Law Commons^™

On Facial Recognition, Regulation, And "Data Necropolitics", Antonio Pele, Caitlin Mulholland

Indiana Journal of Global Legal Studies

This paper argues for actual and legal regulation of artificial intelligence (AI) and facial recognition. These new technologies represent great opportunities to improve the welfare of societies. However, some of their uses can also enhance discrimination and, eventually, lead to violence. From a comparative approach (examining the European Union and Brazil), we address the current and future aspects of facial regulation, AI, and personal data. This paper shows that regulation is relevant to protect the rule of law, free markets, and individual freedoms. It also examines the looming risks unfolding from the unregulated uses of new technologies. Our concept of …

Artificial Intelligence In Government: Risks And Challenges Of Algorithmic Governance In The Administrative State, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This article analyzes the legal implications of using artificial intelligence in government and how it is challenging the foundations of the administrative state. It begins by demonstrating that a new model of government is emerging, based on information and intelligence (i-Gov). To understand the nature and scope of this new i-Gov model, this article will explain what artificial intelligence really is and analyze the applications that are currently being carried out in the US and the EU. Next, it will review the regulatory framework that is emerging that regulates government use of artificial intelligence in both the US and the …

Blockchain And The Right To Good Administration: Adding Blocks To Or Blocking Of The Globalization Of Good Administration?, Migle Laukyte

Indiana Journal of Global Legal Studies

In this article, the author addresses the complex and multifaceted relationship between the right to good administration enshrined in the Charter of Fundamental Rights of the European Union and the uses of blockchain technology by the public administration, which is in charge of making the right to good administration real. The opportunities and threats come hand in hand, and there is an urgent need to push forward a public debate on the uses and misuses of blockchain to guarantee public services, so much so that many aspects of blockchain are not compatible with citizens’ expectations in relation to the public …

Natural Language Processing In The Legal Domain, Daniel Martin Katz, Dirk Hartung, Lauritz Gerlach, Abhik Jana, Michael J. Ii Bommarito

Research Collection Yong Pung How School Of Law

In this paper, we summarize the current state of the field of NLP and Law with a specific focus on recent technical and substantive developments. To support our analysis, we construct and analyze a corpus of more than six hundred NLP and Law related papers published over the past decade. Our analysis highlights several major trends. Namely, we document an increasing number of papers written, tasks undertaken, and languages covered over the course of the past decade. We observe an increase in the sophistication of the methods which researchers deployed in this applied context. Slowly but surely, Legal NLP is …

Patent-Infringement Suits And The Right To A Jury Trial, H. Tomas Gomez-Arostegui, Sean Bottomley

American University Law Review

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on eighteenth-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and therefore that litigants today who seek only injunctive relief possess no such right either. But …

It Takes Two To Incorporate: The Role Of Patent Co-Ownership In Inventor Choice Of Business Form, Shawn P. Miller

American University Law Review

The literature on the theory of the firm and the reasons why entrepreneurs choose one type of business organization over another is massive. However, few empirical studies have been conducted to test the importance of the various proposed determinants of choice of legal form of organization in real-world industries. This paper helps fill that gap through an econometric investigation of the differences in the characteristics of two groups of independent inventors engaged in the business of patent monetization: inventors operating as sole proprietors and those operating through business organizations, almost always LLCs or close corporations.

The results suggest that commonly …

Decentralized Collaboration Through Private Ordering, Edward Lee

American University Law Review

This Article sets forth the theory of decentralized collaboration to explain how NFT projects coordinate business and creative collaborations in a decentralized manner through NFTs. Conducting an empirical study of the Top 25 NFT projects, this Article shows that a majority of the Top 25 NFT projects have employed a new, more innovative approach to creative production. Decentralized collaboration refers to the creative activities among unrelated actors who are involved in creating a shared content production project through a decentralized, asynchronous process open to the public. Utilizing a combination of smart contracts that create non-fungible tokens (NFTs) recorded on blockchain …

The Transparency Machine, Talia B. Gillis

Faculty Scholarship

Orly Lobel’s rich and insightful book provides a clear-eyed view of the use of artificial intelligence in personal and societal domains and its distributional implications. The book sets out to evaluate how technology can promote equality, which is far from the natural perspective of us law professors, who tend to feel more comfortable as technology alarmists. Lobel challenges us to take the perspective that “digitization and automation are here to stay” and to find ways in which technology can “do better than our current systems” even when it is not perfect.

