Artificial intelligence (AI) seems to be cropping up at every juncture, whether it’s in the form of self-driving cars or applications that correlate customer data to improve marketing techniques. A number of AI proponents have enumerated the benefits of implementing that technology in different sectors, but others have mentioned concerns with the use of AI. This article examines some of the ways in which AI is being used or considered, some legal issues that may arise, and how expert witnesses can contribute to the conversation and help determine to what extent AI should be utilized in a given industry.
As one group of attorneys expresses, “Artificial intelligence, or AI, is the broad conceptual term for the technologies or systems making it possible for computers to perform tasks involving human-like decisionmaking, intelligence, learned skills and/or expertise. Once considered a remote possibility for a futuristic tomorrow, the advances in technology over the past 20 years have accelerated the development and integration of AI in multiple private and public sectors.” Quinn Emmanuel Urquhart & Sullivan LLP, “Article: Artificial Intelligence: Can the Law Keep the Pace with The Rise of Machines?”, Business Litigation Reports, Dec. 2016, at https://www.quinnemanuel.com/the-firm/news-events/article-december-2016-artificial-intelligence-litigation-can-the-law-keep-pace-with-the-rise-of-the-machines/ (last visited Mar. 21, 2018). A number of applications for AI have been found, from securities exchanges to healthcare, and controversies have arisen as to how far AI should be utilized. Certain concerns have arisen as well, and some states, like California, are contemplating how to allow for the innovations that AI is responsible for while protecting certain fundamental legal rights. See, e.g., Jazmine Ulloa, “Artificial intelligence can transform industries, but California lawmakers are worried about your privacy,” Los Angeles Times, Mar. 12, 2018.
There is no question that AI has transformative powers. For example, robotic technology can make surgical procedures more successful by minimizing some of the risks of human error. Self-driving cars do not have the problems of their operators being intoxicated or falling asleep at the wheel. And in the workplace, some have touted AI applications as being able to correlate data to identify potential sexual harassment and protect employees.
However, with AI technology, legal concerns have been raised and are unlikely to abate. The following objections have been raised and will require lawmakers and adjudicators to balance the benefits of AI against its problems, which will likely necessitate the assistance of expert witnesses.
One overarching concern with the use of AI and the data it amasses, often via algorithms, is that it may impose on individuals’ privacy rights. See, e.g.,id. The California General Assembly is attempting to deal with this very matter, as is the Little Hoover Commission, an oversight agency that reviews state government actions. See id. Many AI developers and companies that wish to utilize such technology have expressed that collecting the broadest set of data possible is necessary for AI systems to be their most effective. See id. However, “tech privacy experts countered, saying users want more control over how their personal information is shared.” Id. With respect to what laws California, other states, or even the federal government ultimately pass to maximize AI’s benefits but protect individual privacy, experts in technology, AI, privacy issues, and regulatory oversight may be indispensable consultants.
With respect to privacy issues, one of the most pressing concerns involves using AI in the healthcare sector. See, e.g., Cheryl K. Chumley, “Privacy pitfalls of AI-driven health care hard to ignore,” The Washington Times, Mar. 20, 2018. On the one hand, AI technology in the medical field can be incredibly beneficial. One commentator enumerates many such benefits: “[j]ust think, if one day physicians could simply hook up high-powered machines to patients with undetermined ailments and in rapid time, diagnose not just what’s existing, but also what’s likely to come — with pinpoint accuracy. It’d be a safe bet to say that the general health and welfare of a population would experience enviable improvements. Think of the cost-cuts; think of the time savings; think of the health-related human heartaches that could be avoided.” Id. These technologies are potentially life-saving, both in the ability to improve diagnostic accuracy and predict possible future ailments. See id. Moreover, if time and money can also be saved by employing AI in the healthcare industry, everyone from medical providers to patients could see enormous advantages.
Despite the nearly limitless possibilities for improvements in medicine with the use of AI-related technology, many analysts have cautioned that there are potentially major disadvantages that accompany the use of AI in healthcare. See, e.g., id. Specifically, breaches of confidentiality may occur, and if AI technologies have compiled highly-sensitive patient data in a central location, any number of consequences may ensue. See id. Cases have already arisen where collecting bulk-data has resulted in patient information being furnished to a number of third parties that were not known to the individuals whose data was collected, and if such information is provided to private entities or the public, it may be misused in myriad ways. See, e.g., id. Insurers might discriminate against patients or certain demographics based on such bulk data, which could affect both the cost of healthcare and the amount of coverage individuals would receive. Other third parties, whether corporate or individual, could misuse medical data that a patient never intended to place in their hands. To determine how to maximize the benefits of AI in the medical field while maintaining privacy, experts will prove invaluable guides. Expert witnesses can not only help all parties concerned in the consulting stages of AI development and usage in healthcare, but they can also help in a legal capacity. If a breach does occur, experts in AI, healthcare, medical technology, and privacy may be able to help litigators prove or defeat lawsuits arising out of a security breach.
Many industries are using or plan to use AI technologies to improve certain ways of conducting business, providing healthcare, and more. Some legislatures are already considering what regulations might be appropriate to maximize the benefits of AI but prevent some of the potential pitfalls from taking place. Expert witnesses can greatly assist legislators in balancing the pros and cons of AI in various industries and help to minimize the risk of lawsuits. Absent a statute (or perhaps because of the consequences of one), the legal community comes into play. Various AI-related lawsuits have been filed, pertaining to everything from dating sites to cyber attacks. Regardless of the industry, attorneys who deal with AI-technology will require consulting and testifying experts to help guide them and provide solid evidence to further their claims. Moreover, because of the relative newness of AI, many judges and juries may ultimately be persuaded by such witnesses, whose explanations and analyses can be indispensable.