Google’s New ‘Quantum Echoes Algorithm’ and My Last Article, ‘Quantum Echo’

October 30, 2025

🔹 The Reverberations of Quanta on Law Keep Growing Louder 🔹

Ralph Losey, (written 10/25/25)

I had just finished my last article on quantum mechanics—Quantum Echo: Nobel Prize in Physics Goes to Quantum Computer Trio (Two from Google) Who Broke Through Walls Forty Years Ago—when something uncanny happened. That piece celebrated two Nobel-winning physicists from Google and the company’s rapid progress in building quantum machines. It ended with a question that still echoes: could the law ever catch up to physics’ new voice?

Two days later, physics answered back.

A person sits at a table typing on a laptop, with a digital projection of a human figure and waveform patterns glowing in blue tones above the computer screen.
Echoes upon echoes—in random chance interference.
All images in article by Ralph Losey using AI tools.

On October 22, 2025, Google announced that its Willow quantum chip had achieved a breakthrough using new software called—believe it or not—Quantum Echoes. The name made me laugh out loud. My article had used the phrase as metaphor throughout; Google was now using it as mathematics.

According to Google, this software achieved what scientists have pursued for decades: a verifiable quantum advantage. In my Quantum Echo article I had described that goal as “the moment when machines perform tasks that classical systems cannot.” No one had yet proven it, at least not in a way others could independently confirm. Google now claimed it had done exactly that—and 13,000 times faster than the world’s top supercomputers.

Artistic representation of a balanced scale symbolizing justice, with the word 'VERIFIED' prominently displayed. The background features two stylized server towers connected by a stream of binary code, illuminated in golden hues.
Verified Quantum Advantage: 13,000 times faster.

🔹 I. Introduction: Reverberating Echoes

Hartmut Neven, Founder and Lead of Google Quantum AI, and Vadim Smelyanskiy, Director of Quantum Pathfinding, opened their blog-post announcement with a statement that sounded less like marketing and more like expert testimony:

Quantum verifiability means the result can be repeated on our quantum computer—or any other of the same caliber—to get the same answer, confirming the result.

Neven & Smelyanskiy, Our Quantum Echoes algorithm is a big step toward real-world applications for quantum computing (Google Research Blog, Oct. 22, 2025).

Verification is critical in both Science and Law; it is what separates speculation from admissible proof.

Still, words on a blog cannot match the sound of the experiment itself. In Google’s companion video, Quantum Echoes: Toward Real-World Applications, Smelyanskiy offered a picture any trial lawyer could understand:

Just like bats use echolocation to discern the structure of a cave or submarines use sonar to detect upcoming obstacles, we engineered a quantum echo within a quantum system that revealed information about how that system functions.

Click here to see Google’s full video.

A presenter standing on a stage discussing 'Verifiable Quantum Advantage' alongside visuals of quantum technology and a play button overlay for a video.
Screen shot (not AI) of the YouTube showing Vadim Smelyanskiy beginning his remarks.

Think of Willow as Smelyanskiy suggest as a kind of quantum sonar. Its team sent a signal into a sea of qubits, nudged one slightly—Smelyanskiy called it a “butterfly effect”—and then ran the entire sequence in reverse, like hitting rewind on reality to listen for the echo that returns. What came back was not static but music: waves reinforcing one another in constructive interference, the quantum equivalent of a choir singing in perfect pitch.

Smelyanskiy’s colleague Nicholas Rubin, Google’s chief quantum chemist, appeared in the video next to show why this matters beyond the lab:

Our hope is that we could use the Quantum Echo algorithm to augment what’s possible with traditional NMR. In partnership with UC Berkeley, we ran the algorithm on Willow to predict the structure of two molecules, and then verified those predictions with NMR spectroscopy.

That experiment was not a metaphor; it was a cross-examination of nature that returned a consistent answer. Quantum Echoes predicted molecular geometry, and classical instruments confirmed it. That is what “verifiable” means.

Neven and Smelyanskiy’s Our Quantum Echoes article added another analogy to anchor the imagery in everyday experience:

Imagine you’re trying to find a lost ship at the bottom of the ocean. Sonar might give you a blurry shape and tell you, ‘There’s a shipwreck down there.’ But what if you could not only find the ship but also read the nameplate on its hull?

That is the clarity Quantum Echoes provides—a new instrument able to read nature’s nameplate instead of guessing at its outline. The echo is now clear enough to read.

A glowing blue quantum chip is suspended underwater above a sunken shipwreck, with the word 'ECHO' visible on the ship's hull.
Willow quantum chip and Echoes software reveal new information in previously unheard of detail.

That image—sharper echoes, clearer understanding—captures both the scientific leap and the theme that has reverberated through this series: building bridges between quantum physics and the law. My earlier article was titled Quantum Echo; Google’s is Quantum Echoes. When I wrote mine, I had no idea Neven’s team was preparing a major paper for NatureObservation of constructive interference at the edge of quantum ergodicity (Nature volume 646, pages 825–830, 10/23/25 issue date). More than a hundred Google scientists signed it. I checked and quantum ergodicity has to do with chaos, one of my favorite topics.

The study confirms what Smelyanskiy made visible with his sonar metaphor: Quantum Echoes measures how waves of information collide and reinforce each other, creating a signal so distinct that another quantum system can verify it.

So here we are—lawyers and scientists listening to the same echo. Google calls it the first “verifiable quantum advantage.” I call it the moment when physics cross-examined reality and got a consistent answer.

A gavel positioned on a wooden surface in a courtroom, with an abstract representation of quantum wave patterns emanating from it, symbolizing the intersection of law and quantum mechanics.
Quantum Computing will emerge soon from the lab to the legal practice. Will you be ready?

🔹 II. What Google’s Quantum Echoes Actually Did

Understanding what Google pulled off takes a bit of translation—think of it as turning expert testimony into plain English.

In the Quantum Echoes experiment, Smelyanskiy’s team did something that sounds like science fiction but is now laboratory fact. They sent a carefully designed signal into their 105-qubit Willow chip, nudged one qubit ever so slightly—a quantum “butterfly effect”—and then ran the entire operation in reverse, as if the universe had a rewind button. The question was simple: would the system return to its starting state, or would the disturbance scramble the information beyond recognition? What came back was an echo, faint at first and then unmistakable, revealing how information spreads and recombines inside a quantum world.

As the signal spread, the qubits became increasingly entangled—linked so that the state of each depended on all the others. In describing this process, Hartmut Neven explained that out-of-time-order correlators (OTOCs) “measure how quickly information travels in a highly entangled system.” Neven & Smelyanskiy, Our Quantum Echoes Algorithm, supra; also see Dan Garisto, Google Measures ‘Quantum Echoes’ on Willow Quantum Computer Chip (Scientific American, Oct. 22, 2025). That spreading web of entanglement is what allowed the butterfly’s tiny disturbance to ripple across the lattice and, when the sequence was reversed, to produce a measurable echo.

An abstract visualization of a quantum system, depicting a grid of interconnected points with a central glowing source, representing quantum entanglement and interaction patterns.
Visualization of quantum qubit world created by lattice of Willow chips.

Physicists call this kind of rewind test an out-of-time-order correlator, or OTOC—a protocol for measuring how quickly information becomes scrambled. The Scientific American article described it with a metaphor lawyers may appreciate: like twisting and untwisting a Rubik’s Cube, adding one extra twist in the middle, then reversing the sequence to see whether that single move leaves a lasting mark . The team at Google took this one step further, repeating the scramble-and-unscramble sequence twice—a “double OTOC” that magnified the signal until the echo became measurable.

Instead of chaos, they found harmony. The echo wasn’t noise—it was a pattern of waves adding together in what Nature called constructive interference at the edge of quantum ergodicity. As Smelyanskiy explained in the YouTube video:

What makes this echo special is that the waves don’t cancel each other—they add up. This constructive interference amplifies the signal and lets us measure what was previously unobservable.

In plain terms, the interference created a fingerprint unique to the quantum system itself. That fingerprint could be reproduced by any comparable quantum device, making it not just spectacular but verifiable. Smelyanskiy summarized it as a result that another machine—or even nature itself—can repeat and confirm.

A visual representation of wave interference, showing a vibrant blend of red and blue waves converging at a center point, suggesting quantum mechanics and constructive interference.
Visualization of quantum wave interactions creating a unique fingerprint resonance.

The numbers tell the rest of the story. According to the Nature, reproducing the same signal on the Frontier supercomputer would take about three years. Willow did it in just over two hours—roughly 13,000 times faster.  Observation of constructive interference at the edge of quantum ergodicity (Nature volume 646, pages 825–830, 10/23/25 issue date, at pg. 829, Towards practical quantum advantage).

That difference isn’t marketing; it marks the first clear-cut case where a quantum processor performed a scientifically useful, checkable computation that classical hardware could not.

Skeptics, of course, weighed in. Peer reviewers quoted in Scientific American called the work “truly impressive,” yet warned that earlier claims of quantum advantage have been surpassed as classical algorithms improved. But no one disputed that this particular experiment pushed the field into new territory: a regime too complex for existing supercomputers to simulate, yet still open to verification by a second quantum device. In court, that would be called corroboration.

Nicholas Rubin, Google’s chief quantum chemist, explained how this new clarity connects to chemistry and, ultimately, to everyday life:

Our hope is that we could use the Quantum Echo algorithm to augment what’s possible with traditional NMR. In partnership with UC Berkeley, we ran the algorithm on Willow to predict the structure of two molecules, and then verified those predictions with NMR spectroscopy.

Google Quantum AI YouTube video, contained within Quantum Echoes: Toward Real-World Applications (Oct. 22, 2025).

That experiment turned the echo from a metaphor into a molecular ruler—an instrument capable of reading atomic geometry the way sonar reads the ocean floor. It also demonstrated what Google calls Hamiltonian learning: using echoes to infer the hidden parameters governing a physical system. The same principle could one day help map new materials, optimize energy storage, or guide drug discovery. In other words, the echo isn’t just proof; it’s a probe.

The implications are enormous. When a quantum computer can measure and verify its own behavior, reproducibility ceases to be theoretical—it becomes an evidentiary act. The machine generates data that another independent system can confirm. In the language of the courtroom, that is self-authenticating evidence.

As Rubin put it,

Each of these demonstrations brings us closer to quantum computers that can do useful things in the real world—model molecules, design materials, even help us understand ourselves.

Google Quantum AI YouTube video, contained within Quantum Echoes: Toward Real-World Applications (Oct. 22, 2025).

The Quantum Echoes algorithm has given science a way to hear reality replay itself—and to confirm that the echo is real. For law, it foreshadows a future in which verification itself becomes measurable. The next section explores what that means when “verifiable advantage” crosses from the lab bench into the rules of evidence.

A wooden gavel positioned on a table, with glowing sound wave patterns emanating from it, next to a futuristic quantum computer in a laboratory setting.
It may soon be possible to verify and admit evidence originating in quantum computers like Willow.

🔹 III. Verifiable Quantum Advantage — From Lab Standard to Legal Standard

If physics can now verify its own results, law should pay attention—because verification is our stock-in-trade. The Quantum Echoes experiment didn’t just push science forward; it redefined what counts as proof. Google’s researchers call it a “verifiable quantum advantage.” Neven & Smelyanskiy, Our Quantum Echoes Algorithm Is a Big Step Toward Real-World Applications for Quantum Computing, supra. Lawyers might call it a new evidentiary standard: the first machine-generated result that can be independently reproduced by another machine.

A. Verification and Admissibility

Verification is critical in both science and law. In physics, reproducibility determines whether a result enters the canon or the recycling bin; in court, it determines whether evidence is admitted or denied. Fed. R. Evid. 901(b)(9) recognizes “evidence describing a process or system and showing that it produces an accurate result.” So does Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which instructs judges to test scientific evidence for methodological reliability—testing, peer review, error rate, and general acceptance.

By those standards, Google’s Quantum Echoes algorithm might pass with flying colors. The method was tested on real hardware, published in Nature, evaluated by peer reviewers, its signal-to-noise ratio quantified, and its core result confirmed on independent quantum devices. That should meet the Daubert reliability standard.

B. When Proof Is Probabilistic

Yet quantum proof carries a twist no court has faced before: every result is probabilistic. Quantum systems never produce identical outcomes, only statistically consistent ones. That might sound alien to lawyers, but it isn’t. Any lawyer who works with AI, including predictive coding that goes back to 2012, is quite familiar with it. Every expert opinion, every DNA mixture, every AI prediction arrives with confidence intervals, not certainties.

The rules of evidence already tolerate some uncertainty—they just insist on measuring it and evaluation. Is the uncertainty acceptable under the circumstances? As I observed in my last article, the law requires reasonable efforts, “perfection is not required. … and reasonable efforts can be proven by numerics and testimony.” Ralph Losey, Quantum Echo: Nobel Prize in Physics Goes to Quantum Computer Trio (Two from Google) Who Broke Through Walls Forty Years Ago (Oct. 21, 2025).

Like a quantum measurement, a jury verdict or mediation turns uncertainty into a final determination. Debate, probability, and persuasion collapse into a single truth accepted by that group, in that moment. Another jury could hear essentially the same evidence and reach a different result. Same with another settlement conference. Perhaps, someday, quantum computers will calculate the billions of tiny variables within each case—and within each unexpectedly entangled group of jurors or mediation participants. That might finally make jury selection, or even settlement, a measurable science.

A courtroom scene featuring a diverse jury seated in the foreground, listening intently as two lawyers engage in a debate. The judge is positioned behind them, and the setting is illuminated by a network of light patterns, symbolizing connections and insights related to the intersection of law and quantum mechanics.
No two legal situation or decisions are ever exactly the same. There are trillions of small variables even in the same case.

C. Replication Hearings in the Age of Probability

Google’s scientists describe their achievement as “quantum verifiable”—a term meaning any comparable machine can reproduce the same statistical fingerprint. That concept sounds like self-authentication. Fed. R. Evid. 902 lists categories of documents that require no extrinsic proof of authenticity. See especially 902 (4) subsection (13) “Certified Records Generated by an Electronic Process or System” and (14) “Certified Data Copied from an Electronic Device, Storage Medium, or File.

Classical verification loves hashes; quantum verification prefers histograms—charts showing how results cluster rather than match exactly. The key question is not “Are these outputs identical?” but “Are these distributions consistent within an accepted tolerance given the device’s error model?

Counsel who grew up authenticating log files and forensic images will now add three exhibits: (1) run counts and confidence intervals, (2) calibration logs and drift data, and (3) the variance policy set before the experiment. Discovery protocols should reflect this. Specify the acceptable bandwidth of
similarity
in the protocol order, preserve device and environment logs with the results, and disclose the run plan. In e-discovery terms, we are back to reasonable efforts with transparent quality metrics, not mythical perfection.

D. Two Quick Hypotheticals

Pharma Patent. A lab uses Quantum-Echoes-assisted NMR analysis to infer long-range spin couplings in a novel compound. A rival lab’s rerun differs by a small margin. The court admits the data after a statistical-consistency hearing showing both labs’ distributions fall within the pre-declared variance band, with calibration drift documented and immaterial.

Forensics. A government forensic agency (for example, the FBI or Department of Energy) presents evidence generated by quantum sensors—ultra-sensitive devices that use quantum phenomena such as entanglement and superposition to detect physical changes with extreme precision. In this case, the sensors were deployed near the site of an explosion, where they recorded subtle signals over time: magnetic fluctuations, thermal shifts, and shock-wave signatures. From that data, the agency reconstructed a quantum-sensor timeline—a detailed sequence of events showing when and how the blast occurred.

The defense challenges the evidence, arguing that such quantum measurements are “non-deterministic.” The judge orders disclosure of the device’s error model, calibration logs, and replication plan. After testimony shows that the agency reran the quantum circuit a sufficient number of times, with stable variance and documented environmental controls, the timeline is admitted into evidence. Weight goes to the jury.

An artistic representation of a ruler overlaid on molecular structures, symbolizing the connection between quantum mechanics and measurements in science. The background features vibrant colors and wavy patterns, suggesting energy and movement.
Measuring quantum outputs and determining replication reliability.

These short hypotheticals act as “replication hearings” in miniature—demonstrating how statistical tolerance can replace rigid duplication as the new standard of reliability.

🔹 IV. Near-Term Implications — Cryptography, AI, and Compliance

Every new instrument of verification casts a shadow. The same physics that lets us confirm a result can also expose a secret. Quantum Echoes proved that information can be traced, replayed, and verified.  But once information can be replayed, it can also be reversed. Verification and decryption are two sides of the same quantum coin.

A. Defining Q-Day

That duality brings us to Q-Day—the moment when a sufficiently large-scale quantum processor can factor prime numbers fast enough to defeat RSA or ECC encryption. When that day arrives, the emails, contracts, and trade secrets protected by today’s algorithms could be decrypted in minutes.

Adversaries are already stealing and stockpiling encrypted data for future decryption when that moment arrives. Cybersecurity experts call this the harvest-now, decrypt-later threat. Those charged with protecting confidential data must be governed accordingly. Prepare your organization for Q-Day: 4 steps toward crypto-agility (IBM, 10/24/25).

The RSA and elliptic-curve systems that secure global finance, communications, and justice could fall in hours once large-scale quantum processors become available to attackers. For this reason, NIST released its first suite of post-quantum cryptographic (PQC) standards in August 2024. The NSA’s CNSA 2.0 framework, issued in September 2022, now mandates federal migration. Also See, Dan Kent, “Quantum-Safe Cryptography: The Time to Start Is Now,” (GovTech, April 30 2025); Amit Katwala, “The Quantum Apocalypse Is Coming. Be Very Afraid” (WIRED, Mar. 24 2025); and, Roger Grimes’ book, Cryptography Apocalypse (Wiley 2019).

Every general counsel should now ask at least three questions:

  1. Where do we still rely on classical encryption, and how long must those secrets remain secure?
  2. Which vendors can attest to their post-quantum migration timelines?
  3. How will we prove compliance when regulators—or clients—begin auditing “quantum-safe” claims?

See various NIST guides and NSA guides on quantum prep, including The Commercial National Security Algorithm Suite page. Also see, Gartner Research, Preparing for the Post-Quantum World: How CISOs Should Plan Now (2024) (subscription required); and Marian, Gartner just put a date on the quantum threat – and it’s sooner than many think (PostQuantum, Oct. 2024).

