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 …

The Role Of Ethical Principles In Ai Startups, James Bessen, Stephen Michael Impink, Robert Seamans

Faculty Scholarship

Do high-tech startups benefit from developing more ethical AI? AI startups implement policies and take actions to manage ethical issues associated with data collection, storage, and usage and adapt to the norms of their industry. This paper describes these startups' ethics-related actions, including ethical AI policy adoption, and examines how these actions relate to startup performance. We find that merely adopting an ethical AI policy (i.e., a less costly signal) does not relate to increased performance. However, there is evidence that investors reward startups that take more costly preventative pro-ethics actions, like seeking expert guidance, training employees about unconscious bias, …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Using Artificial Intelligence In The Law Review Submissions Process, Brenda M. Simon

Faculty Scholarship

The use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process. Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct …

Data Vu: Why Breaches Involve The Same Stories Again And Again, Woodrow Hartzog, Daniel Solove

Shorter Faculty Works

In the classic comedy Groundhog Day, protagonist Phil, played by Bill Murray, asks “What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?” In this movie, Phil is stuck reliving the same day over and over, where the events repeat in a continual loop, and nothing he does can stop them. Phil’s predicament sounds a lot like our cruel cycle with data breaches.

Every year, organizations suffer more data spills and attacks, with personal information being exposed and abused at alarming rates. While Phil …

Too Much Of A Good Thing? A Governing Knowledge Commons Review Of Abundance In Context, Michael J. Madison, Brett M. Frischmann, Madelyn Sanfilippo, Katherine J. Strandburg

Articles

The economics of abundance, along with the sociology of abundance, the law of abundance, and so forth, should be re-framed, linked, and situated in a common context for empirical rather than conceptual research. Abundance may seem to be a new, big thing, between anxiety over information overload, Big Data, and related technological disruptions. But scholars know that abundance is an ancient phenomenon, which only seemed to disappear as twentieth century social science focused on scarcity instead. Restoring the study of abundance, and figuring out how to solve the problems that abundance might create, means shedding disciplinary blinders and going back …

Ethical Ai Development: Evidence From Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial Intelligence startups use training data as direct inputs in product development. These firms must balance numerous trade-offs between ethical issues and data access without substantive guidance from regulators or existing judicial precedence. We survey these startups to determine what actions they have taken to address these ethical issues and the consequences of those actions. We find that 58% of these startups have established a set of AI principles. Startups with data-sharing relationships with high-technology firms; that were impacted by privacy regulations; or with prior (non-seed) funding from institutional investors are more likely to establish ethical AI principles. Lastly, startups …

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 …

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

Catholic University Journal of Law and Technology

No abstract provided.

Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas

Michigan Technology Law Review

Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.

This Article argues that despite …

Natural Language Processing For Lawyers And Judges, Frank Fagan

Michigan Law Review

A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.

Georgia’S Approach To Proportionality And Sanctions For The Spoliation Of Electronically Stored Information, Matthew Daigle

Georgia State University Law Review

The rapid evolution and implementation of technology in society has resulted in the increasing use of data as evidence in court. While the scope of discovery is limited by, among other things, the burden imposed on the producing party, the sheer magnitude of electronic evidence compared to its physical counterpart necessitates a different framework for evaluating such a burden. Without limiting factors, the discoverability of electronically stored information (ESI) exposes producing parties to liability disproportionate to the value of a case. While the Federal Rules of Civil Procedure have evolved to address the discovery of ESI, the Georgia Civil Practice …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

The Limits And Possibilities Of Data-Driven Antitrafficking Efforts, Jennifer Musto Ph.D.

Georgia State University Law Review

An examination of technology in the countertrafficking space reveals recurring tensions between law enforcement and rights-based approaches. It also illuminates assumptions, such as the one that posits more law enforcement-focused, nonstate-actor-supported data-driven efforts are necessary to securing justice for people in trafficking situations. However, a closer look at how technology is used and by whom also invites us to ask different questions and to leverage the power of our all-too-human creative potential in thinking about how to value and prioritize data ethics, transparency, and accountability in future countertrafficking work.

