June 27, 2022

Volume XII, Number 178

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June 27, 2022

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June 24, 2022

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Video Games, AI, and …the Law?

Video games have come a long way. They have morphed from simulated games of ping pong to today’s fully-immersive virtual reality games that leverage biometrics and artificial intelligence (AI). While the origins of using AI in games were simple – such as to create more realistic non-player characters  – the use of AI now allows for much more. AI-based tools may be used to outsource quality assurance, gain data-driven insights into players, or to better understand player value to maximize retention and in-game revenue. Now is thus a good time for companies to keep in mind regulatory bodies’ increased focus on the use of AI.

In the US, the FTC has provided guidance around the use of AI in ways that avoid unfair or deceptive trade practices. For video game publishers, as applied to the gaming industry, the FTC’s key considerations (which we also summarized in our sister blog) include:

  • Accuracy. AI components of a game or service should be tested prior to implementation to confirm it works as-intended.

  • Accountability. Companies should think about how the use of AI will impact the end- user. Outside experts may be used to help confirm that data being used is bias-free.

  • Transparency. End-users should be made aware that the company may use AI, it should not be used secretively. Individuals should know what is being collected and how it will be used.

  • Fairness. To further concepts of fairness, the FTC recommends giving people the ability to access and correct information.

State comprehensive privacy laws (such as the forthcoming laws we discussed in our sister blog, namely in CaliforniaColorado, and Virginia) will also impact companies’ use of AI. These laws require companies to provide individuals with opt-out rights regarding AI in automated decision-making and profiling. They also mandate conducting data protection impact assessments for processing activities that pose a heightened risk- such as automated processing. In line with the FTC’s transparency principle, California’s CPRA also requires access requests to include information about the logic and outcome involved in such decision-making processes. NIST (a self-regulating industry body) has also proposed an AI risk management framework.

AI has received similar scrutiny in Europe (discussed in our sister blog), where the focus has been on providing transparency and oversight when using AI. This is particularly true when automated decision-making occurs. Like the states noted above, here a risk-based approach will be needed. At present, an AI Act is being considered, which would take these concerns into account.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 119
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About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney
Partner

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

312-499-6335

Julia Kadish is an attorney in the Intellectual Property Practice Group in the firm's Chicago office.

Areas of Practice

Julia's practice focuses on data breach response and preparedness, reviewing clients' products and services for privacy implications, drafting online terms and conditions and privacy policies, and advising clients on cross-border data transfers and compliance with US and international privacy regulations and standards. She also workes on drafting and negotiating software licenses, data security exhibits, big data licenses, professional...

312.499.6334
Dhara Shah Law Clerk Chicago Shephard Mullin Richter & Hampton LLP
Law Clerk

Dhara Shah is an law clerk in the Intellectual Practice Group in the firm’s Chicago office.

312-499-6336
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