the development or intentional and substantial modification of the types of systems described.

This requirement shall not be construed as a requirement for a covered entity to publicly disclose a trade secret or information protected from disclosure by state or federal law.

(b) When a covered entity uses an automated decision system to make or inform a decision pertaining to a fundamental opportunity for a minor person, the notice and opt-out requirements above shall apply to any of the minor’s parents and/or legal guardians.

(c) Covered entities that offer, provide, decide eligibility for, or otherwise make available any product or service related to fundamental opportunities must offer an option to interact with a human to receive support related to that product or service. This option shall exist regardless of whether the covered entity uses artificial intelligence or an automated decision system in relation to the product or service and must be clear and conspicuous. A covered entity that offers, sells, leases, licenses, gives, or otherwise makes available an artificial intelligence or other automated decision system that is intended to interact with individuals shall ensure the disclosure to each individual who interacts with the artificial intelligence system that the individual is interacting with an artificial intelligence system and that they have the option to interact with a human instead.

Section 4. Liability

(a) Liability for violations of this Act shall attach to covered entities regardless of whether:

(1) The violation is in whole or in part the fault of an automated decision system;

(2) The covered entity relies in whole or in part on a service provider for the automated decision system;

(3) The covered entity complies with federal law; or

(4) The covered entity is aware of the discriminatory purpose or effect of the automated decision system.

(b) Any provision of a contract or agreement of any kind, including a covered entity’s terms of service or policies, that purports to waive or limit in any way a person’s rights under this Act, including but not limited to any right to a remedy or means of enforcement, shall be deemed contrary to state law and shall be void and unenforceable.

(c) In cases of violations where the covered entity relies in whole or in part on one or more service providers, the covered entity and service providers shall be held jointly and severally liable in any action authorized under this Act.

Section 5. Enforcement, Remedies, and Penalties

(a) Any person aggrieved by a violation of this Act shall have a right of action in the Massachusetts Superior Court or as a supplemental claim in any federal court of competent jurisdiction against an offending party. A prevailing party may recover for each violation:

(1) against an entity that negligently violates a provision of this Act, liquidated damages of $5,000 or actual damages, whichever is greater;

(2) against an entity that intentionally or recklessly violates a provision of this Act, liquidated damages of $5,000 or actual damages, whichever is greater;

(3) reasonable attorneys' fees and costs, including expert witness fees and other litigation expenses; and

(4) equitable relief, as the State or federal court may deem appropriate.

(b) Violations of this Act by a Massachusetts state, county, or municipal government employee shall be reasonably disciplined by their supervising agency. Disciplinary measures may include retraining, suspension, or termination, subject to due process requirements and provisions of collective bargaining agreements.

(c) Nothing in this section shall be construed to limit any person’s rights under state or federal law.

Section 6. Sections 4 and 5 of this Act shall take effect 6 months after enactment.