AI – AEA

The virtual law firm

Napisane przez AEA - EAL w dniu 2020-07-15. Opublikowano w Articles.

July 15, 2020

Alex Tallon

The evolution that our society has known in the last forty years is impressive and mainly has to do with the development of new technologies. The question is to what extent this has already profoundly influenced the legal profession.
In the current organization of the law firm, the possibilities offered by these means of communication and the access that this makes possible to documentation and thus to knowledge must surely be taken into account and be implemented.
The Covid crisis has got this advantage that it has forced to accept and implement forms of co-working including the possibilities of teleworking and virtual meetings. This means however that, as far as law firms are concerned, these must change fundamentally their organization and also, in a certain way, their relationship with the clients. The manner to provide legal services must take into account the use of these technologies. These technologies allow various forms of digitization or dematerialization of the lawyer’s activities. The most extensive form of dematerialization consists of the paperless management of the office with the collaboration between the participants of the office on an Electronic Collaborative Platform (here abbreviated as ECP). Current contribution aims to review the possibilities that the new technologies allow for the organization of the law firms, their services to the client, the profitability of their activities, and how this should be accommodated within the application of our deontological rules.

A. The organization of a modern office

1. Influence of modern technologies

It is not disputed that our society has undergone tremendous evolution in the field of word processing, storage and communication technologies over the past 40 years. This evolution within society gives real meaning to the concept of the globalized world. Physical travel is no longer necessary to be in direct contact with the whole world. What’s more, relocations are no longer necessary to gain access to all of science and knowledge. The dangers of this are known. The control of the content and transfer of knowledge and documentation is nonexistent. But the generation brought up on these new technologies and making them their own approaches the world from this perspective.

These new technologies also affect services.
This of course applies to all practitioners of a liberal profession, from the architect to the physician. But above all, this applies to the legal profession. The reason for this is that the lawyer provides a service for which at first sight no special knowledge is required from the moment one has access to the applicable texts. In the current knowledge society in which everyone has, or at least can easily, access, or at least have access to, all laws and regulations, whatever their origin, the lawyer must clarify the added value he has to offer. Good and targeted use of these modern technologies is indispensable for this.

a. Organization of the office.

Modern technologies now allow access from anywhere in the world to the content of all files that are managed.
This of course requires working completely paperless.
An ECP office will therefore have to offer the option of digitizing all files.
To this end, an adapted archive management will have to be established, as well as a nomenclature, which makes it possible to request any document very quickly.
All useful documentation must be electronically accessible. This both internally (models and the like) and externally (access to databases and the like).
More than before, the necessary precautions will have to be taken regarding the preservation of the confidentiality of the data. However, the ECP office cannot close its eyes to the dangers of theft of its know-how and knowledge. Clear agreements must therefore be made with employees with regard to the transfer of copyrights, and the retention of data that may never be copied or carried over. Apart from the deontological aspects associated with it, every office must think carefully about the politics it wishes to pursue towards its employees.
This organization, made possible by modern technologies, is optimized by externalizing the digital storage of data and documentation, as well as all kinds of services related to the management of the software used, in other words through cloud computing. Importance must be given to secure the documents in the cloud.

b. Place of supply of services.

The law and the rules of the bar require that the lawyer has an office, which means a physical establishment in the district of the Bar Association where he is registered. He must be available at that office and have the necessary space to receive clients and keep his files.

A physical location now serves as a starting point to enable registration at the bar. However, it should be possible to request registration at a bar without providing a physical office address. Or at least it can be assumed that the lawyer’s place of residence can serve to determine the place of the bar where he can register.
One must also comply with the rule of uniqueness of the office. Does this ultimately make a lot of sense, now that people can work from anywhere in the world without there having to be any physical connection with the country from which one is supposed to work. For lawyers working in a partnership, this means that they must all be at the same address. In an ECP office, the bar should abandon this maxim. Indeed, in a world where IT allows communicating with anyone anywhere, it makes little sense to require lawyers who have decided to collaborate to also have a joint physical address. It would be advisable to take this (virtual) reality into account and to regard a joint electronic collaborative platform as a sufficient criterion to form a partnership. In that case of course with respect of the rules of conflict of interests.

c. The method of cooperation.

A law firm is primarily a group of people among whom the work that is entrusted by clients is distributed.
Assistance to the lawyer in the management of an electronic file is not of the same nature in an ECP office. These new tasks must be completed and must also be used optimally. It requires a thorough adjustment.
But cooperation with intellectual input must also be adapted to the electronic management of the office. Working with an electronic collaborative platform allows for great flexibility. Thus, more than before, the work can be delegated in an optimal way, with a more efficient and above all more reactive control, since the work is always fully available and controllable. The collaborative platform also makes it easy to collaborate on a file not only with two, but also with several people.

d. The service to the client.

The services of the lawyer mainly consist of quality and reactivity. The quality in itself mainly depends on the competence of the lawyer. The services in a paperless office can probably facilitate this quality by giving better access to documentation, closer control by the client (which one can grant access to the electronic file and thus the completed tasks), an optimization of the cooperation by to combine work force and experience.
Reactivity can also be optimized in an ECP office. The direct contact between client and service provider and the permanent possibility of exchanging information allow exceptional reactivity when compared to traditional working methods.

e. The execution of the service.

The traditional service consists of answering a legal question, editing contracts, assisting during proceedings. Most lawyers provide 'custom work’.
This has already been challenged in traditional offices by two evolutions: the specialization and the use of standard forms.
The electronic management of files and documentation allows law firms to create databases, so that they can fall back on work that has already been performed to provide an answer to the client.
These databases can also be made available to the client for a fee. The ability to provide more and more services as standard allows the profession to evolve from service to product provider. This fundamentally changes the legal profession, because the performance will have to focus more on updating data than on a file-related and specific answer to a legal question. The client will have access to the latter and will consult the law firm that can offer him the most reliable database.
This can also be optimized with the use of artificial intelligence. The challenge for law firms here is to gather sufficient financial resources to develop AI tools. Rather, it appears to be a task for lawyers’ organizations or partnerships based on mutualisation.

f. Access to knowledge.

