Law Commons^™

Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones

Publications

Artificial Intelligence (AI) systems such as ChatGPT can now produce convincingly human speech, at scale. It is tempting to ask whether such AI-generated content “disrupts” the law. That, we claim, is the wrong question. It characterizes the law as inherently reactive, rather than proactive, and fails to reveal how what may look like “disruption” in one area of the law is business as usual in another. We challenge the prevailing notion that technology inherently disrupts law, proposing instead that law and technology co-construct each other in a dynamic interplay reflective of societal priorities and political power. This Essay instead deploys …

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 …

The Right To Explanation, Explained, Margot E. Kaminski

Publications

Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released …

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

Binary Governance: Lessons From The Gdpr’S Approach To Algorithmic Accountability, Margot E. Kaminski

Publications

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

Publications

No abstract provided.

Privacy And The Right To Record, Margot E. Kaminski

Publications

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s …

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

When The Default Is No Penalty: Negotiating Privacy At The Ntia, Margot E. Kaminski

Publications

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated …

Regulating Real-World Surveillance, Margot E. Kaminski

Publications

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Publications

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Privacy & The Personal Prospectus: Should We Introduce Privacy Agents Or Regulate Privacy Intermediaries, Scott R. Peppet

Publications

No abstract provided.

Unraveling Privacy: The Personal Prospectus And The Threat Of A Full-Disclosure Future, Scott R. Peppet

Publications

Information technologies are reducing the costs of credible signaling, just as they have reduced the costs of data mining and economic sorting. The burgeoning informational privacy field has ignored this evolution, leaving it unprepared to deal with the consequences of these new signaling mechanisms. In an economy with robust signaling, those with valuable credentials, clean medical records, and impressive credit scores will want to disclose those traits to receive preferential economic treatment. Others may then find that they must also disclose private information to avoid the negative inferences attached to staying silent. This unraveling effect creates new types of privacy …

Book Review, Susan Nevelow Mart

Publications

No abstract provided.

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …