Author: zion.mercado

Google’s New AI-Powered Customer Service Tools Spark Back-to-Back Class Action Lawsuits

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Google’s New AI-Powered Customer Service Tools Spark Back-to-Back Class Action Lawsuits

Zion Mercado 

 

Google recently began rolling out “human-like generative AI powered” customer service tools to help companies enhance their customer service experience.[1] This new service is known as the “Cloud Contact Center AI,” and touts a full package of customer service-based features to help streamline customer service capabilities.[2] Companies who utilize the new service  can create virtual customer service agents, access AI-generated insights providing feedback on customer service interactions, store and manage data on a specialized “Contact Center AI Platform,” and consult with Google’s team of experts on how to improve the AI-integrated systems.[3] However, one key feature that has recently come into controversy is the ability for customers to utilize real-time AI-generated responses to customer inquiries which can then be relayed back to the customer by a live agent.[4] This is known as the “Agent Assist” feature.

Agent Assist operates by “us[ing] machine learning technology to provide suggestions to . . . human agents when they are in a conversation with a customer.”[5] These suggestions are based on the company’s own data and conversations.[6] Functionally, when Agent Assist is in use, there are two parties to the conversation: the live customer service agent, and the customer. The AI program listens in and generates responses in real time for the live customer service agent. Some have argued that this violates California’s wiretapping statute by alleging that the actions of Google’s AI program, which is nothing more than a complex computer program, are attributable to Google itself.[7] Those who have done so have alleged that Google, through its AI-integrated services, has been listening in on people’s conversations without their consent or knowledge.[8]

The wiretapping statute in question is a part of the California Invasion of Privacy Act (“CIPA”), and prohibits the intentional tapping, reading, or any other unauthorized connection, whether physically or otherwise, with any communication being transmitted via line, wire, cable, or instrument without the consent of all parties to the communication.[9] It is also unlawful under the statute to communicate any information so obtained or to aid another in obtaining information via prohibited means.[10]

In 2023, a class action lawsuit was filed against Google on behalf of Verizon customers who alleged that Google “used its Cloud Contact Center AI software as a service to wiretap, eavesdrop on, and record” calls made to Verizon’s customer service center.[11] In the case, District Court Judge Rita F. Lin granted Google’s motion to dismiss on grounds that the relationship between Google and Verizon and the utilization of the Cloud Contact Center AI service fell squarely within the statutory exception to the wiretapping statute.[12] Now, the wiretapping statute does contain an explicit exception for telephone companies and their agents, which is the exception upon which Judge Lin relied; however, that exception is narrowed to such acts that “are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility or telephone company.”[13]

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House Rules: Addressing Algorithmic Discrimination in Housing through State-Level Rulemaking

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House Rules: Addressing Algorithmic Discrimination in Housing through State-Level Rulemaking

William Simpson

 

Introduction

As is the case for many federal agencies,[1] the Department of Housing and Urban Development (HUD) is intent on addressing the risk of algorithmic discrimination within its primary statutory domain—housing. But in the wake of Loper Bright,[2] which overturned Chevron[3] deference, and with it the general acquiescence of federal courts to agency interpretations of relevant statutes, HUD is forced to regulate AI and algorithmic decision-making in the housing context through guidance documents and other soft law mechanisms.[4] Such quasi-regulation impairs the efficacy of civil rights law like the Fair Housing Act[5] (FHA) and subjects marginalized groups to continued, and perhaps increasingly insidious,[6] discrimination. With HUD crippled in terms of effectuating meaningful AI regulation, states like Maine—which remains a Chevron state—must step up within their respective jurisdictions to ensure that algorithmic discrimination is mitigated in the housing sector.

 

A Brief Primer on Chevron and Loper Bright

In 1984, the Supreme Court held that where a “statute is silent or ambiguous with respect to a specific issue . . . a [federal] court may not substitute its own construction of [the statute] for a reasonable interpretation made by the administrator of an agency.”[7] In other words, where an agency interpretation of an ambiguous statute is reasonable, a court must defer to the agency. Proponents of Chevron deference have heralded the opinion for its placement of policy decisions in the hands of expert and politically accountable agencies,[8] whereas detractors deemed it a violation of the separation of powers doctrine.[9] In June 2024, the detractors won out.

