United States: Electronic Discovery & Information Governance - Tip Of The Month: Thinking About Explainable AI (XAI) And Litigation Defensibility

Machine learning algorithms and other applications of artificial intelligence are making more and more day-to-day business decisions. Thirty years ago, if an entrepreneur wanted a loan for her startup, she'd walk into a bank and talk to a loan officer. Ten or twenty years ago, she might apply online, but a loan officer would still have final approval. Now, a machine learning algorithm will often make the call. Same for job applicants: thirty years ago, they'd apply by mail or in person. Ten or twenty years ago, online, to a human decision maker. And now, their applications feed into machine learning systems that make the key calls.

Our legal system is evolving. It has elaborate rules governing how to prove what people did and when. It has long-established assumptions about who legal actors are and how to find their intent. But these rules assume that human are the last step in a decision process. When a machine learning system or another form of artificial intelligence is the final step in the decision process, these assumptions break down.

At a basic level, if our entrepreneur doesn't get a loan today, she can't ask the machine why. Same for the job applicant: the machine won't have an answer. This is true even if the bank or employer keeps a human in the loop at the end. That person will only be able to say that the machine made a determination.

And just as that answer isn't likely to satisfy the entrepreneur or the job applicant, it isn't likely to satisfy a judge, jury or litigation opponent either.

The need to—and the difficulty of—explaining how business-critical artificial intelligence systems work is a key new challenge for companies that rely on them. "Artificial intelligence" brings to mind sentient robots, such as the heroic Mr. Data of Star Trek and numerous robotic villains. But today, in reality, it means software systems applying complex mathematics to predict outcomes based on data fed into them. Generally, AI users will want to prove that the business decisions implement policy choices made by company management and the choice of algorithms and parameters by data scientists and programmers based on those policy choices. The AI is not a decision maker but merely a mechanism for implementing business decisions.

Businesses now recognize that business-critical tools that only highly trained experts can explain create regulatory and litigation risk. Regulators aren't likely to be satisfied by pointing to a machine learning tool than to explain a rejected application. And most litigation revolves around business decisions. The parties will take and defend depositions of the key human decision makers. They will collect, review and produce the documents these decision makers created. These procedures are well-defined. But there's no way to depose an artificial intelligence tool, so a company that allows its tool to be seen as the decision maker will have difficulty defending the decisions. And the inputs and outputs that reflect its operation will not be decipherable by judges, juries or non-experts.

As a result, many companies are focusing on explainability. Explainability, in general terms, has three aspects:

  • Transparency: easy identification of the important factors in the tool's operation;
  • Interpretability: easy identification and explanation of how the tool weights those factors and derives them from its input data; and
  • Provenance: easy identification of where input data originated.

When an AI tool has all three aspects, a company can explain its results to a regulator, judge or jury in plain language. That is, it can say, "The tool came to this result because it took these inputs, applied these weights to them and derived this result." To achieve that, we recommend that:

  • The management team clearly specifies to its data scientists and technicians how the company wants to tool to work, recognizing that those specifications are, in fact, the business decisions;
  • The tool is built to store the right facts about how it arrived at results in manner approved by your e-discovery/information governance (EDIG) team;
  • The company employs "AI sustainers" to continually test and modify the tool to keep it working as the management team intended; and
  • The company employs "AI explainers," people who know how to explain the tool's results.

In a litigation, then, explainability fades into defensibility. The "AI explainers" within the company will be able to use data retained by the EDIG group to explain how the decisions reflect corporate policy. For plaintiffs, it may be very difficult to find an expert who can speak with authority on an extremely complex proprietary AI tool, at least compared to a data scientist, an AI explainer or an AI sustainer who was part of the team building and sustaining the tool. From a litigation perspective, explainability allows humans to take the witness stand to defend business decisions implemented through an AI tool instead of having the plaintiff's counsel claim that the company is responsible for how a villainous robot abused the plaintiff. The issues shift to the more defensible questions of whether management chose the right policies and the technicians configured the tool correctly.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions