30 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 31 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C Navigating Privacy and the Future of AI As much as AI has generated excitement about the efficiencies it is creating for businesses, the technology is also presenting unique challenges in the area of data privacy and security. Although still in its infancy, AI privacy litigation continues to rise as the pool of defendants diversifies and regulation intensifies. AI technology companies are facing increased scrutiny as class action lawsuits are filed against them alleging violations of state privacy and consumer protection laws. These complaints generally claim that technology firms are collecting personal and private information from the Internet to train generative AI tools. See e.g., A.T. et al. v. OpenAI LP et al., 3:23-cv-04557 (N.D. Cal. 2023). However, that is not the only theory being pursued in these AI privacy cases. For example, plaintiffs in one such case alleged that a facialrecognition technology company had violated the Illinois Biometric Information Privacy Act by not obtaining their consent before collecting their biometric information. See ACLU v. Clearview AI, Inc., 2020 CH 04353 (Cir. Ct. Cook Cty., Ill.). In a similar case, an AI-based video creating and editing platform was sued for collecting biometric data without consent. Acaley v. Vimeo, Inc., 464 F. Supp. 3d 959 (N.D. Ill. 2020). Both cases resulted in settlement, but they provide helpful insights regarding some of the more obvious risks of employing AI. Technology firms are not the only companies increasingly subject to these litigations – retailers that deploy AI are also facing scrutiny. For example, one plaintiff alleged that a retailer’s use of an AI chatbot resulted in illegal wiretapping by recording and storing conversations (nearby we generally discuss the explosion of wiretapping claims). See Licea v. Old Navy, LLC, 2023 WL 3012527 (C.D. Cal. Apr. 19, 2023). This suit serves as reminder that developers are not the only ones at risk. This past year saw a surge in state AI laws proposed across the United States. Ten states included AI regulations within larger consumerprivacy laws that were passed or went into effect in 2023, and even more states have proposed similar bills. Some states have focused on and passed laws to protect healthcare and biometric data, and others have focused on protecting children. While Congress has not yet passed any new privacy laws targeting AI, President Biden issued an executive order aimed at promoting the development and adoption of AI in various sectors of the government. It comes as no surprise that the order regulates AI development by requiring companies to report and disclose safety testing reports. In addition, the executive order directs agencies to monitor and investigate complaints about AI-related discrimination. The FTC has also begun to revisit its rules and regulations to address increased AI privacy concerns. How to address the risks that come with the rapid growth and capability advancements in AI is a challenge for Complex Commercial Litigation Gregory Silbert Co-Head New York gregory.silbert@weil.com Drew Tulumello Co-Head Washington, D.C. drew.tulumello@weil.com C C L
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