Archive

AI

A "Viewpoint" article from JAMA Networks on AI-generated medical advice considers some of the legal and regulatory protections (and lack thereof) for medical advice within and outside of the doctor-patient relationship.

Related: Would AI chatbots fall under the safe harbor of Section 230? According to two of the authors of the legislation - no, the law does not apply to AI-generated content. [Washington Post ($)]

"Can Law Students Develop the Expertise Necessary to Supervise Legal Chatbots by Using Legal Chatbots?"

AI

• LexisNexis has released a survey on the attitudes of lawyers and law students towards GenAI [Summary here]

• Lexis subsidiary Lex Machina also has a survey out on lawyers' use of and attitudes towards litigation analytics

• Lawyer and blogger Carolyn Elefant has put together an FAQ for solo and small firms on using ChatGPT

• Similarly, Nicola Shaver of Legaltech Hub has a primer on evaluating large language models (LLMs) for law firms to use safely

• Josh Kubiski, director of the Legal Innovation & Entrepreneurship Program at University of Richmond School of Law, has started a newsletter on GenAI and how to use it for business and legal purposes

• As GPT and LLM-enhanced search engines take off in popularity, there’s a concern about how much personal information may go into the training data for these products

• From Fast Company: “… the pros and cons of letting ChatGPT and other chatbots search the web for you”

• Is it too early to worry about anti-trust concerns in the sphere of GenAI?

• Law.com Radar, a current awareness tool that uses natural language processing to summarize federal docket information into short news items, is expanding its coverage to state courts.

Legal Industry

• Earlier this year, Thomson Reuters released both its State of the Legal Market report (in conjunction with Georgetown Law) and the Alternative Legal Services Providers 2023 report

• DoNotPay has filed a response to the petition for pre-action discovery entered by Katherine Tewson (see a summary of the drama here); (update - Tewson’s petition has been denied)

AI

• The Copyright Office has issued new guidance on "works containing material generated by artificial intelligence."

• Bloomberg Tax [($)]: PricewaterhouseCoopers has introduced an AI-enhanced chatbot developed by Harvey.ai to be used by its in-house lawyers to "speed up work from due diligence or regulatory compliance," among other tasks. [Reuters]

• The Cybersecurity, Information Technology, and Government Innovation subcommittee held a Congressional hearing on "Advances in AI: Are We Ready For a Tech Revolution?"

• From NBC News: “A deepfake app advertised itself on Meta platforms using faces of actors [Emma] Watson and Scarlett Johansson.”

• At least 20 sports stadiums around the country have adopted facial recognition systems, for alcohol concessions, restricting access to training facilities, and general gate entry, among other uses.

• Microsoft, a major investor in OpenAI who plans to integrate generative AI technology into a number of products, has laid off every employee involved in the company's Ethics and Society Team.

• Here is a deep-dive explainer on how social media recommendations algorithms work.

• GPT-4, the next iteration of OpenAI's large language model, is now public.

  • One of the benchmarks of GPT-4's improvement over 3.5/ChatGPT? It now scores within the top 10% on a Uniform Bar Exam.

  • How do you make GenAI products produce legal materials? Legal prompt engineering may help.

  • One reaction to GPT-4 and 2 follow-ups:

    • https://mobile.twitter.com/jbrowder1/status/1635720431091974157
    • https://mobile.twitter.com/DKThomp/status/1635728028281044993
    • https://mobile.twitter.com/hamandcheese/status/1635734186718887947

Data Privacy

From Politico: "The privacy loophole in your doorbell"

AI

Some responses to the Copyright Office's revocation of copyright in portions of a comic book that included pictures created by an AI image generator:

• A client alert written by copyright attorneys at Morrison Foerster on it

• Correspondence between the attorney representing the artist of Zarya of the Dawn and the Copyright Office canceling the registration of the entire work.

• A blog post by Van Lindberg, the attorney for artist Kristina Kashtanova, about the decision to revoke the copyright in the images generated by Midjourney.

AI

• From WaPo ($): algorithms have been used to help companies hire and promote employees; they're now likely to be used to decide who gets laid off. [Archived version]

• "Generative AI is coming for lawyers" - a deeper dive into the news about Allen & Overy using a specialized LLM for legal research and drafting.

