Bradford K. Newman
Chair of North America
Trade Secrets Practice
600 Hansen Way
Palo Alto, CA 94304
Co-Chair Global Technology Transactions
300 E. Randolph St., Suite 5000
Chicago, IL 60001
Contributor, Legislation Section
Senior Associate, IPTech
1900 N. Pearl Street, Suite 1500
Dallas, TX 75201
We are pleased to present the inaugural Chapter on Artificial Intelligence. For years, I have been at the forefront of advocating for rational federal regulation of AI and have published on AI ethics and fairness.I frequently represent clients with legal issues related to both commercial and embedded AI. Additionally, I am the host of the ABA’s AI.2day Podcast. In 2018, my proposed legislation, The AI Data Protection Act, was formalized into a House of Representatives Draft Discussion Bill. In 2021, the ABA will publish my book which is designed to be an AI field guide for business lawyers.
So I was thrilled when the Section agreed that the Annual Review should include a new Chapter devoted entirely to AI. Before any substantive federal legislation is enacted, many legal issues related to AI will play out in state and federal courts around the country. As applications of artificial intelligence, including machine learning, continue to be deployed in a myriad of ways that impact our health, work, education, sleep, security, social interaction, and every other aspect of our lives, many critical questions do not have clear cut answers yet. Companies, counsel, and the courts will, at times, struggle to grasp technical concepts and apply existing law in a uniform way to resolve business disputes. Thus, tracking and understanding the emerging body of law is critically important for business lawyers called on to advise clients in this area. As with other areas of emerging technology, the courts will be faced with applying legal doctrines in new ways in view of the nature of the technology ranging from the use of AI in criminal cases to the impact of AI on patentable subject matter.
The goal of this Chapter is to serve as a useful tool for those business attorneys who seek to be kept up to date on a national basis concerning how the courts are deciding cases involving AI. Micro and macro trends can only be identified by surveying cases around the country. We confidently predict the cases we report will increase exponentially year over year.
As this is our first installment of the AI Chapter in a burgeoning field, we made some editorial decisions: (i) we included a few cases older than the past year; (ii) unlike other Chapters, we have included cases of note recently filed in the lower courts which we will track in subsequent editions; and (iii) we included legislation and pending legislation in our summary.
We also made certain judgments as to what should be included. A notable example is facial recognition. Due to the nature of the underlying technology and the complexity of facial recognition, the subject matter necessarily involve issues of algorithmic/artificial intelligence. However, we did not include every case that references facial recognition when the issue at bar pertained to procedural aspects such as class certification (e.g., class action lawsuits filed under the Illinois Biometric Information Privacy Act (BIPA) (740 ILCS 14).
Finally, I want to thank my two colleagues, Adam Aft and Yoon Chae, for their assistance in preparing this inaugural chapter. Adam and Yoon are both knowledgeable and accomplished AI attorneys with whom I frequently collaborate. We are excited to add many colleagues from other firms around the country to next year’…