Science and Technology 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 …

New Tech, Old Problem: The Rise Of Virtual Rent-To-Own Agreements, Carrie Floyd

Fellow, Adjunct, Lecturer, and Research Scholar Works

This Article explores how fintech has disrupted the traditional rent-to-own (RTO) industry, giving rise to new, virtual RTO agreements (VirTOs). These VirTOs have enabled the RTO industry to expand into the service industry and to markets for products not traditionally associated with rentals, such as vehicle repairs, pet ownership, and medical devices. This Article analyzes this development.

RTO agreements purport to rent products to a consumer until the conclusion of a set number of renewable rental payments, at which point ownership transfers. The fundamental characteristic of these agreements – and why they are not regulated as loans – are that …

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

Shouldering The Burden Of Renewable Energy: Lithium Mining In Chile’S Indigenous Communities, Asha Wedemier-Allan

University of Miami Inter-American Law Review

Technology has improved society, from bridging digital divides to increasing efficiency. To power technology, energy sources were traditionally derived from diminishing and exhaustible resources like fossil fuels. The renewable energy revolution emerged to balance the global demand for technology with its impact on natural resources. Lithium is a critical, non-renewable mineral that clean technology relies on. Essentially, lithium makes renewable energy possible. As the pillar for a fossil fuel-free yet technology-driven society, it is imperative to examine the sustainability and impacts of lithium mining.

This Note discusses the legal and socio-political frameworks shaping foreign direct investments in Chile’s lithium mining …

A Public Technology Option, Hannah Bloch-Wehba

Faculty Scholarship

Private technology increasingly underpins public governance. But the state’s growing reliance on private firms to provide a variety of complex technological products and services for public purposes brings significant costs for transparency: new forms of governance are becoming less visible and less amenable to democratic control. Transparency obligations initially designed for public agencies are a poor fit for private vendors that adhere to a very different set of expectations.

Aligning the use of technology in public governance with democratic values calls for rethinking, and in some cases abandoning, the legal structures and doctrinal commitments that insulate private vendors from meaningful …

Tech Supremacy: The New Arms Race Between China And The United States, Xuan-Thao Nguyen

Articles

In the brewing tech war between the United States and China, the quest for tech supremacy is in full force. Through enacting a series of laws and policies, China aims to reach its goal of tech supremacy. If China succeeds, U.S. corporations will face a daunting task in competing against Chinese products and services in core industries and in sectors where artificial intelligence and technological breakthroughs reign. This Article is the first to identify and analyze China’s 2022 Law on Science and Technology Progress, Personal Information Protection Law, Made in China 2025, National Intellectual Property Strategies, and digital currency e-CNY; …

Deplatforming, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.

But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common …

The Ideal Approach To Artificial Intelligence Legislation: A Combination Of The United States And European Union, Dane Chapman

University of Miami Law Review

The evolution of Artificial Intelligence (“A.I.”) from a speculative concept depicted in science fiction to its integration into various aspects of everyday life has brought about complex challenges for contemporary legislators. The proliferation of A.I. technology has led to a growing recognition of the need for regulation, as it poses both promises and threats to society. On the one hand, A.I. has the potential to enhance efficiency in various fields, such as medicine and automation of routine tasks. On the other hand, if left unregulated, A.I. has the potential to undermine democratic principles and infringe upon fundamental rights. Thus, legislators …

Leveraging Technology To Promote Access To Justice, Amy Emerson

Faculty Publications

No abstract provided.

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Articles

This Note will advocate for the view that when presented with the issue, state and federal courts should establish that keyword search warrants are unconstitutional because they violate the Fourth Amendment. Keyword search warrants cannot meet the Fourth Amendment’s requirements of probable cause and particularity because the subjects of the search cannot be identified until after the search is completed. These warrants are unnecessary and have the potential of implicating millions of internet users who have no connection to a crime. This Note will contend that individuals have a reasonable expectation of privacy in their search history data, and that …

Two Visions Of Digital Sovereignty, Sujit Raman

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Thaler V. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), Matthew Messina

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

University of Miami Law Review

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Standing Up To Hackers: Article Iii Standing For Victims Of Data Breaches, Kendall Coffey

