🕸️ The AI Web's Legal Challenges
AI's Legal and Ethical Challenges | Edition #183
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🕸️ The AI Web's Legal Challenges
With Google's official announcement of its expansion of AI Overviews and the introduction of AI Mode, the company appears to be gradually merging Search with AI.
This is a move that many of us anticipated, especially following the rapid rise of ChatGPT and other AI chatbots, along with the empirical observation that many were using them as search engines.
Google has clearly perceived the threat. Given its dominant position in the global online search market (currently around 89.73%), merging search with AI was an obvious way to boost Gemini, its AI model, and help the company maintain its leadership in this space.
Google is also deeply integrating Gemini into its other popular services, including Gmail, through disempowering in-product messages like the one below (translation: you don’t know how to write, so it's better to let the AI do it for you):
As a consequence, we will soon begin experiencing the almost dystopian “AI Web,” where an AI mediates all our online activities, including search.
Given the amount of AI bots, AI influencers, and AI-generated social media posts flooding the internet, not to mention the AI algorithm that determine what we see, our social media experience will soon be almost entirely AI-powered as well.
Today, I highlight two important legal aspects of Google's push toward the AI Web, which suggest that the transition may not be as smooth as the company hopes, especially in the EU: privacy and competition.
1. Privacy:
The integration of AI chatbots with search engines will be a major blow to privacy rights. Why?
You have probably already searched your name on Google. Maybe you have also set up an alert to be notified whenever a new online source mentions your name.
In the "old search" – before its merge with AI – you could manually monitor your online mentions. In most cases, if someone publicly wrote something false or offensive about you, you would use the search engine to find it (or receive an alert).
The search engine would point to the source website where the false or offensive content was published, and if you wished, you could take legal action against the author or the website.
This has been an essential mechanism for monitoring our online presence and protecting people from privacy violations and reputational harm.
To date, many people have taken legal action after discovering false information about themselves through a search engine.
However, the ongoing integration of search with large language model (LLM) powered AI chatbots is changing the rules of the game and making the situation significantly worse for people. We are losing an important (and empowering) mechanism for protecting our privacy.
In this new search – let's call it "AI chatbot search" – the output will be AI-generated and will often not point out to any specific source.
It isn't possible to predict the specific output of a prompt. Similar prompts may lead to different outputs.
And how does this affect privacy? We lose control over how we are mentioned.
All existing LLM-powered chatbots have a "hallucination" rate, meaning that they occasionally generate false information. This includes fake information about people.
Sometimes, fake information may harm a person’s reputation, such as when the AI chatbot claims that someone has committed a crime or engaged in unethical behavior.
We might never know that a certain AI chatbot is repeatedly associating our name with false or offensive information. It could happen regularly, occasionally, only in some parts of the world, or only in certain languages.
We might test the AI chatbot ourselves using various prompts and find nothing concerning. However, unlike old search engines, that does not mean that the AI chatbot is not hallucinating about us in other contexts, with different prompts, in other languages, or in other locations.
As I wrote last week, LLM-powered chatbots threaten our privacy rights. Unfortunately, there is still no clear solution in sight, and we may be undoing years of progress in privacy protection.
2. Competition
In addition to privacy, Google's push towards the AI Web raises essential competition concerns, and the company's AI Mode is likely to face harsh legal scrutiny in the EU.
A few days ago, the European Commission announced that it "sent two sets of preliminary findings to Alphabet for failing to comply with the Digital Markets Act (DMA)."
As the announcement states, as a gatekeeper, Google has obligations under the DMA, including:
"not treat their own services more favourably in ranking than similar services of third parties. Such ranking must be done in a transparent, fair and non-discriminatory way."
In this specific case, the European Commission has taken the preliminary view that:
"Alphabet treats its own services, such as shopping, hotel booking, transport, or financial and sports results, more favourably in Google Search results than similar services offered by third parties. More specifically, Alphabet gives its own services more prominent treatment compared to others by displaying them at the top of Google Search results or on dedicated spaces, with enhanced visual formats and filtering mechanisms."
Why does this matter?
Google AI Overviews and AI Mode rely on Gemini, Google's AI model, to provide the AI-generated outputs. Google does not rely on other providers' AI models and does not show their outputs.
Since Gemini generates all the answers (based on content from across the internet), and all the outputs are Google-mediated, it is unclear how this could be considered compliant with the DMA, which says that Google cannot continuously favor its own products and services.
The most dominant player in global search, with around 89.73% of the market, now appears to be integrating its AI model directly into the search engine. This could soon mean that hundreds of millions of people will see only Google-generated results.
It is difficult to understand how this approach could be considered compliant with the DMA (or with other competition laws around the world).
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Google is eager to push the AI Web onto everyone, as it will be highly profitable and help the company maintain its enormous market share across many areas, including search.
However, before it can succeed, it will likely face serious legal challenges, especially in the EU.
I’ll keep you posted!
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Prof. Solove is the Eugene L. and Barbara A. Bernard Professor of Intellectual Property and Technology Law at the George Washington University Law School. A globally acclaimed privacy scholar and expert, he has written numerous seminal books and articles on the subject, is among the most cited legal scholars of all time, and has been shaping the privacy field for over 25 years.
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Luiza
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