“Chevron is overruled,” wrote Chief Justice John Roberts.[10] To wit, “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”[11] Roberts rested his opinion on the separation of powers principle,[12] a textualist construction of § 706 of the Administrative Procedure Act,[13] a historical analysis,[14] the insurance of Skidmore deference,[15] and the fact that Chevron was subject to numerous “refinements” over the years.[16]

It goes without saying that this jurisprudential U-turn has profound implications for HUD and the statutes it implements.[17] As a result of Chevron’s demise, “any rulemaking proposed by HUD . . . may be more vulnerable to lawsuits than in years past.”[18] Namely, HUD relies on the FHA to authorize its policies, which “broadly describes . . . prohibited discriminatory conduct,” and which HUD interprets “into enforceable directives to serve Congress’ stated goals.”[19] Without Chevron deference, HUD’s interpretations of the FHA are certain to be questioned, and significant barriers for Americans facing housing discrimination will arise.[20]

 

HUD’s Effort to Combat Algorithmic Discrimination in a Post-Chevron Paradigm

In apparent anticipation of such challenges to its interpretations, HUD has resorted to soft law mechanisms like guidance documents to combat algorithmic discrimination. Importantly, these informal mechanisms do not carry the force of law, and are therefore outside the scope of Chevron deference and unaffected by the Loper Bright decision.[21] Such documents include HUD’s “Guidance on Application of the Fair Housing Act to the Screening of Applicants for Rental Housing,”[22] and “Guidance on Application of the Fair Housing Act to the Advertising of Housing, Credit, and Other Real Estate-Related Transactions through Digital Platforms.”[23] The former pronouncement examines how housing providers and tenant screening services can evaluate rental applicants in a nondiscriminatory way—including by choosing relevant screening criteria, using accurate records, remaining transparent with applicants and allowing them to challenge decisions, and designing screening models for FHA compliance.[24] Of note, the document confirms that the FHA “applies to housing decisions regardless of what technology is used” and that “[b]oth housing providers and tenant screening companies have a responsibility to avoid using these technologies in a discriminatory manner.”[25]

Alternatively, the latter document “addresses the increasingly common use of automated systems, such as algorithmic processes and Artificial Intelligence . . . to facilitate advertisement targeting and delivery” vis-à-vis housing related transactions.[26] Like tenant screening services, algorithmic targeting and delivery of advertisements “risks violating the [FHA] when used for housing-related ads,” and can implicate both advertisers and ad platforms.[27] For example, liability may arise by using algorithmic tools to “segment and select potential audiences by [protected] category,” “deliver ads only to a specified ‘custom’ audience,” or “decide which ads are actually delivered to which consumers, and at what location, time, and price.” [28]  The document recommends that advertisers use ad platforms that proactively mitigate discriminatory practices and that they “monitor outcomes of ad[] campaigns for housing-related ads.”

Indeed, “[w]hile the guidance represents an important step forward in safeguarding housing rights, it isn’t currently more than a suggestion to housing providers.”[29] Hence the dilemma facing regulators in this post-Chevron paradigm: issue a formal rule that will provide the intended protection but is prone to litigation, or deliver informal pronouncements that remain largely immune to challenge but fail to offer enforceable requirements against harmful practices.[30] As this administrative predicament persists, it is state governments, including Maine, that must fill the resulting void.

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State Data Privacy & Security Law as a Tool for Protecting Legal Adult Use Cannabis Consumers and Industry Employees

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State Data Privacy & Security Law as a Tool for Protecting Legal Adult Use Cannabis Consumers and Industry Employees

By: Nicole Onderdonk

1. Introduction

The legalization of adult use cannabis[1] at the state level, its continued illegality at the federal level, and the patchwork of privacy regulations in the United States has generated interesting academic and practical questions around data privacy and security.[2]  At risk are the consumers and employees participating in the legal recreational cannabis marketplace— particularly, their personal information.[3]   For these individuals, the risks of unwanted disclosure of their personal information and the potential adverse consequences associated with their participation in the industry varies significantly depending on which state an individual is located in.[4]  Further, while these are distinct risks, the unwanted disclosure of personal information held by cannabis market participants may significantly increase the degree and likelihood of an individual experiencing adverse employment-related consequences due to recreational cannabis use.  Therefore, data privacy and security laws can and should be deployed by states as a tool to not only protect legal adult use cannabis consumers’ and employees’ personal information, but also their interests and rights more broadly related to their participation in the legal cannabis market.

Privacy law and cannabis law are both arenas where states are actively engaged in their roles in the federalist system as “laboratories of democracy.”[5]  The various state-by-state approaches to protecting consumer and employee data privacy and legalizing recreational cannabis have taken various shapes and forms, akin to other areas of the law where there is an absence or silence at the federal level.  This divergence may create problems and concerns,[6] but it also may reveal novel solutions.  Regarding the personal data of recreational cannabis consumers and industry employees, the strongest solution that emerges from an analysis of the current state-by-state legal framework is a hybrid one—taking the most successful aspects from each state’s experimentation and deploying it to protect legal adult use cannabis market participants from collateral adverse consequences.

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Privacy Concerns with Health Care Providers’ Use of Personal Devices for Medical Images

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Privacy Concerns with Health Care Providers’ Use of Personal Devices for Medical Images

By: Deirdre Sullivan

Last year I had to go to urgent care for a second degree burn on my chest after spilling boiling hot tea on myself. I was surprised when the provider took a photo of my burn, in a relatively sensitive area, with her own cell phone to upload to the medical file. Seeing my surprise, she assured me that this was through a secure application and the photo of my chest was not actually stored on her phone.

 

The following week, my primary care provider did the same thing to continue tracking the burn’s progress. I also expressed the same concerns, and she went further by showing me that the photo was not stored on her camera roll.

 

While I trusted these two female providers, I was still skeptical and imagined all the ways that this could go wrong for a patient. The practice of using personal devices for imaging is ripe for abuse, and this blog post will explore potential harms to patients as well as liability for health care providers.

 

Patients have a reasonable expectation of privacy in their images not being shared past what is necessary to provide care, and it is without dispute that the practice of using personal devices to photograph patients violates this. There is a tension here between what is best for the privacy interests of the patient being photographed, and the business needs of the healthcare entity in reducing the cost of having devices on hand for providers while also increasing access to devices for taking pictures to document injuries in the medical file or for sharing with other providers for consult.

 

First, there are two different possibilities for how the image could be captured and stored on a provider’s cell phone. The provider could directly take the image without the use of a secure app to store on their phone for purposes of a consult with another provider, or the provider could deceptively take an image under the guise of just using a secure app and then hide it from their patient. This could easily happen by a provider switching between a secure healthcare app and their own camera app to take a photo, and then hiding that from the patient by showing them the last photo from an album, rather than the last photo of their camera roll. Or even a provider taking a screenshot of a sensitive photo on the secure app.

 

In either scenario it would be extremely difficult for the patient to catch the violation of their privacy. Most often these photos are not of faces, making it difficult to identify and track once the photo makes it off the provider’s phone either by intentional sharing, or the phone being stolen or hacked. Further, patients are at a disadvantage and may not know to worry about improper photos being taken or that sensitive photos are stored on their provider’s phone and distributed to other persons.

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A Balancing Act: The State of Free Speech on Social Media for Public Officials

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A Balancing Act: The State of Free Speech on Social Media for Public Officials 

By: Raaid Bakridi

1. Introduction

Blocking someone on social media often seems inconsequential since it’s a digital medium and people do it every day.[1] However, the U.S. Supreme Court has an alternative view, especially when the person who commits the act is a public official. The Court held that, in some instances, public officials can be liable for First Amendment violations when they block anyone from their social media page Writing for the majority, Justice Barrett adopted a two-prong test to be used in instances involving public officials and their social media accounts because distinguishing between on- and off-the-job activity is frequently a “difficult [line] to draw”[3] and a “fact-intensive inquiry.”[4] The distinction, according to Justice Barrett, “turns on substance, not labels.”[5] But this isn’t the first time that the Court has been asked to weigh in on social media cases where public officials block their critics, cases which by nature involve possible First Amendment and public forum concerns.

 

2. Background

Former State Assemblyman Dov Hikind filed a lawsuit against Congresswoman Alexandria Ocasio-Cortez for blocking him on Twitter, now known as X. Hikind claimed that the Congresswoman violated his First Amendment rights by blocking him and other individuals critical of her. This raises concerns about politicians’ and public officials’ use of social media and its implications for free speech. Several of the lower courts have dealt with similar social media blocking issues, and each applied different approaches, leading to a split in authority among the Federal Circuit Courts. When confronted with the issue of blocking, the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuit Courts have all used variations of two tests: a totality of the circumstances approach or an appearance-focused approach[10]

In 2021, the Supreme Court had to deal with a similar issue that involved the then-sitting President of the United States, Donald Trump. A group of individuals, including the Knight First Amendment Institute, filed a lawsuit against the President,[11]  alleging that their First Amendment rights were violated after they were blocked for criticizing his policies. The District Court agreed,[12] and the Second Circuit upheld the decision.[13] Following this, President Trump appealed to the Supreme Court for a review which was denied.[14] After eleven consecutive conferences on the case, the Court sent it back to the Second Circuit to dismiss as moot.[15]

Although no majority opinion was offered, Justice Thomas wrote a detailed concurrence that essentially “highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward.”[16] Justice Thomas further noted that the case highlights two important facts: “[t]oday’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors … We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”[17] Justice Thomas then concluded that the Trump case was not the right one to do so[18] and that the Court will have to address constitutional constraints on privately owned digital mediums sooner or later.

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