Page 37 - January 2019 | Cleveland Metropolitan Bar Journal

Generally, for actus reus to be met the action determining whether there is a need to reveal
done by the actor must be voluntary. Due to the AI proprietary information or algorithm. The law firm
the current limitations of AI, AI is unable to act Under current laws, AI may find some of Solomon,
voluntarily beyond the confines of the algorithm protection under patent law; however, patent Steiner & Peck,
that the creator designed. Furthermore, AI at this law is not a complete defense because of some
current stage does not have the cognitive ability of the underlying technology used in AI like Ltd. is excited
to recognize the requisite mental state required data compilations. However, AI can be easily to announce
under most state laws. protected under federal and state law as a trade that Attorney
Due to this, courts and prosecutors must secret. In general AI meets the requirements of
focus their attention on holding the AI a trade secret because the AI is an economically Todd Bartimole will be joining
creator and the AI user accountable for the valuable secret. For the AI system to be the firm as a new partner.
actions of the AI. By doing this, courts and protected as a trade secret reasonable measures His practice areas include
prosecutors can still apply the traditional must be taken to ensure secrecy is maintained. elder law, estate planning,
model of criminal liability and treat the General counsels for companies working
AI as the tool of the creator or the user. on AI must ensure that reasonable measures and disability/special
However, as AI becomes more intelligent, are put in place to protect the AI as a trade needs planning.
courts and prosecutors may need to change secret. For those trying to seek admission
the traditional model of criminal liability to or discovery of the AI algorithm need to Contact us to speak with
encompass AI that acts beyond the intention inform the courts on the importance of Todd about your needs.
of the users or the creator. understanding how the algorithm works and
having the underlying data.
The AI Court: a Trade Secret
In 2013, Eric Loomis was arrested by officers in The AI Employer
Wisconsin on charges of being the driver in a In 2014, Amazon began to build an AI
drive-by shooting. Mr. Loomis took a plea deal system that specialized in reviewing
that convicted him of two minor crimes, which resumes. The system was built using natural 6105 Parkland Boulevard, Suite 140
led him to a six-year prison sentence based on language processing, which allowed the AI Mayfield Heights, Ohio 44124
the court finding Mr. Loomis was a risk to the to understand language as it is spoken by 216.765.0123
community. In making the decision, the court humans. The AI system was also provided www.ssandplaw.com
relied in part on a score from COMPAS, a 10 years worth of resumes to aid the AI to
weak AI system that creates an assessment of recognize key patterns in resumes that would
whether the person is predicted to recidivate weed out weak candidates. However, after in the future including determining liability for
based on comparing data and information of only a year, Amazon stopped using the AI. autonomous vehicle accidents, ownership and
people in similar data groups. Amazon found that the system had trained licensing works of art and literature created by
Mr. Loomis appealed the court’s decision itself to weed out women and prefer men AI, and the constitutionality of using digital
to use COMPAS all the way to the Supreme despite qualifications. AI avatars as lie detectors. As AI technology
Court of Wisconsin. In State v. Loomis, 881 The flaw in Amazon’s AI was how the system continues to advance and reach into every
N.W.2d 749 (2016), Mr. Loomis argued that was trained to spot patterns. Specifically, the aspect of our life, so too will AI continue to
using COMPAS violated his due process rights. resumes that the AI was given to rely upon in infiltrate the law. As AI becomes intertwined
Mr. Loomis asserted that he was unable to seeking good candidates heavily favored men. with the law, attorneys on both sides, civil and
verify the accuracy of his sentencing because criminal, will need to be prepared to handle
COMPAS’s algorithm is held as proprietary Current Laws and the Future for AI the the issues that AI will create. Attorneys should
information. The Supreme Court of Wisconsin Employer not fear this technology, but should embrace it
did not agree with Mr. Loomis, holding that Under Federal Law, an employer cannot and the new opportunities that lay ahead.
courts could rely on COMPAS as a part of discriminate in the hiring process, thus
the risk assessment. The Supreme Court was consideration of a person’s race, religion,
satisfied that Mr. Loomis was able to verify gender, etc. is not allowed. Because AI systems, Alexandra (Ali) N. Nienaber is an
the accuracy of COMPAS’s report because like Amazon’s can make decisions that associate at Koehler Fitzgerald LLC,
COMPAS provided a brief sheet on how the clearly violate the law, the general counsel of where she works on commercial
questions were evaluated. companies using the AI systems need to be on litigation and Out-of-Network defense.
alert. General counsels should be evaluating She is a graduate of Michigan State
Current Laws and the Future for the AI the technology and ensuring that the results University College of Law. Before joining Koehler
Court: a Trade Secret are legal and non-discriminatory. Fitzgerald LLC, Ali was the Legal Innovation Counsel
COMPAS was considered proprietary for Michigan State University College of Law’s
information by Wisconsin Supreme Court. THE fUTUrE Of AI And THE lAW LegalRnD program. She has been a CMBA member
However, COMPAS is one example of how The complexities of AI are already reaching our since 2017. She can be reached at (216)539-9370,
courts are evaluating AI technology and courts and AI is sure to present more legal issues anienaber@koehler.law, or @AliNNienaber.
January 2019 Cleveland Metropolitan Bar Journal | 37