Science and Technology Law Commons^™

Transcript: Presentation On Artificial Intelligence And Discrimination In Healthcare, Sharona Hoffman

Journal of Law and Health

The following is a transcription from The Digital Health and Technology Symposium presented at Cleveland-Marshall College of Law by The Journal of Law & Health on Friday, April 8, 2022. This transcript has been lightly edited for clarity.

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

Flattening The Curve While Protecting Our Right To Privacy: How The United States Can Implement The Digital Contract Tracing Efforts Used In East Asia, Evan Morris

Global Business Law Review

This paper looks at the digital contact tracing efforts implemented by other nations and assesses how similar measures could operate under enacted and proposed United States laws. Part I overviews the history of contact tracing and its effectiveness in prior disease outbreaks. Part II delves into the digital contact tracing efforts implemented by South Korea and Singapore. These summaries include: the digital contact tracing efforts taken, the laws that authorize these efforts, the public’s reception, and the overall effectiveness of the efforts. Part III overviews the digital contact tracing efforts in the United States, including proposed legislation aimed at user …

Breached!: Why Data Security Law Fails And How To Improve It, Woodrow Hartzog, Daniel Solove

Books

Digital connections permeate our lives—and so do data breaches. Given that we must be online for basic communication, finance, healthcare, and more, it is remarkable how difficult it is to secure our personal information. Despite the passage of many data security laws, data breaches are increasing at a record pace. In their book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022), Professors Daniel Solove and Woodrow Hartzog argue that the law fails because, ironically, it focuses too much on the breach itself.

Drawing insights from many fascinating stories about data breaches, Solove and …

The Right To Privacy And Data Protection In Times Of Armed Conflict, Asaf Lubin, Russell Buchan

Books & Book Chapters by Maurer Faculty

Contemporary warfare yields a profound impact on the rights to privacy and data protection. Technological advances in the fields of electronic surveillance, predictive algorithms, big data analytics, user-generated evidence, artificial intelligence, cloud storage, facial recognition, and cryptography are redefining the scope, nature, and contours of military operations. Yet, international humanitarian law offers very few, if any, lex specialis rules for the lawful processing, analysis, dissemination, and retention of personal information. This edited anthology offers a pioneering account of the current and potential future application of digital rights in armed conflict.

In Part I Mary Ellen O’Connell, Tal Mimran and Yuval …

Privacy Frameworks For Smart Cities, Lindsey Tonsager, Jayne Ponder

Journal of Law and Mobility

This paper identifies some of the core privacy considerations raised by smart cities – government surveillance and data security in Part I. Then, Part II proposes a set of core principles for smart cities to consider in the development and deployment of smart cities to address privacy concerns. These principles include: (A) human-centric approaches to smart cities design and implementation, (B) transparency for city residents, (C) privacy by design, (D) anonymization and deidentification, (E) data minimization and purpose specification, (F) trusted data sharing, and (G) cybersecurity resilience.

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

The Rise Of 5g Technology: How Internet Privacy And Protection Of Personal Data Is A Must In An Evolving Digital Landscape, Justin Rabine

Catholic University Journal of Law and Technology

No abstract provided.

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

No abstract provided.

Persistent Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

Persistent surveillance technologies grant police vast new investigative capabilities. The technologies both monitor targeted areas and generate databases of searchable information about people, places, and patterns that can be connected and accessed for criminal prosecutions.

In the face of this growing police surveillance, courts have struggled to make sense of a fragmented Fourth Amendment doctrine. The Supreme Court has offered some clues that “digital may be different” when it comes to surveillance, but lower courts have been left struggling to apply old law to new technologies. Warrantless use of persistent surveillance technologies raises hard questions about when a “search” occurs …

A New Reality: Deepfake Technology And The World Around Us, Molly Mullen

Mitchell Hamline Law Review

No abstract provided.

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

Delineating The Legal Framework For Data Protection: A Fundamental Rights Approach Or Data Propertization?, Efe Lawrence Ogbeide

Canadian Journal of Law and Technology

The Charter of Fundamental Rights of the European Union, like other key legal instruments around the globe, grants citizens the right to privacy in Article 7. The Charter, however, further provides for the right to data protection in Article 8. Simply put, the implication of Article 8 of the Charter is that the right to data protection is a fundamental right. The central question in this article is whether data protection indeed qualifies to be categorized as a fundamental right. If not, what other approach(es) to data protection may be implemented?

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon Penney, Bruce Schneier

Articles, Book Chapters, & Popular Press

End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

Use Of Unmanned Aircraft Systems And Regulatory Landscape: Unravelling The Future Challenges In The High Sky, K Kirthan Shenoy, Divya Tyagi

International Journal of Aviation, Aeronautics, and Aerospace

The individuals on the ground nowadays often observe objects distantly hover over the sky, which raises the question of who might be operating the object or what the object might record. Unmanned Aircraft Systems (UAS) or Drones today have quickly penetrated civilian, military, and commercial sectors. The drones or UAS, with the advancement of technology, are now capable of traversing long distances, having long endurance, and having multipurpose functionality. The UAS industry is fast expanding, with trade investment touching the billion-dollar mark in flourishing economies. The advent of the Covid 19 pandemic saw a steep rise in the use of …

Privacy Aspects Of Direct-To-Consumer Artificial Intelligence/Machine Learning Health Apps, Sara Gerke, Delaram Rezaeikhonakdar

Faculty Scholarly Works

Direct-To-Consumer Artificial Intelligence/Machine Learning health apps (DTC AI/ML health apps) are increasingly being made available for download in app stores. However, such apps raise challenges, one of which is providing adequate protection of consumers' privacy. This article analyzes the privacy aspects of DTC AI/ML health apps and suggests how consumers' privacy could be better protected in the United States. In particular, it discusses the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Federal Trade Commission (FTC) Act, the FTC's Health Breach Notification Rule, the California Consumer Privacy Act of 2018, the California Privacy Rights Act of 2020, the …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed …

Towards A Calibrated Trust-Based Approach To The Use Of Facial Recognition Technology, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The use of facial recognition technology has given rise to much debate relating to issues concerning privacy infringements, bias and inaccuracies of data and outputs, possibilities of covert use, the lack of data security and the problem of function creep. Certain states and jurisdictions have called for bans and moratoria on the use of facial recognition technology. This paper argues that a blanket ban on facial recognition technology would be overly precautionary without fully considering the wide range of uses and benefits of the innovation. To promote its acceptance, trust in facial recognition technology should be developed in a calibrated …

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

New Technology And The Right To Privacy: Do E-Scooters Implicate The Fourth Amendment?, Alexander P. Carroll

Journal of the National Association of Administrative Law Judiciary

The Fourth Amendment protects individual’s right to privacy from unwarranted searches and seizures, but the analysis for when the Fourth Amendment applies has become more complicated as new technology is developed. E-scooters are a new piece of technology which may implicate the Fourth Amendment. Cities across the country are beginning to require the mobility companies which provide e-scooter services to turn over location data in order to receive an operating permit. This article first provides a background of the Fourth Amendment, then provides details regarding the new city regulations. The article includes a discussion of the privacy concerns as well …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Pandemic Surveillance Discrimination, Christian Sundquist

Articles

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

All Faculty Scholarship

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Privacy In The Age Of Contact Tracing: An Analysis Of Contact Tracing Apps In Different Statutory And Disease Frameworks, Christopher S. Yoo, Apratim Vidyarthi

All Faculty Scholarship

The Covid-19 pandemic is a historic pandemic that has affected the lives of virtually everyone on the globe. One approach to slowing the spread of the disease is to use contact tracing, facilitated by our internet-connected smartphones. Different nations and states have partnered to develop a variety of contact tracing apps that use different technologies and architectures.

This paper investigates how five contact tracing apps—Germany’s Corona-Warn-App, Israel’s HaMagen, North Dakota’s Care19 Diary and Alert apps, and India’s Aarogya Setu—fare in privacy-oriented statutory frameworks to understand the design choices and public health implications shaped by these statutes. The three statutes—the Health …