If You Are Uptight About AI, This May Relax You - The National Law Review

[James G. Gatto]

While AI has many people uptight, Aescape has developed technology to help you relax – AI robotic massage. Aescape touts that it combines the timeless art of massage with robotics and artificial intelligence to deliver an exceptional massage experience every time. The “Aertable” (i.e., the massage table) has bolsters, headrests, and armrests that are all adjustable to provide a customized fit during each session. It also has continuous feedback which allows for real-time adjustments to optimize comfort. The “Aerscan” system captures 1.2 million data points, precisely mapping your body’s muscle structure to create a unique blueprint for a highly personalized massage experience. “Aerpoints” replicate the seven touch techniques of a skilled therapist, simulating the knuckle, thumb, cupped hand, blade of hand, palm, forearm, and elbow. The “Aerview” provides personal control so you can adjust the pressure, manage the music, or customize the display to create a session tailored to your preferences, needs and mood. The company has developed “Aerwear” a high-compression performance fabric that enhances body detection for the system and allows Aerpoints to move smoothly over your body. Wearing it is mandatory during the massage. The tables are equipped with advanced safety features, including force sensors and pause and emergency stop features to prevent or abate issues if things go wrong. Aescape is a classic example of an application of AI and robotics that will interact with humans. We will see many more such applications from this point forward. While Aescape seems to have anticipated some of the potential problems that can arise, any AI robotic application that interacts with humans has the potential for a variety of legal issues. The following are some of the general legal issues that may be relevant to AI robotic applications that interact with humans. But the actual issues will vary by application.

Despite the mixed feelings by some therapists about this technology, the $19B massage industry faces significant challenges. At least some of these challenges can be addressed by AI robotic massage. Some of the problems relate to delivering consistent, high-quality experiences, client satisfaction can vary from one session to another, some locations have a shortage of skilled therapists and therapists work limited hours. AI robotic massage can address many of these issues due to its consistency and 24/7 availability.

Aescape seems to be gaining traction. After launching with Equinox in New York City, Aescape reported exceptional consumer adoption with high utilization and repeat rates, driving a notable spike in gym memberships. This led to a national expansion to 60 Equinox locations. Aescape has also had success with leading hospitality brands (e.g., luxury hotels) and some NBA and NFL teams.

By now many questions are likely going through your mind. Can robots really replace the “human touch” aspect of massages? Will this technology replace massage therapists, leading to job loss? Can AI assist human massage therapists? It is beyond the scope of this post to cover all of these and other valid questions. But if you are interested, these topics are well-covered in the following articles – Will AI Impact the Employment of Massage Therapists? and 10 Ways Massage Therapists Can Use AI.

Aescape is a classic example of an application of AI and robotics that will interact with humans. We will see many more such AI robotic personal services applications from this point forward. While Aescape seems to have anticipated some of the potential problems that can arise, any AI robotic application that interacts with humans has the potential for a variety of legal issues. The following are some of the general legal issues that may be relevant to AI robotic applications that interact with humans. But the actual issues will vary by application.

Liability and malpractice: One often raised concern with autonomous applications is their safety and reliability. Despite best efforts to anticipate and provide failsafes for potential problems, this remains a risk. Technology malfunctions can cause physical harm. This raises concerns about potential liability issues. Will harmed clients have a claim in the nature of “malpractice” or product liability, or both? To complicate matters further, for harms resulting from AI-assisted, human massage, how should the liability be allocated between the technology provider and the therapist? In some cases, it may be difficult to obtain insurance for such applications, especially for new, unproven AI technology. If you are a location (spa, health club, etc.) deploying the technology, it would be wise to ensure you have an effective indemnity.

Privacy and data protection: To optimize the personalization of AI driven applications, a lot of personal data is needed. Aescape’s system claims to scan and store detailed body data, mapping over 1 million 3D data points of a person’s body. Massage therapists often inquire whether the client has any injuries, recent surgeries or medical conditions. More generally, AI robotic massage technology can employ a database to analyze a client’s physical condition, medical history, preferences and other personal information to create a customized massage tailored to their individual needs. All of this raises privacy concerns about how this sensitive personal information, including information typically covered by HIPPA, is stored, used, and protected. From a practical perspective, some clients may be less willing to share their sensitive personal information and medical history with a machine. While privacy is always important, there may unique considerations in crafting a privacy policy in these cases and it will be prudent to prioritize transparency and obtain explicit consents from clients before incorporating AI into their sessions. There may be legal questions on whether clients are fully informed about the nature of the robotic massage, the data collected and how it is used, and whether clients can provide informed consent, especially given the novelty of the technology.

Professional licensing: Massage therapists require licenses. Will AI systems need to be “licensed” in a manner like human massage therapists. If so, how this would be implemented? Or will certain jurisdictions prohibit unlicensed, non-humans. And while most massages are not deemed to be medical treatment, some can be. To the extent AI robotic massage crosses that line, it could involve the unauthorized practice of medicine.

Regulatory compliance: As a new technology, AI robotic massage systems may face challenges in meeting existing regulations for massage therapy and medical devices, where applicable. There could be a need for new regulatory frameworks to address this emerging field.

Consumer protection and marketing: There could be legal issues related to ensuring the safety and effectiveness of the robotic massage systems, as well as truthful marketing of their capabilities. The FTC has warned companies about overstating the capabilities of AI technology.

Intellectual Property: As with any new technology, there may be patent disputes or copyright issues related to the AI algorithms and robotic designs used in these systems. It is prudent to work with IP counsel to protect your IP and assess whether you might be infringing on any third-party IP.

These are some of the potential issues in the complex legal landscape that AI robotic applications may face. Other issues will undoubtedly arise.