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This article was originally published in Law360 on November 8, 2023 and can be found here.

As artificial intelligence continues to gain widespread acceptance, it is no surprise that the federal government is paying attention. As of 2020, 45 percent of government agencies were already considering the possibility of using AI tools. In 2022, Congress enacted the AI Training Act, which directed government agencies to examine the advantages of using AI. And just last week, President Biden issued a sweeping executive order providing guidelines for the use of AI.

One potential area where the government is likely to use AI is in the context of detecting fraud. But the potential for AI to detect government fraud is not limited to government agencies. There is also the potential that individuals can use AI to analyze large amounts of information, detect fraud, and bring False Claims Act (FCA) lawsuits. The use of AI tools in this context poses complicated questions, including how the use of publicly available AI tools implicates the FCA’s “public disclosure bar.”

Qui Tam Actions and Public Disclosure

Under the FCA qui tam provisions, individuals (known as “relators”) can bring actions on behalf of the government. If successful, relators can receive a share of the proceeds of any award or settlement. This can be big business. In 2022, qui tam actions made up almost 90 percent of the government’s $2.2 billion recovered under the FCA.

To prevent parasitic lawsuits by...

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