Before the emergence of the world wide web, and the possibilities thus offered, access to knowledge in a certain matter was reserved for a few privileged people.
This time has passed. The knowledge is now available to everyone and immediately available. The question is what one does with this accessibility. In any case, expertise is still needed to actually convert this access to knowledge into usable knowledge.
The law firm can play a role in this. Internally by providing employees with the necessary tools to have electronic access to the most up-to-date documentation and, if necessary, their own database. The latter will certainly be part of an office’s intellectual value.
Externally through the exchange of data and knowledge with clients or even interested parties, whether or not for a fee.

2. The benefits

This organization offers several benefits to the lawyer and the client.

a. The cost of the service.

The elasticity of pricing of lawyers’ performance is high. The client is primarily interested in the quality of the work delivered.
However, the client is more sensitive than before to the cost of legal services. It must be admitted that this cost price is not cheap in the traditional working method.

So, there is undoubtedly an evolution going on, which is also influenced by computer science and social media, with the law firms also emphasizing the price-quality ratio of the services provided.
Because more and more work can be standardized, and because the presence on the net can also give greater visibility to more offices, competition is becoming more and more common, so that the rates can determine the choice of lawyer.

In the ECP office, fixed costs can be significantly reduced: teleworking allows the office space to be reduced significantly, the number of staff in charge of administrative tasks can also be reduced, in other words the costs of administrative support are reduced to a minimum.
This allows not to charge useless costs to the client.
For some specific performance, for some specific areas, the pricing is likely to be of little importance, and the reputation of the lawyer or firm is decisive for the choice of lawyer. However, this domain is shrinking and only applies to a small part of the legal market. For the remainder, and therefore for the most part, it will be important to demonstrate that quality is delivered at the lowest possible price. The development of an ECP office is undeniably an asset.

b. The quality of the service

Apart from this pricing, quality is of course important. This quality will always depend on the people who practice the profession. As a professional group, it therefore remains necessary to monitor the quality of the legal profession in general. Professional organizations can do little to nothing to provide a guarantee of this quality, to the extent that they must provide this guarantee. The client is therefore expelled on his own, and on what makes the reputation of some office or other. For this, people are increasingly focused on the comments in social media and the presence of lawyers or offices is not without importance. Ultimately, it is the market that provides insight into what is successful or not, and often, not always, this is accompanied by quality.

This quality is probably best framed in an ECP office and thus the principles of collaboration on an electronic platform:
– such an organization increases the reactivity of the lawyer; this to the great satisfaction of the client. The client thus has the impression that he has an in-house lawyer;
– the electronic collaborative platform makes it very easy to let a group of lawyers work together who, due to their diverse competences and experiences, can optimize the quality of the service.

c. The cooperation between the lawyers

The electronic collaborative platform is essential within the organization of the modern office. This increases the quality of the cooperation between the lawyer dominus litis of the file and often partner within the firm, and those who assist him in providing the legal services.
The absence of location-related services increases in practice the quantity and quality of the collaborative work in order to achieve the most efficient cooperation, with a view to the best possible execution of the mandate or answer to the legal question, and thus in the interest of the client.

d. The profitability of the law firm

The classically organized office suffers from numerous fixed costs. These undoubtedly have an influence not only on the price that can be attributed to the client, but also on the intrinsic profitability of the office.
An ECP office allows to reduce the fixed costs as much as possible. As a result, such an office has a high return on the final fee charged to the client.

e. The welfare of the lawyer

It is a widely recognized observation that today’s society generates more stress; the working comfort decreases rather than increases.

The choice that many offices have to make, regardless of the different levels of digitization, between the paper and the paperless office is probably no surprise. The compromise between the traditional working methods of the paper office and the various forms of working methods made possible by its dematerialization increases this stress, partly because double checking is required and there is a fear of mistakes or misunderstandings.
The resolute choice for an ECP office and the associated paper lessness, collaborative working methods and task management, allow for a more comfortable planning and execution of the work.
In particular, the electronic methods of task management take away the stressful aspect of an unidentifiable deadline. An electronic collaboration organization does not reduce the work or the deadlines but allows them to respond with greater serenity.

3. The disadvantages

A number of drawbacks, or at least risks, can be mentioned that are linked to this modern organization:

a. The remote and looser collaboration.

Cyberspace simultaneously creates a collaborative platform, but also an organization that is very much focused on the individual. This individualism must always be opposed, because it can degenerate into a trapped image. If the partnership is not always fueled by meeting moments – which may be electronic – there is a risk of losing contact and thus achieving the opposite effect from what is desired.
The ECP office must pursue an animation policy in various ways and develop a business model that strengthens the bond between the participants. This is also accompanied by building up a strong 'office brand’ (branding, communication) that also underlines the bond between the participants of the office for the clientele.

b. The blurred image for the client.

The modern office organization allows, in the extreme case, to manage files without ever having seen the client, let alone heard. This form of abstraction, and perhaps the absence of humanity, can create an impersonal image that is not conducive to customer loyalty. This must therefore be regularly answered and / or contested by building in moments for these personal contacts.
Building a strong 'office brand’ is therefore essential in order to convince the client of the cohesion of the participants of the ECP office.

c. Keeping the documents.

It should never be forgotten that there is still a need to keep the paper version of some documents, to preserve their evidential value. It is therefore necessary to combat the risk of losing valuable paper documents.

d. Loss of place binding.

Advice in legal matters often also has to do with identity and community. This can be interpreted culturally in different ways but is clearly location specific. The full digitization and non-location-bound office organization may ignore this cultural aspect, with all its consequences. Legal services remain a human matter, so it may also be related to the location of the persons requesting this legal service. The ECP office will therefore always have to take social and cultural considerations into account.

