Practical Pitfalls to Avoid with AI

EDITOR’S NOTE: Healthcare attorney David Glaser is a permanent panelist on Monitor Mondays.

At the risk of annoying my friend Dr. Ronald Hirsch, who, like many of us, has grown weary of the topic of artificial intelligence (AI), I feel the need to discuss it.

But I am going to be going in a slightly different direction than most AI discussions. In fact, my discussion is not limited to AI, but it is a great illustration of how AI can increase an organization’s risk in a way that may not be immediately apparent. 

Whether you view it as AI or simply voice recognition software, the ability to create a transcript automatically can be quite appealing. Most people do not derive pleasure from taking notes. And sometimes, meetings are slow and boring, and you might think “it would be really nice if I could daydream now and just skim the transcript later.” That is probably true.

But there are collateral consequences that are worth considering. 

It is quite common that people say things in meetings that should not be memorialized for all time. To be fair, people are probably slightly more cautious in a meeting than they might be in an exchange of texts between two friends, but there still are likely to be comments or jokes that are not meant for public consumption. If I did my best undercover Eddie Murphy impression, or snuck into a Talk Ten Tuesdays broadcast in a Mary Beth Pace mask, I might hear a bunch of comments about my bad jokes and poor taste in music, because no one knows I am there to hear them.

Imagine that AI is used to help take minutes at a board meeting. Immediately following the meeting, the Board has an executive session to discuss a particularly sticky HR issue. If someone turns on the AI during the board meeting, but forgets to turn it off during executive session, the transcript of the entire event may be forwarded to a large number of people. That is not just a hypothetical. We have had clients encounter this problem.

These sorts of mistakes are quite common and can create significant HR and compliance issues. The sort of gallows humor that people often use as a coping mechanism can be a very powerful tool when the prosecution displays it in front of a jury. The problem is particularly acute with sarcasm. As you read “yeah, I don’t care about the law at all; we are just going to totally disregard it,” you can’t tell if I was being serious or sarcastic.      

The modern world is making it much easier to record everything. And those recordings are often going to be tools used by plaintiffs’ attorneys and government investigators against folks. 

Let’s say a doctor is at a family dinner. He gets an important call about a patient. Sensitive to privacy, she steps onto the porch to take the call. What are the odds that a Ring doorbell camera has captured the call? The doctor’s attempt at discretion actually resulted in a recording that is now in the hands of Amazon.

Technology can make life wonderful. But it also has the ability to make your life more complicated. I submit that steering clear of electronic recordings is almost certainly a wise course of action.