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The Relationship Between AI Ethics, Marketing, and the Law
Interview with cybersecurity expert Star Kashman regarding the complex legal landscape of AI in marketing.
My apologies for the delay in getting this week's issue out on time. I had minor surgery on Monday and had to rest for a couple of days. All is well. ~ Paul
This week's issue features a Q&A with Brooklyn, NY-based legal scholar Star Kashman. Ms. Kashman is passionate about the intersection of law and technology. Her mission is to bring awareness regarding the importance of cybersecurity through her research, speaking engagements, and events. Connect with her on Twitter/X and LinkedIn.
(Note: After this interview, President Biden signed a sweeping executive order to guide AI development and oversight in the U.S. Take that into account as you read Ms. Kashman’s remarks — they are still very timely.)
From a legal standpoint, how would you define AI ethics related to marketing?
AI ethics in marketing refers to the use of AI in marketing and the intricate legal and ethical issues that may arise. There are many legal gray areas as artificial intelligence is utilized more commonly, given this is something the law has yet to face and create precedent for.
Are there existing laws or regulations that specifically address the use of AI in marketing?
There is not yet a federal law that addresses AI specifically in the United States, to my knowledge. However, there are already other laws present that address various legalities of marketing that may also be applied to the new uses of AI.
AI in marketing would be subject to existing laws that refer to privacy issues, transparency, data collection, consumer protection, etc. There are also intellectual property laws that may come into play regarding copyright or trademark issues when AI reproduces or infringes upon materials that may be protected under the law.
Legally, what responsibilities do AI platform developers carry, and what falls on the side of marketers?
Due to a lack of federal AI law, I believe AI platform developers carry the same obligations and responsibilities as any other U.S. citizen to not violate already-existing laws. You also don’t want to create a product that could be seen as negligent or liable under product liability theories where it is almost creating issues with our already enacted laws.
In other words, you likely should steer clear of creating a product that will cause people to violate copyright and other IP laws. Additionally, there is a large responsibility to maintain high levels of security for these platforms. Data input by users may be extremely sensitive, and using this data, distributing it, or keeping it unsecured may cause legal issues.
On the side of marketers, play by the rules of "better safe than sorry." Knowledge is key. Know that any ideas coming your way through AI are likely built off something that already exists. If you use AI for inspiration, be sure to make it YOUR OWN, and do your due diligence to ensure you are not copying any ideas or works that may have already been created.
How might biased AI algorithms in marketing campaigns lead to legal liabilities for companies?
Marketing practices that are discriminatory in nature could be subject to anti-discrimination laws, regardless of whether it was created by an AI algorithm.
What legal obligations do companies have to disclose their use of AI in marketing to consumers?
There are some data privacy laws that may come into play. For example, CCPA requires transparency about data collection and processing. Thus, if you are using AI in marketing to gather data and process it you may have to disclose it in California.
Some jurisdictions require consent from consumers if marketers are using AI for personalized or targeted marketing. However, if someone is using AI for content creation in their marketing efforts, there may be fewer laws that apply regarding disclosures in that field.
In cases of AI-driven marketing mishaps, who is legally accountable: the AI developers, the marketing team, or the company as a whole?
As always — it depends. If AI developers create a highly abuseable tool or a tool that is not functioning how it should, they may be liable. The marketing team or company is more likely going to be held liable in my opinion, especially given Section 230 and how providers typically are shielded from liability.
If AI developers fall under Section 230 it is much more likely the company and teams will be liable for these faults. This is why it is vital to ensure that you are using AI ethically, legally, and carefully.
What legal challenges arise when balancing AI-driven personalized marketing and data privacy regulations?
The U.S. currently lacks ideal federal data privacy regulation, although California is more developed, similar in comparison to Europe’s GDPR. However, it is still vital to not take advantage of the lack of federal legislation. The more data you collect, and the more you dabble in that field, the more sensitive information you are obligated to protect.
The second there is a data breach or leak it is the company that is held liable due to Section 230. Thus, if you are using AI-driven personalized marketing and your company collects large amounts of personal data of users, and your data is unknowingly exposed online, your company will be held liable when there is a lawsuit.
There are countless challenges that could arise from these tools. Given AI is very new, it also lacks proper security to keep information safe.
Again, as I would recommend, better safe than sorry. I’ve been in the marketing field for years and have never used data privacy invasive tools. You learn by how well each post, ad, and piece of content does. You learn by interacting with your audience. There is no need for more invasive measures when you learn about algorithms and look at the stats behind your website.
AI seems to be a faster tool for those who lack the time for this. Invest in interns and those who can make time for the little things. It will be more worthwhile and affordable than massive potential lawsuits.
From a legal perspective, how can companies ensure they're using AI in marketing in a way that maintains consumer trust?
By maintaining a high level of transparency and disclosure you can maintain consumer trust. If you do collect data- let your users know. Give them the ability to consent to it or opt out of it. This always increases my ability to better trust companies.
Consult with legal counsel who specializes in this field to ensure you are complying with all laws. Additionally, invest in training to ensure you are using AI in an ethical manner.
What role should the government play in regulating the use of AI in marketing?
The government should likely put forth something carefully crafted to fill in some of the many gaps on how we should be utilizing AI in marketing and how we should not be utilizing it. I’m a big supporter of data privacy rights, and we currently lack this in the U.S.
Something I would love to see is a narrowly tailored regulation that gives U.S. users more ownership over their data and how it is used. Some in the U.S. do not mind things like AI-driven personalized marketing along with their data being collected, while others truly do mind and feel violated by this.
Having something that allows citizens to make a choice would be ideal. Something that also provides guidance for marketers to ensure they are taking steps to remain safe within the eyes of the law and tells them what is and is not ethical would be ideal.
However, many are (rightfully) afraid of the thought of the government sticking their heads into these new and emerging technologies. Which I empathize with. However, with great power comes great responsibility and it would be irresponsible to have a hands-off approach to all technological changes and advancements.
How do you see the legal landscape evolving as AI becomes more integrated into marketing strategies?
I am hoping that the legal landscape grows alongside AI. With more use of these tools will come more legal questions and concerns. I am hoping there is some clear development that guides marketers on how to utilize these tools in an ethical manner.
How do see the legal landscape of AI ethics and marketing evolving? Feel free to leave a comment.
Paul Chaney, Editor
AI Marketing Ethics Digest