Computer Law Commons^™

Cybersecurity Risk Shifting, Deborah R. Farringer

Vanderbilt Journal of Entertainment & Technology Law

The Change Healthcare cyberattack of 2024 paralyzed the health care system for months, creating an exceedingly far reaching and devastating impact on providers, suppliers, and patients across the country. While the scope of the attack was unprecedented, the cyberattack itself was not new, unique, or isolated. Indeed, this attack came just months after the close of a year in which the United States’ Department of Health and Human Services’ Office for Civil Rights (OCR) recorded the highest number of reported breaches of protected health information and the highest number of breached records. With a medical record fetching nearly four times …

The Privacy Law Jigsaw: Piecing Together Legal Compliance When Pieces Don’T Fit, Roy Wyman, Wesley Mcculloch

Vanderbilt Journal of Entertainment & Technology Law

Over the past six years the United States has shifted from a relatively stable and laissez-faire privacy regime, anchored by a few, sector-specific federal statutes such as the Health Insurance Portability and Accountability Act, to an increasingly fragmented landscape dominated by numerous state-level consumer privacy laws. While these laws share commonalities, they also vary in important ways. This Article analyzes that patchwork legal regime and its impact on businesses through four points of friction: (i) statutory applicability and thresholds; (ii) notice-and-choice requirements; (iii) individual data-management rights; and (iv) controller–processor contracting obligations. This Article further explores how modern service-delivery models, especially …

Reconceiving Safety Regulation For Ai And Ml Medical Software, Barbara J. Evans, Eric S. Rosenthal, Azra Bihorac

Vanderbilt Journal of Entertainment & Technology Law

This article explores the challenges of regulating AI and ML clinical decision support tools intended to assist trained health care professionals in delivering clinical care. Two old, twentieth-century regulatory models have dominated discussions of medical AI policy since 2013. Thinking inside these old regulatory boxes has not produced effective regulatory solutions to address the novel risks AI poses in clinical care. The first regulatory box treats software as a medical device, which tasks medical device regulators with making software safe but neglects the crucial roles physicians, nurses, administrators, medical practice regulators, and other health oversight bodies must also play to …

Data Portability Revisited: Toward The Human-Centric, Ai-Driven Data Ecosystems Of Tomorrow, Mark Fenwick Professor Of International Business Law, Michael Fertik Managing Partner, Paulius Jurcys Senior Lecturer, Timo Minssen Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

This Article critically examines the contemporary regulatory framework and discourse surrounding data portability in the United States. Using recent regulatory developments in the European Union as an illustration, this Article suggests that although data access and portability are identified as vital issues in multiple policy instruments, in its current iteration, at least, legal conceptions of portability continue to reinforce the interests of service providers and data controller enterprises rather than individual end users. This Article argues that a paradigm shift toward a more human-centric data approach to data governance must occur, under which data would be recognized as fundamental to …

Is Sunlight The Best Disinfectant? The Role Of Regulation In Addressing Cybersecurity Concerns, Reagan Leverett

Vanderbilt Law Review

The technological landscape in the United States is changing rapidly, and this transformation carries with it unprecedented challenges for administrators, companies, and investors alike. In particular, cybersecurity concerns are growing in light of the new opportunities for cyber malfeasance in this landscape—opportunities to pillage corporate databases and exploit the sensitive consumer information housed therein. For administrators, these new threats challenge prevailing regulatory frameworks and demand novel solutions. For companies, this landscape brings financial and reputational threats. For stakeholders, the cyber era presents the risk of investment losses and, in some cases, loss of personal data.

The Securities and Exchange Commission …

Ten Thousand Ai Systems Typing On Keyboards: Generative Ai In Patent Applications And Preemptive Prior Art

Vanderbilt Journal of Entertainment & Technology Law

Generative AI makes it possible to create unlimited amounts of text at essentially zero cost. While this technology has many benefits, it can also be used in ways that undermine the goals of the patent system. This Article identifies policy solutions to address the potentially anti-innovative application of generative AI in several patent-related contexts. First, it examines the use of AI to publish massive online databases of preemptive prior art intended to foreclose patentability. This Article argues that computer-generated invention descriptions published without any substantive nexus to human understanding of their contents should not count as “printed publications” under US …

Towards An Effective Transnational Regulation Of Ai, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Law and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and …

Regulation Priorities For Artificial Intelligence Foundation Models, Matthew R. Gaske