• A forensic sketch program to create police drawings of suspects, based on GenAI art program DALL-E 2, is drawing criticism for potentially exacerbating biases towards non-white suspects.

• An advisor on digital ethics on why Chatbot Bing's meltdowns make the case for regulation of AI sooner rather than later. [New York Times ($)]

• Casetext has launched Co-Counsel, a new AI legal assistant product in partnership with OpenAI, that relies on GPT technology to review documents, summarize cases, and create drafts. [Video product review]

• Summary and draft paper: "Against Predictive Optimization: On the Legitimacy of Decision-Making Algorithms that Optimize Predictive Accuracy"

A couple of examples of ChatGPT used to generate legal docs:

• Adam David Long

• Write.Law

AI

• SSRN has created a hub for papers devoted to AI and GPT-3 topics, including law scholarship.

• Employees at both Amazon and JP Morgan have been warned against sharing confidential company information, including code, with ChatGPT.

• Prof. Paul Daly, University of Ottawa: "Chat GPT and Legal Research: A Cautionary Tale"

• From The Guardian:

"The US government’s new mobile app for migrants to apply for asylum at the US-Mexico border is blocking many Black people from being able to file their claims because of facial recognition bias in the tech, immigration advocates say."

• A comic book that was illustrated from images created through Midjourney, an AI text-to-picture generator, had the copyright registration on the images revoked by the Copyright Office.

AI

Multi-national law firm Allen & Overy announced that it is the first law firm to integrate a generative AI product, called Harvey, into its document drafting processes. Harvey is based on OpenAI models but "enhanced for legal work."

Katheryn Tewson, the paralegal who has gone viral in her critiques of DoNotPay, has petitioned it and founder Josh Browder in New York state court for pre-action discovery.

Josh Browder defended his product, DoNotPay, in a podcast interview with legaltech writer/analyst Bob Ambrogi

AI

A group of researchers from various universities and companies have released a paper showing that generative AI models can memorize a small number of images, spitting them out nearly identical replicas to the originals, given the right prompts. [Paper | MIT Tech Review ($) | Ars Technica]

Related: Getty Images has filed suit in the district of Delaware against the creator of generative AI art program Stability Diffusion for alleged copyright infringement. [Docket | Complaint]

AI

• How AI-enhanced tools for automated decision-making can undermine anti-discrimination laws and what can regulators and entities using such tools can do to combat potential bias. [ABA Journal ($)]

• "A British AI firm said it was rethinking its "safeguards" after its audio tool was used to clone celebrity voices and have them say racist and homophobic slurs."

• The news and critiques of DoNotPay continue this week, this time focusing on cancelled subscriptions for the service itself.

--ChatGPT

AI

• Will the war in Ukraine accelerate the development of fully autonomous drones for warfare, able to "identify, select and attack targets without help from humans"?

• New York AG has warned the owner of Madison Square Garden and Radio City Music Hall that its use of facial recognition software, to bar individuals working for a law firm that's currently suing MSG from those venues, may run afoul of anti-bias laws

• While not yet ready for a bar exam, ChatGPT has been put through its paces on four law school exams and earned a C+, according to these University of Minnesota Law School professors.

• Meanwhile, an Advanced Legal Research class at University of Wisconsin-Madison Law School demoed ChatGPT and developed some takeaways on using it for legal research., including my favorite, a version of the Wikipedia rule for research ("it's okay to start your research there, but you should never finish your research there").

• A bit has been going on with DoNotPay's Robot Lawyer:

1. Jan. 20th: DoNotPay's founder Joshua Browder announced that the company's AI would virtually, secretly represent someone in court on Feb 22, 2023.

2. Jan. 24th: Katheryn Tewson experiments with some of DoNotPay's services and does a write-up of what she receives (and doesn't receive), goes viral on the birdsite.

3. Jan. 25th: Browder announces that due to "threats from State Bar prosecutors," DoNotPay is postponing its court case and will be focusing on consumer-protection services.

