Disclosing the Use of Tools such as AI on Personal Data

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Privacy, Technology and Perspective

You should disclose the use of tools such as AI on personal data: This week, we recognize the growing use of Artificial Intelligence (AI) in the employee hiring process.

Many companies already use AI to power chatbots, to reach targeted candidates through advertising, and to assist in developing job descriptions. Some of the more controversial uses include resume screening and even selection. But automated decision-making (a/k/a automated processing that produces legal effects concerning a data subject or similarly significantly affects a data subject) are already outlawed under the EU’s General Data Protection Regulation, especially since AI may not provide a holistic review of a candidate or potentially introduce bias in the hiring process. Nevertheless, AI is playing a large role in hiring, and is even being used to help to interview candidates (adaptive interviewing)—a reality that is especially interesting in technical fields.

Some companies have even introduced the use of AI in analyzing candidates during video interviews. Such systems can detect if a candidate is regularly looking away from the screen (potentially using cue cards of other materials to help answer questions), if there is another voice on the recording (potentially using a friend to help provide answers), and if the candidate is displaying characteristics required for the position (such as being high energy and outgoing). While these tools have become attractive to hiring managers, there are growing concerns about the surreptitious use of these tools.

Illinois is expected to pass the Artificial Intelligence Video Interview Act, HB 2557:

http://www.ilga.gov/legislation/101/HB/PDF/10100HB2557eng.pdf

Likely a first of its kind, Illinois will require any employer that records a video and has it analyzed by AI to place limitations on the usage of AI in the hiring context. The law’s purpose is to provide information on how such AI works when used to analyze an applicant’s facial expressions in considering their fitness for a position. The law will require (1) that each applicant is notified in writing before any interview, (2) that the employer provide an explanation on how the AI works, and (3) that each applicant provides written consent. Additionally, the law provides that any such videos must be destroyed within 30 days following the hiring process, including all backups.

Consistent with many such laws worried about personal privacy, the Illinois law is, in effect, requiring companies to require opt-in for automated systems to use personal data in analyzing an individual. Illinois, in fact, has been at the forefront of regulating the use of changing technologies in the workplace, including the Biometric Information Privacy Act (BIPA), which we referenced our recent (and controversial) post on facial recognition technologies:

https://www.hoschmorris.com/news-hm/privacy-plus-may-18-2019

We expect to see a significant increase in such laws across the country as employers use of AI expands across the hiring lifecycle. Concerns around bias, storage and retention of personal data, and disclosure will continue to grow as companies use more and more of these tools. Any company considering the use of AI to help make judgments in the hiring process should start to consider alternatives and significant improvements to their disclosure policies moving forward.

Hosch & Morris, PLLC is a Dallas-based boutique law firm dedicated to data protection, privacy, the Internet and technology. Open the Future℠.