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GenAI-workplace-1488370396-scaled-e1683821460389-300x280The use of generative AI tools, like ChatGPT, are becoming increasingly popular in the workplace. Generative AI tools include artificial intelligence chatbots powered by “large language models” (LLMs) that learn from (and share) a vast amount of accumulated text and interactions (usually snapshots of the entire internet). These tools are capable of interacting with users in a conversational and iterative way with a human-like personality, to perform a wide range of tasks, such as generating text, analyzing and solving problems, language translation, summarizing complex content or even generating code for software applications. For example, in a matter of seconds they can provide a draft marketing campaign, generate corresponding website code, or write customer-facing emails.

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Innovation has historically been driven by companies in regulated industries—e.g., financial services and health care—and some of the most intriguing use cases for generative AI systems will likely transform these industries.

At the same time, regulatory scrutiny could significantly hamper AI adoption, despite the current absence of explicit regulations against the use of AI systems. Regulators are likely going to focus on confidentiality, security and privacy concerns with generative AI systems, but other issues could arise, as well. Companies operating in key regulated industries appear to be anticipating regulatory scrutiny, which is why adoption of the newest generative AI systems will likely be slow and deliberate. However, in some cases, AI systems are being outright banned.

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AI systems seem like an exciting, effective new tool. But, as we have seen with Google’s recent struggles with accuracy, and Microsoft’s trouble with sentient, unhinged chat bots, not all of the kinks have been worked out with these tools.

In our last post, we discussed the legal risks, and related contractual mitigants for entering into agreements with AI vendors, but perhaps a more pressing question is whether one can trust AI systems in the first place.

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In our previous post, we provided an introduction to the budding new technology of generative AI, or AI systems. As with the implementation of any new technology, widespread understanding of the risks generally lags behind the speed of the technology itself. When the technology industry began its push “to the cloud,” many customers were concerned about certain issues, including but not limited to giving up control of data, security risks, and performance issues. In response, sophisticated customers carefully addressed these types of issues in their contracts with cloud service providers.

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Though the use of artificial intelligence has grown steadily during the past decade, the recent release of OpenAI’s generative AI system, ChatGPT, has led to a precipitous increase in attention and publicity accompanying the rise of powerful generative AI systems.

With these generative AI systems come mounting issues and concerns around the use of AI systems by technology service providers.

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GettyImages-cloud-security-300x200On February 8, 2023, the U.S. Department of the Treasury released a report citing its “findings on the current state of cloud adoption in the sector, including potential benefits and challenges associated with increased adoption.” Treasury acknowledged that cloud adoption is an “important component” of a financial institution’s overall technology and business strategy, but also warned the industry about the harm a technical breakdown or cyberattack could have on the public given financial institutions’ reliance on a few large cloud service providers. The Treasury also noted that “[t]his report does not impose any new requirements or standards applicable to regulated financial institutions and is not intended to endorse or discourage the use of any specific provider or cloud services more generally.”

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The Consumer Financial Protection Bureau (CFPB), the primary federal regulator charged with enforcing consumer financial protection laws, recently announced a proposed rulemaking that would require the myriad non-banks subject to CFPB authority to disclose various consumer contract provisions that the CFPB deems potentially harmful on a public registry. These provisions include arbitration requirements; waivers of claims a consumer can bring in a legal action; limits on a company’s liability to a consumer; clauses limiting a consumer’s ability to bring legal actions by dictating the time frame, form, or venue for legal action; limits on the consumer’s ability to voice complaints or post reviews; and other waivers of consumer rights and legal protections.

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For some time the position under English law relating to the recovery of liquidated damages from a contractor as penalty for late delivery has been unclear where the contract terminates before the contractor completes the work. Welcome clarity has now been provided by the Supreme Court in the case of Triple Point Technology Inc v PTT Public Company Ltd. The decision means that unless the liquidated damages clause “clearly” provides otherwise, liquidated damages for any work not completed by the date provided for in the agreement can be claimed for the period up to the date of termination.

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In UK Financial Regulators to Oversee Critical Third Parties, our colleagues Lee Rubin and Mark Booth discuss the proposed new regime that will grant UK federal regulators a range of powers over third parties that provide critical services to the financial sector.

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In “Regulators Zero In on AI,” colleagues Brian H. Montgomery, Andrew L. Caplan and Rachel G. Newell examine the increased focus of financial services regulators on how businesses use artificial intelligence (AI) and machine learning (ML) in underwriting and pricing consumer finance products.