The Artificial Intelligence World: Responding to Legal and Ethical Issues

Helping Your Ideas Take Flight.
The Artificial Intelligence World:
Responding to Emerging Legal
and Ethical Issues
Richard Austin
October 28, 2019

Lawyers, Patent & Trademark Agents 2
I. What AI Looks Like in 2019
II. AI Technologies: Sample Issues and Challenges
III. Dealing with AI Legal and Ethical Issues
Agenda

I. What AI Looks Like in 2019
 Company spending on AI expected to grow 600% from $8 billion in 2016 to $47 billion
in 2020
Sterling Miller, Part I: Artificial Intelligence & Its Impact on Legal Technology: To Boldly Go Where No
Legal Department Has Gone Before, Thomson Reuters, 2019
“By one estimate, AI contributed a whopping $2 trillion to global GDP last year. By
2030, it could be as much as $15.7 trillion, “making it the biggest commercial
opportunity in today’s fast changing economy,” according to a recent report by PwC.”
Frank Holmes, AI will add $15 Trillion To the World Economy by 2030, Forbes, February 25, 2019
“AI is the new electricity.”
Andrew Ng, Co-founder and lead of Google Brain
AI tools will impact every industry, reducing risk, increasing accuracy and quality,
saving time and money and enhancing creativity

ARTIFICIAL INTELLIGENCE
Learning Speech Vision Language
Computers teaching
themselves and
learning from
experience
Understanding
spoken words
Recognizing and
distinguishing visual
images
Understanding the
meaning of written
words
to
apply / integrate the knowledge, understanding or information to perform (human-like)
analysis, solve (similar) problems, respond to (related) questions, instructions and
observations and make recommendations and decisions (in the same or similar areas)
Artificial Intelligence

The Perfect Trifecta
ARTIFICIAL
INTELLIGENCE TOOLS
TECHNOLOGICAL
CHANGE
BIG DATA
 Deep learning
 Machine learning
 Neural networks
 Search
 Probabilistic reasoning
 More, faster computing
power
 Better, lower cost sensors
 AI-powered chips
 New and improved
products, e.g. cameras
 New sources of and new
and diverse methods to
collect data
 Unlimited data storage
capacity
 Better techniques for
linking data

“Move fast and break things.
Unless you are breaking stuff,
you are not moving fast
enough.”
Mark Zuckerberg
Dueling Perspectives on AI Systems and Products
“The pace of progress in artificial
intelligence (I am not referring to
narrow AI) is incredibly fast.
Unless you have direct exposure
to groups like Deepmind, you
have no idea how fast—it is
growing at a pace close to
exponential. The risk of
something seriously dangerous
happening is in the five-year
timeframe, 10 years at most.”
Elon Musk

This Part examines, by way of example:
A. Facial Recognition Systems (FR Systems)
B. Autonomous and Self-driving Vehicles
It does not deal directly with:
 The “singularity”
 Impacts on employment
 Malicious uses of Artificial Intelligence
II. AI Technologies: Sample Issues and Challenges

II.A: Facial Recognition Systems (FR Systems)
Implementation and use of FR Systems offer widespread potential benefits:
1
• Preventing retail crime: identifying known shoplifters in retail outlets
2
• Smart phone security: faces replacing passwords to unlock mobile phones
3
• Advertising: Minority Report comes to life
4
• Locating the missing: FR Systems help locate missing children, seniors with memory
issues, etc.
5
• Assisting those with disabilities, e.g. the Listerine app that allows blind people to know
when they were being smiled at
6
• Social Media

Implementation and Use Challenges
Equally, the implementation and the use of FR Systems present challenges:
1
•Collection of accurate, authorized training data
2
•FR Systems used to establish sexual orientation
3
•Accuracy of facial recognition systems identifying individuals in arrest databases questioned
4
•Creation of “DeepFake” videos
•Internet is home to at least 14,678 DeepFakes, 96% of which were porn
5
•Creation of National Identity Systems
6
•Emotion Detection

FR System Challenges are Increasing
 Changing camera technology:
• Ravie Lakshmanan, China’s new 500-megapixel ‘super camera’can instantly recognize you in a crowd,
The Next Web
 Smaller, more efficient computer vision models:
• Karen Hao, Powerful computer vision algorithms are now small enough to run on your phone, MIT
Technology Review, October 11, 2019
 Emerging video-analytics technology overriding previous obstacle that “capture
and store video” was too expensive to analyze
• Jay Stanley, The Dawn of Robot Surveillance, American Civil Liberties Union, 2019

Facial Recognition Legal and Ethical Issues
 Where does the accountability for the FR System lie?
 How reliable is the use of the FR System?
 Has the data used to train the FR Systems been used in compliance with privacy norms and
regulations?
 Is the use of the FR Systems transparent and explainable, especially in light of proprietary
“blackbox” algorithms?
 Is the use of the FR Systems fair and non-discriminatory?
 Do the uses / potential uses of the FR Systems comply with basic human rights and other
legal principles?

II.B: Autonomous and Self-driving Vehicles
In 2017:
 1,841 people killed in motor vehicle accidents in Canada (4.8 fatalities per billion
vehicle kilometres)
 37,133 people killed in motor vehicle accidents in the United States (7.25
fatalities per billion vehicle kilometres)
SELF-DRIVING VEHICLES (LEVELS 1 – 5)
Partial Autonomy Completely Autonomous
Tesla Autopilot Waymo
Uber

How safe do the AI Products need to be?
 What standards should AI Products be held to?
“I should add a note here to explain why Tesla is deploying partial autonomy
now, rather than waiting until some point in the future. The most important
reason is that, when used correctly, it is already significantly safer than a person
driving by themselves and it would therefore be morally reprehensible to delay
release simply for fear of bad press or some mercantile calculation of legal
liability.”
Elon Musk

What rules govern performance of AI Products?
“Tesla has resisted placing limits on Autopilot that would make it safer but less
convenient. The company allows motorists to set Autopilot’s cruising speed above
local speed limits, and it lets them turn on Autopilot anywhere the car detects lane
markings, even though the manual says its use should be restricted to limited-access
highways.”
Zachary R. Mider, “You Gotta Smash a Few Cars To Make an Autonomous
Vehicle”, Bloomberg Businessweek, October 14, 2019
Who
establishes
the rules?
What
accountability
do they have?
Will system
performance
evolve, based
on driving
experience?
Can the rules
be
customized?,
e.g. the
“ethical
knob”?

Autonomous and Self-driving Vehicles:
Legal and Ethical Issues
 Where does the accountability lie? The developer? The implementer?
The user?
 Are the judgments the AI Systems make transparent and explainable?
 How safe and reliable are the AI Systems and how safe and reliable
should they be?
 Has the data used to train the AI Systems been used in compliance with
privacy norms and regulations?

II.C: Other Legal and Ethical Issues
 Employment impact of AI technologies
 AI-based system used for setting bail conditions and
sentencing alleged to discriminate based on race
 Export of surveillance technologies to authoritarian
regimes
 Security of AI systems and products (e.g. use of Huawei
5G equipment)
 Autonomous weapons systems making independent “kill”
decisions
 Opaque hiring systems selecting candidates in a
discriminatory fashion
 Robot rights: do people have moral obligations to
machines?

III. Dealing with AI Legal and Ethical Issues
“ … the surrender of human decision-making to machines entails the dystopian risk of a
dehumanized legal system, which mindlessly perpetuates biases, sacrifices the spirit of the
law in pursuit of efficiencies, undermines legal institutions, destabilizes jurisprudence and
corrodes public trust.
Eileen M. Lach and Nicolas Economou, INSIGHT: Four Principles for
the Trustworthy Adoption of AI in Legal Systems, Bloomberg Law, March 29, 2019
“Technology developments just don’t happen; they happen because of us as humans making
design choices-and those design choices need to be grounded in principles and ethics, and
that’s the best way to ensure a future we all want.”
Satya Nadella

The Rationale for Ethical AI Systems
 To realize the benefits of AI Systems, we must trust they are safe and effective
 Black box systems and lack of trust in AI will undermine the use of AI Systems
 If AI is to be accepted and improve the functioning of our systems and processes,
we require principles, policies and practices that encourage AI to be adopted on
the basis of informed trust