4. Is the modern office an ECP office?

The ECP office is therefore not a 'virtual office’ in the sense that it is not the second life version of a law firm. But it also allows it on the other hand. It is an organization that is fully committed to digitization and the use of the most modern techniques to practice as a lawyer.
Therefore, the modern office, the office of the future, is necessarily an ECP office. All offices have already opted for digitization but have almost never extended this to the organization itself of the working conditions.
It is this link that must be made to actually turn the law firm that uses a number of digitization techniques or modern technologies into a modern office.
There is a great degree of difficulty in moving from the traditionally organized office to an ECP office. A step-by-step transition to an electronic collaborative platform is almost impossible and requires taking so many obstacles that the outcome is uncertain. After all, it is not an evolution, but a true revolution in the organizational form of the office.

B. The deontological framework of the ECP office.

In every technological evolution, be it the telephone, the fax, the informatics, the mobile telephone, the legal profession has asked itself questions regarding the combination of this technology with the basic values of the profession. But too often people forget that technology is not an end in itself, but only a means of practicing the profession.

There is no choice in the field of tension between modernity and traditional values. Both must go together. Traditional values must not prevent modern interpretation of the way in which services are provided by a lawyer, at the risk of disappearing as a professional group.

1. Can modern technologies go hand in hand with safeguarding the core values of the profession?

This question should be examined mainly in the light of professional secrecy and the independence of the lawyer, the two core values that are sometimes said to be challenged when using modern technologies.

a. Professional secrecy.

The legal profession requires the respect of the professional secrecy as a foundation of the lawyer’s statute. It means that the core activities of a lawyer can only be exercised in a privileged relationship of trust between the lawyer and his client. If a client cannot trust his lawyer, it is not possible for the lawyer to perform his duty of defense and determining the legal position of his client.
This requirement to safeguard professional secrecy is not a right, but a duty of the lawyer.
It must therefore be stated that, in the exercise of his profession, the lawyer makes every effort to guarantee professional secrecy.
In most cases he does this by not answering questions about a file, by not disclosing the information, etc.
This professional secrecy will also protect confidential correspondence and documents against criminal prosecutions, albeit with occasional exceptions that do not alter the fundamental principle.

When it comes to the use of modern technologies, the lawyer must make every effort to keep confidential the information communicated to him.
However, this requirement must be met with common sense.
Thus, it will not be forbidden for an employee to take cognizance of confidential information, for example by typing a confidential letter. This is then called shared professional secrecy. The lawyer shares his professional secrecy with the persons he entrusts with executive duties.
Nor will it be required that all data entrusted by a client be put in a safe. No bar has ever considered it useful to oblige a lawyer to install a high-performance alarm system in his office.
In other words, when a client provides confidential information to a lawyer on a medium, there is always a risk that this document will end up in the wrong hands at some point, even if the risk is minimal and the lawyer will do everything to avoid it.
Hence, any prudent lawyer will sense when to take special measures for certain files or documents.
There are several reasons for this, including:
– the document is part of a very sensitive file
– the document is unique: losing it would have very serious consequences for the client
In these cases, it can be assumed that these documents would be stored in a safe, for example; or that the lawyer refuses the original, having regard to the risk involved in the event of loss.

It must be considered as a form of prohibition of the use of modern technologies to make this subject to strict conditions in order to preserve confidentiality. This makes it impossible to use these technologies. As if the lawyer who uses these technologies would not pay attention to this confidentiality or that his client would ignore it.
This applies, inter alia, when talking about terms and conditions imposed by the providers of these modern technologies.
Bar leaders who consider that certain forms of these technologies cannot be used because they would not provide sufficient protection for professional secrecy bypass market mechanisms to which the lawyer, like any service provider, must submit.
However, Bar organizations could join forces and impose conditions on providers of modern technologies. But is this one of the core tasks of a Bar Association?

b. The independence.

The use of modern technologies makes the legal profession dependent on the access providers to these technologies.
Likewise, every law firm relies on modern means of communication and electricity. This 'dependence’ does not jeopardize the independence of the lawyer.
The lawyer’s independence is a state of mind. It is difficult to include this in deontological rules, other than by introducing certain categorical prohibitions (like the rules concerning the conflict of interest).
The fact that the lawyer is dependent, for the organization of his office, on a number of service providers who can have a very important influence on the way in which this lawyer provides his services, does not affect the fact that he exercises his profession in complete independence.

2. The position of the CCBE

Few bars have regulated the use of modern technologies. Most bar councils assume that the ethical rules apply unchanged, without the technology used by the lawyer having any influence on this. It is often framed in guidelines or recommendations. Whether these meet the real needs is often the question.

For this specific topic, we can refer to the guidelines 'on the use of cloud computing services by lawyers’ adopted by the CCBE on September 7, 2012. The CCBE wants to draw the attention of attorneys to the risks associated with the use of 'cloud computing’.
Cloud computing is defined as an IT infrastructure in which data and software can be stored and adapted in external servers that are managed by a service provider via the Internet.
The CCBE rightly states that for the individual lawyer a number of questions can be asked when using cloud computing, which include issues such as:
– professional secrecy and data protection: what is the security of the system? What happens to confidential information and where is it stored? Is there a risk of unauthorized access to the data, both internally (personnel and subcontractors of the provider) and externally (hackers via the internet)?
– Extraterritoriality: are servers used in countries where there is not the same degree of protection as in Europe? Can the local authorities of the place where the data is stored oblige the provider to grant access to confidential information stored on this server?
– The not always clear contract terms with the cloud provider

