TAP Scholars Examine AI and the Law

By TAP Staff Blogger

Posted on October 19, 2017


The field of artificial intelligence (AI) continues to develop rapidly. Take a look at a sampling of recent news stories: “Artificial Intelligence Could Improve How We Age” (The Washington Post), “Meet the New ETF Using Artificial Intelligence to Pick Stocks to Buy” (MSN), “Artificial Intelligence - Hype, Hope and Fear” (BBC), “LAPD to Use Artificial Intelligence to Analyze Body Camera Footage” (Inc.), and “How Artificial Intelligence Is Improving Magic Tricks” (Smithsonian).


TAP scholars are researching the real-world implications of the adoption of AI and related technologies in our everyday lives. One of the areas being explored is the law. How does AI intersect with the laws that have been established to govern human interactions? Should laws for safety, for non-discrimination, and for privacy apply to machine-learning algorithms and artificially intelligent robots? How about laws for freedom of speech, should those apply to Siri, Alexa, or Cortana?


Below are three recently published works by TAP scholars that examine the intersection of artificial intelligence and the law.


SIRI-OUSLY 2.0: What Artificial Intelligence Reveals about the First Amendment
By Margot Kaminski, Toni M. Massaro and Helen Norton
Minnesota Law Review, Vol. 101, No. 6, pp. 2481-2525, 2017


Summary: Machines that can actually think are referred to as strong Artificial intelligence (AI). The First Amendment might protect speech by strong AI. This is because courts are focused on the value of speech to listeners. Additionally, the need to constrain government power will be sympathetic to this view. The policy implications of AI and free speech could spur courts to clarify the value and limits of free expression.


Excerpt from the Introduction

In the spring of 2016, Microsoft released a Twitter chatbot called MS Tay. MS Tay was described as an Artificial Intelligence (AI) - a learning algorithm - programmed to "learn" how to interact with other Twitter users and produce output delinked from the original programmers' control. Within twenty-four hours, Twitter users learned how to game MS Tay's learning process. The mass mis-education of MS Tay resulted in Holocaust-denying, transphobic, and misogynistic Tweets, among others. Microsoft quickly ended its experiment.


If MS Tay were a human speaker, there is no question that her Tweets would receive First Amendment protection. Whatever your view of the doctrine, and whatever your view of its impact on public political discourse, the United States Supreme Court has interpreted the First Amendment to protect hateful or otherwise offensive speech that does not rise to the level of incitement or "true threats." Should the First Amendment similarly protect MS Tay's speech - and the speech of far more complex, more autonomous programs perhaps to come?


Read more about “SIRI-OUSLY 2.0: What Artificial Intelligence Reveals about the First Amendment” on the TAP site. The full article is available from the Minnesota Law Review.



The Three Laws of Robotics in the Age of Big Data
By Jack M. Balkin
Ohio State Law Journal, Vol. 78, 2017, Forthcoming


Summary: Robots are set in motion by human beings. Laws governing robots should bind the firms and governments that use robots. Those that use robots, big data, and artificial intelligence should act in good faith and take care not to harm the public. Policymakers should emphasize transparency and fairness in making ground rules for the use of robots, big data, and artificial intelligence.


Excerpts from the first section, The Frankenstein Complex

We are rapidly moving from the age of the Internet to the Algorithmic Society. We will soon look back on the digital age as the precursor to the Algorithmic Society. What do I mean by the Algorithmic Society? I mean a society organized around social and economic decision making by algorithms, robots, and AI agents; who not only make the decisions but also, in some cases, carry them out. The use of robots and AI, therefore, is just a special case of the Algorithmic Society.


Big Data, too, is just a feature of the Algorithmic Society. In fact, Big Data is just the flip side of a society organized around algorithmic decision making. Big Data is the fuel that runs the Algorithmic Society; it is also the product of its operations. Collection and processing of data produces ever more data, which in turn, can be to improve the performance of algorithms. To vary Kant’s famous statement, algorithms without data are empty; data without algorithms are blind.


In the Algorithmic Society, the central problem of regulation is not the algorithms but the human beings who use them, and who allow themselves to be governed by them. Algorithmic governance is the governance of humans by humans using a particular technology of analysis and decision-making.


Hence our need is not for robot-directed laws like Asimov’s three laws of robotics, but laws directed at those who use robots to analyze, control, and exercise power over other human beings.


Read more about “The Three Laws of Robotics in the Age of Big Data” on the TAP site. The full article is available for downloading from SSRN.



Robot Law
By M. Ryan Calo, A. Michael Froomkin and Ian Kerr
Edward Elgar Publishing, 2016


Summary: Like the Internet, robots will transform society. This book shows how robots challenge ideas of legal responsibility, law enforcement, sexual intimacy, and warfare. Simple robots present few new problems, but autonomous robots that act without human control are potentially problematic. Robot law should balance the need to encourage innovation against the need to prevent harm.


Excerpt from the Introduction

Work on the social, political, ethical and legal effects of new technologies tends to suffer from unusual barriers to entry when the technology is in its infancy. Industrial scientists deploying cutting-edge technologies tend to be focused on making them work, on getting them to market, and on making them profitable. They tend to view the social and policy, not to mention legal, issues as obstacles to be ignored, if possible, and overcome otherwise. Academic scientists are more likely to consider the broader questions, but they do not always have training in the relevant disciplines, whether social science, philosophy, or law. Conversely, the academics with training in those areas frequently lack the necessary background in the relevant technology and are often unfamiliar with the relevant literatures; often they may find them impenetrable. These problems tend to be solved as a technology is deployed: as the technology enters the mainstream it attracts popularizers. More importantly, as deployment takes place the new issues raised by the new technology become manifest - but by then it can be too late to alter the technology to design around the problem. Similarly, the presence of potential winners and losers may make the implementation of either policy or technology fixes more difficult than if they had been put in place earlier.


This volume collects the efforts of a diverse group of scholars who each, in their way, has worked to overcome these early barriers to entry and thus sought to grapple with the larger consequences of the increasingly discernible future of robotics. Most of the contributions in this volume are updated versions of papers first presented at "We Robot," an annual interdisciplinary conference that began in 2012. ... Like the authors of the chapters that follow, the attendees at We Robot are united by a belief that we have a lot of work to do if we are to build robots that play well with all the environments they are colonizing. We face even larger tasks if we are to craft a legal environment that, on the one hand, correctly balances the needs to encourage experimentation and investment in technology with the goal of protecting public safety while, on the other hand, balancing the needs of competing economic players in the robotics industry - not to mention considering the interests of those involved in the industries that robots promise to enhance - or replace.


Read more about Robot Law on the TAP site. The book is available from the publisher, Edward Elgar Publishing, and many book stores.



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