Organizational
Changing the
environment and
behaviour
Technical solutions
Open AI
Regulatory
Company policies
Ethics frameworks
Standards and directives
Law and regulations
International conventions
Litigation
Social and Political Action
Personal

Company Policies
Companies are developing policies about how they develop and use AI:
 Artificial Intelligence at Google: Our Principles
 Microsoft AI Principles
• Responsible bots: 10 guidelines for developers of conversational AI
 SAP’s Guiding Principles for Artificial Intelligence
But:
 Issues of transparency, enforceability and effectiveness/commitment

Ethics Frameworks
1. European Commission, Ethics Guidelines for Trustworthy AI, 2019
2. IEEE Global Initiative on Ethics of Autonomous and Intelligent Systems,
Ethically Aligned Design: A Vision for Prioritizing Human Well-being with
Autonomous and Intelligent Systems, 2019, pp. 211 – 281
3. ITechLaw, Responsible AI: A Global Policy Framework, 2019
4. OECD, OECD Principles on AI, May, 2019
5. Singapore Personal Data Protection Commission, A Proposed Model Artificial
Intelligence Governance Framework, 2019

Standards and Guidelines
 CIO Strategy Council, CAN/CIOSC 101:2019, The ethical design and
use of automated decision systems, 2019
 Treasury Board of Canada, Directive on Automated Decision-Making,
2019

Laws and Regulations
Existing New
 Laws of general and specific application
 PIPEDA
 Competition Act
 Biometric Information Privacy Act, 40
ILCS/14 and Public Act 095-994
 General Data Protection Regulation,
Article 22
 U.S. Algorithmic Accountability Act of
2019
 California:
• AB 602:Depiction of individual
using digital or electronic
technology: sexually explicit
material: cause of action
• AB 730: Elections: deceptive audio
or visual media
 San Francisco’s Stop Secret Surveillance
Ordinance

“We always overestimate
the change that will occur
in the next two years and
underestimate the change
that will occur in the next
ten. Don't let yourself be
lulled into inaction.”
Bill Gates

List of References
Dieter Bohn, Google’s ‘field research’offered people $5 to scan their faces for the Pixel 4, The Verge, July 29, 2019 at
https://www.theverge.com/2019/7/29/8934804/google-pixel-4-face-scanning-data-collection
Miles Brudage et al., The Malicious Use of Artificial Intelligence: Forecasting, Prevention and Mitigation, 2018 available at
https://arxiv.org/ftp/arxiv/papers/1802/1802.07228.pdf
CIO Strategy Council, CAN/CIOSC 101:2019, The ethical design and use of automated decision systems, 2019 available at
https://ciostrategycouncil.com/wp-content/uploads/2019/10/CAN-CIOSC-101-2019_2019-09-12_EN.pdf
Eileen M. Lach and Nicolas Economou, INSIGHT: Four Principles for the Trustworthy Adoption of AI in Legal Systems,
Bloomberg Law, March 29, 2019 at https://biglawbusiness.com/insight-four-principles-for-the-trustworthy-adoption-of-ai-in-
legal-systems
European Commission, Ethics Guidelines for Trustworthy AI, 2019, available at https://ec.europa.eu/digital-single-
market/en/news/ethics-guidelines-trustworthy-ai
IEEE Global Initiative on Ethics of Autonomous and Intelligent Systems, Ethically Aligned Design: A Vision for Prioritizing
Human Well-being with Autonomous and Intelligent Systems, First Edition, pp. 211 – 281, available at
https://standards.ieee.org/content/dam/ieee-standards/standards/web/documents/other/ead1e_law.pdf
Karen Hao, Powerful computer vision algorithms are now small enough to run on your phone, MIT Technology Review,
October 11, 2019 at https://www.technologyreview.com/f/614551/ai-computer-vision-algorithms-on-your-phone-mit-ibm/