The CCBE recognizes the great value of cloud computing, but points to the need for lawyers using cloud computing to take the necessary steps to ensure that the confidentiality of its client’s data is guaranteed.
That is why the CCBE considered it useful to lay down these guidelines. In summary, insofar as the rules of the bar allow data to be stored outside the office, the lawyer must ensure that this data is stored securely and in accordance with the European Data Protection Directive; the lawyers who use cloud computing should therefore have an internal policy regarding the way in which they deal with this cloud computing; the choice of the cloud provider must include a selection based on criteria such as experience, specialization, location, etc., with which monitoring of confidentiality is still possible; The CCBE thus also accepts that different ways of storing and using data can be recorded, depending on the type of data justifying a different level of security. The CCBE also recommends taking a number of contractual precautions and ensuring transparency to clients about the use of cloud computing.
Aware of the benefits of cloud computing and the likely impossibility of individual law firms to comply with all recommended guidelines, the CCBE invites national bars to develop mechanisms to make it easier for lawyers to comply with these recommendations, such as proprietary cloud computing infrastructure permitting respect for these guidelines.

3. Is an adjustment of the ethical framework necessary?

It should be noted that there is no specific regulation on the ECP office, but that the bars and national or international bar organizations issue recommendations or guidelines on certain new technologies, in the light of the existing regulations.
However, it should also be noted that these existing regulations are not always adapted to the needs of ECP offices. This applies, for example, to the physical office address, the forms of partnerships, but also to more essential principles such as conflicts of interest and confidentiality. A requirement of transparency is the best guarantee of preserving the essential values of the law profession. This transparency is of course accompanied by the agreement, explicitly or otherwise, of the client with the organizational form of the law firm that offers the services.

CONCLUSION

The existence of ECP offices is a reality. The bars and their organizations must also frame and encourage this.
Adaptation to modern technologies by a professional group that is particularly dependent on the organization and cooperation of the members of a partnership is essential. To forbid some form of use of modern technologies on the basis of a conservative approach to certain basic values is pernicious.
The ECP office allows the efficient and smooth provision of services for the client and reduces costs, which is a competitive requirement. In the current European context, it is important for law firms not to miss the train of modernity.

AI and Ethics

Napisane przez AEA - EAL w dniu 2019-05-31. Opublikowano w Articles.

May 31,2019

Chris Rees

The below intervention was delivered on AEA-EAL conference „AI Beyond Hype” in Edinburgh on May 31, 2019.

Prof Timo Minssen has discussed a number of ethical issues related to AI in a medical context:
• What happens when AI makes a mistake and things go wrong?
• How existing medical regulations will cope with AI
• The tension between patient data privacy and the need for AI to learn from large scale patient data
• The effect of proprietary systems
• Whether AI systems should have legal personalities
• The effect on employment and the potential for unequal wealth distribution
• Bias and discrimination
As he noted, some, indeed many of these issues have wider ramifications than just the medical field. I shall look at some of the same issues, and one or two others, in a broader, societal context. Most of the ethical issues that arise with the implementation of AI systems are not unique to AI. I recently spoke in a debate at the WCIT in London with Professor Richard Harvey, Gresham Professor of IT and Professor of AI at the University of East Anglia on the motion, “There is no such thing as AI ethics, just ethics”. It became apparent in the debate that there are ethical issues which are specific to AI or which AI renders materially more acute. Today I want to look at the main ethical issues that arise in relation to AI, and reflect on the extent to which they are legal issues too.

I shall discuss six ethical topics:

1. Bias
2. Explainability
3. Harmlessness
4. Responsibility for harm
5. The effect on employment and on society
6. AIs impersonating humans

I shall also discuss the question, Does ethics matter in AI? I shall not talk about the trolley problem, because it is boring, old hat, not a real problem even for automated vehicles and was clearly set out by Thomas Aquinas in the 13th century (the doctrine of Double Effect). Nor shall I discuss the ethics of Artificial General Intelligence because I don’t think it’s going to happen.

1. BIAS

Bias is definitely not unique to AI. AI systems are biased because we are biased. Bias in AI systems arises from two main causes, unwitting bias in the minds of the engineers who design and build the systems, and secondly bias in the data.
The vast majority of these engineers in Europe and the USA are young, white males. Nothing wrong with that perhaps but they may not even be aware that they are designing systems that work really well for white males but significantly less well for black females. Famously a very sharp, young black researcher at the MIT Media Lab called Joy Buolamwini was offended when Google’s facial recognition system identified her as a gorilla, and did not recognise her as a human being until she put on a white mask. So she constructed an experiment with about 300 photos of light skinned males and similar numbers of light skinned females, dark skinned males and dark skinned females. The system was close to 100% accurate with the first set, light-skinned males, in the 90% range for the second and third and an appalling 66% for the last, dark skinned females.
AI systems learn from the datasets they are trained on, so any biases in the training dataset will be “learned” by the AI. Biases will be embedded in the datasets because we are biased, in many ways, some of which we notice, others we may not be aware of. Then they go on learning from datasets they operate on, which themselves will have embedded biases. The larger the dataset, the greater the incidence of bias.
Does this matter? Not in all applications. In machine translation, you are interested in the quality of translation into the target language. Google translate copes well with translating into French, “time flies like an arrow” offering “le temps file comme une flêche.” But not so good with “Fruit flies like a banana” – “les mouches des fruits comme une banane.” However gender bias can creep in here too. Turkish has genderless pronouns. Google and other automatic translation engines translate “o bir mühendis” as “he is an engineer”, “o bir doktor” as “he is a doctor”, “o bir hemşire” as “she is a nurse”, and “o bir aşçi” as “she is a cook”. This is offensive rather than critical.
But bias certainly does matter in many ways. As many in this audience will be aware, judges in several American states use an AI system called Compas to determine whether to grant bail to alleged offenders and in Wisconsin to help the judge decide the length of a sentence. The system relies on a number of indicators, which do not include race. However it does take into account where the offender or alleged offender lives, and given the racial distribution of populations in American cities, geography becomes a proxy for race. So a black accused who may well not re-offend, given his record, is more likely to be denied bail than a white man with a comparable record. Compas, developed by Northpointe (now Equivant) is proprietary and Equivant will not divulge how it works. Perhaps they cannot. This is surely unethical.
In the case of Wisconsin v. Loomis, the defendant Eric Loomis was found guilty for his role in a drive-by shooting. Pre-trial, Loomis answered a series of questions that were then entered into Compas. The trial judge gave Loomis a long sentence partially because of the „high risk” score the defendant received from this risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. The state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency. A legal matter or an ethical one too? Both in my view.
This leads to consideration of another important ethical issue, which has legal consequences as well as more general ones, for instance in finance.

