The law surrounding artificial intelligence is developing rapidly. Yet few law firms have shifted their focus to the emerging and pressing questions this new technology presents: Who owns the intellectual property of AI-created content when such content is no longer, like in the past, created by humans? How can legislators regulate a technology that operates free of human involvement and that is resistant to human intervention? Should the FBI be allowed to use AI to predict a suspect’s whereabouts before executing a search or arrest warrant? What remedies do individuals have when they are targeted in defamatory statements written by a machine?
The list of unprecedented and unresolved AI-related legal questions is both fascinating and complex. And it requires special expertise. Nick Oberheiden, PhD, owner of a law firm with a focus on new technologies and author of “The Law of Tomorrow: Bitcoin, Tokens, Blockchain” and the introductory treatise titled “AI Litigation,” is fully aware how much AI has swiftly infiltrated traditional areas of law like intellectual property, privacy rights, securities, defamation, law enforcement, and constitutional compliance.
Oberheiden P.C.: A U.S. Federal Compliance and Defense Law Firm with Global AI Capabilities
Dr. Oberheiden’s law firm is Oberheiden P.C., and in some ways it has always been on the forefront of technology. When Dr. Oberheiden founded the firm in 2010, it was one of the first to invest heavily in content marketing. While many—if not most—law firms today rely on content marketing to maintain online visibility, this practice was far less common nearly 15 years ago.
At that time, Dr. Oberheiden focused his practice primarily on representing doctors in federal healthcare fraud investigations and related litigation. Artificial intelligence was still science fiction, and the first-generation iPad had just been released. It was a very different time. But, he was good at what he did; and, as he built a record of success, his practice—and his firm—started to grow.
Fast-forward to 2024, and Oberheiden P.C. has changed with the times. It has also grown significantly. Since his humble beginnings as a solo practitioner (although Dr. Oberheiden had previously worked at one of the world’s largest law firms), Dr. Oberheiden has grown his firm into a national powerhouse that includes the former Director of the CIA, former United States Secretary of State, former Director of National Intelligence, a former Congressional Chairman, and several presidentially appointed U.S. Attorneys and senior Justice Department officials.
While Dr. Oberheiden still represents doctors in federal healthcare fraud investigations—a practice he calls his bread and butter—he is increasingly representing a diverse range of clients in AI-related matters. Artificial intelligence has arrived on the scene in a big way, and Dr. Oberheiden says that its arrival has outpaced the development of the legal framework needed to provide certainty to companies and consumers.
Not only that, but its arrival has outpaced this much-needed framework significantly. “Similar to blockchain technology, the arrival of AI has largely caught legislators and regulators off guard,” he says. “While numerous companies have released AI platforms, and while many more companies are working to find ways to leverage these platforms, the reality is that even some of the most fundamental legal issues surrounding AI have yet to be decided. Litigation takes time, and until some of the lawsuits that are currently pending go to trial, if they go to trial, these companies are going to be operating without clear guidance on the legal risks involved.”
While legislators and regulators have the opportunity to step in, Dr. Oberheiden notes that many of the legal issues surrounding AI are more suited to resolution through litigation and the creation of precedent. He also points to the lack of legislation and regulations surrounding blockchain and cryptocurrencies as evidence of how long it is likely to take for any laws or regulations to get on the books. “Bitcoin predates the iPad, but the SEC didn’t adopt its long-awaited regulations for bitcoin ETFs until earlier this year. By the time we see any significant regulation of AI—if we see any significant regulation of AI—it will almost certainly be outdated.”
This, he says, makes working with experienced legal counsel especially important in the world of AI.
“Due to the current state of the law, the companies that focus on the legal aspects of AI today are the ones that are going to be shaping the law in the future. This presents both immediate and long-term opportunities. By giving due consideration to all of the legal risks that AI inherently entails, companies can not only mitigate their risk of litigation; but, if they face litigation, they can put themselves in the best possible position to create favorable precedent.”
Dr. Oberheiden hopes that corporate executives will understand the value of prioritizing legal risk management—and that, when they do, they will choose to work with Oberheiden P.C.
“Our firm has grown dramatically over the past decade,” he says. “This is true not only in terms of the size of our firm, but also in terms of the scope of our practice. Today, we are advising companies, executives, and government officials regarding some of the most cutting-edge technologies out there, including both predictive and generative AI.”
“When addressing novel issues such as those surrounding AI, we generally take a three-pronged approach,” he explains. “First, we investigate. What legal risks do our clients need to address? What answers are out there already? What are the unknowns? This analysis is essential for framing our advice and the risk mitigation strategies that we recommend.”
“Next, we focus on compliance and risk management. In the AI space, while there may not be much in the way of technology-specific regulatory guidance, general intellectual property, commercial, contract, privacy, and other legal considerations still apply. By applying these considerations within the context of our clients’ innovative technologies (or their use of other companies’ innovative technologies), we are able to help them make informed decisions with a long-term perspective.”
“Finally, when necessary, we provide representation for governmental investigations, civil and commercial litigation, and federal law enforcement proceedings. Ideally, we will have represented a client before this phase, and we will be able to leverage the safeguards that we have helped our clients put in place. But, in any case, our focus is always on efficiently achieving the best possible result for our client. Interestingly, while this typically means focusing on a favorable out-of-court resolution, in some cases it may actually be in companies’ best interests to litigate through trial in order to establish precedent that they can rely upon in the future. Deciding how to address any particular scenario involves a complex analysis that takes several divergent factors into account.”
Based in Texas, Oberheiden P.C. is unique in that it does not employ legions of junior associates who are tasked with advising clients based on no more than a few years’ worth of legal experience and insights. Instead, Dr. Oberheiden has carefully cultivated a nationwide network of attorneys and consultants, all of whom have senior-level experience—including decades worth of experience at the Justice Department and other federal agencies in many cases. According to Dr. Oberheiden, this unique feature is also one of the firm’s most valuable assets.
“While young lawyers need experience, companies and their executives cannot afford to rely on lawyers who are still figuring out the basics as they go. This is especially true in complex and novel areas like artificial intelligence. At Oberheiden P.C., all of our lawyers are capable of providing effective legal representation individually, but we still work as a team to ensure that each client receives the best representation that we can offer as a collective law firm.”
As Dr. Oberheiden also explains, “Some of the most complex legal issues that AI presents fall in the areas of privacy and national security. While AI presents enormous opportunities, it also presents unprecedented risks. If companies don’t address these risks proactively, they could quickly find themselves in a world of trouble—and they may or may not be able to recover. With a former CIA Director and former Director of National Intelligence on our team in Mike Pompeo and John Ratcliffe, we are in a unique position to effectively counsel our clients in these unique and important areas.”
In short, if your company develops or uses AI—or is planning to develop or use AI in the future—Oberheiden P.C. is the law firm you need to know. With a national presence and global capabilities, the firm and its lawyers are prepared to meet your company’s needs whatever they may be and wherever they may arise. With AI almost certainly here to stay, the companies that address the attendant legal risks now will be the ones that put themselves in the best position for long-term viability and success. Dr. Oberheiden and his powerhouse team are here to help, and he encourages you to get in touch if you have any AI-related questions or concerns.