Frank Holmes, AI will add $15 Trillion To the World Economy by 2030, Forbes, February 25, 2019 available at
https://www.forbes.com/sites/greatspeculations/2019/02/25/ai-will-add-15-trillion-to-the-world-economy-by-
2030/#36ff4451852d
Ravie Lakshmanan, China’s new 500-megapixel ‘super camera’can instantly recognize you in a crowd, The Next Web at
https://thenextweb.com/security/2019/09/30/chinas-new-500-megapixel-super-camera-can-instantly-recognize-you-in-a-crowd/
Law Firms in Transition, Altman Weil, 2017 available at http://www.altmanweil.com/dir_docs/resource/90D6291D-AB28-
4DFD-AC15-DBDEA6C31BE9_document.pdf
Legal Technology: Looking Past the Hype, Thomson Reuters, 2018 at https://www.legalfutures.co.uk/associate-news/in-house-
lawyers-are-looking-past-the-hype
Steve Lohr, AI Is Doing Legal Work. But it Won’t Replace Lawyers, Yet, New York Times, March 19, 2017 quoting McKinsey
Global Institute Study available at https://www.nytimes.com/2017/03/19/technology/lawyers-artificial-intelligence.html
Jonathan Marciano, Automating the Law, A Landscape of Legal AI Solutions, TOPBOTS, June 2017,
https://www.topbots.com/automating-the-law-a-landscape-of-legal-a-i-solutions/ reproduced in Sandra McCandless and
Stephen Klein, Ethical Issues Posed by Artificial Intelligence, June 15, 2018
Katherine Medianik, Artificially Intelligent Lawyers: Updating The Model Rules of Professional Conduct in Accordance with
the New Technological Era, 39 Cardozo Law Review 1497 at 1513-1514
List of References cont’d

Sterling Miller, Part I: Artificial Intelligence & Its Impact on Legal Technology: To Boldly Go Where No Legal Department
Has Gone Before, Thomson Reuters, 2019 at https://static.legalsolutions.thomsonreuters.com/static/pdf/S045388_1_Final.Pdf
Daniel Newman, Facial Recognition Software: The Future is Here, Forbes, September 18, 2018 at
https://www.forbes.com/sites/danielnewman/2018/09/18/facial-recognition-software-the-future-is-here/#119df4be299d
OECD Principles on AI, May, 2019 at https://www.oecd.org/going-digital/ai/principles/
Singapore Personal Data Protection Commission, A Proposed Model Artificial Intelligence Governance Framework, 2019
available at https://www.pdpc.gov.sg/-/media/Files/PDPC/PDF-Files/Resource-for-Organisation/AI/A-Proposed-Model-AI-
Governance-Framework-January-2019.pdf
Jay Stanley, The Dawn of Robot Surveillance, American Civil Liberties Union, 2019 available at
https://www.aclu.org/sites/default/files/field_document/061819-robot_surveillance.pdf
Jason Tashea and Nicolas Economou, Be competent in AI before adopting, integrating it into your practice, ABA Journal,
April 23, 2019 available at http://www.abajournal.com/lawscribbler/article/before-lawyers-can-ethically-adopt-and-integrate-
ai-into-their-practices-they-must-first-be-competent
Treasury Board of Canada, Directive on Automated Decision-Making, 2019 available at https://www.tbs-sct.gc.ca/pol/doc-
eng.aspx?id=32592

Company Policies:
Artificial Intelligence at Google: Our Principles at https://ai.google/principles/
Microsoft AI Principles at https://www.microsoft.com/en-us/ai/our-approach-to-ai
Responsible bots: 10 guidelines for developers of conversational AI at https://www.microsoft.com/en-
us/research/uploads/prod/2018/11/Bot_Guidelines_Nov_2018.pdf
SAP’s Guiding Principles for Artificial Intelligence at https://news.sap.com/2018/09/sap-guiding-principles-for-artificial-
intelligence/

Deeth Williams Wall LLP
Lawyers, Patent & Trademark Agents
DWW.com
Questions?
Richard Austin
Partner, Deeth Williams Wall LLP
(416) 941-8210
raustin@dww.com

The Artificial Intelligence World: Responding to Legal and Ethical Issues

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