Reasonable foresight now means inventory, pilot, and policy—before the echoes reach the vault.

An abstract representation of a digital conflict between Bitcoin and Ethereum, featuring glowing safes with their respective logos, amidst an environment illuminated by beams of light, symbolizing technological advancements and rivalry in cryptocurrency.
When the Echoes hit the vault. Most encrypted data is at risk from future quantum computer operations.

B. Acceleration and Realism

Google’s Quantum Echoes work does not mean Q-Day is tomorrow, but it makes tomorrow easier to imagine.  Each verified algorithm shortens the speculative distance between research and real-world capability.  If Willow’s 105 qubits can already perform verifiable, complex interference tasks, then a machine with a few thousand logical qubits could, in principle, execute Shor’s algorithm to factor the primes that underpin encryption.  That scale is not yet achieved, but the line of progress is clear and measurable.  Verification, once a scientific luxury, has become a security warning light.  Every new echo that confirms truth also whispers risk.

C. Evidence and Discovery Operations

Quantum-derived data will enter litigation well before Q-Day and perfect verification of quantum generated data. The Quantum Age and Its Impacts on the Civil Justice System (RAND Institute for Civil Justice, Apr. 29 2025), Chapter 3, “Courts and Databases, Digital Evidence, and Digital Signatures,” p. 23, and “Lawyers and Encryption-Protected Client Information,” p. 17. These sections of the Rand Report outline how quantum technologies will challenge evidentiary authentication, database integrity, and client confidentiality.

For background on the law that will likely be argued, see, Hyles v. New York City, No. 10 Civ. 3119 (S.D.N.Y. Aug. 1 2016) (Judge Andrew J. Peck (ret.) a leading authority on AI and e-discovery, holding that “the standard is not perfection, … but whether the search results are reasonable and proportional”.) Also see, EDRM Metrics Model and Privacy & Security Risk Reduction Model; and The Sedona Principles, 3rd Edition: Best Practices for Electronic Document Production (2017), together with The Sedona Conference Commentary on ESI Evidence & Admissibility Second Edition(2021).

Looking ahead, today’s hash-based verification with classical computers will give way to quantum-based distributional verification, where productions will not only include datasets but also the variance reports, calibration logs, and environmental conditions that generated them. Discovery orders will begin specifying acceptable tolerance bands and require parties to preserve the hardware and environmental context of collection. This marks the next evolution of the reasonable-efforts doctrine that guided predictive coding: transparency and metrics, not mythical perfection.

D. Regulatory Issues

Industry consolidation—including Google bringing the Atlantic Quantum team into Google Quantum AI—will invite antitrust and export-control scrutiny. We’re scaling quantum computing even faster with Atlantic Quantum (Google Keyword blog, 10/02/25).

Also, expect sector regulators to weave post-quantum cryptography (PQC) and quantum-evidence expectations into existing rules and guidance: CISA, NIST, and NSA as shown already urge organizations to inventory cryptography and plan PQC migration, which is a clear signal for boards and auditors.

Healthcare and life science companies in particular should track FDA’s evolving cybersecurity guidance for medical devices and HHS/OCR’s HIPAA Security Rule update effort, both of which are tightening expectations around crypto agility and lifecycle security. Cybersecurity in Medical Devices (FDA, 6/26/25); HIPAA Security Rule Notice of Proposed Rulemaking to Strengthen Cybersecurity for Electronic Protected Health Information (HHS, Dec. 2024).

Boards will soon ask the decisive question: Where is our long-term sensitive data, and can we prove it is quantum-safe? Lawyers will need to stay current on both existing and proposed regulations—and on how they are actually enforced. That is a significant challenge in the United States, where regulatory authority is fragmented and enforcement can be a moving target, especially as administrations change.

🔹 V. Philosophy & the Multiverse — Echoes Across Consciousness and Justice

Verification may give us confidence, but it does not give us true understanding. The Quantum Echoes experiment settled a question of physics, yet opened one of philosophy: what exactly is being verified, the system, the observer, or the act of observation itself?  Every measurement, whether by physicist or judge, collapses a range of possibilities into a single, declared reality. The rest remain unrealized but not necessarily untrue.

A fantastical scene featuring a person standing in a surreal corridor filled with various doorways, each revealing different landscapes or cosmic visuals. Bright blue energy patterns connect the spaces, symbolizing the intertwining of time and reality.
Quantum entangled multiverse stretching forever with each moment seeming unique.

In Quantum Leap (January 9, 2025), I speculated, tongue partly in cheek, that Google’s quantum chip might be whispering to its parallel selves. Google’s early breakthroughs hinted at a multiverse, not just of matter but of meaning. As Niels Bohr warned, “Those who are not shocked when they first come across quantum theory cannot possibly have understood it.” Atomic Physics and Human Knowledge (Wiley, 1958); Heisenberg, Werner. Physics and Beyond. (Harper & Row, 1971). p. 206.

In Quantum Echo I extended quantum multiverse ideas to law itself—where reproducibility, not certainty, defines truth. Our legal system, like quantum mechanics, collapses possibilities into a single outcome. Evidence is presented, probabilities weighed, and then, bang, the gavel falls, the wave function collapses, and one narrative becomes binding precedent. The other outcomes are filed in the cosmic appellate division.

Google’s Quantum Echoes now closes the loop: verification has become a measurable force, a resonance between consciousness and method. The many worlds seems to be bleeding together. Each observation is both experiment and judgment, the mind becoming part of the data it seeks to confirm.

This brings us to a quiet question: if observation changes reality, what does that say about responsibility? The judge or jurors’ observation becomes the law’s reality. Another judge or jury, another day, another echo—and a different world emerges.  Perhaps free will is simply the name we give to that unpredictable variable that even physics cannot model: the human choice of when, and how, to observe.

Same case but different jurors, lawyers, judge entanglement. Different results when measured with a verdict; some similar and a few very unique. Can the results be predicted?

Constructive interference may happen in conscience, too.  When reason and empathy reinforce each other, justice amplifies.  When prejudice or haste intervene, the pattern distorts into destructive interference.  A just society may be one where these moral waves align more often than they cancel—where the collective echo grows clearer with each case, each conversation, each course correction.

And if a multiverse does exist—if every choice spins off its own branch of law and fact—then our task remains the same: to verify truth within the world we inhabit. That is the discipline of both science and justice: to make this reality coherent before chasing another. We cannot hear all echoes, but we can listen closely to the one that answers back.

So perhaps consciousness itself is a courtroom of possibilities, and verification the gavel that selects among them.  Our measurements, our rulings, our acts of understanding—they all leave an interference pattern behind. The best we can do is make that pattern intelligible, compassionate, and, when possible, reproducible.  Law and physics alike remind us that truth is not perfection; it is resonance. When understanding and humility meet, the universe briefly agrees.

An artistic representation of a tree with numerous branches, each displaying a globe depicting Earth, symbolizing the concept of a multiverse with various parallel worlds.
Multiverse where different worlds split up and continue to exist, at least for a while, in parallel words.

🔹 VI. Conclusion

If there really are countless parallel universes, each branching from every quantum decision, then there may be trillions of versions of us walking through the fog of possibility. Some would differ by almost nothing—the same morning coffee, the same tie, the same docket call. But a few steps farther along the probability curve, the differences would grow strange. In one world I may have taken that other job offer; in another, argued a case that changed the law; and at some far edge of the bell curve, perhaps I’m lecturing on evidence to a class of AIs who regard me as a historical curiosity.

Can beings in the multiverse somehow communicate with each other? Is that what we sense as intuition—or déjà vu? Dreams, visions, whispers from adjacent worlds? Do the parallel lines sometimes cross? And since everything is quantum, how far does entanglement extend?

An artistic depiction of a person standing in a surreal environment filled with glowing pathways and mirrors, each reflecting a different version of themselves, symbolizing themes of quantum mechanics and parallel universes.
Are we living in many parallel worlds at once. What is the impact of quantum entanglement?

The future of law is being written not only in statutes or code, but in algorithms that can verify their own truth. Quantum physics has given us new metaphors—and perhaps new standards of evidence—for an age when certainty itself is probabilistic. The rule of law has always depended on verification; the difference now is that verification is becoming a property of nature itself, a measurable form of coherence between mind and matter. The physics lab and the courtroom are learning the same lesson: reality is persuasive only when it can be reproduced.

Yet even in a world of self-authenticating machines, truth still requires a listener. The universe may verify itself, but it cannot explain itself. That remains our role—to interpret the echoes, to decide which frequencies count as proof, and to do so with both rigor and mercy. So as the echoes grow louder, we keep listening.  And if you hear a low hum in the evidence room, don’t panic—it’s probably just the universe verifying itself.  But check the chain of custody anyway.

An abstract painting depicting diverse individuals interconnected by vibrant lines, symbolizing themes of recognition and connection. The use of blue tones creates a surreal atmosphere, illustrating a dynamic interplay between figures and their environment.
Niels Bohr: If you’re not shocked by quantum theory you have not understood it.  

🔹 Subscribe and Learn More

If these ideas intrigue you, follow the continuing conversation at e-DiscoveryTeam.com, where you can subscribe for email notices of future blogs, courses, and events. I’m now putting the finishing touches on a new online course, Quantum Law: From Entanglement to Evidence. It will expand on these themes by more discussion, speculation, and translating the science of uncertainty into practical tools, templates and guides for lawyers, judges, and technologists.

After all, the future of law will not belong to those who fear new tools, but to those who understand the evidence their universe produces.

Ralph C. Losey is an attorney, educator, and author of e-DiscoveryTeam.com, where he writes about artificial intelligence, quantum computing, evidence, e-discovery, and emerging technology in law.

© 2025 Ralph C. Losey. All rights reserved.



Escaping Orwell’s Memory Hole: Why Digital Truth Should Outlast Big Brother

April 1, 2025

by Ralph Losey with illustrations also by Ralph using his Visual Muse AI. March 28, 2025.

George Orwell warned us in his dark masterpiece Nineteen Eighty-Four how effortlessly authoritarian regimes could erase inconvenient truths by tossing records into a “memory hole”—a pneumatic chute leading directly to incineration. Once burned, these facts ceased to exist, allowing Big Brother’s Ministry of Truth to rewrite reality without contradiction. This scenario was plausible in Orwell’s paper-bound world, where truth relied heavily on fragile documents and even more fragile human memory. History could be repeatedly altered by those in power, keeping citizens ignorant or indifferent—and ignorance strengthened the regime’s grip. Even more damaging, Orwell, whose real name, now nearly forgotten, was Eric Blair (1903-1950), envisioned how constant exposure to contradictory misinformation could numb citizens psychologically, leaving them passive and apathetic, unwilling or unable to distinguish truth from lies.

Fortunately, our paper-bound past is long behind us. Today, we inhabit a digital era Orwell never envisioned, where information is electronically stored, endlessly replicated, and globally dispersed. Electronically Stored Information (“ESI”) is simultaneously ephemeral and astonishingly resistant to permanent deletion. Instead of vanishing in smoke and ashes, digital truth multiplies exponentially—making it nearly impossible for any would-be Big Brother to bury reality forever. Yet, the same digital proliferation that safeguards truth also multiplies misinformation, posing the threat Orwell most feared: a confused and exhausted citizenry vulnerable to psychological manipulation.

Memory Holes

In Orwell’s 1984 a totalitarian regime systematically altered historical records to maintain control over truth. Documents, photographs, and any inconvenient historical truths vanished permanently, as if they never existed. Orwell’s literary nightmare finds unsettling parallels in today’s digital world, where online information can be silently modified, deleted, or rewritten without obvious traces. Modern memory hole practices pose real challenges for the preservation of accurate accounts of the past..

Today’s memory hole doesn’t rely on fire; it relies on code, and it doesn’t need a Big Brother bureaucracy. A simple click of a “delete” button instantly kills the information targeted. Touch three buttons at once, click-alt-delete, and a whole system of beliefs is rebooted. Any government, corporation, hacker groups or individuals can manipulate digital records effortlessly. Such ease breeds public skepticism and confusion—citizens become exhausted by contradictory narratives and lose confidence in their own perceptions of reality. Orwell’s warning becomes clear: constant misinformation risks eroding citizens’ psychological resilience, causing widespread apathy and helplessness. Yesterday’s obvious misstatement can become today’s truth. Think of the first sentence of Orwell’s book: “It was a bright cold day in April, and the clocks were striking thirteen.

China’s Attempted Erasure of Tiananmen Square

In early June 1989, the Chinese military brutally suppressed pro-democracy protests in Beijing. The estimated death toll ranged from hundreds to thousands, but exact numbers remain uncertain due to intense state censorship. Public acknowledgment or commemoration of the incident is systematically banned, enforced by severe penalties including imprisonment. Government-controlled media remains silent or actively spreads misinformation. Chinese internet censorship tools—the so-called “Great Firewall”—vigorously scrub references to the Tiananmen Square incident, blocking web pages and posts containing related keywords and images. Young generations living in China remain unaware or possess distorted knowledge of the massacre, demonstrating Orwell’s warning of enforced collective amnesia.

Efforts to preserve truth outside China, however, demonstrate digital resilience. Human rights groups, diaspora communities, and academic institutions diligently archive documents and eyewitness accounts. Digital redundancy ensures that factual records remain accessible globally. But digital redundancy alone cannot protect Chinese citizens from internal psychological manipulation. Constant state-sponsored misinformation inside China successfully induces apathy, illustrating Orwell’s psychological warning vividly.

This deliberate suppression of history in China serves as stark reminder of the vulnerabilities inherent in a digitally interconnected world where powerful entities control internet access and online narratives. The success of the Chinese government in rewriting history for its 1.5 Billion population demonstrates the profound value and urgency of international digital preservation efforts. It underscores the responsibility of legal professionals, human rights advocates, and technology companies worldwide to collaborate in protecting historical truth and ensuring that significant events remain accessible for future generations.

Hope Through Digital Redundancy and Psychological Resilience

Orwell could not conceive of our digital world, where truth is multiplicious, freely copied, and stored globally. Thousands or millions of digital copies safeguard history, making complete erasure nearly impossible

According the Katharine Trendacosta, who is the Director of Policy and Advocacy of the well-respected Electronic Frontier Foundation:

If there is one axiom that we should want to be true about the internet, it should be: the internet never forgets. One of the advantages of our advancing technology is that information can be stored and shared more easily than ever before. And, even more crucially, it can be stored in multiple places.  

Those who back things up and index information are critical to preserving a shared understanding of facts and history, because the powerful will always seek to influence the public’s perception of them. It can be as subtle as organizing a campaign to downrank articles about their misdeeds, or as unsubtle as removing previously available information about themselves. 

Trendacosta, The Internet Never Forgets: Fighting the Memory Hole (EFF, 1/30/25).

Yet digital abundance alone doesn’t eliminate Orwell’s deeper psychological threat. Constant misinformation can erode citizens’ willingness and ability to discern truth, leading to profound apathy. Addressing this requires active psychological strategies:

  1. Digital Literacy and Education: Equip citizens with skills to critically evaluate and cross-check digital information.
  2. Algorithmic Transparency: Demand transparency from platforms regarding content promotion and clearly label misinformation.
  3. Independent Journalism: Support credible journalism to provide trustworthy reference points.
  4. Civic Engagement: Encourage active citizen participation, dialogue, and public accountability.
  5. Verification Tools: Provide accessible, user-friendly digital tools for independent verification of information authenticity.
  6. International Cooperation: Strengthen global collaboration against coordinated misinformation campaigns.
  7. Psychological Resilience: Foster healthy skepticism and educate the public about misinformation’s emotional and cognitive impacts.

The Digital Memory Holes Today

Recent U.S. governmental memory hole actions involving the deletion of web content on Diversity, Equity, and Inclusion (DEI) illustrate digital manipulation’s psychological risks even in democratic societies. Megan Garber‘s article in The Atlantic, Control. Alt. Delete, describes these deletions as “tools of mass forgetfulness,” emphasizing how selective editing weakens collective memory and societal cohesion. (Ironically, the article is hidden behind a firewall, so you may not be able to read it.)

Our collective memories of key events are an important part of the glue holding people together. They must be treasured and preserved. Everyone remembers where they were when the planes struck the twin towers on 9/11, when the Challenger exploded, and for those old enough, the day of JFK’s assassination. There are many more historical events that hold a country together. For instance, the surprise attack of Pearl Harbor, the horrors of fighting the Nazis and others in WWII and the shocking discovery of the Holocaust atrocities. The list goes on and on, including Hiroshima. We must never forget the many harsh lessons of history or we may be doomed to repeat them. The warning of Orwell is clear: “Who controls the past controls the future; who controls the present controls the past.” We must never allow our memories of the past to be sucked into a black hole of forgetfulness.

Memories sucked into a black hole in Graphite Sketch Horror style by Ralph Losey using his sometimes scary Visual Muse.

Our collective memories and democratic values are unlikely to be disintegrate into totalitarianism, despite the alarming cries of the Atlantic and others. Although some small attempts to rewrite history recently are troubling, the U.S, unlike China, has had a democratic system of government in place for centuries. It has always had a two-party system of government. Even the Chinese government, where only one party has ever been allowed, the communist party, took decades to purge Tiananmen Square memories. These memories are still alive outside of mainland China. The world today is vast and interconnected, its digital writings are countless. The true history of China, including the many great cultural achievements of pre-communist China, will eventually escape from the memory holes and reunite with its people.

The current administration in the U.S. does not have unchecked power as the Atlantic article suggests. Perhaps we should be concerned about new memory holes but not fearful. The larger concern is the psychological impact of rapidly changing dialogues. Even though there is too much electronic data for a complete memory reboot anywhere, digital misinformation and selective editing of records still pose psychological risks. Citizens bombarded by conflicting narratives can become apathetic, confused, and disengaged, weakening democracy from within. Protecting our mental health must be a high priority for everyone.

Leveraging Internet Archives: The Wayback Machine

Internet archival services, notably the Internet Archive’s Wayback Machine, is a powerful ally against digital historical revisionism. The Wayback Machine currently has over 916 billion web pages stored, including government websites. See this recent article providing good background on the Internet Archive’s work to preserve history. As the Trump administration purges web pages, this group is rushing to save them (NPR, 3/23/25).

