Business Litigation Report - December 2016

Artificial Intelligence Litigation: Can the Law Keep Pace with The Rise of the Machines? -

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. In 2015, over $2.4 billion in venture capital was invested into the development of AI-based technologies. Governmental agencies, ranging from the Department of Defense to the Treasury, are active in exploring and implementing AI for use in the public sector. Within the private sector, well-known companies such as Google, Facebook, Apple and Uber, as well as start-ups across the country, are active in the research and development of innovative AI technology-based products. Examples include self-driving cars, robotic surgical equipment, complex automated accounting and security systems, and even software performing legal tasks such a document review or research. AI has innumerable practical applications, including medical diagnosis expert systems that emulate the decision-making of physicians, automated securities trading systems, automated drones, and many other variants. Developing along with AI is the development of natural language processing, which in the broadest sense concerns the interactions between computer programs and human languages such that computers are learning to emulate human communication.

Emerging with these technologies is an ever-increasing public concern for the many risks present where decisions are made by computers and not by humans. Much has been written of the ethics, safety, and regulatory concerns presented by the rapid growth of AI technologies. Policymakers are forced to chart new territories when tasked with drafting legislation that does not stifle AI innovation, but protects the public from possible dangers presented when computer judgment replaces that of humans. The rapid development of AI technology is in tension with the relative snail's pace, and lack of expertise, of state and national legislatures. Protection for the public from AI technologies will need to be enacted, and should be, but our courts may be the first to address these novel legal issues.