Three Laws Blog: Law and Artificial Intelligence

Ringel and Reid on Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata @evanringel3 @UNC

Evan Ringel and Amanda Reid, both of the University of North Carolina, Chapel Hill, have published Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges at Communication Law and Policy, 2023, AHEAD-OF-PRINT at 1. Here is the abstract.

This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is two-fold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) Agents of Use; (2) Limitations on Use; (3) Accountability of Use; (4) Evaluation of Use; and (5) Enforcement of Permitted Use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.

Download the article from SSRN at the link.

Romig on The Ethics of ChatGPT: A Legal Writing and Ethics Professor's Perspective @JenniferMRomig @EmoryLaw

Jennifer Murphy Romig, Emory University School of Law, has published The Ethics of ChatGPT: A Legal Writing and Ethics Professor’s Perspective as Emory Legal Studies Research Paper. Here is the abstract.

Teaching law students requires meeting them where they are, envisioning what they can become, and offering appropriate education and advice for their developmental journey. ChatGPT is not a person, but this essay will to some extent personify ChatGPT in discussing how it might be developed before it is used for client work. ChatGPT and A.I. text generators don’t “learn” but they can be programmed, prompted, and trained. Everyone realizes their potential to become pervasive and ubiquitous in the legal field and, indeed, in every field that relies on the production and exchange of words. But pervasive and ubiquitous does not necessarily mean ethical or effective. So far in using ChatGPT I have seen a broad range of embarrassingly wrong output and really promising output. My comments here are offered in the spirit of what I’d like to see from ChatGPT.

Download the paper from SSRN at the link.

Delfino on The Deepfake Defense: Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers @RebeccaDelfino @LoyolaLawSchool

Rebecca Delfino, Loyola Law School, Los Angeles, has published The Deepfake Defense—Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers as Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-02.

Thousands of audiovisual images documented the insurrectionists who stormed the United States Capitol on January 6, 2021. Authorities subsequently collected those images and charged some for their criminal conduct. Given the overwhelming audiovisual evidence implicating the insurrectionists, it should be impossible to assert a plausible defense claiming that those unmistakably depicted in the images were not present. Right? Wrong. As the defense in the federal criminal trial of January 6th insurrectionist leader Guy Reffitt illustrated, the emergence of “deepfakes” has changed the landscape of plausible defenses to crimes. Reffitt led the attack on the Capital. Videos and other visual images showed him at the head of the crowd advancing on the Capitol’s West Terrace. He was arrested and charged with multiple crimes. And although the evidence, including audiovisual images, against Reffitt, was clear and overwhelming, his lawyer undermined it, arguing to the jury that the evidence against Reffitt was a “deepfake” – an audiovisual recording created using Artificial Intelligence technology that allows anyone with a smartphone to believably map one person’s movements and words onto the image of another person. Unfortunately, the law does not provide a clear response to Reffitt’s lawyer’s reliance on deepfakes as a defense. But this much is clear—the “deepfake defense” is a new challenge to our legal system’s adversarial process and truth-seeking function. Because the norms of professional ethics require lawyers to advocate zealously, deepfakes invite lawyers to raise objections and arguments to evidence to exploit juror bias and skepticism about what is real. Thus, lawyers may plant the seeds of doubt in jurors’ minds to question the authenticity of all digital audio and visual images, even those counsel knows to be genuine. Currently, no rule of procedure, ethics, or legal precedent directly addresses the presentation of the “deepfake defense” in court. The existing standards provide scant guidance because they were developed before the advent of deepfake technology. As a result, they do not solve the concern of how to deter lawyers from exploiting it. Although in the last several years, legal scholarship and the popular news media have addressed certain facets of deepfakes, there has been no in-depth commentary on the “deepfake defense.” This article is the first to explore the deepfake defense, locating it within the historical and current framework of lawyers’ efforts to fabricate evidence and the laws and the practice norms that exist to curb that conduct. It proposes a reconsideration of the ethical rules governing candor, fairness, and the limits of zealous advocacy and urges a re-examination of the court’s role in sanctioning such conduct. Thus, this article offers novel proposals to guide the way forward for lawyers and courts as they traverse this new technological landscape.

Download the article from SSRN at the link.