300 E. Randolph St.
Chicago, IL 60001
§ 1.1. Introduction
We are pleased to present the second edition of the rapidly growing Chapter on Artificial Intelligence.
A few years ago, when in my capacity as the Founder and Chair of the AI Subcommittee, I made the original suggestion that the Annual Review should include a new Chapter devoted entirely to AI, I understood from clients that this is an area where they were hungry for guidance. Over the last decade, AI and Machine Learning have become my passion. I continue to be fascinated by the various AI/ML issues I am asked by my clients to advise them on, and have watched with interest as US regulators and the plaintiff’s bar have begun to focus their sights on commercial and embedded AI. The pace of corporate deals involving companies who count AI as their innovation have also increased substantially. I have tried hard to keep up with the rapid pace of change and have published on many aspects, formulated proposed federal AI legislation that in 2018 became a House of Representatives Draft Discussion Bill, and have been invited to speak and teach on AI at many institutions including MIT/SLOAN, NYU, and Berkeley Law School.
In the absence of substantive federal legislation, case law plays an outsized role in helping shape the contours of the emerging legal issues associated with widespread adoption of AI and Machine Learning. Tracking relevant case developments from around the country is essential. Last year, we confidently predicted that the developments we report this year would increase exponentially year over year. Our prognostication has proven correct. This year’s Chapter marks a notable increase in reported cases in the field.
The goal of this Chapter is to have it become 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. We again made the same editorial decisions and included relevant legislation and pending legislation. We also made the same 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 FR, FR necessarily involves 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 colleagues, Adam Aft and Alex Crowley, for their assistance in preparing this year’s Chapter. Adam is a knowledgeable and accomplished AI attorney with whom I frequently collaborate, and Alex is a new joiner to our team with a noted exuberance for AI.
We hope this Chapter provides useful guidance to practitioners of varying experience and expertise and look forward to tracking the trends in these cases and presenting the cases arising in the next …