Gdpr And The Importance Of Data To Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

What is the impact of the European Union’s General Data Protection Regime (“GDPR”) and data regulation on AI startups? How important is data to AI product development? We study these questions using unique survey data of commercial AI startups. AI startups rely on data for their product development. Given the scale and scope of their business models, these startups are particularly susceptible to policy changes impacting data collection, storage and use. We find that training data and frequent model refreshes are particularly important for AI startups that rely on neural nets and ensemble learning algorithms. We also find that firms …

Privacy Law Issues In Public Blockchains: An Analysis Of Blockchain, Pipeda, The Gdpr, And Proposals For Compliance, Noah Walters

Canadian Journal of Law and Technology

Proponents of blockchain proclaim that the technology’s greatest innovation is trust. Blockchain create trust by serving as an indispensable ledger (a central point of truth), for all stakeholders to a transaction. Instead of companies managing and reconciling records of the same transaction in privately held databases, both sides of a transaction are recorded simultaneously on a shared ledger — the blockchain. As a result, the crypto economic environment is characterized by the decentralized coordination of business processes and transactions. Proponents of crypto-economics regard decentralized coordination as an opportunity for new forms of economic innovation, forms designed to increase value for …

Medical Ai And Contextual Bias, W. Nicholson Price Ii

Articles

Artificial intelligence will transform medicine. One particularly attractive possibility is the democratization of medical expertise. If black-box medical algorithms can be trained to match the performance of high-level human experts — to identify malignancies as well as trained radiologists, to diagnose diabetic retinopathy as well as board-certified ophthalmologists, or to recommend tumor-specific courses of treatment as well as top-ranked oncologists — then those algorithms could be deployed in medical settings where human experts are not available, and patients could benefit. But there is a problem with this vision. Privacy law, malpractice, insurance reimbursement, and FDA approval standards all encourage developers …

Data Regulation With Chinese Characteristics, Henry S. Gao

Centre for AI & Data Governance

Data regulation has become a key issue in today’s world. For various reasons, however, it has been challenging to understand data regulations in China, home to the largest e-commerce market in the world. This paper traces the evolution of data and Internet regulation in China, from the early days of the Chinese Internet, to the regulatory turf wars among different agencies, and all the way to the elevation of data and Internet regulation to the level of national security and the rise of a super-agency in charge of the issue in recent years. The paper argues that, the Chinese Internet …

Diversity As A Trade Secret, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and …

The Role Of Satellites And Smart Devices: Data Surprises And Security, Privacy, And Regulatory Challenges, Anne T. Mckenna, Amy C. Gaudion, Jenni L. Evans

Amy C. Gaudion

Strava, a popular social media platform and mobile app like Facebook but specifically designed for athletes, posts a “heatmap” with consensually-obtained details about users’ workouts and geolocation. Strava’s heatmap depicts aggregated data of user location and movement by synthesizing GPS satellite data points and movement data from users’ smart devices together with satellite imagery. In January of 2018, a 20-year-old student tweeted that Strava’s heatmap revealed U.S. forward operating bases. The tweet revealed a significant national security issue and flagged substantial privacy and civil liberty concerns.

Smart devices, software applications, and social media platforms aggregate consumer data from multiple data …

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

The Gdpr: It Came, We Saw, But Did It Conquer?, Leila Javanshir

Seattle University Law Review

On February 1, 2019, the Seattle University Law Review held its annual symposium at the Seattle University School of Law. Each year, the Law Review hosts its symposium on a topic that is timely and meaningful. This year, privacy and data security professionals from around the globe gathered to discuss the current and future effects of the General Data Protection Regulation (GDPR) that was implemented on May 25, 2018. The articles and essays that follow this Foreword are the product of this year’s symposium.

