Computer Law Commons^™

Generative Adversarial Discrimination, Josh Fairfield

Washington and Lee Journal of Civil Rights and Social Justice

Anti-discrimination law assumes that discrimination can be detected and rectified, that the evidentiary burden of the plaintiff can in fact be met. But the evolutionary logic of AI training causes it to target vulnerable groups, lie about reasoning, and above all resist detection. Because of hidden core prompts in generative AI systems, and how those prompts interact with the nature of AI training and deployment, AI will often actively hide discrimination rather than surface and address it. Stopping this will be difficult. At present, neither humans or AI can detect this emergent dark-pattern behavior. Without legal intervention, the broad use …

Scraping Bad: The Case For A Unified Scraping Framework, Eunchong Moses Park

Washington and Lee Law Review Online

This Note explores the growing legal and regulatory landscapes of web scraping in the United States and argues that web scraping should be regulated through a unified federal framework tailored to its unique technological and economic realities. Web scraping allows organizations to collect massive amounts of data essential to their operational needs—often without the consent of data holders. Thus, web scraping has become a powerful engine of innovation used across virtually every sector of the economy but with a serious risk to privacy and property interests. Yet the current U.S. legal framework lacks a coherent regulating structure. Courts and litigants …

The Last Human Question: Generative Ai's Existential Threat To Consensus And Law, Joshua Fairfield

Scholarly Articles

The true risk of artificial intelligence (“AI”) is not that the toasters will rise up. It is that AI will be competent to perform human tasks and indifferent to human welfare. The risk is that we will be outcompeted by generative automated processes that create output similar to ours (although never the same, as this Article explains), but which need none of the outputs of the economy for food, shelter, or human flourishing. Further, a more precise and existential description of the threat is that generative AI will disrupt and crowd out humanity’s evolutionary superpower, our ability to generate agreement …

Dignity By Design: A Human-Centered Framework For Ethical Ai, Armin Tadayon

Washington and Lee Journal of Civil Rights and Social Justice

The launch of ChatGPT in November 2022 has triggered a global arms race–both among private technology companies and between nation states–for dominance in the field of Artificial Intelligence (AI). If this nascent technology, which is permeating every aspect of our lives as more companies across multiple sectors deploy it for a variety of functions, malfunctions or behaves in unanticipated ways, it can severely affect individuals in their day-to-day lives with broader consequences for society at large. As such, as AI permeates every aspect of our lives, and in some instances, begins to replace humans and human decision-making, it is imperative …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Scholarly Articles

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into …

Face Card Declined: The Deepfake Threat To Biometric Security In Financial Systems, Hazel Fernandez

Washington and Lee Law Review Online

Once limited to entertainment and disinformation, deepfakes are now extending into the financial sector, where voice and facial impersonations exploit biometric authentication systems to facilitate fraudulent transactions. This evolution exposes gaps in existing legal and regulatory frameworks, raising critical questions about consumer protection and institutional safeguards. This Note argues for a reconceptualization of deepfake harms as both a privacy and a financial security issue. It examines the illusion of consent generated by synthetic impersonation and insufficient statutory protections. The analysis examines the patchwork of federal, state, and international laws governing data privacy and artificial media, highlighting the gaps that allow …

Data Privacy At The Border: How To Balance National Security Concerns And Privacy Interests When Conducting Forensic Border Searches Of Electronic Devices, Eleni Filley

Washington and Lee Journal of Civil Rights and Social Justice

Do you know where your phone is? Can you describe the last five pictures in your camera roll? How many websites have you visited this month? Cell phones are an extension of our person and contain some of our most private data: location, banking, loved ones, sleep statistics, reproductive information, and more. As our technology develops, so too should our laws. This Note explores the lack of privacy protections at the U.S. border and how susceptible our data is to a government search. A Supreme Court ruling recognizing the unique piece of property a cell phone represents, even at a …

Life In Limbo: Cryptocurrency And Fosta As The Pillars Of Cyber-Trafficking, Rebecca Liu

Washington and Lee Journal of Civil Rights and Social Justice

As the internet continually advances into Web 3.0, human traffickers thrive in using online platforms to prey on their victims, creating a new form of human trafficking: cyber-trafficking. In 2018, Congress passed the Fight Online Sex Trafficking Act (“FOSTA”) to dampen the stringent protection that 47 U.S.C. § 230 (“Section 230”) offered to internet intermediaries in cyber-trafficking litigation. However, Congress’s intended effect in passing FOSTA failed, as courts continue to interpret FOSTA narrowly, upholding the stringent protection that Section 230 offers internet intermediaries. Beyond FOSTA’s indifferent impact, governmental bodies struggle adapting to Web 3.0’s landscape, neglecting to intervene with traffickers’ …

Regulating Robo-Advisors In An Age Of Generative Artificial Intelligence, Daniel Schwarcz, Tom Baker, Kyle Logue

Washington and Lee Law Review

New generative artificial intelligence (“AI”) tools can increasingly engage in personalized, sustained, and natural conversations with users. This technology has the capacity to reshape the financial services industry, making customized expert financial advice broadly available to consumers. However, AI’s ability to convincingly mimic human financial advisors also creates significant risks of large-scale financial misconduct. Which of these possibilities becomes reality will depend largely on the legal and regulatory rules governing “robo-advisors” that supply fully automated financial advice to consumers.

