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Gorsuch wades into the AI robot debate in Supreme Court hearing

Supreme Court Justice Neil Gorsuch posed a thought-provoking question about artificial intelligence during a hearing on social media platforms’ liability.


By Tuesday’s end, it appeared as though the Supreme Court is preparing to leave intact Section 230, the federal law that provides a liability shield for social media platforms and search engines. 

One of the most resonant lines to emerge from Tuesday’s hearing in the Gonzales v. Google case came from Justice Elena Kagan, who noted many of the Supreme Court justices are out of their depth when it comes to tech talk. 

“We’re a court; we really don’t know about these things,” Kagan said. “These are not like the nine greatest experts on the internet.”

Point taken, Justice Kagan: These aren’t tech geniuses we’re dealing with in the court’s nine justices. But that doesn’t mean their queries were useless. (My MSNBC colleague Jessica Levinson published some great insight on this case that’s definitely worth your time.)

Point taken, Justice Kagan: These aren’t tech geniuses we’re dealing with in the court’s nine justices.

One line that’s been getting some pickup has piqued my interest. It came from conservative Justice Neil Gorsuch and concerned whether artificial intelligence chatbots — like the ones you see “writing” legislation and term papers — would be covered by free speech protections if they’re deployed by search engines.

It’s not a hypothetical scenario. Google’s parent company — that is, the same company being sued in the Section 230 case — has invested heavily in developing generative AI tools that will allow its search engine to provide users with conversational responses, rather than just links.

But according to Gorsuch, chatbot-generated search results won’t be protected in the same way as results generated by traditional AI algorithms. 

“Artificial intelligence generates poetry,” Gorsuch said during the hearing. “It generates polemics today that would be content that goes beyond picking, choosing, analyzing or digesting content. And that is not protected. Let’s assume that’s right. Then the question becomes: What do we do about recommendations?”

It’s a vital question that’s going to have increasing relevance as some of the world’s top companies continue to experiment with super-fast, super-powerful AI technology. If, for example, a Google or Microsoft chatbot spits out harmful disinformation, Gorsuch’s proposition suggests that the company could be held accountable.

I should say: I differ with Gorsuch’s remarks slightly, in that I think we should be cautious not to overly humanize AI robots. 

To say chatbots go “beyond picking, choosing, analyzing or digesting content” they present to users seems less accurate than saying they do each of these things incredibly fast, to such an extent it can feel as if you’re speaking with a human. To that point, I’ve written about why humanizing artificial intelligence misses the mark.

But the world’s top tech companies that continue to invest heavily in advanced artificial intelligence — like Google, Microsoft and Meta — should take heed of Gorsuch’s comments. If these companies create tools that become legal albatrosses for them, their investments may be in vain.