Emergent Medical Data: Health Information Inferred by Artificial Intelligence

11 U.C. Irvine Law Review 995 (2021)

73 Pages Posted: 24 Mar 2020 Last revised: 14 May 2021

See all articles by Mason Marks

Mason Marks

Harvard Law School; Yale Law School; University of New Hampshire Franklin Pierce School of Law; Leiden Law School, Center for Law and Digital Technologies

Date Written: March 14, 2020

Abstract

Artificial intelligence can infer health data from people’s behavior even when their behavior has no apparent connection to their health. AI can monitor one’s location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people’s actions and produce digital traces, the electronic remnants of their behavior.

In their raw form, digital traces might not be very interesting or useful; one’s location, retail purchases, and internet browsing habits are relatively mundane data points. However, AI can enhance their value by transforming them into something more useful—emergent medical data. EMD is health information inferred by artificial intelligence from otherwise trivial digital traces.

This Article describes how EMD-based profiling is increasingly promoted as a solution to public health crises such as the COVID-19 pandemic, gun violence, and the opioid crisis. However, there is little evidence to show that EMD-based profiling works. Even worse, it can cause significant harm, and current privacy and data protection laws contain loopholes that allow public and private entities to mine EMD without people’s knowledge or consent.

After describing the risks and benefits of EMD mining and profiling. The Article proposes six different ways of conceptualizing these practices. It concludes with preliminary recommendations for effective regulation. Potential options include banning or restricting the collection of digital traces, regulating EMD mining algorithms, and restricting how EMD can be used once it is produced.

Keywords: artificial intelligence, AI, machine learning, public health, digital phenotyping, privacy, big data, mental health, predictive analytics, surveillance

JEL Classification: I1, I12, I14, I18, K10, K23, O15, O32, O33, O38

Suggested Citation

Marks, Mason, Emergent Medical Data: Health Information Inferred by Artificial Intelligence (March 14, 2020). 11 U.C. Irvine Law Review 995 (2021), Available at SSRN: https://ssrn.com/abstract=3554118

Mason Marks (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of New Hampshire Franklin Pierce School of Law ( email )

Two White Street
Concord, NH 03301
United States

Leiden Law School, Center for Law and Digital Technologies ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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