This Article consequently critically examines this evolving regulatory landscape, arguing that current U.S. rules fail to adequately limit the risk that …

Preserving Pixels: The Dmca And The Quest To Preserve Video Gaming’S Legacy, Samantha Ennis

Washington and Lee Law Review

Video games have fundamentally transformed how humans learn, play, and connect, becoming essential cultural artifacts that warrant careful preservation for present and future study. Yet, video game preservation has emerged as a critical challenge for cultural institutions as the medium rapidly evolves and early works become inaccessible due to technological obsolescence and legal barriers. Without immediate action to address the limitations of current Digital Millennium Copyright Act (“DMCA”) exemptions for video game preservation, libraries, archives, and museums risk permanently losing access to historically significant games, with studies showing 87% of pre-2010 video games are already inaccessible. Congress should amend the …

Unraveling The War Powers Resolution’S Role In Cyber Warfare, Zach Irwin

Washington and Lee Law Review

The evolution of warfare in the digital age has transformed the battlefield. Conflicts are fought with advanced technology, and traditional combat activities grow increasingly obsolete. This shift raises a critical question: Has the existing legal framework, including foundational war powers legislation, kept pace with this technological transformation? In exploring the governance of cyber warfare under the War Powers Resolution, this Note begins by examining the unique characteristics and devastating potential of cyber warfare. The analysis then turns to the War Powers Resolution, providing a historical overview of its enactment, a textual analysis of its provisions, and an exploration of how …

Clean Data: Recursion As Pollution In Environmental Ai, Joshua Fairfield

Scholarly Articles

If “data is the new oil,” then corruption in the data used to train artificial intelligence (AI) constitutes a new form of pollution. Environmental AI has traditionally been discussed in terms of its indirect effects on the environment—the irony of burning power, processor cycles, and heat to produce solutions to stop and heal environmental damage. But there is a deeper problem. When environmental AI suggests interventions, its outputs are written onto the landscape. If that landscape is then read as data to retrain AI, there is a risk of model collapse and catastrophic forgetting, as the snake devours its own …

Foreword: 2024 Ira C. Rothgerber Jr. Conference: Artificial Intelligence And The Constitution, Suzette Malveaux

Scholarly Articles

For the first time, the Byron R. White Center for the Study of American Constitutional Law and the Silicon Flatirons Center for Law, Technology, and Entrepreneurship came together to hold a joint conference on Artificial Intelligence (AI) and the Constitution. We decided to merge our annual conferences to explore one of the most important and consequential intersections of our time: AI and the Constitution—topics we study and deeply care about. During this time of rapid and profound technological transformation, it is even more imperative that we come out of our academic silos and work together.

The partnership was destined. The …

Home—The Final Frontier: Why Privacy Means Protecting Workers' Rights To Time And Space, Joshua Fairfield, Amanda Reilly

Scholarly Articles

This article critiques the failure of current privacy frameworks to protect workers—especially teleworkers—from the growing encroachment of employer surveillance into their homes. It argues that prevailing privacy regimes, including notice-and-choice models and the GDPR, inadequately address the systemic power asymmetries in the employment relationship, often enabling rather than restricting invasive monitoring. Drawing from labor law traditions, the authors propose a rights-centered framework that views time and space as essential for human dignity and autonomy. They call for a non-negotiable floor of protections, including surveillance-free periods, bans on data commodification, and the establishment of an enforcement inspectorate. By reframing privacy not …

Faking It: A Proposed Solution To Counter Nonconsensual Pornographic Deepfakes, Rena Song

Washington and Lee Journal of Civil Rights and Social Justice

2024 Louise A. Halper Award Winner for Best Student Note.

Deepfakes have become popular due to their user-friendly nature and accessibility, allowing anyone to create one by installing deepfake software programs on their phones or laptops. Deepfake software programs allow creators to create hyper-realistic multimedia featuring anyone whose image they can find. Some industries have drawn positive uses from deepfakes; however, deepfakes also create harms that can have detrimental effects on people’s mental health, employment, and reputation. Women and children, including those without a large online presence, have become the target for nonconsensual pornographic deepfakes. Congress has yet to pass …

Unveiling The Environmental Impact Of Large Language Models On Indigenous Communities: A Call For Action And Liability, Nina-Simone Edwards

Library Scholarship

Large Language Models (LLMs) have rapidly gained popularity for their language generation and comprehension capabilities, promising increased efficiency in various sectors. However, while celebrated for their transformative potential, LLMs exacerbate current climate issues. This Article highlights the detrimental environmental footprint of LLMs, with a focus on their role in escalating climate change and their disproportionate effects on Indigenous communities. These communities, closely tied to their land, bear the brunt of environmental degradation, further aggravated by LLM-induced emissions.

