Discriminatory Algorithms, AI Hallucinations And Data Privacy

• Jurisdiction: United States,Federal
• Law Firm: Gatehouse Chambers
• Subject Matter: Privacy, Technology, Data Protection, New Technology
• Author: Ms Sara Ibrahim
• Published date: 18 September 2023

People could be forgiven for finding the current debate around artificial intelligence, and generative AI in particular, overly fraught. Depending on the enthusiasm of the proponents for AI, it is either advocated as a cure-all for human failings or a threat to workers, including lawyers.

Generative AI has attracted the most attention, especially ChatGPT, because it is able to generate natural language answers to complex questions. The increasing use of AI by clients and the courts means that lawyers would be well advised to understand the potential 'pratfalls' and advantages of integrating AI into their practices.

Debate is centring around calls for more and faster regulation. The pace of regulatory change to date has been slow and even the much-awaited EU Artificial Intelligence Act is not expected to come into force until the end of 2023, with a number of provisions applying 24 months after this. In the UK a white paper has been released with the aim of reporting on government's proposed next steps by the autumn (A pro-innovation approach to AI regulation, Department for Science, Innovation and Technology, March 2023). EU, US and UK proposals do share some common threads including the need to safeguard data privacy and to combat discrimination found in data sets used to train large language AI models or in algorithms.

What does this mean for barristers?

Over the pandemic many barristers' practices were fundamentally reshaped by technology, from the adoption of electronic bundles to the rise in remote hearings. Those at the Commercial Bar will have witnessed the prevalence of disclosure software to streamline litigation and be more cost effective.

In February this year, Luminance, an AI document search tool, was used in an Old Bailey murder trial. The criminal defence barrister called on the Ministry of Justice to invest in the technology to save time spent manually searching through thousands of pages of disclosure (see 'Robot laws: First barrister to use AI in Old Bailey murder trial urges government to push forward cutting edge tech', Louis Goss, City AM, 7 February 2023). There are already tangible benefits for those who have adapted their ways of working to benefit from technology. Further changes will come. For those at the start of their practice, familiarity with AI and how it can be used will become essential.

On the solicitor side of the profession, there have been some enthusiastic adopters of AI tools. Around 3,500 Allen & Overy lawyers have...