Vanderbilt Journal of Entertainment & Technology Law

This Article responds to the call in technology law literature for high-level frameworks to guide regulation of the development and use of Artificial Intelligence (AI) technologies. Accordingly, it adapts a generalized form of the fintech Innovation Trilemma framework to argue that a regulatory scheme can prioritize only two of three aims when considering AI oversight: (1) promoting innovation, (2) mitigating systemic risk, and (3) providing clear regulatory requirements. Specifically, this Article expressly connects legal scholarship to research in other fields focusing on foundation model AI systems and explores this kind of system’s implications for regulation priorities from the geopolitical and …

Artificial Intelligence And Interspecific Law, Daniel J. Gervais, John J. Nay

Vanderbilt Law School Faculty Publications

Several experts have warned about artificial intelligence (AI) exceeding human capabilities, a “singularity” at which it might evolve beyond human control. Whether this will ever happen is a matter of conjecture. A legal singularity is afoot, however: For the first time, nonhuman entities that are not directed by humans may enter the legal system as a new “species” of legal subjects. This possibility of an “interspecific” legal system provides an opportunity to consider how AI might be built and governed. We argue that the legal system may be more ready for AI agents than many believe. Rather than attempt to …

Developing Ethics And Equity Principles, Terms And Engagement Tools, Ellen W. Clayton, Rachele Hendricks-Sturrup, Shilo Anders, Et Al.

Vanderbilt Law School Faculty Publications

Background:

Artificial intelligence (AI) and machine learning (ML) technology design and development continues to be rapid, despite major limitations in its current form as a practice and discipline to address all sociohumanitarian issues and complexities. From these limitations emerges an imperative to strengthen AI and ML literacy in underserved communities and build a more diverse AI and ML design and development workforce engaged in health research.

Objective:

AI and ML has the potential to account for and assess a variety of factors that contribute to health and disease and to improve prevention, diagnosis, and therapy. Here, we describe recent activities …

A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt

Vanderbilt Journal of Entertainment & Technology Law

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Journal of Entertainment & Technology Law

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 …

Human-Centered Design To Address Biases In Artificial Intelligence, Ellen W. Clayton, You Chen, Laurie L. Novak, Shilo Anders, Bradley Malin

Vanderbilt Law School Faculty Publications

The potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

Returning Integrated Genomic Risk And Clinical Recommendations: The Emerge Study, Ellen W. Clayton, Jodell E. Linder, Aimee Allworth, Sara T. Bland, 100 Others...

Vanderbilt Law School Faculty Publications

The potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. …

The Pivotal Role Of International Human Rights Law In Defeating Cybercrime: Amid A (Un-Backed) Global Treaty On Cybercrime, Professor Fatemah Albader

Vanderbilt Journal of Transnational Law

On May 26, 2021, the General Assembly of the United Nations adopted a resolution approving the drafting of a new global treaty on cybercrime, which commenced in February 2022. The proposed UN agreement on cybercrime regulation has garnered significant criticism among the international community, namely by state delegates, human rights advocates, and nongovernmental organizations. Fears stem from the belief that such a treaty would be used to legitimize abusive practices and undermine fundamental human rights. National cybercrime laws already unduly restrict human rights. However, at a time where the global community has moved toward a digital world, it becomes even …

The Law And Politics Of Ransomware, Asaf Lubin

Vanderbilt Journal of Transnational Law

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between twenty thousand and thirty thousand per day in the United States alone. That is a ransomware attack every eleven seconds, each of which …

Comparative Cybersecurity Law In Socialist Asia, Ngoc S. Bui, Jyh-An Lee

Vanderbilt Journal of Transnational Law

This Article is a comparative study of the cybersecurity laws adopted in China and Vietnam in 2017 and 2018, respectively. The two laws both converge and diverge. Their convergences include the stringent regulation of banned acts, network operators, critical infrastructure, data localization, and personal data. These are all shaped by the immediate diffusion of China's Cybersecurity Law in Vietnam and broader structural factors: namely, the common features of the socialist state, socialist legality, and the statist approach to human rights. The foundational divergence is between the Chinese notion of cybersecurity sovereignty and the Vietnamese notion of national cyberspace, which is …

Ai Derivatives: The Application To The Derivative Work Right To Literary And Artistic Productions Of Ai Machines, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is …

A Compulsory Solution To The Machine Problem, Cole G. Merritt

Vanderbilt Law School Faculty Publications

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

“Computer Says No!”: The Impact Of Automation On The Discretionary Power Of Public Officers, Doa A. Elyounes

Vanderbilt Journal of Entertainment & Technology Law

The goal of this Article is to unpack the “human in the loop” requirement in the process of automation. It will analyze the impact of automation on street-level bureaucrats and lay out the steps policy makers need to take into account to ensure that meaningful human discretion is maintained. This issue is examined by comparing two algorithms related to the use of automation to detect and investigate fraud in welfare benefits. The first algorithm is used by Michigan’s Unemployment Insurance Agency for detecting and investigating unemployment fraud. This is a draconian algorithm with the ability to automatically decide to cut …

Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu

Vanderbilt Journal of Entertainment & Technology Law

Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …

The Machine As Author, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Machines are increasingly good at emulating humans and laying siege to what has been a strictly human outpost: intellectual creativity.

At this juncture, we cannot know with certainty how high machines will reach on the creativity ladder when compared to, or measured against, their human counterparts, but we do know this. They are far enough already to force us to ask a genuinely hard and complex question, one that intellectual property (“IP”) scholars and courts will need to answer soon; namely, whether copyrights should be granted to productions made not by humans but by machines.

This Article’s specific objective is …

Fintech And International Financial Regulation, Yesha Yadav

Vanderbilt Law School Faculty Publications

This Article shows that fintech exacerbates the difficulties of standard setting in international financial regulation. Earlier work introduced the "Innovation Trilemma" (the Trilemma). When seeking to balance the goals of achieving market integrity and innovation through clear and simple rulemaking, regulators can-at best-achieve only two out of these three objectives. Fintech's unique characteristics- a reliance on automation and artificial intelligence, novel types of big data, as well as the use of disintermediating financial supply chains comprising a mix of traditional firms as well as technology specialists and newcomers-complicates the application of the Trilemma. Rulemaking struggles to achieve needed clarity where …

The Very Brief History Of Decentralized Blockchain Governance, Michael Abramowicz

Vanderbilt Journal of Entertainment & Technology Law

A new form of blockchain governance involving the use of formal games that incentivize participants to identify focal resolutions to normative questions is emerging. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms of decentralized decision-making, and it evaluates early laboratory and real-world experiments with this approach.

People V. Robots: A Roadmap For Enforcing California's New Online Bot Disclosure Act, Barry Stricke

Vanderbilt Journal of Entertainment & Technology Law

Bots are software applications that complete tasks automatically. A bot's communication is disembodied, so humans can mistake it for a real person, and their misbelief can be exploited by the bot owner to deploy malware or phish personal data. Bots also pose as consumers posting online product reviews or spread (often fake) news, and a bot owner can coordinate multiple social-network accounts to trick a network's "trending" algorithms, boosting the visibility of specific content, sowing and exacerbating controversy, or fabricating an impression of mass individual consensus. California's 2019 Bolstering Online Transparency Act (the "CA Bot Act') imposes conspicuous disclosure requirements …

Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …

Cybersecurity And The Protection Of Digital Assets: Assessing The Role Of International Investment Law And Arbitration, Julien Chaisse, Cristen Bauer

Vanderbilt Journal of Entertainment & Technology Law

The digital era provides many opportunities, yet it also presents several unique challenges with regard to cybersecurity and the protection of digital assets. Cybercrime has changed the international legal landscape as nations, businesses, and legislators grapple with how to deal with this rapidly evolving, multifaceted problem. As there is no international mechanism for protection of foreign investors in this regard, some scholars are advocating for the use of Bilateral Investment Treaties (BITs) as part of a 'olycentric" approach to cyber peace. With an uptick in digital development and more development on the horizon, it will be important to establish what …

Neuroscience, Artificial Intelligence, And The Case Against Solitary Confinement, Francis X. Shen

Vanderbilt Journal of Entertainment & Technology Law

Prolonged solitary confinement remains in widespread use in the United States despite many legal challenges. A difficulty when making the legal case against solitary confinement is proffering sufficiently systematic and precise evidence of the detrimental effects of the practice on inmates' mental health. Given this need for further evidence, this Article explores how neuroscience and artificial intelligence (AI) might provide new evidence of the effects of solitary confinement on the human brain.

This Article argues that both neuroscience and AI are promising in their potential ability to present courts with new types of evidence on the effects of solitary confinement …

Topic Modeling The President: Conventional And Computational Methods, J.B. Ruhl, John Nay, Jonathan Gilligan

Vanderbilt Law School Faculty Publications

Legal and policy scholars modeling direct actions into substantive topic classifications thus far have not employed computational methods. To compare the results of their conventional modeling methods with the computational method, we generated computational topic models of all direct actions over time periods other scholars have studied using conventional methods, and did the same for a case study of environmental-policy direct actions. Our computational model of all direct actions closely matched one of the two comprehensive empirical models developed using conventional methods. By contrast, our environmental-case-study model differed markedly from the only empirical topic model of environmental-policy direct actions using …