A world without Section 702.

Dave Bittner: Hello, everyone, and welcome to "Caveat," N2K CyberWire's privacy, surveillance, law, and policy podcast. I'm Dave Bittner and joining me is my co-host Ben Yelin from the University of Maryland Center for Cyber Health and Hazard Strategies. Hey there, Ben.

Ben Yelin: Hello, Dave.

Dave Bittner: On today's show Ben provides an update on the latest happenings with section 702. I've got the story of a German court holding Google responsible for their AI output. While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover please contact your attorney. [ Music ] All right, Ben. It's kind of been a busy week when it comes to policy. Why don't you kick things off for us here?

Ben Yelin: Sure. So where were you, Dave, in the summer of 2008?

Dave Bittner: Oh my goodness. Where was I in this? What is that? Eighteen years?

Ben Yelin: I don't want to age you.

Dave Bittner: Where was I in the summer of 2 -- the heady days of the summer of 2008.

Ben Yelin: Height of the Obama campaign.

Dave Bittner: Right. Right.

Ben Yelin: We were right before the financial collapse. I had just graduated college. The reason I'm detailing all of this -- I know. I always have to rub that in. I'm an old man now too, but just a different kind of old man.

Dave Bittner: Yeah. I was in a -- I had a different career at that point. I was working in video and multimedia production. So very different. I was in the midst of a very different professional life.

Ben Yelin: There you go. So that means it's certainly been a significant amount of time. And the reason I bring that up is that was the last time the section 702 of the FISA Amendments Act which allows the government to surveil non U.S persons outside the United States for counter terrorism purposes, that was the last time that program was not in effect until now. We have reached that apocryphal point. Section 702 for the time being at least is not authorized by Congress. Now there are some complications to this, but I just want to emphasize how historic this is, that every single day from the summer of 2008 until now Congress has found a way to authorize this surveillance program through statute.

Dave Bittner: Right. Which -- and it started right after 9/11. Right?

Ben Yelin: It did. And that was kind of off the books statutorily for a few years. And George W Bush was concerned that there were going to be legal challenges to it so he got Congress first to pass the Protect America Act which was a temporary version of this authority. And then section 702 was part of the FISA Amendments Act in 2008 which was supposed to be a permanent solution. When it came up for reauthorization for the first time in 2012 it was reauthorized basically without any discussion or question. The intelligence community will assert to this day that it is the most valuable counter intelligence tool we have, that there are just significant threats out there that are going to harm us if we don't have this surveillance authority. The next five years it was reauthorized again in January of 2018 with only some minor modifications. There were some hiccups there. It almost got curtailed at the last minute because Trump who was president at the time almost spiked it because he thought that this was the program that allowed for the surveillance of his campaign. Somebody explained to him that it wasn't. That was like a traditional FISA search with a warrant. So he allowed that reauthorization to pass. That took us to 2023/2024 under president Biden. Congress again agreed to extend the program, this time only for two years. And with some minor reforms, but not anything of significance. Civil liberties advocates have been calling for a warrant requirement to query the section 702 database. So to require a probably cause showing in front of the FISA court before the database which can contain incidentally collected communications of Americans before that is searched. And even though that's come very close to passing it's never actually passed. So that took us to 2026. The program was due to expire at the end of April. They were able to come up with like a six week extension just to see if they could work out a solution. And it kind of seemed like they were going to settle on a solution on the merits. I think there are enough votes in Congress to basically reauthorize section 702 largely unchanged. I think there's a very vocal minority that thinks of this as a back door method to surveil Americans' communications. There are members on both parties who genuinely believe that to be the case, but when push comes to shove there are probably enough votes in the house and senate to reenact this program. But there was a wrench thrown in to all of this.

Dave Bittner: Right. Of course there was.

Ben Yelin: So the director of national intelligence is Tulsi Gabbard and she is leaving the administration in a few days as we speak today ostensibly to spend time with her husband who's apparently ill. But also I think she was kind of shoved out of the administration. She clearly disagreed with their Iran policy. In her place President Trump nominated on a temporary basis -- so like the acting director of DNI was this guy Bill Pulte who was previously appointed to the federal housing administration. So obviously that role would not leave anybody qualified to run our national intelligence apparatus.

Dave Bittner: No. I mean he's Pulte homes, big home builder, all throughout the United States.

Ben Yelin: Yeah. So that's his background. He's also like a pretty partisan Trumper who has leaned in to theories about the 2020 election being stolen. And so this was a complete non starter for democrats. Because he was nominated in acting capacity democrats didn't really have any leverage to stop him. You can have an acting director kind of indefinitely. But the one ace democrats had in the hole here was the reauthorization of section 702. And they said, "If you don't fire this guy or get him out of this acting position we will not provide the votes to advance section 702." And democrats have that leverage because there aren't enough republican votes alone to reauthorize section 702. There are plenty of republicans in both chambers who are dead set against section 702 as it exists. So they need democratic votes and by Trump putting Pulte in this position it gave the democrats the leverage to say, "We might agree policy wise. We might agree with the significant security interests of reauthorizing section 702, but we can't reauthorize this powerful program if you put this partisan hack in charge of the most powerful office that has jurisdiction over this program."

Dave Bittner: Now to be clear here isn't it required in legislation that the head of this department have national security experience?

Ben Yelin: It is, but, you know, who's going to do anything about it?

Dave Bittner: Yeah.

Ben Yelin: Since he's been in the administration I guess you could say he's been adjacent to some national security related matters. I mean at this point I just don't even think they're going to try to justify it. I think what Trump would say is this is an acting position. He made clear that the nomination wasn't permanent. And I don't think that appeased the democrats because at least when section 702 was coming to the floor at the end of last week for reauthorization President Trump had still not nominated somebody to be the permanent head of the office of the director of national intelligence. So the house speaker and the senate majority leader put section 702 reauthorization on the floor in both chambers and it failed. And it failed pretty badly. Interestingly once the house had left town and had gone home to their constituents then Trump finally did nominate somebody to permanently lead the office of the director of national intelligence. It's this guy Jay Clayton who seems to have earned bipartisan respect. He has governmental experience. The ranking democratic member of the house intelligence committee Jim Himes from Connecticut was basically like, "Why didn't you just nominate this guy a week ago? I would have been completely satisfied." He's a supporter of section 702. He was like, "I would have voted to reauthorize it." But now the house is out of town. So we're not going to be in session for at least another two weeks. Therefore section 702 is going to expire. And it did.

Dave Bittner: Just so I understand, the nomination of Jay Clayton, does that mean Pulte's out?

Ben Yelin: He is still in his role as acting director until Clayton is confirmed. Clayton's confirmation hearing has already been scheduled for I think sometime later this month. So they're moving forward with a process pretty quickly and at least before we went in to the weekend it seemed like there was a plausible end game here. Clayton gets confirmed. Pulte's out. Let's go through a 702 reauthorization. Sure. There's going to be some whining and complaining from members of Congress. There always is because this is a controversial program. But at the end of the day it's going to get reauthorized.

Dave Bittner: Yeah.

Ben Yelin: The newest wrinkle is that over the weekend Trump said that he would not support reauthorization of FISA unless it included an unrelated amendment to add the USA -- not the USA. The Save America Act which is a bill relating to voting procedures that require like proof of citizenship to vote. It would significantly curtail mail in voting. I mean this is his main interest. This is what he cares about most policy wise right now. It comes from his view of the 2020 election.

Dave Bittner: Isn't this the one that would -- could potentially make it a lot harder for married women to vote because of verifying their married names versus maiden names and all that?

Ben Yelin: It would add a huge administrative burden because like one of the ways to prove your citizenship if you don't have a passport is to show your birth certificate, but your name, your maiden name, is going to be different obviously on your birth certificate than it is on your current form of identification. So that would be a problem. I mean as a policy I don't support it because I think it puts up unnecessary barriers to voting and I don't think it actually solves any problems given that --

Dave Bittner: Well, voter fraud isn't really a thing. Right? I mean --

Ben Yelin: In any significant capacity no. Like there's large scale voting fraud has never been proven except the one or two times when voting patterns were so obviously off that there was no other reasonable conclusion one could draw than that fraud had existed. But that's happened once in my lifetime. It was a North Carolina house election. And it's not like we haven't checked. Like states have done full audits. They've looked at every single voter and it's a remarkably small number of voters are either not citizens or don't qualify in some way. Like you hear a lot of anecdotes, but just as a large scale problem yeah it doesn't exist.

Dave Bittner: Yeah. My understanding is just it's just not a crime worth committing. Like the penalty for doing it versus being able to sway one vote --

Ben Yelin: Oh yeah. I mean it would be crazy. If you were an undocumented person and you are caught trying to vote illegally you will be deported from this country immediately. Why on Earth would you risk doing that for one vote that's, as you said, going to be diluted by millions of other people? Like it's just the incentive structure doesn't make sense. Now that's my personal opinion on this voting act. Your mileage may vary on it. I think we can all agree it has nothing to do with national security surveillance.

Dave Bittner: Right. Right.

Ben Yelin: And attaching one to another is the definition of a legislative poison pill.

Dave Bittner: But he's already behind. That's -- I mean is that -- the president already has an uphill battle. Right?

Ben Yelin: He does. I mean I think he does this thing where he puts out these types of threats that he thinks are going to put his opponents in a difficult position. But really he's just shooting himself in the foot. I mean if there is some terrorist incident that would have been stopped if section 702 had been in effect that would reflect poorly on him. Like he has just as much of an interest in this getting reauthorized as democrats and republicans in Congress. So it's not really -- like why would democrats be like, "Oh no. The Save America Act. We better pass it because we can't live without section 702." Like they wouldn't be any more primed to have that attitude than Trump himself would. At least theoretically. Now the other big wrench in this is it's not entirely clear whether the program has actually expired in a factual sense.

Dave Bittner: Right.

Ben Yelin: What I mean by that is the FISA court grants an annual authorization to conduct section 702 searches. So they review all of the data, all of the minimization procedures, and they approve section 702 pursuant to the application submitted to the court by our intelligence community. And that approval was given some time a couple of months ago and it goes through the spring of 2027. So most legal scholars believe that section 702 is still in effect through that period because of that judicial authorization regardless of whether the statute has been reenacted by Congress. The problem with that is there are some technology companies who presumably might get a little bit skittish about replying to government directives now that there isn't explicit authority for it. So let's say you are Google and you get a directive to send over the stored communications between a terrorist and a U.S person. When section 702 was in effect you know you have 100% statutory authority not just requesting that you submit that documentation, it is a mandate. You are commanded to do so. It's a type of subpoena basically. If you were one of those companies now I think you'd have at least potentially grounds to refuse that request, refuse that mandate, with a justification that even though we have this FISA court ruling seemingly authorizing this until the spring of 2027 we're in a legal gray zone and we don't want to subject ourselves to additional liability. And we don't want to show our customers that we don't care about their privacy. So they are running that risk. Again I along with most other legal scholars think that for all intents and purposes section 702 is still in effect until this FISA court order expires next spring. But it certainly creates a level of uncertainty and what makes things more complicated is any arguments or disagreements between the communications providers and the intelligence community are going to be kept secret. Like this entire debate is not going to happen out in the open. So we won't really know what's going on behind the scenes as the intelligence community and the communications companies work out their differences of opinion on this matter. So we're in a real black box dark zone on section 702 until we get reauthorization.

Dave Bittner: So do you suppose we'll get it?

Ben Yelin: A lot of it depends on two things: getting the new director of national intelligence confirmed which I think is likely, and then if Trump holds true to this Save America Act thing he's threatened to veto legislation many times if it hasn't included the Save America Act and he's never actually followed through on it. Like if you'll recall he said he wouldn't sign a Department of Homeland Security appropriations unless it included some version of the Save America Act. That didn't happen. He still signed it. When the republicans passed a reconciliation bill to include more funding for ICE and customs and border protection he demanded that the Save America Act be included in that. Once it was clear that that was not going to happen, that wasn't going to be possible for a number of reasons, he signed the bill anyway. So it's possible that this is another empty threat and you get a new DNI confirmed, Congress gets together at the end of June and is able to reauthorize this. I don't think Trump would actually veto it. But that's unknowable. I mean maybe this is the one time he sticks to his guns. And if that's the case the democrats are never ever agreeing to pass the Save America Act. It's never going to happen. Somebody would have to fold in that context and it's not going to be the democrats.

Dave Bittner: So what if things continue as you were saying? If things quietly continue behind the scenes as they always have because legal scholars inside and outside the government believe that 702 is still in effect through next year, does that remove some of the pressure for Congress to resolve this?

Ben Yelin: Totally. It totally does. I've seen some national reporters who've been my sources for national security surveillance related news say they wouldn't be surprised to see this fight punted in to early 2027 because the pressure is off for reauthorization.

Dave Bittner: Okay.

Ben Yelin: You always run the risk though. Let's say the program continues as it has existed through this judicial authorization and based on the surveillance we arrest somebody and accuse them of conspiring to commit acts of terrorism and that goes to trial and they try to attack the sufficiency of the evidence. We don't want to be in a situation where some judge is like, "Yeah. You know, the only evidence you had here was derived from section 702. In my view, you know, I don't really care that the FISA court reauthorized it. There wasn't statutory authority to conduct the search. Therefore we're going to throw out this entire case." Like this person's not going to be incarcerated. You don't have any other evidence. That's a real fear. Like that could happen. I'm not saying it's going to happen, but it could happen. That's the risk that Congress is running here. Whatever most legal scholars say you can get any federal judge who disagrees and throws out a criminal case because he or she doesn't think the government has this authority. And that would not be good for any of us. I don't buy in to the arguments that a lot of pro national security folks have made over the past few days that this is reckless in light of the fact that the World Cup is coming up. We're facing these kind of additional risk vectors because we have all of these foreigners in the United States for this month long tournament.

Dave Bittner: There's a lot of empty seats, Ben.

Ben Yelin: Although I will say, you know, I've seen some pretty good crowds. But, you know, from the perspective of like a national security stalwart I understand why they tried to make that argument.

Dave Bittner: Yeah.

Ben Yelin: I don't really buy that. But I do think there are certainly risks from Congress just saying, "Eh, we don't have urgency right now. The program can continue to run as it has. Nothing bad's going to happen. Let's just wait until early 2027." Not to mention that like Trump is still going to be the president in 2027. So eventually he's going to have to agree to reauthorize this one way or another. Otherwise we're going to be sitting without section 702 authority until 2029 and we won't have starting early next year a court order to fall back on.

Dave Bittner: Yeah. And for -- I guess from the democrats' point of view it takes some of the pressure off of with the whole thing with the Save Act of, you know, I imagine their strategy is to say, "You know, we can wait."

Ben Yelin: I think that's exactly what they're going to say is like yeah, "Your threat is not going to deter me. We want this just as much as you do." But just as Trump would never agree to only pass a version of FISA if it included some pipe dream democrat's voting rights bill, like universal registration or something, they are not going to sacrifice their own principles on election related issues because they're desperate to enact -- to reenact FISA section 702. It's just not going to happen. I think Trump sometimes talks himself in to having more leverage than he actually has and maybe it's his staff who are -- or his senior advisors who are arguing to him that he has this leverage. But in this case I just don't think it's leverage that he actually has. I don't think democrats care enough to do what Trump wants on the Save America Act because they think that there's at least a significant possibility that section 702 can continue as is until early 2027. Now that's true for the democratic members who support section 702. He has even less leverage over the half of democratic members in Congress who are against section 702.

Dave Bittner: Right.

Ben Yelin: To them it's like, "Great. Your threat means nothing to me. I was going to vote against this anyway." So we're just in a very, very interesting place right now.

Dave Bittner: Yeah. All right. Well, we will have a link to that story. We were using a story from NBC News on this topic. So we'll have that in the show notes. Let's take a quick break to hear from our sponsor. We will be right back after these messages. [ Music ] And we are back. My story this week. Interesting news coming out of Germany. This is a court in Munich ruled that Google can be held directly liable for false statements generated by its AI overviews. And this is rejecting protections that traditionally applied to search engines.

Ben Yelin: So like in the United States I read this as it would have been section 230 would have protected Google from this.

Dave Bittner: But Germany ain't in the United States.

Ben Yelin: Last time I checked the globe that is correct.

Dave Bittner: That's right. That's right. So fascinating outcome here. Evidently there were a couple of publishers in Germany who were falsely linked by Google's AI summaries to scams and questionable business practices and the court in Germany found that the AI generated claims did not appear in any of the cited sources. So in Google summary they provided sources, but the claims weren't held up by any of the sources and that made them Google's own statements rather than third party content. In other words, Google created this. Google's technology created this statement based on nothing. A classic hallucination. And so the judge they distinguished AI overviews from traditional search results arguing that AI systems create new content by analyzing and combining information rather than simply linking to existing sources. What do you make of this so far, Ben?

Ben Yelin: It's fascinating. I don't think this case would have been decided the same way in a United States court because of our tradition of section 230 shielding the Googles of the world from this type of liability. And we've seen that apply already in the AI context. To be honest, though, the reasoning here is pretty compelling.

Dave Bittner: Right.

Ben Yelin: What search engines are supposed to do is just kind of reprint in an organized way the content from other sources. So think about like the pre AI Google. It just gave you a set of links to other websites that gave you the information that you were requesting. That's very clearly not Google created content. That's just them providing a service connecting you to that content. Somebody here is creating new content because we have this hallucination. And I think you could definitely plausibly make an argument that it's Google creating this content. And if they're not -- if they're acting as a content creator and not just a passive publisher maybe that does and should subject them to a certain type of liability. I think the theory is sound.

Dave Bittner: I'm trying to think of like -- you know I love my analogies.

Ben Yelin: Oh yeah. You can go six feet deep with your analogies.

Dave Bittner: Right. I'm trying to -- you know like those -- you know those Coke machines that we have here where you walk up and there's a video display and it's a touchscreen and you get to choose, you know.

Ben Yelin: I can get any combination I want. I could get orange soda with a shot of cherry flavor and --

Dave Bittner: Yeah. Right. Right. So, you know, what if by some strange combination you or I walk up to one of these things? We dial in some combo that has never been seen before and it turns out it's poison.

Ben Yelin: Right.

Dave Bittner: Right? Well, who's on the hook for that? Coke or the restaurant or somebody is. Right? They -- I mean they're not just going to say, "Oh wow. The machine hallucinated and created this poison. Wow. Who could have thought?" Well, no. Nobody's responsible for that. So I wonder if that's, you know, a similar line of thinking here because when Google's creating information that is created from whole cloth, right, and it is false information, seems to me they should be on the hook for that.

Ben Yelin: Yeah. So just to extend your metaphor a little bit so that we can work through this --

Dave Bittner: Improve it please.

Ben Yelin: It really depends on what theory of liability a court is following. So let's say they are following just a negligence based theory. You have to prove that the company, in this case Coca Cola, wasn't acting with reasonable care. And that would be hard to prove. Like Coca Cola could just say, "There's no evidence we ever knew that this poison existed. We didn't do anything negligently. Like we dotted all the Is and crossed the Ts."

Dave Bittner: Right.

Ben Yelin: That's one way of looking at that case. The other way which, you know, courts really disagree on how to look at these cases -- but the other way courts have looked at it is a products liability viewpoint where there's strict liability based on product defects that you are expected when you put a product to market that it's basically safe. And, you know, in that case absolutely Coca Cola would be liable. So I think you're kind of in the same situation here. What the German court is doing is applying more of this strict liability. You are responsible for the output of your own artificial intelligence. Whether you are negligent at any point in the deployment of this technology is not meaningful to the outcome of this case. The only thing that's meaningful is that there is a defect in the design and you are strictly liable for that defect. And I think that's the theory they're following here and I think it makes intuitive sense to me. What Google would say, and I think this is 100% true, is let's say this happens 1 in 2 million searches or an even higher number. You'd be getting rid of a very effective tool that we all use which is Google's AI summaries just because you have this isolated case of hallucination. And it's just not worth it for our legal system to target Google. We want to foster a robust marketplace and so it makes more sense to shield them from liability so that Google doesn't cower in a corner and say, "Well, maybe we'll just shut down our entire AI." So you really do have to focus on that balance, but I do think the reasoning here to me is compelling and pretty sound.

Dave Bittner: Well, a few more details here. The German court rejected Google's argument that users can verify information themselves by checking the linked sources. I guess the court thought that was too much of a burden on the user kind of like, you know, reading the EULA. Right? [Laughs].

Ben Yelin: It's always hard in any legal system to blame the user. Like courts treat users as kind of -- I mean there are some instances where the user is going to be liable, but we -- the court kind of sees itself in the face of the user. If you're a judge you can relate more to the user than you can to the developer or the deployer.

Dave Bittner: They also found that AI generated opinions deserve less free speech protection because they're produced by algorithms rather than human beliefs or convictions. Now how would that fall in to our first amendment?

Ben Yelin: That is very, very interesting to me. And frankly I'm not sure. Companies have asserted first amendment interests in AI generated content. They say it is -- represents a type of speech, especially on like the intellectual property context. And I just don't know if there's anything in our current jurisprudence that matches the argument the German court is making here, that for some reason AI generated content enjoys a lesser free speech protection than non AI generated content. Like I don't think we have a framework for downgrading AI generated content the way the court has done in this case.

Dave Bittner: But we do it for copyright. Right? AI generated stuff can't be protected by copyright.

Ben Yelin: Right. But that's not a free speech issue. That's a fully intellectual property issue.

Dave Bittner: True.

Ben Yelin: Just like, you know, there are diminished free speech rights within certain categories of speech for other reasons.

Dave Bittner: Okay.

Ben Yelin: So things like fraud or deceptive advertising, that's outside of first amendment protection entirely. Or certain types of content of speech where first amendment rights are significantly lessened. Certain obscenities, pornographic materials, etcetera, I think the courts have established that they enjoy a lesser set of first amendment robustness and legislatures are entitled to put more regulations on certain types of speech. Fighting words. Words that would have a tendency to cause violence. Outside of those categories there I think we have not -- at least the Supreme Court has not distinguished speech between algorithm generated speech versus non algorithm generated speech. Like I don't think that's a dividing line that our courts have considered yet. I think it's going to come up at some point probably in this context because I assume there was some kind of defamation or liable claim made here. And so there is going to be a case like that and the courts are going to have to wrestle with that. And maybe adopt that type of standard. I mean we I think have a much richer tradition of free speech protections in the United States than most countries in the European Union, as an example. So I think it would -- we are more inclined to be protective of free speech if it doesn't fall in to one of these preexisting categories like false advertising, fraud, that type of thing.

Dave Bittner: Right. This is new. Like this is the first time we've had to deal with non human speech. Right?

Ben Yelin: Yeah. At least in this context. I mean I have not seen a U.S case with a similar set of facts where somebody suffers reputational harm because of a hallucination. It's probably happened somewhere, but I don't remember having seen it gone through our court system. And at the very least there certainly isn't settled law on this. Like it is a very, very live and open issue.

Dave Bittner: And there was a case. I'm trying to remember. There was a vague recollection now. I'll have to look it up. It was a gentleman who was being accused of something improperly by an AI. And I want to say he sued over it, but I don't remember the details. But yeah. You're right. I mean there's just it is something we're going to have to contend with. It's something we're going to have to settle on. And it's interesting that this is the first shot across the bow, I guess, in a big way.

Ben Yelin: Yeah. I mean I think there are a number of ways of looking at it. If they determine that free speech protection remains robust even for AI generated content that's going to limit a lot of the potential remedial actions. But if they decide that this type of speech enjoys a lesser form of free speech protection then you can start to get in to things like strict liability theory for unsafe and defective products where I think you could have a very strong case that there was something that happened in the development of this product in the proverbial factory that led to something like this happening. And that company should be liable for whatever happens with that product vis-a-vis safety or causing harm to others.

Dave Bittner: Do you think is it plausible that Google could get around this in much the same way that, you know, we had all the -- we still to this day have all of these consent for cookies type things with very website you visit. You know, you go visit a website and it says, "This website uses cookies. And you must -- "

Ben Yelin: And you press accept all cookies because you don't --

Dave Bittner: Right. And so, you know, this website uses AI which is often wrong. Proceed at your own risk. If you -- please check the sources.

Ben Yelin: Yeah. I mean they do say that.

Dave Bittner: Yeah. It's true.

Ben Yelin: And --

Dave Bittner: They already say that.

Ben Yelin: I think like all of the major chat bots and LLMs put that warning pretty prominently out there. And so I mean that could be one argument you could use to convince a court that people have constructive knowledge that these models can be wrong. And I think that's what Google's defense is here. I don't frankly know a lot about the appeals process in German courts, but I assume they're going to try to appeal this case in one form or another.

Dave Bittner: I guess the bottom line though is that this court is putting the burden on Google, on the provider, to do the fact checking, not the customer.

Ben Yelin: Right. Google would hate for that to be a judicially mandated outcome.

Dave Bittner: Right.

Ben Yelin: Because they do not want to be on the hook for that. And I think that's why all of these companies put that warning line placed prominently under the chat box when you're using an LLM. It says like, "You need to check all of the content. AI can be wrong." Because they don't want to have any responsibility for false information, that all they are trying to do is use their algorithm to recreate information that is already out there and on very rare occasions they will misinterpret that information and assert something that's false or incorrect.

Dave Bittner: But that can cause harm.

Ben Yelin: That can cause harm as it does here in this case.

Dave Bittner: Yeah.

Ben Yelin: But I think their view is like the customer implicitly -- or the user implicitly assumes that risk when they use the AI tool and they see this very prominent warning that tells them that AI can get things wrong. I think that imputes on the user an implied responsibility to fact check or at least to be discerning about what the AI returns to them.

Dave Bittner: Yeah. I guess part of it is that companies like Google are making the AI the default now. Right? So your assumptions about search that we've all come to have based on decades of using Google --

Ben Yelin: Out the window.

Dave Bittner: Right.

Ben Yelin: Yeah. It's a new day. I mean I generally think it's a pretty good effective service. It prevents you from having to click on a bunch of different links. If it's something where the stakes aren't particularly high like "Does this restaurant have good Chinese food?" You know, and it will summarize like some reviews say this and others say that. Like the stakes of that are pretty low, but it's actually really nice for the user to see that all in one place instead of like, "I have to click on 15 different review websites."

Dave Bittner: Right.

Ben Yelin: And so I think it's a service that people value and enjoy. And if Google thinks that the liability that they're being exposed to here gives them incentive to shut down that system people will probably be pretty upset.

Dave Bittner: Could end up just being a cost of doing business. Occasionally Google has to pay out for defamatory statements.

Ben Yelin: Yeah, especially if they think that the reasoning used in this court is going to be isolated and this is just one country. You know, they operate in hundreds of countries worldwide. They -- all they have to do here is stop displaying the false claims and pay 80% of legal costs which for Google is I'm just guessing here. It's probably pocket change.

Dave Bittner: Right. It's couch cushion money.

Ben Yelin: Yeah. I don't think that Sergey Brin is going to be dipping in to his savings or stock options to pay for this one.

Dave Bittner: Yeah. Yeah. All right. Well, we will have a link to that story in the show notes. And of course we would love to hear from you. If there's something you'd like us to consider for the show please email us at caveat@n2k.com. [ Music ] And that is "Caveat" brought to you by N2K CyberWire. We'd love to know what you think of this podcast. Your feedback ensures we deliver the insights that keep you a step ahead in the rapidly changing world of cybersecurity. If you like our show please share a rating and review in your favorite podcast app. Please also fill out the survey in the show notes or send an email to caveat@n2k.com. This episode is produced by Liz Stokes. Our executive producer is Jennifer Eiben. The show is mixed by Tre Hester. Peter Kilpe is our publisher. I'm Dave Bittner.

Ben Yelin: And I'm Ben Yelin.

Dave Bittner: Thanks for listening. [ Music ]