Denver Tech Confluence - April 2018

1. www.LinkedIn.com/in/NoahKaplanNOAH KAPLANwww.NoahBKaplan.com
ARTIFICIAL INTELLIGENCE AND LEGAL LIABILITY
DENVER – TECH CONFLUENCE – APRIL 2018

2. www.NoahBKaplan.com
ABOUT ME – NOAH KAPLAN
 J.D. Harvard Law School
 Law Journal Online Content Editor/Podcast Host
 Communications and Internet Law and Policy
 Advanced Problem SolvingWorkshop – Cyberlaw and IP
 In-House counsel for national non-profit network
 Cybersecurity roundtable with non-profit legal counsel and IT staff
 SecureSet Academy HUNT Analyst Program
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN

3. www.NoahBKaplan.com
WHAT IS ARTIFICIAL INTELLIGENCE?
 For the purposes of this talk, use your
imagination.
 If the term “AI” turns your stomach because
it’s just a marketing buzzword – choose
another one:
 Machine Learning/Reinforcement Learning
 Machine Intelligence
 Deep Learning
 Automated Reasoning, etc.
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN

4. www.NoahBKaplan.com
TORTS – A FIRSTYEAR LAW SCHOOL FLASHBACK
 Tort - “a wrongful act other than a breach of
contract for which relief may be obtained in the
form of damages or an injunction”
 Legal Elements:
 Duty of Care
 Breach
 Causation
 Injury
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN

5. www.NoahBKaplan.com
SIMPLE LAW SCHOOL TORTS EXAM QUESTION
Alice takes her daughter, Carrie, to the park to play.
While Alice is talking to Bob, Carrie runs into the street
chasing a ball. David, who is driving the speed limit and
watching the road ahead, brakes to avoid hitting Carrie
as she darts out from between two cars. Edward, who is
driving behind David and looking down at his phone,
rear ends David. David’s car hits Carrie and Carrie is
injured. Analyze the rights and liabilities of each party
involved in the accident.
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN
EASY
ENOUGH,
RIGHT?

6. www.NoahBKaplan.com
FUTURE LAW SCHOOL TORTS EXAM QUESTION
Alice takes her daughter, Carrie, to the park to play. While
Alice is talking to Bob, Carrie runs into the street chasing a
ball. David’s car, who is driving the speed limit and watching
the road ahead which is an autonomously driving vehicle,
brakes to avoid hitting Carrie as she darts out from
between two cars. Edward David, who is driving behind
David the “backup safety driver” and looking down at his
phone, rear ends David fails to recognize that the car will
not brake in time and does not take evasive action. David’s
car hits Carrie and Carrie is injured. Analyze the rights and
liabilities of each party involved in the accident.
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN
NOW LET’S
CHANGE
SOME THINGS.

7. www.NoahBKaplan.com
SOUND FAMILIAR?
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN

8. www.NoahBKaplan.com
WHATWE USED TO DO
 MacPherson v. Buick Motor Co. – NewYork Court of Appeals (1916)
 Decision by Benjamin Cardozo – later a Supreme Court Justice
 “If the nature of a thing is such that it is reasonably certain to
place life and limb in peril when negligently made, it is then a thing
of danger. Its nature gives warning of the consequence to be
expected. If to the element of danger there is added knowledge
that the thing will be used by persons other than the purchaser,
and used without new tests, then, irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it
carefully.That is as far as we need to go for the decision of this
case . . . If he is negligent, where danger is to be foreseen, a
liability will follow.”
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN

9. www.NoahBKaplan.com
PROBLEMS WITHTHE OLD APPROACH
 Duty
 Control/Agency
 Foreseeability
 Res Ipsa Loquitur
 Assumption of Risk
 Strict Liability
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN
“[B]y its nature, deep learning is a particularly
dark black box. You can't just look inside a
deep neural network to see how it works.”
-Will Knight, MITTechnology Review

10. www.NoahBKaplan.com
SO WHAT DOWE DO?
 Law doesn’t exist in nature.
 We need a robust debate around who has what
duties in regard to AI and automation.
 States are already passing laws related to
autonomous vehicles
 Federal legislation could preempt state laws
 And could lean either way
 Not much action on AI more broadly
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN
“We believe in innovation, but
have given up on progress”
Sebastian Buckup
Executive Committee Member,
World Economic Forum

11. www.NoahBKaplan.com
NOT JUST ABOUT CARS
www.LinkedIn.com/in/NoahKaplanNOAH KAPLAN
“OpenAI’s mission is to ensure that artificial general intelligence, [i.e.,] highly
autonomous systems that outperform humans at most economically valuable work —
benefits all of humanity.” - OpenAI Charter