AI Summit_Sept. 13 2024

9/11/24, 4:57 PM

Navigating a Shifting Landscape | AAJ

it’s my voice. And that would authenticate that piece of information for admission, and the question of its weight would go to the jury. But we’re now in a world where deepfakes are so good that virtually everything will pass that very low threshold of “Is it more likely than not Maura’s voice?” And it’s not enough for the opponent of the evidence to just say, “That’s not me.” It becomes more helpful if they can say, “The metadata—the data about data—in this audio says it was recorded on Wednesday, March 20 at 1:23 p.m., but here’s proof that I was in the dentist’s o ~ ce under anesthesia having my teeth drilled at that time.” Then it becomes a much more complicated question for the court. This website uses cookies and tracking technologies to optimize your experience.  Privacy Policy You and retired federal district court judge Paul W. Grimm have made recommendations to start addressing these concerns. What do they encompass? For the { rst scenario, where the parties agree that the evidence is AI or the product of AI, the Daubert factors (FRE 702) work pretty nicely. But the opposing side may argue the technology is proprietary and shouldn’t be made available to you. So there may be a battle about whether the data or the tech is proprietary, or whether there should be a protective order and what it should say. Let’s assume the court says the underlying data or technology must be produced—what exactly is going to be produced and how? The parties must leave some time for this discovery, especially if it’s important evidence that could make or break the case. It’s not something that you should be springing on the court right before trial. In the second scenario, if one party is either going to proffer evidence that it thinks will be questioned as a deepfake, or the other side intends to challenge the evidence as a deepfake, a hearing with experts is likely needed. And again, the parties must give the court su ~ cient time to address and rule on these issues. One of the things that Judge Grimm and I emphasize about the { rst scenario is that we think it’s relatively straightforward and that we already have tools available. But the wording of the Federal Rules of Evidence is a little vague and confusing in this regard. The rules use the word “reliability” and, in some places, the word “accuracy.” But the terms that scientists and people who are steeped in this area use are “validity” and “reliability.” “Validity” refers to whether the tool measures what it purports to measure, and “reliability” means that it does so consistently under substantially similar circumstances. So, we proposed an amendment to use those words and then spell out how to incorporate the Daubert factors into the existing standards for admitting evidence. The second scenario is harder because, normally, if the evidence meets the preponderance threshold, it comes in—as in the earlier example of the audio of my voice. We’re concerned that if the audio is a

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