University of Miami Law Review

Despite the increasing amount of data breaches, there is no liability for parties who do not adequately protect victim’s information. In federal court, plaintiffs must show that their injury was concrete, particularized, and imminent. But, when plaintiffs’ information has been stolen, but not yet criminally used, they may be unable to establish a right to relief. Victims face challenges when seeking damage for this future harm, because despite their destroyed privacy, they may not have evidence of a perpetrator’s actual misuse of purloined data. This Article analyzes multiple court decisions, generally in the setting of class-actions, and discusses outcomes of …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Science, Technology, Society, And Law, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Traditionally, science and technology have been granted as sources of knowledge and objective truth. However, much more recently, they are also seen as human activities, conducted in a social environment. This new approach focuses on the intersections between science, technology and society, and particularly their regulation by the law. Concerns on how to best regulate the interaction come up in modern societies, and when either their use or their impacts are global, international law and international organizations become involved. The impact of the fourfold relation is so high that science and technology are seen as one of the reasons for …

The Interlinkages Science-Technology-Law: Information And Communication Society, Knowledge-Based Economy And The Rule Of Law, Giovanni Bombelli, Paolo Davide Farah

Book Chapters

This chapter focuses on the circular and complex relationship between science, technology, society, and law. The technology/society connection focuses on the democratic deficit issue. The democratic deficit would be a consequence of the lack of adaptability of western democracy to complex (information) societies, where technology (and the increasing access to data that it permits) is separating the connection between information and knowledge (as well as the classical legitimacy couple of democracy-truth) moving these societies towards a technocracy. On one hand, the technology-law circle deals with the progressive reduction of law to a normative technique (since the law is always late …

Regulating The Use Of Military Human Enhancements That Can Cause Side Effects Under The Law Of Armed Conflict: Towards A Method-Based Approach, Yang Liu

American University National Security Law Brief

The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues.

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.

The Need For An Australian Regulatory Code For The Use Of Artificial Intelligence (Ai) In Military Application, Sascha-Dominik Dov Bachmann, Richard V. Grant

American University National Security Law Brief

Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of …

The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Different visions on the interaction between science, technology, policy and law have been presented. As common axe, we can detect the continuous search for truth and justice. Science and Law as social constructs, the distinction between truths and opinions through procedural method based on evidence and rationality, or how natural science “things” became facts, and consequently “truth”, are examples of this search. The evidence-gathering process that integrates scientific evidence into trial (sometimes by procedure and other times by a more substantive approach) is another possible approach. Of course, that the game of mutual influence among the four elements creates contradictions …

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

Introduction: Digital Transformation Of Government: Towards A Digital Leviathan?, Alfred C. Aman

Indiana Journal of Global Legal Studies

A warm welcome to you all. It is a great pleasure to be able to participate in this exciting collaboration between Universidad Carlos III de Madrid (UC3M) and Indiana University—a conference that the Indiana Journal of Global Legal Studies is publishing in celebration of its thirtieth issue. This is a milestone for us, and we could not be happier to celebrate it in this way. Let me begin with a few words about the nature of this journal and its scholarly goals over the years.

The Policy Origins Of Wi-Fi, John Blevins

Indiana Law Journal

Wi-Fi technology has become a necessary foundation of modern economic and cultural life. This Article explains its history. Specifically, it argues that Wi-Fi owes its existence and widespread adoption to federal policy choices that have been underexplored in the literature. Wi-Fi’s development is often portrayed as an unexpected and lucky accident following the FCC’s initial decision in the 1980s to allow more unlicensed and experimental uses. This view, however, obscures the more fundamental role that federal policy played. For one, the rise of modern Wi-Fi was the product of a series of policy decisions spanning decades. In addition, the FCC’s …

Layered Fiduciaries In The Information Age, Zhaoyi Li

Indiana Law Journal

Technology companies such as Facebook have long been criticized for abusing customers’ personal information and monetizing user data in a manner contrary to customer expectations. Some commentators suggest fiduciary law could be used to restrict how these companies use their customers’ data.1 Under this framework, a new member of the fiduciary family called the “information fiduciary” was born. The concept of an information fiduciary is that a company providing network services to “collect, analyze, use, sell, and distribute personal information” owes customers and end-users a fiduciary duty to use the collected data to promote their interests, thereby assuming fiduciary liability …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …