Ed. note: This is the latest in the article series, Cybersecurity: Tips From the Trenches, by our friends at Sensei Enterprises, a boutique provider of IT, cybersecurity, and digital forensics services.
Lawyers Are Intensely Interested in AI and Adopting its Use in Droves
We know that lawyers are interested in AI (artificial intelligence) because we recently received (in a single day!) seven requests for a CLE entitled, “The Rise of AI in the Legal Profession: Lawyers Brace for Impact.” We have given several such CLEs – the questions from the audience are indicative of an enormous groundswell of interest in using the potential of AI to enhance their practices.
While we respectfully note the March 2023 LexisNexis survey which found that the majority of lawyers have no immediate plans to use generative AI, our own unscientific findings indicate that the topic of AI is “white hot” among lawyers – some of them worried about being replaced by AI but many more seeking to understand how their practices might benefit from using AI. We know a large number of lawyers are already utilizing AI, especially OpenAI’s ChatGPT.
They use it to compose or sometimes proof emails and letters. They use it to help write briefs, contracts, or other legal documents. They use it in their marketing, e-discovery analysis, for legal research, and document review. The list is very long of its useful functions, which have been greatly enhanced by the introduction of ChatGPT, which is the lawyer’s AI of choice for the moment.
Top Technologists Demand an Immediate Pause of Advanced AI Systems
Amidst all the excitement by lawyers, a monkey wrench was recently thrown into their enthusiasm when, in March, over 3900 top technologists, engineers and AI ethicists signed a letter calling on AI labs to immediately pause all training on any AI systems more powerful than OpenAI’s ChatGPT-4 for at least six months.
As the letter noted, “Advanced AI could represent a profound change in the history of life on Earth, and should be planned for and managed with commensurate care and resources.”
The letter talks about AI flooding us with propaganda, taking a lot of jobs, and risking loss of control of our civilization. It notes that powerful AI systems should be developed only when we are confident that their effects will be positive and their risks manageable. Decisions about advanced AI, the letter says, “must not be delegated to unelected tech leaders.”
The “pause” they are looking for, according to the letter, “should be public and verifiable, and include all key actors. If such a pause cannot be enacted quickly, governments should step in and institute a moratorium.”
It is a hardline stance, to be sure.
What Does ChatGPT say?
We have talked to ChatGPT about whether AI might lead to a dystopian future on multiple occasions. Its position has never wavered. It has noted that “AI could lead to a dystopian future if it is not developed and used responsibly.”
It has consistently emphasized that AI needs to be regulated. It states unequivocally that the European Union has been at the forefront of regulating AI because the EU recognizes the risks and challenges of AI. The EU has ethical guidelines to make sure AI is developed and used safely, ethically, and with respect for fundamental rights. As a recent example, Italy has temporarily banned ChatGPT over privacy concerns.
Where the Heck is Congress?
We asked that question (a little more formally) of ChatGPT. Without including its many thoughts, this sentence seemed to sum up the essence of its answer: “The U.S. has been slower to regulate AI due to a variety of factors, including the absence of a comprehensive national privacy law, the reluctance of law makers to regulate emerging technologies, and the influence of the tech industry on policy making.”
As many a wag has noted, some tech companies are now as powerful as nation-states.
ChatGPT was probably too polite to point out that Congress currently can’t agree on the time of day and is largely regarded as dysfunctional. It doesn’t matter how terrific a model the EU may give us – it will likely be ignored by a fractious Congress.
Can the Federal Trade Commission Come to the Rescue?
We’re not entirely sure. This idea has only recently received a lot of publicity. On March 30, the Center for AI and Digital Policy (CAIDP) filed a complaint with the FTC alleging that OpenAI is violating consumer protection rules through its releases of large language AI models like ChatGPT-4. The CAIDP says that model is biased and deceptive, threatening both privacy and public safety. It also alleged that that it fails to meet FTC guidelines requiring the AI to be transparent, fair, and easy to explain.
The CAIDP wants the FTC to investigate OpenAI and to suspend future releases – until they comply with FTC guidelines. They also want OpenAI to be required to have independent reviews of GPT products and services before they go public. Additionally, they are looking for an incident reporting system and formal standards to be adopted for AI generators.
Where Does All This Infighting Leave the Legal Profession?
We suppose the best answer is, “In a state of confusion.” We have tried to answer thoroughly all the many CLE questions we receive regarding lawyers’ ethical duties when working with AI. The questions clearly indicated that many attorneys are using AI now or planning to use it in the near future. It is gratifying to see so many lawyers trying to modernize their practices while being mindful of ethical implications. Those are the law firms that will thrive because AI can be a phenomenally good personal assistant (yes, ChatGPT used those exact words to describe how lawyers could use it in their practices).
“The greed of the tech titans may pave the road to SkyNet.” (Quote from author Sharon Nelson.)
“You never really miss having a functional Congress until you need one.” (Quote from a lawyer friend who made us promise not to name him!)
Sharon D. Nelson ([email protected]) is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA.
John W. Simek ([email protected]) is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), Certified Ethical Hacker (CEH), and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity, and digital forensics services from their Fairfax, Virginia firm.
Michael C. Maschke ([email protected]) is the CEO/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744), a Certified Ethical Hacker, and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional.