Law Commons^™

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Northwestern University Law Review

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

Do Patents Drive Investment In Software?, James Hicks

Northwestern University Law Review

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

Big Data Affirmative Action, Peter N. Salib

Northwestern University Law Review

As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated …

Information Privacy And The Inference Economy, Alicia Solow-Niederman

Northwestern University Law Review

Information privacy is in trouble. Contemporary information privacy protections emphasize individuals’ control over their own personal information. But machine learning, the leading form of artificial intelligence, facilitates an inference economy that pushes this protective approach past its breaking point. Machine learning provides pathways to use data and make probabilistic predictions—inferences—that are inadequately addressed by the current regime. For one, seemingly innocuous or irrelevant data can generate machine learning insights, making it impossible for an individual to anticipate what kinds of data warrant protection. Moreover, it is possible to aggregate myriad individuals’ data within machine learning models, identify patterns, and then …

Amoral Machines, Or: How Roboticists Can Learn To Stop Worrying And Love The Law, Bryan Casey

Northwestern University Law Review

The media and academic dialogue surrounding high-stakes decisionmaking by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit-maximizing firms risks marginalizing the field of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course correction. Invoking Justice Oliver Wendell Holmes’s canonical analogy of the “bad man . . . who cares nothing for . . . ethical rules,” it demonstrates why philosophical abstractions like …

Data-Generating Patents, Brenda M. Simon, Ted Sichelman

Northwestern University Law Review

Patents and trade secrets are often considered economic substitutes. Under this view, inventors can decide either to maintain an invention as a trade secret or to seek a patent and disclose to the public the details of the invention. However, a handful of scholars have recognized that because the patent disclosure requirements are not always rigorous, inventors may sometimes be able to keep certain aspects of an invention secret, yet still receive a patent to the invention as a whole. Here, we provide further insight into how trade secrets and patents may act as complements. Specifically, we introduce the concept …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …

Regulating Cyber-Security, Nathan Alexander Sales

Northwestern University Law Review

The conventional wisdom is that this country’s privately owned critical infrastructure—banks, telecommunications networks, the power grid, and so on—is vulnerable to catastrophic cyber-attacks. The existing academic literature does not adequately grapple with this problem, however, because it conceives of cyber-security in unduly narrow terms: most scholars understand cyber-attacks as a problem of either the criminal law or the law of armed conflict. Cyber-security scholarship need not run in such established channels. This Article argues that, rather than thinking of private companies merely as potential victims of cyber-crimes or as possible targets in cyber-conflicts, we should think of them in administrative …