Crypto

Long-reads

AI

DoNotPay, an AI legal self-help app that helps user contest parking tickets and user fees, is planning to assist two defendants in traffic court next month by providing arguments developed in real-time by an open source AI language model, similar to GPT-3. [Politico | CBS News | SF Standard]

The Center for Computer-Assisted Legal Instruction (aka CALI) has an article about court technology and the justice system.

GDPR has been operating in Europe for 7 years. Is it time for an upgrade?

I don't usually carry envirotech stories, but this is 1) a big deal and 2) a thoughtful and accessible response by UCLA Law's Edward Parson on the news that a small start-up announced late last year that it has commenced solar geoengineering efforts. [Wired ($)]

This is the last newsletter for this year ... hope to see you all in 2023.

Artificial Intelligence

(Credit to attorney David Shulman prompting ChatGPT to "write a rap song about the rules against perpetuities")

The San Francisco Board of Supervisors has approved a new policy by the Police Department that would authorize the use lethal force against suspects, by robots:

• Articles: Mission Local, Engadget, Verge

• Draft policy

Georgetown Law is launching a Judicial Innovation Fellowship to get technologists, designers and use testers into state and tribal courts around the country

Technology policy groups have written a letter to U.S. senators decrying the Kids Online Safety Act, writing that the bill could increase harm to children in teens in abusive situations or who are LGBTQ by denying them access to critical information.

PacerPro, which has provided automated tools for accessing and collecting federal court documents via PACER, has now unveiled StatePro, giving the same tools and automation for courts in 32 states.

The New York Times has a small profile on SEC chair Gary Gensler, the "figure whom crypto insiders love to hate."

Currently on Twitter but considering joining Mastodon? Here's a list of lawyers and law academics who are already on Mastodon. Also, the Markup has a breakdown of privacy and security issues its personnel have found with Mastodon. (BTW, I'm here.)

It turns out that Facebook's Meta Pixel has not only been receiving user medical information from hospital and medical system websites, it has also sucked in user financial information from tax filing websites, including TaxAct and H&R Block.

Playing up an AI race between China and the U.S. may lead to increased military applications as well as less ethical and legal scrutiny of AI products, some AI watchdogs worry.

"Internet giant Google has agreed to pay a record $391.5 million to settle with 40 states in the U.S. over charges the company misled users about the collection of personal location data."

A dive into the copyright questions that generative AI systems bring up

How Alex Jones, the January 6th Congressional investigation, and legal malpractice insurers may all tie together with the ethical duty of technology competence. [Law.com ($)]

The Electronic Privacy Information Center (EPIC) has a report on the types and use of algorithmic decision-making tools used by government agencies in the District of Columbia. [Wired story ($)]

LexMachina has unveiled litigation analytics in the area of Internet law, covering cases involving 3 federal statutes: the Computer Fraud and Abuse Act (CFAA), the Digital Millennium Copyright Act (DMCA), and the Electronic Communications Privacy Act (ECPA)

Microsoft, GitHub and OpenAI are being sued for alleged software piracy via an AI-trained programming aid in a class action suit. [Docket]

A new paper: "The Digital First Sale Doctrine in a Blockchain World: NFTs and the Temporary Reproduction Exception," by Chelsea Lim

A member of the Pennsylvania House of Representatives has introduced a bill to create an AI registry. [PA Bill 2903]

San Diego County Board of Supervisors has unveiled a proposal to use a predictive analytics program to address homelessness.

What are algorithmic mistakes and why do they matter?

"Shutterstock will start selling AI-generated stock imagery with help from OpenAI"

From Business Insider (via Apple News): "Lawyers Rush to Benefit From Arizona's New Rules on Law Firm Ownership" [PrintFriendly]

Sen. Mark Warner is the second public official to publicly question Meta on the data collection of sensitive medical information from hospital websites.

"Lack of budget and resistance to change are top barriers to digital transformation in most legal departments across the US, according to new research." [CIO Magazine]

The Administrative Office of the United States Courts has written a letter to Senate Judiciary Committee Chair Richard Durbin on current legislation to make PACER free.

A Stable Diffusion vid - "human evolution" by Fabio Comparelli:

fabdream.ai

A post shared by fabdream.ai.

