Holding Providers Accountable? Considering AI in eDiscovery Software and Service Provider Messaging #
AI in eDiscovery
The rapid advancements in artificial intelligence (AI) technology have the potential to revolutionize various industries, including finance, law, media, medicine, and technology, as well as the cross-industry segments of cybersecurity, information governance, and eDiscovery. However, these advancements also raise concerns about potential biases, discrimination, and misleading claims surrounding AI-driven products and services. The Federal Trade Commission (FTC) has provided guidance and posed critical questions to help businesses harness AI’s benefits without inadvertently introducing unfair outcomes or making false claims. This ComplexDiscovery summary presents two key FTC articles regarding AI and explores how their guidance and questions can be applied to the marketing and communication strategies of eDiscovery software and service providers.
FTC Article #1: Aiming for Truth, Fairness, and Equity in Your Company’s Use of AI (1) #
Summary and Considerations
This article from the FTC discusses the potential issues of bias and discrimination in artificial intelligence (AI) and how the FTC provides guidance on using AI ethically. The FTC has experience enforcing three important laws relating to AI: Section 5 of the FTC Act, the Fair Credit Reporting Act, and the Equal Credit Opportunity Act. Based on these laws, the FTC offers seven statements of exhortation to help businesses harness AI benefits without introducing unfair outcomes:
- Start with the right foundation: Ensure a solid data foundation to avoid unfair or inequitable results for legally protected groups.
- Watch out for discriminatory outcomes: Test the algorithm to ensure it doesn’t discriminate based on race, gender, or other protected classes.
- Embrace transparency and independence: Promote transparency and allow independent researchers to examine data, algorithms, and results.
- Don’t exaggerate what your algorithm can do: Ensure that claims about an algorithm’s capabilities are truthful and supported by evidence.
- Tell the truth about how you use data: Avoid misleading users about data collection and usage, as seen in the FTC complaints against Facebook and Everalbum.
- Do more good than harm: Ensure that the algorithm’s benefits outweigh any potential harm to consumers or competition.
- Hold yourself accountable: Implement transparency and accountability measures to avoid FTC intervention for violations of the relevant laws.
This guidance from the FTC can be beneficial for eDiscovery service and software providers in several ways:
- Enhancing data quality and reliability: By starting with the right foundation, eDiscovery providers can ensure that their AI algorithms are built on high-quality data, leading to more accurate and reliable results in the discovery process.
- Reducing the risk of biased outcomes: By watching out for discriminatory outcomes, eDiscovery providers can minimize the risk of biased search results, which could lead to incomplete or skewed evidence in legal proceedings.
- Building trust through transparency: Embracing transparency and independence allows eDiscovery providers to demonstrate their commitment to ethical AI practices. This can help build trust with clients, the legal community, and regulators, potentially leading to more business opportunities.
- Managing client expectations: By being truthful about the capabilities and limitations of their AI algorithms, eDiscovery providers can manage clients’ expectations, reducing the risk of dissatisfaction and potential disputes.
- Ensuring compliance with data protection laws: By being transparent about how data is used, eDiscovery providers can ensure that they comply with data protection laws and regulations, avoiding potential fines or legal actions.
- Balancing benefits and potential harm: By doing more good than harm, eDiscovery providers can create AI solutions that optimize the discovery process while minimizing the risk of adverse consequences, such as privacy violations or the exclusion of relevant evidence.
- Promoting accountability and avoiding regulatory action: By holding themselves accountable and adhering to the FTC’s guidance, eDiscovery providers can reduce the risk of regulatory action, ensuring the continued operation of their business and maintaining a positive reputation in the industry.
Following the FTC’s guidance can help eDiscovery service and software providers create AI-driven solutions that are more ethical, reliable, and compliant with legal and regulatory requirements. This, in turn, can lead to better outcomes for clients and a more trusted and successful eDiscovery industry.
FTC Article #2: Keep Your AI Claims in Check (2) #
Summary and Considerations
This article from the FTC discusses the issue of AI hype and the potential for marketers to overuse and abuse the term “artificial intelligence.” The FTC warns businesses against making false or unsubstantiated claims about their AI products, as these can lead to enforcement actions. The FTC may question the following aspects of AI advertising:
- Exaggeration of AI capabilities: Marketers should not claim their AI product can do something beyond the current capability of any AI or automated technology, and they should have scientific support for their performance claims.
- Promising superiority over non-AI products: Advertisers must have adequate proof to back up claims that their AI product performs better than a non-AI product.
- Awareness of risks: Businesses need to be aware of the reasonably foreseeable risks and impacts of their AI products and cannot blame third-party developers or claim ignorance if something goes wrong.
- Actual use of AI: Marketers should not make baseless claims about their product being AI-enabled, and should note that using AI in the development process is not the same as having AI in the product itself.
This FTC guidance on AI claims is particularly beneficial for eDiscovery service and software providers for several reasons:
- Exaggeration of AI capabilities: By ensuring that AI claims are accurate and supported by scientific evidence, eDiscovery providers can build trust with their clients and avoid potential legal issues arising from exaggerated performance claims. This can lead to better client satisfaction and protect the provider’s reputation in the market.
- Promising superiority over non-AI products: By backing up claims of AI superiority with adequate proof, eDiscovery providers can confidently demonstrate the value their AI-driven solutions offer. This can help them stand out in the competitive market and attract clients who are seeking advanced, reliable, and efficient eDiscovery solutions.
- Awareness of risks: Understanding the potential risks and impacts of their AI products helps eDiscovery providers to proactively address these issues, ensuring their solutions are reliable and compliant with legal and regulatory requirements. This can reduce the risk of costly legal disputes, protect the provider’s reputation, and increase client confidence in their services.
- Actual use of AI: By being transparent about the actual use of AI in their products, eDiscovery providers can avoid misleading clients and ensure that their AI-driven solutions deliver the promised benefits. This helps to build trust with clients and ensures that providers are offering genuine value through their AI-enabled products and services.
By adhering to the FTC’s guidance on AI claims, eDiscovery service and software providers can ensure that they build trust, protect their reputation, and drive business success in a competitive market.
- Jillson, E. (2021) Aiming for truth, fairness, and equity in your company’s use of ai, Federal Trade Commission. Federal Trade Commission. Available at: https://www.ftc.gov/business-guidance/blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai (Accessed: April 8, 2023).
- Atleson, M. (2023) Keep your AI claims in check, Federal Trade Commission. Federal Trade Commission. Available at: https://www.ftc.gov/business-guidance/blog/2023/02/keep-your-ai-claims-check (Accessed: April 8, 2023).