How US law will evaluate artificial intelligence for covid-19

Daniel E Ho and colleagues explore the legal implications of using artificial intelligence in the response to covid-19 and call for more robust evaluation frameworks Numerous proposals, prototypes, and models have emerged for using artificial intelligence (AI) and machine learning to predict individual risk related to covid-19. In the United States, for instance, the Department of Veterans Affairs uses individualised risk scores to allocate medical resources to people with covid-19,1 and prisons have sought to detect symptoms by processing inmates’ phone calls.2 Further tools, such as vulnerability predictions for individuals3 and voice based detection of infection,4 are on the horizon. But use of AI for such purposes has given rise to questions about legality. When a state or federal government seeks to use AI models to predict an individual’s risk of covid-19, the key legal questions will ultimately turn on how effective the models are and how much they burden legal interests. We focus on two of the most salient legal concerns under US law: privacy and discrimination. Challenges on privacy or discrimination grounds might appear in a variety of contexts, including challenges to regulatory decisions, tort actions, or lawsuits under health privacy laws. We argue that the basic need to balance benefits against burdens runs through all of these legal regimes. Governments implementing risk scoring tools must show that their tools produce valid, reliable predictions and burden individuals’ civil liberties no more than necessary. In evaluating the legality of public health use of algorithms, courts will likely also probe how the output of these tools is used to shape policies and programs. But showing that a model performs well and does not exceedingly burden privacy and other interests are essential preconditions for lawful deployment. ### Privacy law Government intrudes on privacy when it forces people to reveal what …