2. EXPLAINABILITY

The most popular forms of AI today are based on deep learning via artificial neural networks. It is a characteristic of such systems that they cannot explain how they reach their decisions. Nor can their designers or developers. This is known as the “black box” problem. They continue to learn, once trained and the problem persists. It is a principle of the Common Law that a judge must explain his decisions. If he is relying on a black box system to make or support his decision, he cannot fulfil that obligation. A legal and an ethical problem.
A comparable problem arises if a bank or mortgage company is relying on a black box AI to determine whether to grant you a loan or a mortgage. If it denies your application and cannot tell you why, then you cannot change your application to enhance your chance of success, for instance by increasing your deposit, because you would not know whether this would meet the system’s objections. Many human beings and human institutions refuse to divulge their reasons, but these AI systems cannot do so. A uniquely AI-specific ethical problem. Work is going on to solve it and make them transparent, for instance at MIT Lincoln Labs, but so far no general solution is available as far as I know.

3. HARMLESSNESS

In 1942 Isaac Asimov published his laws of robotics in I Robot. The first was “A robot may not injure a human being or, through inaction, allow a human being to come to harm”. AIs are tools and any tool can be used for good or ill. A knife can be used to cut bread or stab someone. AI can be used for the benefit of mankind or to hurt people. The use of AI-driven drones (let alone stray ones wandering around Gatwick airport) as Lethal Autonomous Weapons Systems (LAWS) is already controversial. Many at the UN argue for them to be banned like chemical and biological weapons. Some nations, including the UK, argue against it. Undoubtedly all the major powers are developing such systems and a number probably deploying them already. Could a LAWS abort a mission if its target had entered a hospital or hidden in a group of children? A drone operated by a human could and would be aborted in such circumstances. I doubt whether an AI system could make such a sophisticated judgement. Similarly would an AI guided drone be able to decide whether to crash land in a populated or less populated area? Again possible but I doubt it. Unethical? Yes, but ethics is not always the first consideration in military thinking. Definitely an issue in international law.
Secondly facial recognition, an AI technology, can be and is being used by repressive, authoritarian regimes to facilitate persecution. The most egregious example in the world is the widely publicised use of facial recognition technology by the Chinese government to identify, arrest and incarcerate over a million Uighurs in Xinjiang inn Western China for no misdemeanour other than being Uighurs and Moslems. Totally unethical. We were there in 2016 and it pains us to witness it. The one positive note in this sorry tale is that the Trump administration is considering blacklisting five Chinese companies (including Megvii, Zhejiang Dahua Technology Co., and Hangzhou Hikvision Digital Technology Co.) which supply these systems to the Chinese government.
More generally the ethical issues raised by the use of facial recognition technology are gaining wide notice. It is useful and convenient that my PC recognises my face so that I don’t need to use a password to access the machine; more significantly it has enabled police to identify and arrest elusive criminals including the suspect in a mass shooting in an Annapolis MD newspaper office last June. But San Francisco has banned its use by the police and public authorities and Ed Bridges is suing South Wales Police over its use of the technology without his permission. He will argue that it is an unlawful violation of his privacy, and his rights to free expression and protest and that it breaches data protection and equality laws.
AI can also be used for criminal purposes, to take over an autonomous vehicle and turn it into a weapon, to attack infrastructure facilities such as telephone networks and power grids, and to gather the data to increase the effectiveness and frequency of spear phishing. There are many other comparable concerns in IoT. Obviously unethical, indeed criminal. The risks need to be assessed in such situations. What this concern emphasises is the crucial importance of cybersecurity in relation to AI, well covered in an excellent report, The Malicious Use of Artificial Intelligence: Forecasting, Prevention, and Mitigation published in February 2018 by a group of scholars who met at Oxford University the previous February. (1)
They identified that the growing use of AI systems would lead to changes in the landscape of threats:

Expansion of existing threats. The costs of attacks may be lowered by the scalable use of AI systems to complete tasks that would ordinarily require human labour, intelligence and expertise. A natural effect would be to expand the set of actors who can carry out particular attacks, the rate at which they can carry out these attacks, and the set of potential targets.

Introduction of new threats. New attacks may arise through the use of AI systems to complete tasks that would be otherwise impractical for humans. In addition, malicious actors may exploit the vulnerabilities of AI systems deployed by defenders. So AIs attacking AIs.

Change to the typical character of threats. We believe there is reason to expect attacks enabled by the growing use of AI to be especially effective, finely targeted, difficult to attribute, and likely to exploit vulnerabilities in AI systems.

In response to this changing threat landscape they made four high-level recommendations:

1. Policymakers should collaborate closely with technical researchers to investigate, prevent, and mitigate potential malicious uses of AI.

2. Researchers and engineers in artificial intelligence should take the dual-use nature of their work seriously, allowing misuse-related considerations to influence research priorities and norms, and proactively reaching out to relevant actors when harmful applications are foreseeable.

3. Best practices should be identified in research areas with more mature methods for addressing dual-use concerns, such as computer security, and imported where applicable to the case of AI.

4. We should actively seek to expand the range of stakeholders and domain experts involved in discussions of these challenges.