SEC Chairman Gary Gensler wants Congress to "give the Commodity Futures Trading Commission more powers to police cryptocurrency stablecoins."

Two items from Bloomberg Law:

• Victims of crypto and NFT fraud can take theft loss deductions [$]

• Why lawyers reject non-attorney firm ownership [$]

Do you do legal writing in Google Docs? If so, creating shortcuts for oft-used phases and symbols might be very helpful -- here's how.

The conviction of Uber's security chief, Joe Sullivan, for not reporting a data breach to the Federal Trade Commission, is causing re-consideration of the legal and ethical obligations of CISOs.

A new study estimates that Bitcoin mining causes climate damage to a similar degree as gasoline consumption and beef production.

From the ACLU: Algorithmic decision-making in health care appears to be exacerbating medical racism

The Biden Administration has released a blueprint for an AI bill of rights [Editor's note: that is, a bill to protect people from potential abuses and misuses of AI, not to give AI rights]

The Financial Stability Oversight Council (FSOC), which is comprised of federal regulators from various federal agencies (Treasury, SEC, Federal Reserve, etc.) has released a report calling for "legislation addressing risks digital assets pose to the financial system, including bills to bolster oversight of crypto spot markets and stablecoins." [Report]

LawPath, an Australian legal document and contract management company that focuses on small businesses, is now courting small businesses in the US.

An op-ed from Protocol: "Stop thinking we have years to solve social media and democracy"

Gov. Newsom has vetoed a California crypto licensing and registration bill.

The San Francisco Board of Supervisors has passed a plan to allow city law enforcement to access real-time video from private outdoor cameras in certain circumstances without a warrant for the next 15 months.

Over the weekend, Gov. Newsom signed the State Bar association funding bill, one provision of which restricts the State Bar from spending funds on efforts to set up paraprofessional practice or regulatory sandbox programs without approval from the Legislature for two years. [Bloomberg Law ($)]

Are state AGs and agencies more effectively regulating crypto companies than the Feds? [Washington Post ($)]

"Thousands of international travelers' electronic data is quietly stored in a US Customs and Border Protection database, viewable by thousands of its workers, for up to 15 years ..." [Business Insider | Washington Post ($)]

Meta continues to face fallout over its Pixel tracking of users on hospital websites, possibly transmitting data about medical appointments, conditions and prescriptions.

Thomsom Reuters is unveiling a new upgrade of its core legal research product, called Westlaw Precision. Features include enhancements to KeyCite, graphical view of history and an outline builder. [Deep dive into product features courtesy of Jean O'Grady]

Prof. Ariel Newman has an article about teaching Gen Z law students from the perspective of being Gen Z herself. Article begins on p. 54. (Ed.: included here due to the section on technology and learning)

How has legal technology funding changed in nearly 40 years? Bob Ambrogi and Raymond Bjild have put together a short, focused "The True Story of Legal Tech Funding."

Wolters Kluwer has released its 2022 survey report, The Wolters Kluwer Future Ready Lawyer. The report covers technology use, staffing and emerging areas of law for law firms and legal departments.

An opinion from Law360: ABA Stance On Role Of Nonlawyers Is Too Black And White [$]

What is a data sanctuary and how might California be poised to become one if Gov. Newsom signs two bills passed by the legislature last week? [Bill texts: SB-107 Gender-affirming health care | AB-2091 Disclosure of information: reproductive health and foreign penal civil actions]

One of my favorite newsletters, The Justice Tech Download, is back to publishing after the summer off.

Cal Matters has an in-depth dive into the children's Internet privacy bill on Gov. Newsom's desk.

"More Than $100 Million Worth of NFTs Have Been Stolen This Year, a New Report Finds."

A acquaintance/colleague of mine has written a short piece on what NFTs are and how they lead to a lot of tangled questions regarding rights, ownership, downstream uses, etc.

The Artificial Lawyer has the finalists for this year's American Legal Technology Awards.

3 Geeks and a Law Blog has an episode devoted to whether law schools professors are doing enough to teach technology skills to students.