According to the NPR article, the Internet Archive has copies of all of the government websites that were later taken down or altered after the Biden Administration left. Supposedly the Internet Archive is the only place the public can now find a copy of an interactive timeline detailing the events of Jan. 6. The timeline is a product of the congressional committee that investigated the Capitol attack, and has since been taken down from their website. No doubt there are now many, many copies of it online, especially in the so-called dark web, not to mention even more copies stored offline on portable drives scattered the world over.

This publicly accessible resource archives billions of webpages, allowing anyone to access snapshots of web content even after the original pages are altered or removed. I just checked my own website for the first time ever and found it has been “saved 538 times between March 21, 2007 and March 1, 2025.” Internet Archive 93/26/25). It provides an incredible amount of detailed information on each website captured, most of which is displayed in impressive, customizable graphics. See e.g. e-Discovery Team Site Map for the year 2024.

I had the Wayback Machine do the same kind of analysis for EDRM.net, found here. Here is the link to the interactive EDRM.net site map for 2024. And this is a still image screen shot of the map.

This is the Internet Archive explanation of the interactive map:

This “Site Map” feature groups all the archives we have for websites by year, then builds a visual site map, in the form of a radial-tree graph, for each year. The center circle is the “root” of the website and successive rings moving out from the center present pages from the site. As you roll-over the rings and cells note the corresponding URLs change at the top, and that you can click on any of the individual pages to go directly to an archive of that URL.

It is important to the fight against memory holes that the Way Back Machine be protected. It has a sixteen projects listed as now in progress and many ways that you can help. All of its data should duplicated, encrypted and dispersed to undisclosed guardians. Actually, I would be surprised if this has not already been done many times over the years.

It remains to be seen what role the LLM’s vacuum of internet data will play in all this. They have been trained at specific times on Internet data and presumably all of the original training data is still preserved. Along those lines note that the below image was created by ChatGPT4o based on a request to show a misinformation image and it generated the classic Tiananmen Square image on right. It knows the truth.

Although data archives of all kinds give us hope for future recoveries, they do little to protect us from the immediate psychological impact of memory holes. Strong psychological resilience is the best way forward to resist Orwellian manipulation. AI may prove to be an unexpected umbrella here; so far its values and memories remain intact. A few changes here and there to some websites will have little to no impact on an AI trained on hundreds of million of websites, and other data. Plus its intelligence and resilience improve every week.

Conclusion

Orwell’s memory hole remains a haunting metaphor. Our digital age—awash in redundant, distributed data—makes permanent erasure difficult, significantly strengthening preservation efforts. We no longer inhabit a finite, paper-bound world. Today, no one knows how many copies of a digital record exist, let alone where they hide. For every file deleted, two more emerge elsewhere. Would-be Big Brothers are caught playing a futile game of informational whack-a-mole: they may strike down a record here or obscure a fact there, temporarily disrupting history—but ultimately, they cannot win.

Still, there is a deeper psychological component to Orwell’s memory hole warning. Technological solutions alone cannot counteract mental vulnerabilities arising from persistent misinformation. Misinformation is not just a technical challenge; it also exploits human emotions and cognitive biases, fueling cynicism, distrust, and passivity. Addressing this requires actively cultivating psychological defenses alongside digital tools.

The best safeguard is an informed, vigilant citizenry that consciously leverages digital resources, actively maintains psychological resilience, and persistently seeks truth. Cultivating emotional awareness, healthy skepticism, and a commitment to public engagement ensures that society remains resilient against attempts at manipulation. Only through such comprehensive efforts can the battle against Big Brother’s digital misinformation truly be won.


I give the last word, as usual, to the Gemini twin podcasters that summarize the article. Echoes of AI on: “Escaping Orwell’s Memory Hole: Why Digital Truth Should Outlast Big Brother.” Hear two Gemini AIs talk about all of this for 12 minutes. They wrote the podcast, not me. 

Ralph Losey Copyright 2025. All Rights Reserved.


WARNING: The Evidence Committee Will Not Change the Rules to Help Protect Against Deep Fake Video Evidence

December 4, 2024

The November 8, 2024 meeting of the Evidence Committee made it clear that the august members of the committee do not believe our warnings. They will do little or nothing to protect our system of justice from the oncoming storm of deepfake justice. They think it is a fake problem and Judge Paul Grimm (ret) and Professor Maura Grossman are wrong. This is not unexpected. Losey, The Problem of Deepfakes and AI-Generated Evidence: Is it time to revise the rules of evidence? Part One and Part Two. Here is a deepfake video of me talking about the committee and deepfake videos.

True Deep Fake videos claim to be true and are much better than this.

Check out the EDRM CLE on DeepFakes on December 5, 2024 for more information. Ralph (the real one) appears on a panel with Judge Ralph Artigliere (ret.) and Professor Maura Grossman. Bottom line: we must all be very diligent and learn as much as we can about fake videos and what to do when you are hit with one. Also, what to do if your client presents you with a video too good to be true or otherwise suspect. We are now living in a world of “liar’s dividend” and it is hitting our courts now.

Ralph Losey Copyright 2024. — All Rights Reserved.


The Problem of Deepfakes and AI-Generated Evidence: Is it time to revise the rules of evidence? – Part Two

September 23, 2024

Ralph Losey. Published September 23, 2024.

This is the conclusion to a two part article. Please read Part One first.

Professor Capra explains the proposals of Judge Grimm and Professor Grossman to modify Rule 901(b) to authenticate AI generated evidence by using Maura’s broken clock analogy:

The proposed revision substitutes the words “valid” and “reliable” for “accurate” in existing rule 901(b)(9), because evidence can be “accurate” in some instances but inaccurate in others (such as a broken watch, which “accurately” tells the time twice a day but is not a reliable means of checking the time otherwise).

Memorandum to the Committee at pages 6-7 (pgs. 19-20 of 358).

Maura Grossman provided further explanation in her presentation to the Committee on why they recommended replacing the term accurate with reliable and valid.

PROF. GROSSMAN. I want to talk about language because I’m a real stickler about words, and I’ll talk to you about the way science has viewed AI. There are two different concepts. One is validity. We don’t use the word “accuracy.” And the other is reliability. Validity is: does the process measure or predict what it’s. supposed to measure? So, I can have a perfectly good scale, but if I’m trying to measure height, then a scale is not a valid measure for height. Reliability has to do with “does it measure the same thing under substantially similar circumstances?” And it’s really important that we measure validity and reliability and not “accuracy” because a broken watch is accurate twice a day, right? But it’s not reliable.

So, for those of you who are more visual, when you’re valid and you’re reliable, you’re shooting at the target, and you are consistent. When you’re invalid and unreliable, you’re not shooting at the center, and you’re all over the place. When you’re invalid and reliable, you’re shooting at the wrong place, but you’re very consistent in shooting at the wrong place. And when you’re valid and unreliable, you are shooting at the center, but you’re all over the place.

We need evidence that is a product of a process that is both valid and reliable. Right now, the rules use the word “accuracy” or “accurate” in some places (such as in Rule 901(b)(9)) and “reliable” in other places (such as in Rule 702),189 and I think it’s confusing to practitioners because it doesn’t comport with what scientists mean by these words or how they’re used if you look them up in the dictionary.

Deepfakes Reach the Advisory Committee on Evidence Rules, supra at pg. 2428.

As to the second proposal of Grimm and Grossman to add a new Rule 901(c) to address “Deepfakes,” Professor Capra did not like that one either. He rejected the proposal with the following argument.

It would seem that resolving the argument about the necessity of the rule should probably be delayed until courts actually start dealing on a regular basis with deepfakes. Only then can it be determined how necessary a rule amendment really is. Moreover, the possible prevalence of deepfakes might be countered in court by the use of watermarks and hash fingerprints that will assure authenticity (as discussed below). Again, the effectiveness of these countermeasures will only be determined after a waiting period.

The balancing test in the proposal–applied when the burden-shifting trigger is met–is that the “probative value” must outweigh the prejudicial effect. It can be argued that importing this standard confuses authenticity with probative value. . . . Put another way, the probative value of the evidence can only logically be assessed after it is determined to be authentic. Having authenticity depend on probative value is a pretty complicated endeavor. Moreover, presumably the prejudice referred to is that the item might be a deepfake. But if the proponent can establish that it is authentic, then there would be no prejudice to weigh. . . . At any rate, more discussion in the Committee is necessary to figure out whether, if there is going to be an amendment, what requirement must be placed on the proponent once the opponent shows enough to justify a deepfake inquiry.

Memorandum to the Committee at pg. 8 (pg. 21 of 358).

From the record it appears that Grimm and Grossman were not given an opportunity to respond to these criticisms. So once again the Committee followed Professor Capra’s lead and all of the rule changes they proposed were rejected. Again, with respect, I think Dan Capra missed the point again. Authentic evidence can already be withheld as too prejudicial under current Federal Evidence Rule 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons). But the process and interpretation of existing rules is what is too complex. That is a core reason for the Grimm and Grossman proposals.