This Article first dissects the interplay between environmental justice and technological innovation, advocating for a reevaluation of the trust relationship between tribal nations …

Generative Artificial Intelligence And Copyright In The Film And Media Industry, Victor A. Oberting Iv

Washington and Lee Law Review Online

The development of generative artificial intelligence (“GAI” or “generative AI”) introduces compelling benefits and capabilities to filmmakers and artists, but also brings complications regarding copyright of creative works. The American film and media industry in particular illustrates the scope of GAI’s legal, economic, and ethical implications. Though GAI may exhibit characteristics of independent agency or intent, GAI models are best understood as a new set of tools that serve a diverse range of applications in the creative process. The potential benefits of this set of tools can only be realized, then, if the filmmakers who use them are not unreasonably …

Artificial Fiduciaries, Zhaoyi Li

Washington and Lee Law Review

The rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also offer a way to mitigate agency costs and improve overall corporate governance. However, traditional corporate law lacks solutions for coping with the integration of AI into corporate governance.

Currently, there is little scholarship …

Slavery.Ai, Emile Loza De Siles

Washington and Lee Journal of Civil Rights and Social Justice

The artificial intelligence market is swarming. Supercharged start-ups, global tech giants, and increasingly algorithmic governments target diverse use cases with new and stunningly innovative AI applications coming online every day. Where people are the computational subjects of those algorithmic machinations, however, there is no law, present or effective, to protect them against great and propagating harms. Consequently, people become data production units, the commoditized of the Data Industrial Complex and unfree, unpaid inputs to AI production.

This Article shares a new and provocative vision. It theorizes that unregulated AI systems and uses are giving rise to an emergent form of …

Fitting A Block Into A Sphere Mold: The Inadequacy Of Current Data Privacy Regulations In Protecting Data Privacy Within The Blockchain Space, Jenny Yang

Washington and Lee Journal of Civil Rights and Social Justice

Despite global imposition of data privacy laws and regulations, data privacy is a nonexistent luxury amongst the data-charged world we live in. Data privacy has long been established as a fundamental right. Entities have successfully established robust methodologies around existing data privacy laws and regulations to utilize past consumer behavior to predict, impact and manipulate current and future consumer behaviors. This phenomenon has been commonly coined as “corporate surveillance.” Emerging spaces arising through technological developments have greater access into consumer data to impact economic choices. Specifically, the blockchain space, through its unique open-source and permanent traits, has been able to …

Crypto-Counterfeiting, Joshua Fairfield

Scholarly Articles

The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.

The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …

Superpowers With Villainous Objectives: How The Executive Branch’S Immigration Enforcement “Powers” Utilize Technology To Violate Noncitizens’ Privacy, Nina-Simone Edwards

Library Scholarship

The United States border, for noncitizens, has a unique quality to it. Each time a noncitizen crosses that border, they are no longer private individuals. They can no longer choose to give up their information–instead, there is a forced exchange: data for entry. Who they are, what they are, and everything that connects them to the world is given up in exchange for a new life in a new land. Once the border is crossed, noncitizens no longer have the privacy that they may have known before. This Note first builds on scholarship theorizing that noncitizens do have a right …

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …

Keynote Address, Sultan Meghji

Washington and Lee Law Review

Keynote address presented virtually at the Washington and Lee Law Review's 54th Annual Lara D. Gass Symposium: The Future of E-Commerce: Is It on a Blockchain? on Friday, March 17, 2023 in Lexington, Virginia.

Mitigating The Legal Challenges Associated With Blockchain Smart Contracts: The Potential Of Hybrid On-Chain/Off-Chain Contracts, Niloufer Selvadurai

Washington and Lee Law Review

Tantamount with the increasing application of blockchain technologies around the world, the use of blockchain-based smart contracts has rapidly risen. In a “smart contract,” computer protocols automatically facilitate, verify, and enforce arrangements made between parties on a blockchain. Such smart contracts offer a variety of commercial benefits, notably immutability and increased efficiency facilitated by removing the need for a trusted intermediary. However, as discussed in recent legal scholarship, it is difficult for smart contracts to uphold certain fundamental principles of contract law. Translating concepts of individual intention and responsibility into the decentralized space of blockchain is problematic. Aggregating such individual …

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Washington and Lee Law Review

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

The Internet, Personal Jurisdiction, And Daos, Matthew R. Mcguire

Washington and Lee Law Review

Global connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.

Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial …

Digital Property Cycles, Joshua Fairfield

Washington and Lee Law Review

The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …