To do it based on intent would create some difficult grey areas - for example, video game creators would have to try to make their games as compelling as possible without passing a more or less vague threshold and breaking the law. The second approach of working on the ways different types of data can be used sounds more promising.
Ah, but those “intelligent” people cannot be very intelligent if they are not billionaires. After all, the AI companies know exactly how to assess intelligence: