Three Laws Blog: Law and Artificial Intelligence

Bambauer and Surdeanu on Authorbots @dbambauer @msurd @uarizonalaw @JournalSpeech

Derek E. Bambauer, University of Arizona College of Law, and Mihai Surdeanu, University of Arizona Department of Computer Science, are publishing Authorbots in volume 3 of the Journal of Free Speech Law. Here is the abstract.

ChatGPT has exploded into the popular consciousness in recent months, and the hype and concerns about the program have only grown louder with the release of GPT-4, a more powerful version of the software. Its deployment, including with applications such as Microsoft Office, has raised questions about whether the developers or distributors of code that includes ChatGPT, or similar generative pre-trained transformers, could face liability for tort claims such as defamation or false light. One important potential barrier to these claims is the immunity con-ferred by 47 U.S.C. § 230, popularly known as “Section 230.” In this Essay, we make two claims. First, Section 230 is likely to protect the creators, distributors, and hosts of online services that include ChatGPT in many cases. Users of those services, though, may be at greater legal risk than is commonly believed. Second, ChatGPT and its ilk make the analysis of the Section 230 safe harbor more com-plex, both substantively and procedurally. This is likely a negative consequence for the software’s developers and hosts, since complexity in law tends to generate uncertainty, which in turn creates cost. Nonetheless, we contend that Section 230 has more of a role to play in legal questions about ChatGPT than most commentators do—including the principal legislative drafters of Section 230—and that this result is generally a desirable one.

Download the essay from SSRN at the link.

Chesterman on From Ethics to Law: Why, When, and How to Regulate AI @ProfChesterman @nus_law @Elgar_Law

Simon Chesterman, National University of Singapore Faculty of Law, is publishing From Ethics to Law: Why, When, and How to Regulate AI in The Handbook of the Ethics of AI (David J. Gunkel, ed., Edward Elgar Publishing, forthcoming). Here is the abstract.

The past decade has seen a proliferation of guides, frameworks, and principles put forward by states, industry, inter- and non-governmental organizations to address matters of AI ethics. These diverse efforts have led to a broad consensus on what norms might govern AI. Far less energy has gone into determining how these might be implemented — or if they are even necessary. This chapter focuses on the intersection of ethics and law, in particular discussing why regulation is necessary, when regulatory changes should be made, and how it might work in practice. Two specific areas for law reform address the weaponization and victimization of AI. Regulations aimed at general AI are particularly difficult in that they confront many ‘unknown unknowns’, but the threat of uncontrollable or uncontainable AI became more widely discussed with the spread of large language models such as ChatGPT in 2023. Additionally, however, there will be a need to prohibit some conduct in which increasingly lifelike machines are the victims — comparable, perhaps, to animal cruelty laws.

Download the essay from SSRN at the link.

Loideain on Lawfulness and Police Use of Facil Recognition in the UK: Article 8 ECHR and Bridges v. South Wales Police @NoraNiLoideain

Nora Ni Loideain, Information Law & Policy Centre; University of Cambridge, Faculty of Law, Faculty of Humanities, is publishing Lawfulness and Police Use of Facial Recognition in the UK: Article 8 ECHR and Bridges v South Wales Police in Facial Recognition in the Modern State (R. Matulionyte and M. Zalnieriute, eds., Cambridge University Press 2024).

Police use of facial recognition is on the rise across Europe and beyond. Public authorities state that these powerful algorithmic systems could play a major role in assisting to prevent terrorism, reduce crime, and to safeguard vulnerable persons. There is also an international consensus that these systems pose serious risks to the rule of law and several human rights, including the right to private life, as guaranteed under the European Convention on Human Rights (ECHR). The world’s first case examining the legality of a facial recognition system deployed by police, Bridges v South Wales Police, thus remains an important precedent for policymakers, courts, and scholars worldwide. This chapter focuses on the role and influence of the right to private life, as enshrined in Article 8 ECHR, and the relevant case law of the European Court of Human Rights, in the ‘lawfulness’ assessment of the police use of live facial recognition in this landmark case. A framework which the Court of Appeal for England and Wales held was ‘not in accordance with the law’ and therefore in breach of Article 8 ECHR. The analysis also identifies and proposes new legality safeguards for police use of facial recognition. Finally, the chapter considers the importance of the emerging policy discourse prompted by Bridges in the UK surrounding the need for new legislation, a significant shift away from the current AI governance approach of combining new ethical standards with existing law.

Download the essay from SSRN at the link.