News and Analysis of Artificial Intelligence Technology Legal Issues
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Recent Court Decisions Boost the Outlook for Artificial Intelligence Patents

Machine learning enthusiasts have long touted the technology’s ability to perform–and sometimes exceed–human mental endeavors, such as identifying objects in images, generating a portrait painting, deciding to grant a loan application, optimizing a route to a destination, and efficiently responding to website visitor or customer queries. In recent years, such computerized “mental processes” have been denied patent protection, a trend underscored by U.S. federal district and Federal Circuit patent decisions issued in the wake of the U.S. Supreme Court’s seminal Alice Corp. v. CLS Bank Int’l opinion in 2014, which provided today’s legal framework for determining whether an invention is…

Distributed Artificial Intelligence Systems, Edge Computing, and the Extraterritoriality Doctrine: Testing the Reach of State Privacy Laws

In Patel v. Facebook, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by the U.S. District Court for the Northern District of California granting class certification to users of Facebook who alleged that Facebook’s collecting and storing of their face scans using facial recognition technology violated Illinois’s Biometric Information Privacy Act (“BIPA”). In doing so, the panel, based in San Francisco, relied on BIPA’s legislative history to conclude that, “it is reasonable to infer that the [Illinois] General Assembly contemplated BIPA’s application to individuals who are located in Illinois, even if some…

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Does Illinois’ Artificial Intelligence Video Interview Bill Fully Address Biometric Data Privacy Concerns?

Developers of artificial intelligence-based video interviewing systems promote their technology as one that helps human resource professionals on-board new talent faster, less expensively, and with greater insight compared to traditional human-only interviewing techniques. They also contend that their systems can avoid some of the potential implicit biases that may appear before, during, and after interviews, thus reducing risks to companies while leveling the playing field for qualified job applicants. But because those AI system have the potential to collect, store, and use data reflecting a job candidate’s face and voice, lawmakers in Illinois passed the Artificial Intelligence Video Interview Act…

A Leaf vehicle equipped with sensors for enabling autonomous driving

California Court Agrees With Autonomous Driving Company’s Source Code Misappropriation Claims, Issues Preliminary Injunction

In WeRide Corp. v. Huang et al., the U.S. District Court for the Northern District of California issued an order granting a motion for a preliminary injunction and expedited source code discovery.  In doing so, the court concluded that plaintiff’s source code for Level 4 highly autonomous vehicles (HAVs) was a protected trade secret under the federal Defend Trade Secrets Act (DTSA) and California’s Uniform Trade Secrets Act (Cal-UTSA).  The court also concluded that plaintiff was likely to succeed on the merits of its trade secret misappropriation claim against one of its former employees and a China-based company that the…

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Civil Litigation Discovery Approaches in the Era of Advanced Artificial Intelligence Technologies

For nearly as long as computers have existed, litigators have used software-generated machine output to buttress their cases, and courts have had to manage a host of machine-related evidentiary issues, including deciding whether a machine’s output, or testimony based on the output, could fairly be admitted as evidence and to what extent. Today, as litigants begin contesting cases involving aspects of so-called intelligent machines–hardware/software systems endowed with machine learning algorithms and other artificial intelligence-based models–their lawyers and the judges overseeing their cases may need to rely on highly-nuanced discovery strategies aimed at gaining insight into the nature of those algorithms,…

Woman's face with landmarks used in facial recognition

Congress, States Introduce New Laws for Facial Recognition, Face Data – Part 2

In Part I, new proposed federal and state laws governing the collection, storage, and use of face (biometric) data in connection with facial recognition technology were described.  If enacted, those new laws would join Illinois’ Biometric Information Privacy Act (BIPA), California’s Consumer Data Privacy Act (CCPA), and Texas’ “biometric identifier” regulations in the governance of face-related data.  It is reasonable for businesses to assume that other state laws and regulations will follow, and with them a shifting legal landscape creating uncertainty and potential legal risks.  A thoughtful and proactive approach to managing the risks associated with the use of facial…

Woman's face with landmarks used in facial recognition

Congress, States Introduce New Laws for Facial Recognition, Face Data – Part I

Companies developing artificial intelligence-based products and services have been on the lookout for laws and regulations aimed at their technology.  In the case of facial recognition, new federal and state laws seem closer than ever.  Examples include Washington State’s recent data privacy and facial recognition bill (SB 5376; recent action on March 6, 2019) and the federal Commercial Facial Recognition Privacy Act of 2019 (S. 847, introduced March 14, 2019).  If enacted, these new laws would join others like Illinois’ Biometric Information Privacy Act (BIPA) and California’s Consumer Privacy Act (CCPA) in governing facial recognition systems and the collection, storage,…

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Government Plans to Issue Technical Standards For Artificial Intelligence Technologies

On February 11, 2019, the White House published a plan for developing and protecting artificial intelligence technologies in the United States, citing economic and national security concerns among other reasons for the action.  Coming two years after Beijing’s 2017 announcement that China intends to be the global leader in AI by 2030, President Trump’s Executive Order on Maintaining American Leadership in Artificial Intelligence lays out five principles for AI, including “development of appropriate technical standards and reduc[ing] barriers to the safe testing and deployment of AI technologies in order to enable the creation of new AI-related industries and the adoption of…

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Washington State Seeks to Root Out Bias in Artificial Intelligence Systems

The harmful effects of biased algorithms have been widely reported.  Indeed, some of the world’s leading tech companies have been accused of producing applications, powered by artificial intelligence (AI) technologies, that were later discovered to exhibit certain racial, cultural, gender, and other biases.  Some of the anecdotes are quite alarming, to say the least.  And while not all AI applications have these problems, it only takes a few concrete examples before lawmakers begin to take notice. In New York City, lawmakers began addressing algorithmic bias in 2017 with the introduction of legislation aimed at eliminating bias from algorithmic-based automated decision…

A cartoonish chatbot named Tom next to a smartphone depicting a chatbot session

What’s in a Name? A Chatbot Given a Human Name is Still Just an Algorithm

Due in part to the learned nature of artificial intelligence technologies, the spectrum of things that exhibit “intelligence” has, in debates over such things, expanded to include certain advanced AI systems.  If a computer vision system can “learn” to recognize real objects and make decisions, the argument goes, its ability to do so can be compared to that of humans and thus should not be excluded from the intelligence debate.  By extension, AI systems that can exhibit intelligence traits should not be treated like mere goods and services, and thus laws applicable to such good and services ought not to…