Moreover, in the world of deepfakes things are not as black and white as Capra’s analysis assumes. Often authenticity of audio visuals is a gray area question, a continuum, and not a simple yes or no. It appears that the Committee’s decisions would benefit from the input of additional technology advisors, independent ones, on the rapidly advancing field of AI image generation.

The balancing procedure Grimm and Grossman suggested is appropriate. If it is a close question on authenticity, and the prejudice is small, then it makes sense to let it in. If authenticity is a close question, and the prejudice is great, say even outcome determinative, then exclude it. And of course, if the proof of authenticity is strong, and the probative value strong, even outcome determinative, then the evidence should be allowed. The other side of the coin, is that if the evidence is strong that the video is a fake, it should be excluded, even if that decision is outcome determinative.

Capra’s Questionable Evaluation of the Danger of Deepfakes

In his memorandum Professor Capra’s introduced the proposed Rule Changes with the following statement.

The consequence of not formally adopting the proposals below at this meeting is that any AI-related rule amendment will have to wait a year. One could argue that the Committee needs to act now, to get out ahead of what could be a sea change in the presentation of evidence. Yet there seems to be much merit in a cautious approach. To say that the area is fast-developing would be an understatement. The EU just recently scrapped its one-year-old regulations on AI, recognizing that many of the standards that were set had become outmoded. The case law on AI is just beginning. It surely makes sense to monitor the case law for (at least) a year to see how the courts handle AI-related evidence under the existing, flexible, Federal Rules.

Memorandum to the Committee at pg. 5 (pg. 18 of 358).

Naturally the Committee went with what they were told was the cautious approach. But is doing nothing really a cautious approach? In times of crisis inaction is usually reckless, not cautious. Professor Capra’s views are appropriate for normal times, where you can wait a few years to see how new developments play out. But these are not normal times. Far from it.

We are seeing an acceleration of fraud, or fake everything, and a collapse of truth and honesty. Society has already been disrupted by rapid technical and social changes, and growing distrust of the judicial system. Fraud, propaganda and nihilistic relativism are rampant. What is the ground truth? How many people believe in an objective truth outside of the material sciences? How many do not even accept science? Is it not dangerous under these conditions to wait longer to try to curb the adverse impact of deepfakes?

‘That Was Then, This Is Now’

There is little indication in Professor Capra’s reports that he appreciates the urgency of the times, nor the gravity of the problems created by deep fakes. The “Deepfake Defense” is more than a remote possibility. The lack of published opinions on deepfake evidence should not lull anyone into complacency. It is already being raised, especially in criminal cases.

Consider the article of Judge Herbert B. Dixon Jr., Senior Judge with the Superior Court of the District of Columbia. The “Deepfake Defense”: An Evidentiary Conundrum (ABA, 6/11/24). Judge Dixon is well known for his expertise in technology. For instance, he is the technology columnist for The Judges’ Journal magazine and senior judicial adviser to the Center for Legal and Court Technology

Judge Dixon reports this defense was widely used in D.C. courts by individuals charged with storming the Capitol on January 6, 2021. The Committee needs more advisors like Judge Dixon. He wants new rules and his article The “Deepfake Defense” discusses three proposals: Grimm and Grossman’s, Delfino’s and LaMonaga’s. Here is Judge Dixon’s conclusion in his article:

As technology advances, deepfakes will improve and become more difficult to detect. Presently, the general population is not able to identify a deepfake created with current technology. AI technology has reached the stage where the technology needed to detect a deepfake must be more sophisticated than the technology that created the deepfake. So, in the absence of a uniform approach in the courtroom for the admission or exclusion of audio or video evidence where there are credible arguments on both sides that the evidence is fake or authentic, the default position, unfortunately, may be to let the jury decide. 

Professor Capra addressed the new issues raised by electronic evidence decades ago by taking a go-slow approach and waiting to see if trial judges could use existing rules. That worked for him in the past, but that was then, this is now.

Courts in the past were able to adapt and used the old rules well enough. That does not mean that their evidentiary decisions might have been facilitated, and still might be, by some revisions related to digital versus paper. But Capra assumes that since the courts adapted to digital evidence when it became common decades ago, that his “wait and see” approach will work once again. He reminds the Committee of this in his memorandum:

In hindsight, it is fair to state that the Committee’s decision to forego amendments setting forth specific grounds for authenticating digital evidence was the prudent course. Courts have sensibly, and without extraordinary difficulty, applied the grounds of Rule 901 to determine the authenticity of digital evidence. . . .

The fact that the Committee decided not to promulgate special rules on digital communication is a relevant data point, but it is not necessarily dispositive of amending the rules to treat deepfakes.18

Memorandum to the Committee at pg. 21 (pg. 34 of 358).

Professor Capra will only say that the past decision to do nothing is “not necessarily dispositive” on AI. That implies it is pretty close to dispositive. Memorandum to the Committee at pgs. 8-9, 20- (pgs. 21-22, 33- of 358). The Professor and Committee do not seem the appreciate two things:

  • The enormous changes in society and the courts that have taken place since the world switched from paper to digital. That happened in the nineties and early turn of the century. In 2024 we are living in a very different world.
  • The problem of deepfake audio-visuals is new. It is not equivalent to the problems courts have long faced with forged documents, electronic or paper. The change from paper to digital is not comparable to the change from natural to artificial intelligence. AI plays a completely different role in the cases now coming before the courts than has ever been seen before. Consider the words of Chief Justice John Roberts, Jr., in his 2023 Year-End Report:

Every year, I use the Year-End Report to speak to a major issue relevant to the whole federal court system. As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete. I am sure we are not—but equally confident that technological changes will continue to transform our work. . . .

I predict that human judges will be around for a while. But with equal confidence I predict that judicial work—particularly at the trial level—will be significantly affected by AI. Those changes will involve not only how judges go about doing their job, but also how they understand the role that AI plays in the cases that come before them.

Chief Justice John Roberts, Jr., 2023 Year-End Report, pgs. 5, 6.

Is it really prudent and cautious for the Evidence Rules Committee to take the same approach with AI deepfakes as they did many years ago with digital evidence? AI now plays a completely new role in the evidence of the cases that now come before them. The emotional and prejudicial impact of deepfake audio-visuals is an entirely new and different problem. Plus, the times and circumstances in society have dramatically changed. The assumptions made by Committee Reporter Capra of the equivalence of the technology changes is a fundamental error. With respect, the Committee should reconsider and reverse its decision.

The assumption that the wait and see approach will work again with AI and deepfakes is another serious mistake. It is based on wishful thinking not supported by the evidence that the cure for deepfakes is just around the corner, that new software will soon be able to detect them. It is also based on wishful thinking that trial judges will again be able to muddle through just fine. Judge Grimm who just recently retired as a very active District Court trial judge disagrees. Judge Dixon who is still serving as a reserve senior trial judge in Washington D.C. disagrees. So do many others. The current rules are a muddled mess that needs to be cleaned up now. With respect, the Committee should reconsider and reverse its decision.

Social Conditions and Questions Compelling Action

Everyone today carries a video camera/phone and has access to free software on the internet to make fakes. Maura’s demonstration to the Committee showed that. That is why many think the time is now for new rules on AI, not tomorrow.

What are the consequences of continued inaction? What if courts are unable to twist existing rules to screen out fake evidence as Professor Capra hopes? What will happen to our system of justice if use of fake media becomes a common litigation tactic? How will the Liar’s Dividend pay out? What happens when susceptible, untrained juries are required to view deep fakes and then asked to do the impossible and disregard them?

If we cannot reliably determine what is fake and what is true in a court of law, what happens then? Are we not then wide open and without judicial recourse to criminal and enemy state manipulation? Can law enforcement and the courts help stop deepfake lies and propaganda? Can we even have free and fair elections? How can courts function effectively without reliable rules and methods to expose deepfakes? Should we make some rule changes right away to protect the system from collapse? Or should we wait until it all starts to fall apart?

Professor Capra’s Conclusion in his Report to the Committee

Professor Capra ends his report with a one paragraph conclusion here quoted in full.

It is for the Committee to decide whether it is necessary to develop a change to the Evidence Rules in order to deal with deepfakes. If some rule is to be proposed, it probably should not be a specific rule setting forth the methods in which visual evidence can be authenticated — as those methods are already in Rule 901, and the overlap would be problematic. Possibly more productive solutions include heightening the standard of proof, or requiring an additional showing of authenticity — but only after some showing by the opponent has been made. But any possible change must be evaluated with the perspective that the authenticity rules are flexible, and have been flexibly and sensibly applied by the courts to treat other forms of technological fakery.

Memorandum to the Committee at pg. 26 (pg. 39 of 358).

I expect the Rules Committee will follow Capra’s advice and do nothing. But 2024 is not over yet and so there is still hope.

What Comes Next?

The next Advisory Committee on Evidence Rules is scheduled for November 8, 2024 in New York, NY and will be open to the public both in-person and online. While observers are welcome, they may only observe, not participate.

Meanwhile many experts in AI, evidence, and procedure continue to advocate for changes to the rules. The most compelling article I know of that shows the need for change now was published on an expedited basis on September 10, 2024. Deepfakes in Court: How Judges Can Proactively Manage Alleged AI-Generated Material in National Security Cases (Northwestern Public Law Research Paper No. 24-26, (9/10/24). It has eight authors with the leads being Paul Grimm and Maura Grossman. The article considers a frightening national security scenario that may help light a fire under the Committee. I know it has for me.

In addition, we have just learned that Paul Grimm and Maura Grossman have submitted a revised proposal to the Committee, which will be discussed first. This was presumably done at the request of Professor Daniel Capra after some sort of discussion, but that is just speculation.

Grimm and Grossman’s Revised Proposal to Amend the Rules

The revised proposal, which includes the extensive rationale provided by Grimm and Grossman, can be found online here in PDF format.

REVISED Proposed Modification of Current Fed. R. Evid. 901(b)(9) for AI Evidence and Proposed New Fed. R. Evid. 901(c) for Alleged “Deepfake” Evidence. 
Submitted by Paul W. Grimm and Maura R. Grossman 

[901](b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement [of Rule 901(a)]:
(9) Evidence about a Process or System. For an item generated by a process or system:
(A) evidence describing it and showing that it produces an accurate a valid and reliable result; and
(B) if the proponent acknowledges that the item was generated by artificial intelligence, additional evidence that:
(i) describes the training data and software or program that was used; and
(ii) shows that they produced valid and reliable results in this instance.

Note the only change from the last proposal for 901(b)(9) is use of the word “acknowledges” instead of “concedes” in 9(B). I agree this is a good and necessary revision because litigators hate to “concede” anything, but often have to “acknowledge.”

The revised proposed language for a new Rule 901(c) to address deepfakes is now as follows:

901(c): Potentially Fabricated or Altered Electronic Evidence.
If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that a jury reasonably could find that the evidence has been altered or fabricated, in whole or in part, using artificial intelligence,1 the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.

The changes made here from the last proposal were minor, but again appear helpful to clarify the intent. Here is the proposal showing strike outs and additions (underlined).

901(c): Potentially Fabricated or Altered Electronic Evidence. If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that it is more likely than not either fabricated, or altered  that a jury reasonably could find that the evidence has been altered or fabricated, in whole or in part, using artificial intelligence,1 the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.

I understand why these revisions were made, perhaps requested, and I again think they are all good. So too is the Rationale provided by Judge Paul and Professor Grimm. See the full second proposal Rationale here, but what follows are the excerpts of the Rationale that I found most helpful, all pertaining to new Rule 901(c):

A separate, new rule is needed for such altered or fake evidence, because when it is offered, the parties will disagree about the fundamental nature of the evidence. The opposing party will challenge the authenticity of the evidence and claim that it is AI-generated material, in whole or in part, and therefore, fake, while the proponent will insist that it is not AI-generated, but instead that it is simply a photograph or video (for example, one taken using a “smart phone”), or an audio recording (such as one left on voice mail), or an audiovisual recording (such as one filmed using a digital camera). Because the parties fundamentally disagree about the very nature of the evidence, the proposed rule change for authenticating acknowledged AI-generated evidence will not work. A separate, new rule is required. . . .

The proposed new rule places the burden on the party challenging the authenticity of computer-generated or electronic evidence as AI-generated material to make a showing to the court that a jury reasonably could find (but is not required to find) that it is either altered or fabricated, in whole or in part. This approach recognizes that the facts underlying whether the evidence is authentic or fake may be challenged, in which case the judge’s role under Fed. R. Evid. 104(a) is limited to preliminarily evaluating the evidence supporting and challenging authenticity, and determining whether a reasonable jury could find by a preponderance of the evidence that the proffered evidence is authentic. If the answer is “yes” then, pursuant to Fed. R. Evid. 104(b), the judge ordinarily would be required to submit the evidence to the jury under the doctrine of relevance conditioned upon a finding of fact, i.e., Fed. R. Evid. 104(b).

Because deepfakes are getting harder and harder to detect, and because they often can be so graphic or have such a profound impact that the jury may be unable to ignore or disregard the impact even of generative AI shown to be fake once they have already seen it, a new rule is warranted that places more limits on what evidence the jury will be allowed to see. See generally Taurus Myhand, Once The Jury Sees It, The Jury Can’t Unsee It: The Challenge Trial Judges Face When Authenticating Video Evidence in The Age of Deepfakes, 29 Widener L. Rev. 171, 174-5, 2023 (“The dangerousness of deepfake videos lie in the incomparable impact these videos have on human perception. Videos are not merely illustrative of a witnesses’ testimony, but often serve as independent sources of substantive information for the trier of fact. Since people tend to believe what they see, ‘images and other forms of digital media are often accepted at face value.’ ‘Regardless of what a person says, the ability to visualize something is uniquely believable.’ Video evidence is more cognitively and emotionally arousing to the trier of fact, giving the impression that they are observing activity or events more directly.” (Internal citations omitted).

If the judge is required by Fed. R. Evid. 104(b) to let the jury decide if image, audio, video, or audiovisual evidence is genuine or fake when there is evidence supporting each outcome, the jury is then in danger of being exposed to evidence that they cannot “un-remember,” even if the jurors have been warned or believe it may be fake. This presents an issue of potential prejudice that ordinarily would be addressed under Fed. R. Evid. 403. But Rule 403 assumes that the evidence is “relevant” in the first instance, and only then can the judge weigh its probative value against the danger of unfair prejudice. But when the very question of relevance turns on resolving disputed evidence, the current rules of evidence create an evidentiary “Catch 22”—the judge must let the jury see the disputed evidence on authenticity for their resolution of the authenticity challenge (see Fed. R. Evid. 104(b)), but that exposes them to a source of evidence that may irrevocably alter their perception of the case even if they find it to be inauthentic.

The proposed new Fed. R. Evid. 901(c) solves this “Catch 22” problem. It requires the party challenging the evidence as altered or fake to demonstrate to the judge that a reasonable jury could find that the challenged evidence has been altered or is fake. The judge is not required to make the finding that it is, only that a reasonable jury could so find. This is similar to the approach that the Supreme Court approved regarding Fed. R. Evid. 404(b) evidence (i.e., other crimes, wrongs, or acts evidence) in Huddleston v. U.S., 108 S. Ct. 1496, 1502 (1988) and the Third Circuit approved regarding Fed. R. Evid. 415 evidence (i.e., similar acts in civil cases involving sexual assault or child molestation) in Johnson v. Elk Lake School District. 283 F. 3d 138, 143-44 (3d. Cir. 2002). 

Under the proposed new rule, if the judge makes the preliminary finding that a jury reasonably could find that the evidence has been altered or is fake, they would be permitted to exclude the evidence (without sending it to the jury), but only if the proponent of the evidence cannot show that its probative value exceeds its prejudicial impact. The proponent could make such a showing by offering additional facts that corroborate the information contained in the challenged image, video, audio, or audiovisual material. This is a fairer balancing test than Fed. R. Evid. 403, which leans strongly towards admissibility. Further, the proposed new balancing test already is recognized as appropriate in other circumstances. See, e.g., Fed. R. Evid 609(a)(1)(B) (requiring the court to permit a criminal defendant who testifies to be impeached with a prior felony conviction only if “the probative value of the evidence outweighs its prejudicial effect to that defendant.”)

With respect, the Committee should approve this revised rule proposal and seek its approval and adoption by the U.S. Supreme Court as soon as possible. The rules should have retroactive implementation wherever feasible. They may be needed very soon as the new article Deepfakes in Court eloquently explains.

Deepfake In Courts Article: Introduction and Perspective

Deepfakes in Court is an 52-page law review article authored by eight scholars: the Hon. Paul W. Grimm (ret.), Duke Law School, Duke University, Maura R. Grossman, David R. Cheriton School of Computer Science, University of Waterloo and Osgoode Hall Law School, York University, Abhishek Dalal, Pritzker School of Law, Northwestern University; Chongyang Gao, Northwestern University; Daniel W. Linna Jr., Pritzker School of Law & McCormick School of Engineering, Northwestern University; Chiara Pulice, Dept. of Computer Science & Buffett Institute for Global Affairs, Northwestern University; V.S. Subrahmanian, Dept. of Computer Science & Buffett Institute for Global Affairs, Northwestern University and the Hon. John Tunheim, United States District Court for the District of Minnesota.

Deepfakes in Court considers how existing rules could be used to address deepfake evidence in sensitive trials, such as those concerning national security, elections, or other matters of significant public concern. A hypothetical scenario involves a Presidential election in 2028 where the court’s decision could determine the outcome of the election. The burden on judges in a crises scenario like that would be lessened by the adoption of the revised Grimm and Grossman rule proposals. But if they are not, the article shows how a national security case would play out under the existing rules.

The timeliness of this article is obvious in view of the pending national elections in the U.S. See e.g. Edlin and Norden, Foreign Adversaries Are Targeting the 2024 Election (Brennan Center for Justice, 8/20/24). Courtney Rozen of Bloomberg Law reports:

The rise of AI has supercharged bipartisan concerns about the possibility of deepfakes — manipulated images, audio, and video of humans — to sway voters ahead of the November elections. AI tools make it easier and cheaper to create deepfakes.

Election Officials Say Candidates Can’t Mislead With AI Ads (Bloomberg Law, 9/10/24).

