Michael Celone (Massachusetts Institute of Technology (MIT)), Sean McGregor, Mosi Secret, Noga Bregman, Bekhzodkhon Alikhanov, and Eduardo Mignot have posted Architecting Candor: Products Liability and AI Incident Knowledge Governance on SSRN. Here is the abstract:
Artificial intelligence (AI) firms need incident knowledge to improve safety, yet the act of documenting that knowledge can increase litigation risk. As American courts increasingly subject AI systems to products liability, and as the European Union (EU)’s Product Liability Directive expressly classifies software as a “product,” the root-cause analysis necessary to diagnose an incident and remediate the system provides plaintiffs with evidence to establish fault and defective design. Such litigation risk produces a chilling effect and systematic underproduction of the formal incident knowledge that would otherwise drive safety engineering. It also deprives corporate boards of the incident data their oversight duties require. Moreover, as new law imposes incident-reporting duties, failures to preserve required records can create compliance risk, while the Product Liability Directive authorizes a rebuttable presumption of defectiveness when a defendant fails to comply with a court-ordered disclosure of relevant evidence. This playbook seeks to shift corporate AI incident response away from managing litigation risk and toward managing technical risk, showing that the two objectives, correctly structured, can coexist harmoniously. Drawing on the institutional designs through which aviation and healthcare resolved the same paradox, it proposes a three-channel architecture, a “Safety Translation Layer,” that separates automatically generated factual records from counsel-directed investigation and liability assessment while preserving a structured pathway through which objective safety signals become engineering requirements. A pre-committed telemetry tripwire, calibrated to the firm’s accumulated incident history, governs entry to the legal privilege channel. Grounded primarily in United States legal doctrine, the institutional architecture can be implemented today under existing law. In doing so, it aligns safer engineering and regulatory compliance with effective board oversight and a defensible litigation posture. The playbook concludes by recommending new legislation shielding organizations from liability or enforcement exposure related to reporting safety incidents.
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