On June 15, 2023, Netflix released “Joan is Awful,” the latest installment of its show, Black Mirror. The episode surrounds a woman named Joan who, unbeknownst to her, signed away her legal right to privacy to a digital media platform. The platform subsequently took private moments from her life and converted them into a TV show. The TV show then used an Al generated character, made in the likeness of an actress in Joan’s world, to enact the private details of Joan’s life. Unbeknownst to the actress, the actress had also inadvertently given the digital media platform consent to generate and use her likeness in its content. Perhaps the Black Mirror episode is simply fiction or perhaps ” Joan is Awful” is art imitating life.
This Netflix episode highlighted the ever-growing issue of developing technologies, such as Al, posing increased privacy concerns. Al, short for “artificial intelligence” utilizes a method of computer programming known as machine learning. Through machine learning, the programmer’s objective is to teach the program to make autonomous decisions. The program’s autonomous decisions effectively allow the program to adapt to various circumstances without human intervention. In layman’s terms, Al collects and processes large quantities of behavioral data and adapts its future course of action based on the data it collects. Consequently, the public is becoming increasingly concerned that Al will exploit their data, making inferences about private information (i.e., location and habits) that Al will subsequently share without the public’s informed consent.
To assuage the public’s concerns about Al, United States President Joe Biden issued an Executive Order this past October. The Executive Order focused on the Biden Administration’s aim to promote the societal benefits that Al can bring and prevent potentially harmful uses.
The Biden Administration believes that “Al reflects the principles of the people who build it, the people who use it, and the data upon which it is built.” As a result, the Biden Administration hopes to protect the American people by rallying government actors, private businesses, and the public to work together to ensure Al’s success and safety.
While President Biden’s Executive Order mirrors the concerns presented in Netflix’s Black Mirror episode, data and entertainment lawyers predict that privacy is not the main concern that Al presents, at least not in 2024.
Instead of privacy concerns, these lawyers predict that copyright infringement concerns will take the main stage.
In Al’s current stage of development, many programmers are using copyrighted data to train their programs how to learn and respond to information. The programmers’ use of the copyrighted data is not necessarily the problem.
The problem lies with the programs reproducing and sharing the copyrighted data without permission from or giving credit to the copyright owner.
While Al is still in its relative infancy, both copyright and privacy concerns can be addressed. Countries in the European Union, for example, are not experiencing the same data privacy and copyright concerns due to their comprehensive privacy regulation, General Data Protection Regulation. In contrast, the United States maintains an incomplete patchwork of data privacy laws.
Currently, there are two federal acts that protect the American public: (1) HIPAA, which addresses a patient’s privacy relating to the disclosure of sensitive medical information and (2) COPPA, which puts restrictions on what data an online platform can collect from minors under the age of 13 years old. For the majority of Al use cases, neither HIPAA nor COPPA protect the public from Al’s current and potential misuse of personal information.
In the case of Al, only time will tell whether life will ultimately imitate art or whether Congress will enact additional privacy protection measures.
CITATIONS
• Baghdassarian, Mark, et al. “Netflix’s ‘Black Mirror’ Shows Al’s Perils with Lax Legal Rules.” Bloomberg Law, 3 Jan. 2024.
• Brooker, Charlie. “Joan Is Awful.” Black Mirror, season 6, episode 1, Netflix, 15
July 2023.
• “Children’s Online Privacy Protection Rule (‘COPPA’).” Federal Trade Commission, 3 Feb. 2023, www.ftc.gov/legal-library/browse/rules/childrens-online-privacy-protection-rule-coppa.
• Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, The White House, 30 Oct. 2023.
• “Health Insurance Portability and Accountability Act of 1996 (HIPAA).” Centers for Disease Control and Prevention, 27 June 2022.
• Moore, Schuyler. “Rip Metaverse, Hello Ai: An Entertainment Lawyer’s Predictions for 2024.” The Hollywood Reporter, 28 Dec. 2023.
• Sher, Gai, and Ariela Benchlouch. “The Privacy Paradox with Al.” Reuters, www.reuters.com/legal/legalindustry/privacy-paradox-with-ai-2023-10-31/
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