Computer Law Commons^™

Can Computational Antitrust Succeed, Daryl Lim

Faculty Scholarly Works

Computational antitrust comes to us at a time when courts and agencies are underfunded and overwhelmed, all while having to apply indeterminate rules to massive amounts of information in fast-moving markets. In the same way that Amazon disrupted e-commerce through its inventory and sales algorithms and TikTok’s progressive recommendation system keeps users hooked, computational antitrust holds the promise to revolutionize antitrust law. Implemented well, computational antitrust can help courts curate and refine precedential antitrust cases, identify anticompetitive effects, and model innovation effects and counterfactuals in killer acquisition cases. The beauty of AI is that it can reach outcomes humans alone …

Recognizing The Role Of Inspectors General In The U.S. Government's Cybersecurity Restructuring Task, Amy Gaudion

Faculty Scholarly Works

Months prior to the 2015 public disclosure of a data breach at the U.S. government’s Office of Personnel and Management (OPM), the Office of the Inspector General for OPM issued a report that identified significant deficiencies and material weaknesses in a number of the agency’s information systems and IT security programs. In response to the 2020 SolarWinds supply chain hack, attributed to Russia, calls are underway for inspectors general to conduct audits and inspections and to review prior inspector general assessments of information systems and vulnerabilities at federal agencies. The use of inspectors general to assess information system vulnerabilities and …

The General Data Protection Regulation And Open Source Software Communities, Amye Scavarda Perrin

Cybaris®

No abstract provided.

Beyond The "Black Box", Charlotte A. Tschider

Faculty Publications & Other Works

As algorithms have become more complex, privacy and ethics scholars have urged artificial intelligence (AI) transparency for purposes of ensuring safety and preventing discrimination. International statutes are increasingly mandating that algorithmic decision-making be explained to affected individuals when such decisions impact an individual's legal rights, and U.S. scholars continue to call for transparency in automated decision-making.

Unfortunately, modern Al technology does not function like traditional, human-designed algorithms. Due to the unavailability of alternative intellectual property (IP) protections and their often dynamically inscrutable status, algorithms created by Al are often protected under trade-secrecy status, which prohibits sharing the details of a …

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Mitchell Hamline Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Artificial Intelligence And Trade, Anupam Chander

Georgetown Law Faculty Publications and Other Works

Artificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals …

Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton

Scholarly Works

The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Access Denied? Unauthorized Access After Hiq Labs V. Linkedin, Dalton Sjong

Marquette Intellectual Property & Innovation Law Review

None

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

Articles

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

Privacy As Privilege: The Stored Communications Act And Internet Evidence, Rebecca Wexler

Faculty Scholarship

This Article exposes a profound and growing injustice that major technology companies have propagated through every level of the judiciary under the guise of protecting data privacy. The Supreme Court has repeatedly proclaimed: “In our judicial system, the public has a right to every [person’s] evidence.” Yet, for over a decade, Facebook, GitHub, Google, Instagram, Microsoft, and Twitter have leveraged the Stored Communications Act (SCA) — a key data privacy law for the internet — to bar criminal defendants from subpoenaing the contents of another’s online communications, even when those communications could exonerate the wrongfully accused. Every appellate court to …

Eu Directive On Copyright In The Digital Single Market: An Outlier In Intermediary Liability And The Death Of Safe Harbor Protections, Marisa N. Sanchez

University of San Francisco Law Review

No abstract provided.

Ai And Copyright, Carys Craig

All Papers

This chapter examines the most pertinent issues facing copyright law as it encounters increasingly sophisticated artificial intelligence (AI). It begins with a few introductory examples to illuminate the potential interactions of AI and copyright law. Section 1 tackles the question of whether AI-generated works are copyrightable in Canada and who, if anyone, might own that copyright. This involves a doctrinal discussion of “originality” (the threshold for copyrightability) as well as reflections on the meaning of “authorship,” and concludes with the suggestion that autonomously generated AI outputs presently (and rightly) belong in the public domain. Section 2 turns to consider issues …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, Joao Pedro Quintais

Reports & Public Policy Documents

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

Beyond Algorithms: Toward A Normative Theory Of Automated Regulation, Felix Mormann

Faculty Scholarship

The proliferation of artificial intelligence in our daily lives has spawned a burgeoning literature on the dawn of dehumanized, algorithmic governance. Remarkably, the scholarly discourse overwhelmingly fails to acknowledge that automated, non-human governance has long been a reality. For more than a century, policymakers have relied on regulations that automatically adjust to changing circumstances, without the need for human intervention. This article surveys the track record of self-adjusting governance mechanisms to propose a normative theory of automated regulation.

Effective policymaking frequently requires anticipation of future developments, from technology innovation to geopolitical change. Self-adjusting regulation offers an insurance policy against the …

Beyond Transparency And Accountability: Three Additional Features Algorithm Designers Should Build Into Intelligent Platforms, Peter K. Yu

Faculty Scholarship

In the age of artificial intelligence, innovative businesses are eager to deploy intelligent platforms to detect and recognize patterns, predict customer choices and shape user preferences. Yet such deployment has brought along the widely documented problems of automated systems, including coding errors, corrupt data, algorithmic biases, accountability deficits and dehumanizing tendencies. In response to these problems, policymakers, commentators and consumer advocates have increasingly called on businesses seeking to ride the artificial intelligence wave to build transparency and accountability into algorithmic designs.

While acknowledging these calls for action and appreciating the benefits and urgency of building transparency and accountability into algorithmic …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

Scholarship@WashULaw

Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …

Privacy Asymmetries: Access To Data In Criminal Defense Investigations, Rebecca Wexler

Faculty Scholarship

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement but not when requested by criminal defense counsel. In the U.S. adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, statutes that selectively suppress defense investigations selectively suppress evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and …

“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 …

No Ifs, Ands, Or Juuls About It: Why Influencers Must Be Held Accountable, Krystina Dorta

Catholic University Journal of Law and Technology

This article analyzes how the FTC’s Endorsement Guide regulating the advertising of e-cigarette products should be applied to social media influencers. The struggle to regulate e-cigarettes by the FDA and the FTC has led to different advertising methods, which either comply with or neglect the FTC’s Endorsement Guide. This article evaluates the federal government’s reaction to the e-cigarette health crisis, followed by a review of the FTC’s previous actions addressing Endorsement Guide violations, along with the consequences on other companies’ marketing strategies. Finally, this article reviews influencer liability standards for Endorsement Guide violations and develops recommendations to improve those standards.

The Communitarian Deficit In The Usa: Three Telling Cases, Amitai Etzioni

SMU Science and Technology Law Review

Liberal communitarianism suggests that the balance between individual rights and the common good must be adjusted as historical conditions change. Much attention has been paid to violations of rights, e.g., by the police, for good reasons. This Article examines three new technologies that undermine public safety, a key common good, and asks whether they should be banned. The 2020 pandemic revealed that scores of millions of Americans objected, not merely to government mandates to take measures that are likely to spare fellow Americans a severe disease or death, but even to respond to moral calls, especially wearing a mask. This …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Georgetown Law Faculty Publications and Other Works

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, …

Book Review, Aamir S. Abdullah

Publications

No abstract provided.

The Law Of Ai, Margot Kaminski

Publications

No abstract provided.

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 …

Algorithmic Impact Assessments Under The Gdpr: Producing Multi-Layered Explanations, Margot E. Kaminski, Gianclaudio Malgieri

Publications

Policy-makers, scholars, and commentators are increasingly concerned with the risks of using profiling algorithms and automated decision-making. The EU’s General Data Protection Regulation (GDPR) has tried to address these concerns through an array of regulatory tools. As one of us has argued, the GDPR combines individual rights with systemic governance, towards algorithmic accountability. The individual tools are largely geared towards individual “legibility”: making the decision-making system understandable to an individual invoking her rights. The systemic governance tools, instead, focus on bringing expertise and oversight into the system as a whole, and rely on the tactics of “collaborative governance,” that is, …