AI may use proxy language to disguise class or race bias

Legal technology may improve access to justice yet deepen the digital divide, and strengthen existing biases in the justice system, research from NUI Galway has suggested.

NUI Galway law lecturer Dr Rónán Kennedy has researched the  growth of lawtech in an advisory paper for the Oireachtas Library and Research Service.

Dr Kennedy was awarded a Science Foundation Ireland (SFI) Public Service Fellowship to carry out the research, as part of a series which gives public representatives in-depth briefings on policy issues. 

The research paper, Algorithms, Big Data and Artificial Intelligence in the Irish Legal Services Market, outlined the pros and cons of increased use of software and technology in the legal sector.

Dr Kennedy warned that artificial intelligence could repeat existing biases.

Characteristics

The  research notes that artificial intelligence (AI) software programmes may also “learn” to discriminate in ways that are illegal, focusing on characteristics that are proxies for social class, race or gender, such as home address or height.

“It is unlikely that AI can or will ever replace humans, but it may allow faster, cheaper, and fairer judging,” Dr Kennedy said.

“However, if this software is not carefully designed, it could make prejudice even more difficult to remove from the justice system,” he said.

The research paper noted:

• Lawtech could reduce costs and provide better access to justice by making it easier for lawyers to create standard documents or allowing people to access legal information and advice online, including through automated apps,
• It could worsen the digital divide in society and solidify existing biases in the legal system, by preventing those without IT skills from accessing legal services or by relying on historical data which is prejudiced,
• Areas for immediate legislative intervention include expansion of the validity of digital signatures for uses such as wills or legal proceedings, and the admissibility of digital recordings in court,
• Members of the Oireachtas could consider longer-term policy questions, such as whether AI professions should be regulated, or how to manage the use of AI by lawyers and judges,
• The Oireachtas and Government may need to explore whether some legislation should be “born digital”’ – written both in a human language and computer language from the outset.

Innovation

“Lawtech has been part of a wave of change and innovation in the legal services market, globally and in Ireland,” Dr Kennedy said.

“It could save consumers and businesses money and time, and be a sector for economic growth."

Dr Kennedy added: “The paper explores technology which is already bringing about significant transformation in legal practice and in the courts, and may change it radically in the future.

“My findings raise important questions that lawmakers and everyone involved in legal services should consider. The pandemic has shown how useful technology can be, but we need to have a debate about how we manage tools like remote court hearings and AI assistants for lawyers and judges to ensure that all of the impacts are positive.”

While virtual courts may give better and cheaper access to justice for those with legal problems, they may be unfair to individuals who struggle to understand what is happening and cannot engage properly with their lawyers.

The outcome of different software programmes can vary widely, even when implementing the same rules, the research notes.

Courts that rely on AI may be unable to be creative or to respond to new situations, it warns

Citizens may also cease to understand or trust the legal system.

Also, the role of judges is wider than simply hearing cases, but these aspects are not being researched. Finally, if the legal system becomes dependent on software, the role of the legislature may change to providing broad policy goals and leaving implementation to computer programmes.

Cognitive computing 

The research notes that cognitive computing does not develop computers that ‘think’, but instead develops a collaboration between computer and human problem-solver, bringing relevant information to the attention of the user. 

However, Dr Kennedy believes it is far from certain that AI will truly disrupt the legal profession.

In the US legal services market, although automation may have slowed the growth in lawyers’ salaries, its overall impact is doubtful.

Some tasks (such as document review) could be strongly impacted, while others (such as legal writing, advising clients, and court appearances) would be lightly impacted.

Social intelligence

Work involving social intelligence or design is unlikely to be easy to automate. 

Because so many legal problems are unstructured, they are difficult to reduce to a comparable dataset that can be used by predictive tools.

“The temptation of artificial intelligence is to view it as a proverbial hammer where all the legal questions are nails,” Dr Kennedy writes.

“The law does not fit this paradigm. It is inappropriate in instances where the court’s determination of a legal question does not lend itself to an identifiable set of factors, or where insufficient data exist.

Future developments may well be able to surmount these current challenges of limited data and inchoate context; time will tell," he writes.

While the research predicts the demise of 'drudgework', there is little evidence so far to suggest that lawyers will be replaced.

'Higher-order legal work'

“Much of the higher-order legal work has to do with the values of human empathy, credibility and developed trust between the lawyer and the client.

“Technology that automates tedious tasks, although not a panacea, can free up lawyers' time to perform this higher-level, more intellectually satisfying work that clients are willing to pay for,” the research suggests.

Therefore, lawtech might not significantly affect some areas of practice, particularly those involving a great deal of individual interaction, such as criminal defence, personal injury, and family law.

Because AI systems are not capable of giving reasons that justify their actions in the same way as lawyers, they may not be an acceptable substitute, the research concludes.