Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials

Jennifer Bard (University of Cincinnati), Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials, San Diego L. Rev. (Forthcoming):

This paper calls for a mortarium on the use of artificial intelligence technology (AI)that can manipulate human decision-making for the purpose of obtaining informed consent to participate in clinical drug trials. So-called “Persuasive” or “Emotion” AI is already widely used by the military and by private companies to engage in conversations with targeted individuals to induce them to make a decision that may not be in their own best interests. While this kind of manipulation is concerning when that decision is to launch a drone strike on a civilian target, vote for a particular client, or hire one job candidate over another, the failure of the United States, unlike the EU, to take any action to protect its citizens from AI mean that these actions are all currently legal. But the process of obtaining informed consent for research enjoys unique legal protection from federal laws passed in direct reaction to the unethical behavior of the U.S. Government in withholding treatment from Black Sharecroppers (formally known as the Tuskegee Syphilis Experiment.) This is a matter of particular concern now because of new NIH and FDA policies designed to increase the diversity of participants in clinical trials. In this article, I identify the features of Persuasive AI which would allow drug companies to undermine the free will of potential participants in ways that are both undetectable and impossible to remediate. Using original research into how drug companies are already using AI to identify and recruit potential participants, I argue that there is an urgent need for an immediate ban on its use because new laws mandating greater diversity in drug trials are creating a perverse incentive to manipulate and coerce the very populations who these federal laws were passed to protect.