Supervision Of Artificial Intelligence In The Eu And The Protection Of Privacy, Johanna Chamberlain, Jane Reichel

FIU Law Review

No abstract provided.

The Need For Curtains Of The Soul: Privacy Versus Transparency In The Instrumented World Of Algorithmic Artificial Intelligence, Michael Martin Losavio

FIU Law Review

We approach a privacy singularity in pervasive data collection and inference that may reveal all about our lives. While privacy might not yet be dead, we struggle to maintain its shield for personal autonomy. Part of this contemporary challenge comes from the massive data sets generated every day everywhere. And then the powerful analytics that reveal all. This is further challenged by efforts at data transparency that may reveal too much of one’s life. Preservation of privacy, if we deem it important enough to preserve, must have a robust set of technical and legislative implementations on collection, storage, transmission and …

The Development Of Digital Mass Surveillance In Norway: The Emergence Of A Surveillance State?, Iris Nguyên Duy

FIU Law Review

No abstract provided.

Calculated Privacy: Tech Meets Law & Law Meets Tech, Tobias J. Oechtering, Sara Saeidian, Cecilia Magnusson Sjöberg

FIU Law Review

No abstract provided.

America’S Fraught Relationship With Privacy, Russell L. Weaver

FIU Law Review

No abstract provided.

Evolving Privacy Protections For Emerging Machine Learning Data Under Carpenter V. United States, Emily Nicolella

FIU Law Review

The Fourth Amendment’s third-party doctrine eliminates an individual’s reasonable expectation of privacy in information they willingly turn over to third parties. Government scrutiny of this information is not considered a search under the Fourth Amendment and is therefore not given constitutional protections. In the 2018 case Carpenter v. United States, the Supreme Court created an exception to the third-party doctrine. In Carpenter, a case involving the warrantless use of cell site location information (CSLI) in a criminal investigation, the Court held that individuals do have a reasonable expectation of privacy regarding CSLI. According to Chief Justice Roberts, despite the necessary …

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

All Faculty Scholarship

In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …

The Server Test Quandary And Embedding Permission Culture, Michael Goodyear

Articles & Chapters

The practice of embedding—inserting code that displays content located elsewhere on the Internet—is ubiquitous online. Millions of users insert or encounter embeds daily. As a core type of link, embedding has helped disseminate information far and wide, furthering the goals of both copyright law and the Internet. For over a decade, embedding has been considered lawful under copyright law, guaranteed by a Ninth Circuit doctrine known as the server test, which holds that a person only displays a work when he or she hosts and serves it. This rule, which has greatly influenced the growth of the modern Internet, has …

Winning The Imitation Game: Setting Safety Expectations For Automated Vehicles, William H. Widen, Philip Koopman

Articles

This article suggests that legislatures amend existing law to create a new legal category of "computer driver" to allow a plaintiff to make a negligence claim against an automated vehicle manufacturer for loss proximately caused by any negligent driving behavior exhibited by the driving automation systems which it produced. Creating this new legal category will allow a status quo approach to attribution and allocation of liability, including permitting defendants to take advantage of contributory negligence and comparative fault rules. Creation of the category also allows for continued functioning of the structure of our existing liability laws and regulations for motor …

The Case For Establishing A Collective Perspective To Address The Harms Of Platform Personalization, Aylet Gordon-Tapiero, Alexandra Wood, Katrina Ligett

Vanderbilt Journal of Entertainment & Technology Law

Personalization on digital platforms drives a broad range of harms, including misinformation, manipulation, social polarization, subversion of autonomy, and discrimination. In recent years, policy makers, civil society advocates, and researchers have proposed a wide range of interventions to address these challenges. This Article argues that the emerging toolkit reflects an individualistic view of both personal data and data-driven harms that will likely be inadequate to address growing harms in the global data ecosystem. It maintains that interventions must be grounded in an understanding of the fundamentally collective nature of data, wherein platforms leverage complex patterns of behaviors and characteristics observed …

An Epidemic In Enforceability: A Growing Need For Individual Autonomy In Health Care Data-Privacy Protection In An Era Of Digital Tracking, Madeline Knight

Vanderbilt Journal of Entertainment & Technology Law

The health care system in the United States is under conflicting pressures. From one angle, there is a demand for the highest standard of care, which includes efficient, confidential communications between doctors and patients. From another, however, the technology that has facilitated such efficiency has outpaced the security mechanisms currently in place to protect a long-recognized right to privacy. In an era of data tracking, the important privacy interest that Congress has recognized since 1996 confronts a growing threat of data commodification. Despite significant potential consequences, however, there is neither guaranteed statutory recovery nor cohesion among states for the process …

Competition Upstream Of Amazon, Martin Edwards

Vanderbilt Journal of Entertainment & Technology Law

The rise of large, market-concentrating technology firms like Amazon, Inc. is driving commentators, regulators, and politicians to rethink the law of antitrust. In particular, “New Antitrust” reformers propose that the narrow focus on consumer welfare has caused antitrust law to stop too short in corralling the broader social and economic consequences of Big Tech’s “bigness.” Proponents of the consumer welfare standard argue that it has worked well to distinguish beneficial competition from harmful aggression and, further, to reduce costly legal uncertainty. There is now momentum for substantial reform to antitrust law and practice and a growing debate about what such …

Bringing Dinosaurs Back: The Moral & Legal Complications, Kacey Hovden

Animal Law Review

From Hollywood blockbusters to your local natural history museums, dinosaurs have captured the attention and wonder of the public for decades. The possibility of bringing these long extinct creatures back, once a science-fiction fantasy, is now closer to reality than ever before through a process known as “de-extinction.” This Article dives into the exploitative nature inherent in the de-extinction of dinosaurs, studying the University of Montana’s Dr. Jack Horner’s “dinochicken project” and the moral considerations implicated when conducting mass genetic engineering on sentient beings. The Article then centers itself on the ecological and legal complications likely to arise if a …

Humans In The Loop, Rebecca Crootof, Margot E. Kaminski, W. Nicholson Price Ii

Publications

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the …

Naïve Realism, Cognitive Bias, And The Benefits And Risks Of Ai, Harry Surden

Publications

In this short piece I comment on Orly Lobel's book on artificial intelligence (AI) and society "The Equality Machine." Here, I reflect on the complex topic of aI and its impact on society, and the importance of acknowledging both its positive and negative aspects. More broadly, I discuss the various cognitive biases, such as naïve realism, epistemic bubbles, negativity bias, extremity bias, and the availability heuristic, that influence individuals' perceptions of AI, often leading to polarized viewpoints. Technology can both exacerbate and ameliorate these biases, and I commend Lobel's balanced approach to AI analysis as an example to emulate.

Although …

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

A Scientific Approach To Tech Accountability, David Choffnes, Woodrow Hartzog, Scott Jordan, Athina Markopoulou, Zubair Shafiq

Faculty Scholarship

The Federal Trade Commission can only do so much to hold tech companies accountable. Enforcement agencies and the people they protect need help. One problem is that the inner workings of large organizations and complex algorithmically driven systems remain obscure and opaque while their privacy representations are voluminous and vague. In this Essay, we propose a scientific approach to tech accountability, where academic researchers can play a larger role in privacy policy. This approach involves surfacing a company’s privacy representations and statements, as well as measuring the actual behavior of their systems with respect to algorithms, user interfaces, and data …

A Concrete Proposal For Data Loyalty, Neil Richards, Woodrow Hartzog, Jordan Francis

Faculty Scholarship

Congress and state legislators are finally experimenting with new privacy frameworks, rights, and duties to move past the thoroughly critiqued “notice and choice” model for data privacy. While many new privacy proposals seek a more fortified version of the fair information practices, some legislators have placed a duty of data loyalty at the heart of their proposed privacy bills. This is important because a duty of data loyalty has the potential to anchor American privacy law in a way analogous to how the European Union approach is grounded in fundamental rights of privacy and data protection.

Unfortunately, there remains some …

Technology Integration In Higher Education And Student Privacy Beyond Learning Environments -- A Comparison Of The Uk And Us Perspective, Iria Giuffrida, Alex Hall

Faculty Publications

Technology integration in higher education (HE) has brought immense innovation. While research is investigating the benefits of leveraging, through learning analytics, the data created by the greater presence of technology in HE, it is also analysing the privacy implications of vast universes of data now at the fingertips of HE administrators. This paper argues that student privacy challenges linked to technology integration occur not only within but also beyond learning environments, namely at the enterprise level. By analysing the UK and US legal frameworks surrounding how HE institutions respond to parents demanding disclosure of their adult children's personal data in …

Digital Habit Evidence, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …