Welcome back to the newsletter dedicated to the evolving relationship of artificial intelligence and law.

What you need to know this week:

1. Could an AI chatbot be sued for defamation? Supreme Court ruling sparks legal uncertainty and threatens Section 230 protections

2. EEOC warns employers of AI discrimination risks under Title VII

3. California bar committee to tackle AI regulation in legal profession this fall

4. This week’s tech spotlight [1] [2] [3]

Let’s jump in. [3-4 min read]

Could an AI chatbot be sued for defamation? Supreme Court ruling sparks legal uncertainty and threatens Section 230 protections

• On May 18, the Supreme Court ruled in favor of Big Tech in cases centering around whether social media platforms should be held liable for enabling terrorist actors by failing to limit their reach on their platforms.

• The court declined to reconsider the scope of Section 230’s liability protections to account for technological advancements such as generative artificial intelligence. (More about Section 230 here.)

• AI-powered chatbots are facing claims of defamation, and it's unclear whether they can benefit from the same protections available to other online providers under Section 230.

• The question is whether the outputs generated by AI-powered chatbots can be considered third-party content and therefore be protected under Section 230.

• U.S. Senator Ron Wyden and former House Representative Chris Cox, who co-authored the law, believe that AI tools like ChatGPT should not be protected by Section 230 and that it will not be a defense when ChatGPT generates illegal content.

• Defamation claims are expected to be brought against inaccurate and potentially harmful outputs of AI-powered chatbots, and deepfakes are expected to bring a wave of defamation cases.

• The legal questions surrounding AI and Section 230 create uncertainty for companies using or developing AI-powered chatbots and highlight the need for clear legal guidelines in this area.

• Read the full article here

EEOC warns employers of AI discrimination risks under Title VII

• The U.S. Equal Employment Opportunity Commission (EEOC) has released its second set of guidance on employers' use of artificial intelligence (AI) in relation to Title VII of the Civil Rights Act of 1964.

• The EEOC's guidance focuses on the potential risk of AI tools leading to disparate impact under Title VII, highlighting that disproportionate exclusion of individuals based on protected characteristics without job relevance or business necessity could constitute discrimination.

• Employers' use of AI tools for hiring, promotion, termination, or similar actions falls under the EEOC's Uniform Guidelines on Employee Selection Procedures and may subject them to joint liability with outside vendors if discriminatory practices are identified.

• The guidance mentions the "four-fifths rule," which considers a selection procedure to have a disparate impact if the selection rate of a protected group is less than 80% of the rate of the non-protected group. Compliance with this rule alone is not sufficient to demonstrate legality under Title VII.

• Employers are encouraged to conduct regular self-assessments and bias audits of their AI tools to identify potential disproportionate effects and adopt less discriminatory algorithms when available.

• A joint statement by the EEOC, Department of Justice (DOJ), Consumer Financial Protection Bureau (CFPB), and Federal Trade Commission (FTC) highlights concerns regarding AI tools' model opacity, unrepresentative datasets, and flawed assumptions in their design and use, which can lead to discrimination.

• The EEOC, in conjunction with other federal agencies, expresses its commitment to protecting individuals' rights and preventing discrimination in the context of AI systems, and suggests the possibility of future regulations to establish safeguards for AI use.

• Read the full report from Gibson Dunn here

California bar committee to tackle AI regulation in legal profession this fall

• The California state bar committee, COPRAC, will address the regulation of artificial intelligence (AI) in the legal profession and provide recommendations in the fall.

• Ruben Duran, chair of the bar's board of trustees, has requested COPRAC to draft guidance or an advisory opinion for lawyers regarding AI use by November.

• Duran acknowledges that regenerative AI has already changed the way lawyers practice law, with potential benefits including improved efficiency and access to justice.

• However, Duran also highlights potential risks associated with AI, such as the disclosure of confidential information, inaccurate advice, AI hallucinations, and the question of accountability for client and public harm.

• A survey conducted by Outsell found that a majority of the 800 legal professionals surveyed consider AI to be generally or extremely reliable, raising concerns about blind faith in the technology despite its known inaccuracies and pitfalls.

• The American Bar Association (ABA) urged courts and lawyers three years ago to address the emerging ethical and legal issues tied to AI in the legal profession. In February, the ABA's House of Delegates adopted a resolution calling for AI developers to ensure human control and take responsibility for any harm caused by their products.

• Two legal professionals predict that other state bars will issue guidance on AI in the near future, with the possibility of ethics opinions being issued, similar to when social media emerged. Duran's directive gives COPRAC a definitive date to complete its work, and discussions have already taken place regarding drafting an ethics alert or advisory opinion on AI for California lawyers.

• Read the full article here

This week’s top tech

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2. Lexis+

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Thanks for reading, see you next week