There is no federal law on deepfakes and elections, but on September 17, 2024, California passed three new laws. California Passes Election ‘Deepfake’ Laws, Forcing Social Media Companies to Take Action (NYT, 9/17/24); Governor Newsom signs bills to combat deepfake election content (9/17/24). In the words of Governor Gavin Newsom:

Safeguarding the integrity of elections is essential to democracy, and it’s critical that we ensure AI is not deployed to undermine the public’s trust through disinformation – especially in today’s fraught political climate. These measures will help to combat the harmful use of deepfakes in political ads and other content, one of several areas in which the state is being proactive to foster transparent and trustworthy AI.

Id. One of the three new bills went into effect immediately: Elections: deceptive media in advertisements. The full text of this bill as passed can me found here. Here is an excerpt:

SEC. 3.Section 20012 is added to the Elections Code, to read:20012.
(a)The Legislature finds and declares as follows:

(1) California is entering its first-ever artificial intelligence (AI) election, in which disinformation powered by generative AI will pollute our information ecosystems like never before. Voters will not know what images, audio, or video they can trust.

(2) In a few clicks, using current technology, bad actors now have the power to create a false image of a candidate accepting a bribe, or a fake video of an elections official caught on tape saying that voting machines are not secure, or generate an artificial robocall in the Governors voice telling millions of Californians their voting site has changed.

Fake images could also be generated to try to support false information that a candidate promotes as true.

Description of the Deepfakes in Court Article

The Deepfakes in Court article by lead authors Grimm and Grossman begins by describing the growing concern over deepfakes—AI-generated media that can simulate real events, people, and speech with high accuracy. This could be incredibly troubling in high-stakes cases involving national security and elections. In cases like that false or manipulated evidence could have severe consequences​. The article makes this point well.

The article continues by noting how easy it is now to create AI-generated content. While some platforms include restrictions and watermarks to prevent misuse, these protections are often inadequate. Deepfake generation is sophisticated enough that even experts struggle to distinguish real from fake, and watermarking or digital signatures can often be bypassed. This creates a “cat and mouse” game between deepfake creators and those attempting to detect and prevent their misuse​​.

Connie v. Eric: The All Too Possible Case That Everyone Should Fear

The core of the article is a hypothetical case involving the two Presidential candidates in the last ninety days before the election. One, named Connie, has filed suit against her opponent, Eric. Connie seeks an injunction and other relief against Eric and his campaign. She alleges Eric is behind the creation and circulation multiple deepfake videos and audios against her. The main ones show Connie having sex with a Chinese diplomat. In other videos she is shown soliciting bribes from Chinese officials. Still other videos show Connie’s supporters stuffing ballot boxes. All of the videos are very real looking and some are quite shocking. They are being circulated by thousands of bots across the internet.

Connie’s lawsuit seeks expedited adjudication and other injunctive relief within ninety days as to whether the videos are fake and whether Eric is behind them. Although some of the jurors assigned to the case have already seen at least some of the videos. Many have not. Can you imagine their reaction? Can they unsee that even if they later determine they are probably fake? Even if the judge tells them to disregard that evidence? What will the impact be?

Since this is a hypothetical created by multiple professors the facts get even more complicated. Audios start to be circulated by Connie’s supporters where Eric is recorded saying “Wow! This technology is so good now it would be impossible for anyone to spot it as a fake.” There are more audios where he and his campaign make other damning admissions. All of the tapes sound exactly like Eric. He of course claims these audios are all fake and files counterclaims in the same lawsuit. Eric opposes a quick resolution of Connie’s lawsuit because he believes that overall, the videos help his campaign.

Of course, the circulation of these tapes and allegations lead to massive protests and further polarization of the country. The constant propaganda on both sides has triggered riots and violence between the two political parties and their supporters everywhere, but especially in the Capital. Discussion about actual issues is drowned out by the allegations of fraud by both sides. These are very dark times, with daily shootings. The election is only ninety days away.

This is a scary hypothetical set of facts showing how deepfakes can easily be weaponized in an election. The facts in the article are actually much more complicated than I have described. See pages 16-21 of Deepfakes in Court. It reminds me of a law school final exam from hell but does its job well of showing the dazzlingly complex situation and the challenges faced under the Rules of Evidence. Plus, you get to read the perfect answers of how the existing rules would work under this all too possible scenario. This is all described in pages 18-47 of Deepfakes in Court. I urge you, no dare you, to read it. I am quite sure it was very challenging to write, even by the eight world authorities who prepared this.

What are the poor federal judges assigned to this case supposed to do? The article answers that question using the existing evidence rules. Let us hope real judges are not faced with this scenario, but if they are, then this article will provide a detailed roadmap as to how the case should proceed.

The GPTJudge Framework

The authors recommend a judge use what they call the “GPTJudge” framework when faced with deepfake issues, including expedited and active use of pre-trial conferences, focused discovery, and pre-trial evidentiary hearings. The framework includes expert testimony both before and during trial where experts would explain the underlying AI processes to the judge and help the court assess the reliability of the evidence​. The idea is to show the possible application of existing rules to have a speedy trial on deepfake issues.

The GPTJudge framework itself was previously set forth in the 2023 article without any hypotheticals by Maura R. Grossman, Hon. Paul W. Grimm (ret.), Daniel G. Brown, and Molly (Ximing) Xu in The GPTJUDGE: Justice in a Generative AI World, Vol. 23, Iss. 1 of Duke Law & Technology Review (Oct. 2023). Also see Ralph Losey, REAL OR FAKE? New Law Review Article Provides a Good Framework for Judges to Make the Call (6/13/23).

The Deepfakes in Court article applies the existing rules and GPTJudge framework to the facts and emergency scenario outlined in the hypothetical. It explains the many decisions that a judge would likely face, but not the predicted rulings such as some law school exams might request. The article also does not predict the ultimate outcome of the case, whether an injunction would issue, and if it did, what it would say. That is really not necessary or appropriate because in real life the exact rulings would depend on the witness testimony and countless other facts that the judge would hear first before making a gatekeeper determination on showing the audio visuals to the jury. The devil is always in the details. The devil’s power in this case is compounded by the wording of the old rules.

Deepfakes in Court Conclusion

The article Deepfakes in Court: How Judges Can Proactively Manage Alleged AI-Generated Material in National Security Cases concludes in an eloquent but dark tone, which seems appropriate in these times.

Given the ease with which anyone can create a convincing deepfake, courts should expect to see a flood of cases in which the parties allege that evidence is not real, but AI generated. Election interference is one example of a national security scenario in which deepfakes have important consequences. There is unlikely to be a technical solution to the deepfake problem. Most experts agree that neither watermarks nor deepfake detectors will completely solve the problem, and human experts are unlikely to fare much better. Courts will have no option, at least for the time being, other than to use the existing Federal Rules of Evidence to address deepfakes. The best approach will be for judges to proactively address disputes regarding alleged deepfakes, including through scheduling conferences, permitted discovery, and hearings to develop the factual and legal issues to resolve these disputes well before trial.

Even as several scholars propose to amend the Federal Rules of Evidence in recognition of the threat posed by deepfake evidence, such changes are unlikely in the near future. Meanwhile, trial courts will require an interim solution as they grapple with AIM evidence. Rule 403 will play an important role, as the party against whom an alleged deepfake is proffered may be able to make a compelling argument that the alleged deepfake should be excluded because the probative value of the alleged deepfake is substantially outweighed by the potential for unfair prejudice because social science research shows that jurors may be swayed by audiovisual evidence even when they conclude that it is fake. This argument will be strongest when the alleged deepfake will lead the jury to decide the case based on emotion rather than on the merits.  

Based on my long experience with people and courts I am inclined to agree with the article’s conclusion. Soon it may be obvious to the Rules Committee from multiple botched cases that all-too-human juries are ill equipped to make deepfake determinations. See e.g. footnotes 8-17 at pgs. 4-17 of Deepfakes in Court. Moreover, even the best of our judges may find it hopelessly complex and difficult to adjudicate deepfake cases under the existing rules.

Conclusion

Artificial intelligence and its misuse as deepfake propaganda is evolving quickly. Highly realistic fabricated media can already convincingly distort reality. This will likely get worse and keep us at risk of manipulation by criminals and foreign powers. This can even threaten our elections as shown by Deepfakes in Court.

There must be legal recourse to stop this kind of fraud and so protect our basic freedoms. People must have good cause to believe in our judicial system, to have confidence that courts are a kind of protected sanctuary where truth can still be found. If not, and if truth cannot be reliably determined, then people will lose whatever little faith they still have in the courts, despite the open corruption by some. This could lead to widespread disruption of society reacting to growing deepfake driven propaganda and the hate and persecution they bring about. If the courts cannot protect the people from the injustice of lying and fraud, what recourse will they have?

The upcoming Evidence Committee meeting is scheduled for November 8th, three days after election day on November 5th. What will our circumstances be? What will the mood of the country be? What will the mood and words be of the two candidates? Will the outcome even be known in three days after the election? Will the country be calm? Or will shock, anger and fear prevail? Will it even be possible for the Committee to meet in New York City on November 8th? And if they do, and approve new rules, will it be too little too late?

Ralph Losey Copyright 2024. All Rights Reserved.