There doesn't seem to be a lot of good news coming out of El Salvador regarding its adoption of bitcoin as legal tender, but one fintech firm seems to be having wider acceptance with digital banking in the country based on fiat currency.

Whether or not you call it a recession, the current economic landscape is changing which products and services are still desirable for certain fintech customers.

[Editor's note: starting next week, the newsletter will be sent out on Thursdays, except for holidays.]

A bill in the California Legislature that would have "required California trial courts that offer online civil-case records to provide free access to the general public" was killed in committee last week. [AB2962]

The Ohio Board of Professional Conduct, which oversees attorney and judicial discipline, has released an advisory ethics opinion on whether lawyers can accept and hold cryptocurrency in escrow. (Answer: yes, with caveats) [ABA story]

The Federal Trade Commission is "is exploring rules to crack down on harmful commercial surveillance and lax data security." The Advanced Notice of Public Rulemaking is here, with information on how to submit public comment. See the Events section at the bottom of this newsletter for the virtual public forum on the same topic. [Federal Register notice]

So. Much. About. Legal. Services.

• Profs. Nora Ingstrom and Scott Cummings have written an op-ed for Bloomberg Law calling for amending the current bill in the California Legislature to allow the State Bar to continue working on proposals to license paraprofessionals for legal services, as well as establish a regulatory sandbox for lawyer/non-lawyer collaborations for legal services.

• As California is seemingly stalled on the proposal to license non-bar admittees for limited legal services, the Colorado State Supreme Court is "considering whether to create a new legal license that would allow non-attorneys to practice some limited areas of family law."

• From Bloomberg Law: The American Bar Association's (ABA) House of Delegates has "passed a non-binding resolution discouraging changes to state rules barring the sharing of legal fees with non-lawyers. But it also encouraged state bar groups to explore innovations designed to increase access to justice by making legal services more affordable." [ABA Resolution 402]

While the Supreme Court continues to investigate the leak of the Dobb's decision, Sen. Ron Wyden (D-OR) has sent a letter to Chief Justice John Roberts, arguing that the federal courts have not done enough to protect the privacy of litigants. [Story | Letter | Report]

Reed Smith has released the second edition of its Guide to the Metaverse, containing information on "web3, NFTs, investing in the metaverse, the film and television industry, blockchain and crypto assets, the new and unique applications in the aviation sector and insurance issues;" as well as "a comprehensive glossary of terms."

It appears likely that consideration of a bill to regulate what's known as stablecoins (cryptocurrency that's backed by a fiat one) will be delayed until September. [Wall St. Journal | $]

Protocol has a nice little primer on how NFT creation can clash with trademark and copyright protections.

The city council of New Orleans has reversed its two-year-old ban on facial recognition technology use by local police.

Stephen Embry has a tech-centric review of AALL 2022, including brief impressions of two new LexisNexis products.

A fairly new paper on SSRN by Frank Pasquale and Gianclaudio Malgieri "proposes a system of 'unlawfulness by default' for AI systems," where the burden of proof may be on "some AI developers ... to demonstrate that their technology is not discriminatory, not manipulative, not unfair, not inaccurate, and not illegitimate in its legal bases and purposes."

FYI, if you're interested in legal scholarship that focuses on artificial intelligence, there is a AI Law Blog that tracks such papers, run by Frank Fagan, an Associate Professor of Law and Scientific Director of the EDHEC Augmented Law Institute.

The Congressional Research Service released a 2-part report last month on the existing regulatory frameworks for stablecoins and proposals for regulatory options.

As a result of a FOIA lawsuit filed by the ACLU, the Dept. of Homeland Security released records that reveal a "shocking amount" of location data was purchased by the agencies to track users without a subpeona or warrant. [Wired | Politico]

Have you been told to use a VPN to protect your privacy while online? U.S. Rep. Anna G. Eshoo (D-CA) and Senator Ron Wyden (D-OR) have sent a letter to the Chair of the Federal Trade Commission (FTC) to urge the agency to investigate abusive and deceptive data practices by hundreds of companies providing Virtual Private Network (VPN) services for individuals.

Unsurprisingly, there's a lot of crypto blockchain in the news right now.

• NFT marketplace Open Sea has laid off 20% of its staff.

• Cryptocurrency lender Celsius filed for bankruptcy and reports a $1.2 billion "hole in its balance sheet."

• "The High Court of England and Wales has allowed Fabrizio D'Aloia, founder of Italy-based online gambling company Microgame, to file a lawsuit against anonymous people through a non-fungible token (NFT) drop." [CoinDesk]

• Just how energy-intensive is crypto-mining? Very, according to a Congressional investigation, and the Democrats who led the investigation want the EPA and DOE to require carbon emission disclosures from U.S. crypto-mining companies. [Sen. Elizabeth Warren - Letter and company responses]

The parent company of LexisNexis has launched a new legal research service called Decisis, meant to compete with Fastcase in the target market of bar associations and solo law firms.

A semi-popular Twitter thread:

The Fastcase 50 for 2022 has been announced, "[h]onoring the law’s smartest, most courageous innovators, techies, visionaries, & leaders. Lawyer or nonlawyer, techie or nontechie, anyone is eligible."

(Editorial note: I worked with Eric Goldman at SCU and I am admittedly biased due to his scholarship, the passion he brings to the issues of Internet law and all of its quirks, and generally being an interesting person to work with.)

For those of you interested in Internet privacy issues, Prof. Eric Goldman of Santa Clara University School of Law has a long breakdown of a California bill, AB 2273, the California Age-Appropriate Design Code Act. Goldman refers to this as one of the "dangerous Internet bills in the California legislature."

From The Artificial Lawyer: "Is Legal Tech Facing a VC Funding Crunch?"

• Exhibit A: California-based litigation analytics firm Gavelytics (among the first to tackle CA state court analytics) has ceased operations as of June 30, 2022.

Meta (FKA Facebook) is facing eight lawsuits in different jurisdictions on the same subject - whether the algorithms on FB and Instagram causes addictive behavior and have deleterious effects on young users - arguing that the coding does not fall under the same safe harbor for user-generated content created by Section 230 of the Communications Decency Act. [Today's General Counsel]

Two attorneys at Holland & Knight, representing a crypto exchange, have deployed a non-fungible token (NFT) to officially serve a temporary restraining order (TRO) on anonymous defendants in a hacking case, with the approval of the court. [Law.com $ | CryptoNews]

From the NY Times: "Microsoft Plans to Eliminate Face Analysis Tools in Push for ‘Responsible A.I.’; The technology giant will stop offering automated tools that predict a person’s gender, age and emotional state and will restrict the use of its facial recognition tool."

The Digital Defense Fund has published a guide to protect digital privacy around reproductive issues.

Hello and welcome to Lawyer Ex Machina!

• Lawyers are optimistic about legal technology in general, but may not like the tech tools they've been given to use. [Law.com | $]

• For those of you monitoring the efforts of the California State Bar to establish a paraprofessional licensing program, as well as a regulatory sandbox for non-law firm entities to provide legal services to consumers: The Bar may be prohibited from spending funds on either program if AB2958 passes with amendments recently added to the bill. [Law.com | $]

• Speaking of the Cal Bar, it is a defendant in a proposed class action arising from a data breach of disciplinary records, where the website JudyRecords was able to access and publish over 250,000 confidential records. [Bloomberg | $]

• Lots going on with data, mobile apps and reproductive issues as we wait on the Dobbs opinion:

  • "Facebook and Anti-Abortion Clinics Are Collecting Highly Sensitive Info on Would-Be Patients" [The Markup]

  • "Period-tracking apps store users’ most private data. What will that mean in a post-Roe world?" [Protocol]

  • "Sweeping Legislation Aims to Ban the Sale of Location Data" [Motherboard | Congress.Gov page | Bill text (PDF) ]

• Beyond the location data bill, there is also a discussion draft of a general data privacy bill released by the House Committee on Energy and Commence. The Sub-Committee on Consumer Protection and Commerce held a hearing on the subject on June 14th. Commentary on the provisions of the bill and likelihood of passage include:

  • Senate Commerce Committee

  • Politico

  • Consumer Privacy World (Squire Boggs Patton)

  • Protocol

  • Thank you for reading.