Generative AI: Constitutional Expectations in the Smart Age

“The development of AI is as fundamental as the creation of the microprocessor, the personal computer, the internet, and the mobile phone. It will change the way people work, learn, travel, get health care, and communicate with each other. Entire industries will reorient around it. Businesses will distinguish themselves by how well they use it.”

— Bill Gates

Today, the U.S. is adjusting to a fascinating and ever-evolving legal landscape as we delve into the realm of artificial intelligence (“AI”) and smart devices, from smartphones to assistive technologies like Google Voice and Amazon Alexa.

While the modern digital era offers new and exciting opportunities to improve our quality of life and achieve substantial advancements in scientific and medical communities, the ever-evolving world of AI also raises important questions that we must address as privacy, accountability, and the definition of intelligence dance together in a complex tango.

In this blog, we’ll review key interactions between the law and our beloved (or feared) smart assistants by exploring what the future perhaps holds for new-and-improving digital companions. Keep reading to learn more about legal and ethical implications of AI-generated content and technologies in 2023.

ChatGPT & Me: Understanding Artificial Intelligence in 2023

ChatGPT, short for “Chat Generative Pre-Trained Transformer,” is one of many AI technologies that has developed in recent years. Classified as a type of generative artificial intelligence (AI), ChatGPT is made up of a subset of computer language programs that can generate new text, images, content, and data with little to no human input.

As a large language model (LLM) processing tool, ChatGPT interacts with users using language to generate data in response to requests, meaning the program can code, write stories, compose scripts for TV or films, and perform infinite other tasks.

While AI can open the door to seemingly endless opportunities, it’s imperative to understand the ethical and legal implications of AI technology prior to using it, especially as it continues to improve over time.

Generative AI: Legal & Ethical Implications

From self-driving cars to advancements in education and healthcare, the impressive and evolving world of AI can offer humans the exciting opportunity to complete tasks faster and more effectively than ever before. Even so, no technological advance occurs without obstacles. When it comes to generative AI technology, industry experts have so far highlighted some key issues to consider include:

• Privacy concerns – AI systems are trained on large amounts of data that can include sensitive information, such as personal details and private conversations.
• Misinformation – Language models are known to generate compelling text, which can be used to spread misinformation or influence public opinion.
• Bias and discrimination – Generative AIs like ChatGPT can perpetuate and amplify existing biases in the data they are trained on.
• Autonomous decision-making – As generative AIs continue to develop and advance over time, experts predict that such technologies will become a key component in decision-making systems across various industries.
• Economic security – An estimated 300 million jobs are predicted to be lost or degraded by artificial intelligence as generative AI continues to evolve and take root in the U.S. workforce.

Is Generative AI Protected Under the First Amendment?

AI-generated content raises serious questions and legal implications when considering America’s future and its role in the broader global landscape. AI technologies like ChatGPT implicate certain constitutional provisions, including expression and speech protected under the First Amendment.

When we consider the First Amendment, the first thing that typically comes to mind is the Constitutional right to free speech. Yet there is no clear-cut answer on whether this protection extends to AI-generated content. Some argue that the First Amendment principle of free speech isn't limited to humans, but extends to entities like corporations and potentially AI technologies. For example, in 2010, the Supreme Court in Citizens United v. Federal Electoral Commission held that corporations (which are clear examples of non-humans) also have First Amendment rights. Churches and media houses (newspapers, magazines and social media platforms) are other examples of non-human entities that enjoy First Amendment rights. To that end, a recent article by Time Magazine also made the point that “content created by generative AI probably has free speech protections. It is speech. It is speech that is created out of the raw material of human speech. It is created from code made by humans.” So if generative AI technology is simply a tool (or a medium) for generating, improving, transmitting and expressing human ideas, then just as ideas expressed on the radio or television or social media receive First Amendment protection, so too will AI-generated speech.

But on the other hand, some dispute the idea that AI-generated content is protected under the First Amendment. For instance, one Harvard scholar argues, “At the present time, AI, as such, does not have First Amendment rights, just as televisions, hats, motor vehicles, and blankets do not have First Amendment rights.”

Artificial Intelligence & the Rise of Misinformation

In the past, Supreme Court decisions held that false speech has little to no utility in public discourse, but later cases have tempered this position. One example is United States v. Alvarez, a 2012 case involving a man (Alvarez) charged and convicted under the Stolen Valor Act for falsely claiming to have been awarded military honors.

But the Supreme Court ultimately reversed the conviction, ruling that the statute was unconstitutional because it allowed the government to impermissibly penalize a large swath of false speech—in other words, speech that wasn't causing any concrete harm. This is a crucial decision because it shows that the First Amendment denies the U.S. government the power to penalize speech, perhaps even online speech, that does not result in actual damage or harm to anyone

But this doesn't mean all AI-generated speech is immune to legal repercussions. Under longstanding law, machines are generally considered tools, and the one using the tool is generally responsible for any harm or damages that may ensue.

Lawyers and law firms have duties of confidentiality over clients’ confidential and privileged information. This duty begins with the lawyers and extends to nonlawyer staff—whether employed internally or externally—that attorneys and law firms employ in their legal practices.

Ethically speaking, attorneys can be held liable for any wrongdoing caused by AI-generated content, whether the content is produced by themselves or other nonlawyer staff within their legal establishment.

Impact of AI on Criminal Proceedings

In most criminal cases, Siri, Alexa, and ChatGPT-like tools will likely trigger two key questions:

1. Can the government compel disclosure of the user's data in "smart" devices?
2. If so, under what circumstances?

The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In other words, the primary purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. So what does this mean for unlawful searches and seizures concerning AI technologies, particularly when it comes to criminal proceedings?

In the 2014 case Riley v. California, the Supreme Court ruled that the government must have a valid search warrant to lawfully access a user’s internal data from a cellphone. Since smartphones are functionally like mini-computers, and smart assistants are themselves a form of a mini-computer, then it is possible that the Supreme Court’s analysis in Riley might also apply to internal data on theAmazon Alexa, or other “smart” assistants like Chat GPT, “Siri” on iPhones, and “Bixby” on Android.

Under the Fourth Amendment, Americans have the right to remain free from government intrusions on their own person and property. And since many of these smart assistants and generative AIs are computer-like tools accessible within the home, the government generally needs a warrant to enter to access them. Thus, “smart” assistants whose data can be accessed from within the home generally require a search warrant to be seized lawfully under the U.S. Constitution. The warrant must generally specify the exact data to be searched and its relation to specific criminal allegations.

What Does the Future Hold for AI Technology?

With the way technology is rapidly improving, it is impossible to accurately predict all that the future holds for generative AI-technology. But as AI technologies continue to expand and influence our lives, it’s important to stay up-to-date on current regulations while complying with state and federal laws, especially as such legal protections are modified or expanded over time. As we embrace the technological marvels they provide, it’s important to keep in mind that the future of smart assistants lies not just in their code, but in our collective intelligence to ensure they serve us without jeopardizing our humanity.

Experienced Civil Rights Attorneys in Tulsa

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