Confiding In Con Men: U.S. Privacy Law, The Gdpr, And Information Fiduciaries, Lindsey Barrett

Seattle University Law Review

In scope, ambition, and animating philosophy, U.S. privacy law and Europe’s General Data Protection Regulation are almost diametric opposites. The GDPR’s ambitious individual rights, significant prohibitions, substantive enforcement regime, and broad applicability contrast vividly with a scattershot U.S. regime that generally prioritizes facilitating commerce over protecting individuals, and which has created perverse incentives for industry through anemic enforcement of the few meaningful limitations that do exist. A privacy law that characterizes data collectors as information fiduciaries could coalesce with the commercial focus of U.S. law, while emulating the GDPR’s laudable normative objectives and fortifying U.S. consumer privacy law with a …

Privacy Statements Under The Gdpr, Mike Hintze

Seattle University Law Review

The need to include specific types of information in a privacy statement is a GDPR compliance obligation that does not get as much attention as some other GDPR requirements. Perhaps that is because privacy statements have been much maligned in recent years. They are too long and full of legalese. Nobody reads them. They are part of a notice and consent approach to privacy that puts an unrealistic burden on consumers to make informed choices. But despite these well-known criticisms, the GDPR doubles down on privacy statements. In fact, gauging by the roughly fourfold increase in privacy statement requirements compared …

Footprints: Privacy For Enterprises, Processors, And Custodians…Oh My!, Blair Witzel, Carrie Mount

Seattle University Law Review

Americans’ interest in privacy—as evidenced by increasing news coverage, online searches, and new legislation—has grown over the past decade. After the European Union enacted the General Data Protection Regulation (GDPR), technologists and legal professionals have focused on primary collectors of data—known under various legal regimes as the “controller” or “custodian.” Thanks to advances in computing, many of these data collectors offload the processing of data to third parties providing data-related cloud services like Amazon, Microsoft, and Google. In addition to the data they have already collected about the data subjects themselves, these companies now “hold” that data on behalf of …

Title 2.0: Discrimination Law In A Data-Driven Society, Bryan Casey

Journal of Law and Mobility

More than a quarter century after civil rights activists pioneered America’s first ridesharing network, the connections between transportation, innovation, and discrimination are again on full display. Industry leaders such as Uber, Amazon, and Waze have garnered widespread acclaim for successfully combatting stubbornly persistent barriers to transportation. But alongside this well-deserved praise has come a new set of concerns. Indeed, a growing number of studies have uncovered troubling racial disparities in wait times, ride cancellation rates, and service availability in companies including Uber, Lyft, Task Rabbit, Grubhub, and Amazon Delivery.

Surveying the methodologies employed by these studies reveals a subtle, but …

Nowhere To Run, Nowhere To Hide.* Applying The Fourth Amendment To Connected Cars In The Internet-Of-Things Era, Gregory C. Brown, Jr.

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note will briefly discuss the key components of a Connected Car, identify who collects the data from the Car, and examine the various uses for the data. Part I also explores whether Car owners consent to the collection of their Car’s data. Part II-A will trace the historical development of the automobile exception to the Fourth Amendment, which generally permits law-enforcement officers to conduct a warrantless search of a vehicle. Part II-B will discuss how the Supreme Court has applied the Fourth Amendment to pre-Internet technologies. Part II-C will discuss two recent Fourth Amendment Supreme …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

The Role Of Satellites And Smart Devices: Data Surprises And Security, Privacy, And Regulatory Challenges, Anne T. Mckenna, Amy C. Gaudion, Jenni L. Evans

Faculty Scholarly Works

Strava, a popular social media platform and mobile app like Facebook but specifically designed for athletes, posts a “heatmap” with consensually-obtained details about users’ workouts and geolocation. Strava’s heatmap depicts aggregated data of user location and movement by synthesizing GPS satellite data points and movement data from users’ smart devices together with satellite imagery. In January of 2018, a 20-year-old student tweeted that Strava’s heatmap revealed U.S. forward operating bases. The tweet revealed a significant national security issue and flagged substantial privacy and civil liberty concerns.

Smart devices, software applications, and social media platforms aggregate consumer data from multiple data …