Managing Artificial Intelligence (“AI”) Legal Risks in Assessment & Testing
Marc J. Weinstein PLLC provides legal advice and counsel to assessment and testing organizations and technology providers to navigate the legal risks associated with the use of artificial intelligence (AI). In the rapidly evolving world of AI, the testing industry faces unique challenges and opportunities. Marc is at the forefront of addressing the complex legal landscapes associated with the integration of AI into testing and assessment systems and processes.
Legal Risks Associated with AI in the Testing Industry
The use of AI, particularly generative AI for developing test content and AI features for administering and scoring tests, introduces several legal risks:
Services Offered
Marc J. Weinstein PLLC provides a comprehensive suite of services tailored to navigate the legal aspects of AI in the testing industry:
Our goal is to empower assessment and testing organizations and technology services platform providers to leverage AI's potential while navigating the legal challenges with confidence and clarity. Contact us to learn how we can support your organization in implementing and utilizing AI technologies responsibly and in compliance with all applicable laws.
Marc J. Weinstein PLLC provides legal advice and counsel to assessment and testing organizations and technology providers to navigate the legal risks associated with the use of artificial intelligence (AI). In the rapidly evolving world of AI, the testing industry faces unique challenges and opportunities. Marc is at the forefront of addressing the complex legal landscapes associated with the integration of AI into testing and assessment systems and processes.
Legal Risks Associated with AI in the Testing Industry
The use of AI, particularly generative AI for developing test content and AI features for administering and scoring tests, introduces several legal risks:
- Intellectual Property (IP) Concerns: Determining the ownership of AI-generated test content can be complex, raising questions about originality and authorship and presenting risks of infringing the pre-existing rights of content owners whose data was used to train the large language model. For test content created by generative AI, available copyright protections are limited under current US law. For high stakes tests created with generative AI, US federal trade secret law offers the potential for stronger legal protection and enforcement rights that may not be available under copyright law.
- Data Security and Confidentiality: Many (but not all) generative AI systems incorporate user prompts and user provided content as training data, which can then be accessed to create content for other users. If confidential information is entered as a prompt in a generative AI platform and incorporated into training data of the large language model, it is stripped of its confidentiality. Test development systems that incorporate generative AI features must be set up and configured to ensure the security and confidentiality of prompts, data inputs and all AI system outputs, so that organizations ensure the security and confidentiality of test content and the integrity of the testing program.
- Fairness and Bias: The potential for inherent biases in AI algorithms to impact test fairness and validity is a significant concern, necessitating thorough evaluation and mitigation strategies. These risks can arise when using AI to create test content, to assist in the delivery or administration of tests and in the scoring of tests.
- Liability for AI Decisions: When AI systems are used for scoring or decision-making, establishing and maintaining policies and procedures for identifying and correcting errors or inaccuracies becomes critical. Ensuring human oversight of decision-making processes is essential.
Services Offered
Marc J. Weinstein PLLC provides a comprehensive suite of services tailored to navigate the legal aspects of AI in the testing industry:
- AI Legal Workshop: Want to use AI but worried about risk and not sure how to get started? This workshop is for your organization. Bring organization decision makers and stakeholders together for one day to identify your organization's potential uses of AI, the associated legal risks and begin to develop a plan for responsibly implementing AI and getting the most out of it while effectively managing the related risks.
- Developing and Implementing AI Governance Policies and Procedures: We help organizations establish robust governance frameworks, policies and procedures that ensure AI systems are used responsibly in alignment with the organization's objectives, and in compliance with all relevant laws and regulations.
- Principles and Guidance for the Responsible Use of AI: We offer advice on best practices for ethical AI use, focusing on enhancing reliability, transparency, and fairness in AI-assisted assessments, and can assist the organization in developing or adopting principles and guidelines that align with the organization's values.
- Counseling on the Use of Generative AI for Test Content Creation: We guide clients through the legal intricacies of using generative AI to create and revise test content while reducing infringement risks and ensuring the integrity and validity of test content.
- Advising on AI Features for Test Administration and Scoring: Our services include legal consulting on the deployment of AI for test administration, scoring algorithms, and mitigating risks related to bias and discrimination.
- Compliance and Risk Management: We assist in identifying and addressing potential legal risks associated with AI applications, including compliance with data protection and privacy laws.
Our goal is to empower assessment and testing organizations and technology services platform providers to leverage AI's potential while navigating the legal challenges with confidence and clarity. Contact us to learn how we can support your organization in implementing and utilizing AI technologies responsibly and in compliance with all applicable laws.
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