Law Commons^™

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 …

Opaque Notification: A Country-By-Country Review, Lauren Mantel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

On The Danger Of Not Understanding Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Faculty Scholarship at Penn Carey Law

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations April 20-21, 2023, Roger Williams University School Of Law Marine Affairs Institute, The Nature Conservancy

School of Law Conferences, Lectures & Events

No abstract provided.

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

Faculty Scholarship at Penn Carey Law

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones

Honors Projects

DNA dragnets have attracted both public and scholarly criticisms that have yet to be resolved by the Courts. This review will introduce a modern understanding of DNA analysis, a complete introduction to past and present Fourth and Fourteenth Amendment jurisprudence, and existing suggestions concerning similar issues in legal scholarship. Considering these contexts, this review concludes that a focus on privacy and property at once, with a particular sensitivity to the inseverable relationship between the two interests, is Constitutionally consistent with precedent and the most workable means of answering the question at hand.

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations, April 20-21, 2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Midas Touch: Atuahene's "Stategraft" And Unregulated Artificial Intelligence, Sonia Gipson Rankin

Faculty Scholarship

Professor Bernadette Atuahene’s article, A Theory of Stategraft, develops the new theoretical conception of “stategraft.” Professor Atuahene notes that when state agents have engaged in practices of transferring property from persons to the state in violation of the state’s own laws or basic human rights, it sits at the nexus of illegal behavior and revenue-generating activity for the government. Although there are countless instances of “stategraft,” one particularly salient example is when the state uses artificial intelligence to illegally extract resources from people. This Essay will apply stategraft to an algorithm implemented in Michigan that falsely accused recipients of unemployment …

Jurisgenerative Tissues: Sociotechnical Imaginaries And The Legal Secretions Of 3d Bioprinting, Roxanne Mykitiuk, Joshua Shaw

Articles & Book Chapters

Three-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in …

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, …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Vanderbilt Law School Faculty Publications

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …

Legal Dispositionism And Artificially-Intelligent Attributions, Jerrold Soh

Research Collection Yong Pung How School Of Law

It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards …

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Scholarship

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Indiana Law Fertility Fraud Expert Participates In Washington, Dc Roundtable, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Professor Jody Madeira, an internationally recognized expert in fertility fraud, bioethics, and law and medicine, participated this morning (January 26) in a bipartisan roundtable discussion with victims of fertility fraud. The event was facilitated by U.S. Representatives Stephanie Bice (R-OK), Mikie Sherrill (D-NJ), Julia Letlow (R-LA), and Chrissy Houlahan (D-PA) following the January 23 introduction of their Protecting Families From Fertility Fraud Act, which would—for the first time—make it a federal crime to knowingly misrepresent the source of DNA used in any procedure that involves assisted reproduction.

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

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 …

Defeasible Semantics For L4, Guido Governatori, Meng Weng (Huang Mingrong) Wong

Centre for Computational Law

The importance of defeasibility for legal reasoning has been investigated for a long time (see among other [10, 3, 11]). This notion mostly concerns the issue that textual provisions of (legal) norms typically provide prima facie conditions for their applicability, but to understand a norm in full, we have to evaluate the norms in the context in which the norm is used and to see if other norms prevent it either to apply or to be effective. In other words, when evaluating norms, we must account for possible (prima facie) conflicts and exceptions. Indeed, in general, norms first provide the …

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 …

Blockchain Games And A Disruptive Corporate Business Model, Xuan-Thao Nguyen

Articles

This Article is the first to identify and theorize on a new disruptive corporate business model unfolding in the gaming industry that is larger than both the movie and music sectors combined. Corporations in blockchain gaming reject the old paradigm of amassing profits by turning the public into spenders for and consumers of corporate products. The new corporate business model transforms members of the public into producers and true owners of new corporate property while earning income and garnering governance voting rights. Through a case study of Axie Infinity, a blockchain game launched in 2021, this Article explores how the …

Digital Habit Evidence, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic 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 …

Defi: Shadow Banking 2.0?, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

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

Journal Articles

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 …

Layered Fiduciaries In The Information Age, Zhaoyi Li

Articles

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. 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 …

Layered Fiduciaries In The Information Age, Zhaoyi Li

Articles

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. 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 …

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Economics Faculty Articles and Research

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …

Governing Smart Cities As Knowledge Commons - Introduction, Chapter 1 & Conclusion, Brett M. Frischmann, Michael J. Madison, Madelyn Sanfilippo

Book Chapters

Smart city technology has its value and its place; it isn’t automatically or universally harmful. Urban challenges and opportunities addressed via smart technology demand systematic study, examining general patterns and local variations as smart city practices unfold around the world. Smart cities are complex blends of community governance institutions, social dilemmas that cities face, and dynamic relationships among information and data, technology, and human lives. Some of those blends are more typical and common. Some are more nuanced in specific contexts. This volume uses the Governing Knowledge Commons (GKC) framework to sort out relevant and important distinctions. The framework grounds …