4. RESPONSIBILITY

Timo identified the issues arising when the use of AI in a medical context goes wrong. Of course this issue is not limited to the medical field, and is of undoubted concern to lawyers at this conference. It may be argued that it is a legal rather than ethical issue but in my view it is both. It is most commonly cited in relation to autonomous vehicles (AVs), which, like doctors, and human drivers, can kill people. As far as AVs are concerned, the UK parliament passed a law last July, the Automated and Electric Vehicles Act 2018, which has yet to be implemented. It assigned clear responsibility to the insurer in the case of an AV causing harm or death, assuming that the AV was insured. If not, responsibility lies with the owner. This should ensure that injured parties are compensated relatively quickly, while investigation of the root cause can take its time. The insurer is entitled under the Act to have recourse later to the manufacturer or developer of a failing component, sub-assembly or software module. The Act also has provisions for, for example, failure by the owner to install safety-critical software updates issued by the manufacturer and unauthorised modifications to the software by the user. The Act does not cover the situation where an AV has been hacked and taken over by a hostile party, as I discussed before. Conceptually however, the Act addresses the issue of the absence of a driver who can be held to account. Nevertheless the ethical and legal issues of liability in other domains rest open as far as I know, though work is being undertaken by the EU Commission on potential updates to the Product Liability Directive to take more recent developments like AI into its ambit. Whether and how this will affect us of course depends somewhat on Brexit.

5. Effect on employment and the distribution of the benefits of AI

Will AI create new jobs or destroy old ones? Undoubtedly both. What are the ethical implications? Like industrial revolutions before it, going back to the first industrial revolution, the so-called 4th industrial revolution will first destroy jobs, replacing human operators by faster, cheaper, more efficient machines that don’t take holidays, demand a pay rise or fret about Brexit. In due course they will create the demand for new functions to be performed by humans, that we cannot now even imagine. The problem is the sequence and the unemployment that it will cause in the interim. We cannot estimate the scale of either phenomenon. Some of AI’s most ardent advocates say that there is nothing to worry about. This is wrong. At the other extreme, some have exaggerated the dangers and predicted an employment Armageddon. This is unhelpful. We should be concerned. To displace people from work without helping them to find new work is unethical and harms society.
What is to be done? Retraining is key. There are jobs that AIs cannot touch – user interface design is an example. Who should fund the retraining – government, corporations, individuals? Probably some combination. There are some excellent examples of corporate endeavours in this area. AT&T’s Future Ready initiative is a $1 billion, web-based, multiyear effort that includes online courses; collaborations with Coursera, Udacity and leading universities; and a career centre that allows employees to identify and train for the kinds of jobs the company needs today and will need. By 2020 AT&T will have re-educated 100,000 employees for new jobs with cutting-edge skills. BT has a similar programme and the government sponsored Institute of Coding, supported by BT, IBM, Cisco, Microsoft and others as well as 25 universities and my own institute, the BCS, is a very positive initiative in this direction. We cannot sit idly by.
There is another economic and societal ethical issue relating to AI – the risk that the benefits will accrue disproportionately to a privileged few while the costs fall on those lower down the social scale. There is no quick fix for this risk but it is one that policy makers need to have in mind.

6. Is AI impersonating a human unethical?

Famously Alan Turing devised the Imitation Game, now known as the Turing test, whether a machine could convince a human being that it is another human being. Until recently no machine has passed the Turing test, though many human beings have failed it. However at the Google developer conference last year, Sundar Pichai, the CEO, demonstrated Duplex, an AI that convincingly called a beauty parlour and a restaurant to make a hair appointment and a table booking respectively. Neither receptionist realised that they were talking to a machine. It was so realistic. This technology is now live and available from Google. Although the audience at the conference applauded the demonstration, the reaction on social media was that this was unethical. Not to identify that the machine is a machine is unethical. [As Karmen Turk has said,] the EU High Level Expert group has stated that this contravenes one of their principles.

7. Does ethics matter in AI?

Yes, profoundly. If the public concludes that AI or the use of AI is unethical, it will lose public trust. There are many examples of this happening, with or without scientific justification. GM Foods and the Boeing 737 Max are obvious examples. To quote the EU AI High Level Expert Group,
Trustworthiness is a prerequisite for people and societies to develop, deploy and use AI systems. Without AI systems – and the human beings behind them – being demonstrably worthy of trust, unwanted consequences may ensue and their uptake might be hindered, preventing the realisation of the potentially vast social and economic benefits that they can bring. They wrote, “To help Europe realise those benefits, our vision is to ensure and scale Trustworthy AI.”

The Group identified four ethical principles to which AI should adhere. These are:
(i) Respect for human autonomy
(ii) Prevention of harm
(iii) Fairness
(iv) Explicability
They noted that while many legal obligations reflect ethical principles, adherence to ethical principles goes beyond formal compliance with existing laws. This is a cogent argument.

Ethics is often seen as a bunch of “don’ts”. Certainly, there are unethical threats that need to be countered. But ethics should be seen as a positive. We want to buy from companies that we perceive as ethical. People want to work for ethical employers. Academics want to conduct research in an ethical way. Being ethical should be and increasingly is seen as an important element of an organisation’s stance and strategy. And ethical considerations need to be front of mind in the development and use of AI at every stage, from conception through design and build to deployment.
To conclude, I have considered six ethical issues in relation to AI: Bias, Explainability, Harmlessness, Responsibility for harm, the effect on Employment and Society, and AIs Impersonating Humans. I have argued that ethics really matter if AI is to be trusted and the benefits of AI are to accrue to society.
How does this affect the law? Self-evidently any law, including regulation, should be based on ethical principles. Drafting good regulation is difficult in such a fast-moving domain; excessive regulation runs the risk of inhibiting innovation. But the EU has shown itself to be adept at it and should continue to set the standard.
In this context it is encouraging to note that 42 OECD countries have just signed an accord to support a global governance framework for AI (2) “Recommendations of the Council on Artificial Intelligence – Principles for Responsible Stewardship of Trustworthy AI”. It has no force of law but it’s a good start if the signatories act on it.
So for the lawyers here today, the message is clear, we must consider ethics at every stage, whether advising clients or developing or deploying AI in your practices or in the administration of justice, and that consideration must extend from the Senior Partner or Chief Executive all the way down the organisation. In all matters relating to AI, ethics must come first.

References:

(1) https://arxiv.org/ftp/arxiv/papers/1802/1802.07228.pdf
(2) https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0449

Digital revolution : What about lawyers?

Napisane przez AEA - EAL w dniu 2017-12-15. Opublikowano w Articles.

December 15, 2017

Patrick Conrads

Like many other professions, lawyers are affected by the digital revolution. Technological tools and artificial intelligence lead to simplified and automated procedures that upset/subvert/shake our traditional ways of working. In addition, lawyers no longer have a monopoly of knowledge, which is now open, free and available to all. By opening up knowledge, the digital revolution with its portability tools is pushing for transparency, responsiveness and collaborative mode.
The profession is now faced with multiple challenges: economic sluggishness, globalized competition, artificial intelligence, the emergence of an increasingly sophisticated outsourcing, transformation of some of its know-how into commodities. It is also competing with other professions, that is why it is now essential to focus our efforts on driving change.

Although the brand „lawyers” carries many guarantees of quality of service (strong ethics, demanding discipline, guaranteed competence), these essential elements are not sufficient to allow the profession to build its attractiveness and profitability model without holding account of the expectations expressed by consumers.

Lawyers must therefore question the value of changing the way they work, interacting with their clients and with their various partners (jurisdictions, administrations, other professionals). Innovation requires to increase the risk culture and also requires phases of implementation and adaptation that are not always compatible with the profitability requirements of firms.

Despite this, digital electroshock must be seen as a real opportunity for lawyers, the challenge being to think about how to take advantage of it.
Indeed, advances in new technologies offer many advantages: saving time, money, quality and efficiency in the collection and pre-processing of legal information, for example.

1.
New tools of work develop as well as predictive justice. With softwares, it is possible to calculate the probabilities of success in court and to predict the amount of compensation that clients are likely to receive. These softwares recover a maximum of rendered decisions and allow a quantification of the legal risk. Predictive justice is a step forward for litigants because they can have an idea of the chances of success of their action, but the software remains only tools.

However, the use of simple technologies makes it possible to increase accessibility without weighing on the lawyer’s agenda, for example by setting up extranets (Internet tools allowing the storage and the sharing of documents: contracts, procedure, company documents, or calendar sharing). Technology can therefore be a source, under certain conditions, of increased proximity and better service (doctrine.be, droitbelge.be).

In addition, new tools that are now financially accessible make it easier to generate simplified legal documents and platforms for linking lawyers and litigants (my-lawer.be). Platforms also appear for mediation or amicable dispute resolution with reasonable stakes in a diversion perspective.
Other tools exist only at a rudimentary stage but should multiply rapidly, like chatbots. It is a program that incorporates an algorithm to establish short conversations between a user and the website. Also known as „conversational agents”, these programs will develop an increasingly sophisticated language and draw on an increasingly rich mass of information (associated with the recurrence of certain frequently asked questions) to allow a first sorting in the questions asked by the litigants: the user asks a question „in natural language” and gets an answer as soon as the machine has identified the question.
Computer programs of artificial intelligence are also developing. The best known in the legal world is Watson, a program developed by the IBM company, which responds to the questions asked in natural language. A specific version of Watson has been developed specifically to answer legal questions: Ross40, which has been „hired” by a dozen law firms. This program is not only able to find among millions of documents a legal answer to a question asked, but also has a system of learning: It self-improves as it works.
These Artificial Intelligence tools will eventually replace the lawyer in his job as a legal technician to extract relevant references to the case. The lawyer will focus on the strategy and the human aspect of the case, which is at the heart of his job.

2.
On the other hand, the digital revolution has also changed the requirements of customers who are better informed, Google being their first consultant. They want simple answers in fast deadlines. Clients’ legal needs are evolving into turnkey solutions, which forces us to reinvent our services and the relationship with our clients. Two major implications are to be taken into account:

The first one concerns the standardization of some of our services: Regular products such as general sales conditions, company statutes, a rather simple work contract are now „standardizable”. Faced with the already active presence of online platforms with more standardized services, we can see that the client now accepts the idea of reducing some of his expectations (especially the „tailor-made” dimension) to satisfy an immediate need or constraint budget. The lawyer will have to accept this phenomenon of standardization of some of its services, because of the appearance of the digital.

The second implication relates to the phenomenon of rating benefits: It is not unlikely that in the long run, there will be indications on lawyers in relation to defined criteria as its efficiency or the respect of the budget. This notation can be unfounded, unfair or simply artificial, but it is a phenomenon inherent to the Digital. If we do not accept this phenomenon of „desecration” of certain aspects of our profession, then we will undergo this digital change rather than accompany it.
Customers have become digital consumers and are looking for more agile solutions for communication, pricing, listening and content. They are more and more demanding which has consequences on the valuation of the service, on the prices practiced and on the way the right is approached as product. The client wants to become an actor of his file and the lawyer becomes neither guide nor companion of road.
The challenge is to learn how to serve them the way they want. The need for legal advice is immense in our complex society, and machines can offer us more resources and time to put the human in the center. Too many lawyers today perceive innovation as a threat rather than an opportunity. However, it is by developing a prospective vision of its activity and refocusing on its added value that the lawyer of tomorrow will be the winner of the digital revolution. The client will no longer come to his lawyer to obtain an obscure or abstract legal answer. He will come to share a common experience with his lawyer and together they will work out the best practical solution to adopt.

3.
Therefore, the lawyer will have to change his practice. He will have to have the tools of Artificial Intelligence while remaining focused on his primary role, that of consulting. Also, measuring risks, listening, empathy, pedagogy, ethics, deontology and creativity will remain constant. Explaining the issues to the client, diagnose, and find solutions cannot be done only through a machine, the lawyer will always use his skills to know whether it is advisable to follow or not the opinion of the machine given as an indication.

Artificial Intelligence should not be seen as competing with human intelligence, but as complementary. It will always take humans to think the rules, to elaborate them, to do justice and to apply the law. Even though people have access to information, they do not have the skills to understand it. The lawyer will always be indispensable to interpret the rules of law. He also has an increasingly important role to play regarding the psychological, social and human support of his clients. An innovative lawyer does not see justice as an end but as a way to do his job better. He uses technology to rethink and improve the key elements of his business and his added value.

In France, the process of change is already well underway. Lawyers expand their field of action: they collaborate with other regulated professions, manage transversal projects, and develop innovative tools.
Emmanuel Macron initiated the movement by passing a bill in 2015 that opens the door to interprofessionality, external financing and authorization to market related goods and services on an ancillary basis. „These adaptations are at the origin of a remarkable dynamic of creation of new structures and new technological solutions „. (Stanislas van Wassenhove, Lawyer And Initiator Of The Digital Electro-Choc Conference)
In Belgium, the Bars (Avocats.be and the OVB) have created in 2016 a digital platform to put lawyers in touch with the courts and tribunals. A year later, young lawyers launched the Incubateur.legal to educate lawyers about new technologies and innovation;
In addition, the European Incubator of the Brussels Bar (INCUEBRUX), which aims to complement the incubator of the O.B.F.G, has just been created. This incubator, which wanted to be mixed and international, has for mission to ensure the training and the information of the lawyers of the bar of Brussels on the technological developments which concern them, to be a place of exchanges and debates on the modernization and the reform of the legal profession, to act to ensure that the bar is committed to the digital revolution in accordance with its values and to federate European initiatives on technological innovation and its implications for the profession. Several projects are already in preparation (http://www.incubateur.brussels).

4.
In conclusion, the developments in artificial intelligence offer the lawyer new perspectives to manage knowledge, organize data, and anticipate the outcome of litigation through predictive tools and thus free up time to accentuate its advisory role.

Beyond certain prerequisites (finance, IT, communication, project management), the lawyer will open by developing his human and relational skills: listening, empathy, acceptance of failure, creativity, agility, adaptability, management of emotions, letting go and sharing experience. Emphasis will be on well-being rather than know-how.

For lawyers, being interested in innovation, not only technological but also economic, managerial and societal is a prerequisite for the necessary transformation to ensure the sustainability of the essence of the legal profession: to defend and advise the human.

Some people think that the technique is neutral and that everything depends on the way users control it. Others, highlight the dangers of any technical progress, including digital. Without wanting to be able to decide this debate, we can highlight the following certainties:

• Digital technology can make people aware of their legal needs and contribute to the knowledge of the law, which is an essential element of the rule of law.

• For professionals, the eruption of digital is a threat because the benefits become interchangeable, and are judged by customers only in terms of price, which becomes the main criterion of choice.

• Digital represents a world of opportunities: by breaking down the barrier of inaccessibility, it makes it possible to come into contact with non-consumers and thus gain a lot in productivity. Similarly, getting rid of tedious, non-value-added tasks also increases productivity.

As an indication, here are the digital proposals from the report by Kami Haeri, a lawyer at the Paris Bar, on „the future of the legal profession”:
• Develop a culture of innovation, integrating the concept of entrepreneurial risk into the lawyer’s learning;
• Sensitize law firms to new offers for their clients, including the provision of „intelligent forms”, general legal information („freemium” offers);
• Sensitize law firms to develop a branding strategy that goes beyond the name of the founders and ensures the firm’s outreach through other forms of brand expression;
• Introduce in the management of firms, new practices and new tools borrowed from the world of business: develop work in project mode, assign assignments to younger employees in the development of the firm, set regular interviews and, in any event bi-annual;
• Professionalize the management of firms, favoring the management of non-lawyer firms, such as secretaries general.
In short, lawyers are experts at controlling the risks of their clients and they have developed sharp specializations. The skills of excellence must today be coupled with the skills identified as those of the future by the last Davos Economic Forum: an entrepreneurial attitude, a listening posture, open to project management and multidisciplinarity as well as collaborative methods.

INTERNET SOURCES :
http://www.justice.gouv.fr/publication/rapport_kami_haeri.pdf https://www.lecho.be/actualite/archive/L-avocat-3-0-augmente-par-la-technologie-libere-descarcans-du-passe-et-forme-a-l-humain/9961894 https://revuedesjuristesdesciencespo.com/2017/03/07/lavenir-de-la-profession-davocat-entretienavec-maitre-kami-haeri/
http://www.lalibre.be/economie/digital/la-french-tech-veut-rayonner-a-bruxelles588e24bacd70e747fb663703
https://www.incubateurbxl.eu/
http://openlaw.fr/index.php?title=Open_Law,_le_Droit_Ouvert https://blockchainfrance.net/2016/01/28/applications‐smart‐contracts/ http://www.coindesk.com/ipo‐and‐insurance‐projects‐win2000‐at‐blockchain‐hackathon/ http://www.rossintelligence.com/
http://www.lemonde.fr/pixels/article/2016/05/27/une-intelligence-artificielle-fait-son-entree-dansun-cabinet-davocats_4927806_4408996.html
http://www.dayone-consulting.com/fr-actualites-paris/etude-lpo-lexternalisation-des-prestationsjuridiques-2/

Tag: AI

The virtual law firm

AI and Ethics

Digital revolution : What about lawyers?