AI systems have been used to analyze evidence for years now. But last week's proposal A08110, sponsored by Assemblymember Clyde Vanel, D-Queens, does not seek to govern evidence analysis that uses those systems only to make the work more efficient.
Instead, the bill targets AI that generates new information or comes to conclusions. This type of evidence would have to be "substantially supported" by independent evidence that must, among other things, be admissible and bear resemblance to the AI evidence, according to the bill
Vanel did not immediately respond to Law360 Pulse's request for comment Wednesday.
A memo for proposal A08110 says the bill is designed to combat what is often referred to as a black box problem.
"The crux of the black box problem is that no one, not even the AI's programmers, can precisely understand how the AI reaches its conclusions from the data," the memo reads.
"This ambiguity introduces an issue with evidence created or processed entirely or partially by AI; we cannot discern how the AI arrived at a specific conclusion. However, through rigorous testing, we can verify whether those conclusions are accurate and reliable."
Experts have long been sounding the alarm about the impact new AI technologies could have in the courtroom. Some scholars have suggested that AI-generated "deepfakes" could be passed off as authentic evidence or that admissible evidence could be alleged to be AI-generated. And a study published in the Duke Law & Technology Review earlier this year warned that cases involving AI "will be coming your way much sooner than you think."
"The intent of the law is noble and essential — ensuring AI does not threaten the reliability of evidence," Danny Tobey, chair of DLA Piper's AI practice, told Law360 Pulse on Wednesday. "I do worry about the difficulty of implementation in its current form. The law tees up what may be challenging distinctions, like whether AI is creating 'new information' or merely 'transforming' existing information — that could portend years of litigation to sort through."
–Additional reporting by Sarah Martinson and Emily Sawicki. Editing by Amy French.
Update: This story has been updated with comments from Danny Tobey.
Correction: An earlier version of this story misstated the bill's Assembly number. The error has been corrected.
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