Science and Technology Law Commons^™

The Orkney Slew And Central Bank Digital Currencies, Jeffery Y. Zhang, Gary B. Gordon

Articles

This Article on central bank digital currencies is motivated by a parable, The Orkney Slew, which is set in an archipelago. Based on the parable, we point out a significant economic market failure that exists in the cross-border payments realm. The analysis then focuses on real-world examples and the national security concerns, including for Anti-Money Laundering/Combatting the Financing of Terrorism (AML/CFT) and the continued efficacy of U.S. sanctions, associated with the rapidly evolving digital payments landscape.

Many central banks around the world are now cooperatively experimenting with cross-border interoperability of digital currencies. These efforts are driven by the idea of …

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

Articles

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

Privacy Frameworks For Smart Cities, Lindsey Tonsager, Jayne Ponder

Journal of Law and Mobility

This paper identifies some of the core privacy considerations raised by smart cities – government surveillance and data security in Part I. Then, Part II proposes a set of core principles for smart cities to consider in the development and deployment of smart cities to address privacy concerns. These principles include: (A) human-centric approaches to smart cities design and implementation, (B) transparency for city residents, (C) privacy by design, (D) anonymization and deidentification, (E) data minimization and purpose specification, (F) trusted data sharing, and (G) cybersecurity resilience.

Reframing Technology-Facilitated Gender-Based Violence At The Intersections Of Law & Society, Jane Bailey, Carys Craig, Suzie Dunn, Sonia Lawrence

Canadian Journal of Law and Technology

This introductory article proceeds in three parts. First, it discusses the origins of this special issue as part of a multi-event, SSHRC-funded conference that focused on pushing beyond a narrow conception of TFGBV; rather than approaching TFGBV as solely an issue of interpersonal behaviours, the animating objective of the conference was to examine the structural, systemic, and design factors that contribute to TFGBV. Second, it explores the importance and promise of reframing TFGBV in this way through intersectional and structural lenses. Third, it briefly highlights some of the key insights from each of the contributions in this special issue. It …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon Penney, Bruce Schneier

Articles, Book Chapters, & Popular Press

End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

Regulation Of Health-Related Artificial Intelligence In Medical Devices: The Canadian Story, Michael Da Silva, Colleen M. M. Flood, Matthew Herder

Articles, Book Chapters, & Popular Press

Artificial Intelligence (AI) may transform Canadian healthcare. The hope is that AI will enable more accurate and efficient care, thereby solving many access, quality, and safety problems. Yet, despite this tantalizing prospect, there are risks of unsafe AI harming patients, algorithmic bias, and threats to privacy. This work begins analysis of whether applicable Canadian laws are up to the task of ensuring Canadians can benefit from effective health-related AI while minimizing AI-related risks. It focuses on Health Canada’s regulation of medical devices, a ‘first line of defence’ that decides which devices are safe, effective, and thus permitted for trade in …

Reducing Barriers To Accessing Administrative Data On Sars-Cov-2 Vaccination For Research, Andrew Mcrae, Patrick Archambault, Patrick Fok, Hana Wiemer, Laurie Morrison, Matthew Herder

Articles, Book Chapters, & Popular Press

Public trust in scientific research, especially research regarding vaccines, has proven fragile during the COVID-19 pandemic. To counter abundant misinformation about SARS-CoV-2 vaccines, rigorous, ongoing evaluations of vaccine safety and effectiveness by independent Canadian researchers are important. However, researchers' efforts to conduct timely, national studies of vaccine effectiveness have been hindered by barriers to data sharing that have made it difficult to integrate patients' vaccination status into SARS-CoV-2 clinical and epidemiological studies. Here, McRae et al discuss how a risk-averse data-sharing culture has led to missed opportunities to conduct robust, timely, pan-Canadian SARS-CoV-2 clinical and vaccine effectiveness studies, and outline …

Addressing Big Tech’S Market Power: A Comparative Institutional Approach, Thomas A. Lambert

SMU Law Review

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

Digital Home Health During The Covid-19 Pandemic Challenges To Safety, Liability, And Informed Consent, And The Way To Move Forward, Sara Gerke

Faculty Contributions to Books

In this chapter, I will first give an overview of the promise of digital home health. I will then discuss the regulation of digital home health before and during COVID-19 in the context of the US Federal Food, Drug, and Cosmetic Act (FDCA). This will be followed by a discussion of three digital home health challenges during the pandemic: 1) safety, 2) liability, and 3) informed consent. In this context, I will also make suggestions on how to move forward.

Blockchain And The Genesis Of Creative Justice To Disintermediate Creativity, Tonya M. Evans

Faculty Scholarly Works

Historically, the art market has been shrouded in opaqueness and exclusivity, permissioned access and asymmetry of information that rivals the systemic ills of legacy financial markets that led to the Great Recession. Moreover, legacy art market stakeholders have, through the centuries, been entrenched in elitist and inequitable notions of art that excluded Black artists. These legacy intermediaries have also consistently demonstrated a deep and enduring disdain for any art connected to the digital world. That is, until the age of COVID-19 and the dramatically increasing value and dominance of the non-fungible token (NFT) market.

This Essay explores why, and how, …

When Is A Change Significant? The Update Problem Of Apps In Medical And Behavioral Research, Carmel Shachar, Sara Gerke, Walker Morrell, Aaron Kirby, I. Glenn Cohen, Barbara E. Bierer

Faculty Scholarly Works

Digital applications (apps) are commonly used across the research ecosystem. While apps are frequently updated in the course of clinical and behavioral research, there is limited guidance as to when an app update should trigger action related to human research participant protections and who should be responsible for monitoring and reviewing these updates. We term this the “update problem” and argue that, while it is the principal investigator's duty to track all relevant updates, the level of involvement and re-review by the institutional review board (IRB) of an approved research protocol should vary depending on whether the update may be …

A New Reality: Deepfake Technology And The World Around Us, Molly Mullen

Mitchell Hamline Law Review

No abstract provided.

The Writing’S On The Wall: Using Multimedia Presentation Principles From The Museum World To Improve Law School Pedagogy, Cecilia A. Silver

Dickinson Law Review (2017-Present)

Law school pedagogy is a relic. Nearly 150 years after Christopher Langdell pioneered the case method, the typical doctrinal course remains predominantly a verbal domain, featuring lectures, Socratic dialogue, and final exams. But the visual disconnect between legal education and legal practice does students a disservice. Under the proliferating influence of laptops, iPads, smartphones, and Zoom, students now read, work, and study electronically more than they ever have before. So instead of business as usual, it’s time to embrace “visualization”—using multimedia to enhance, or even supplant, the near-exclusive reliance on language—to build a more vibrant and inclusive learning environment.

Law …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.

The Golem In The Machine: Ferpa, Dirty Data, And Digital Distortion In The Education Record, Najarian R. Peters

Washington and Lee Law Review

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history …

Data Breach Notification Laws And The Quantum Decryption Problem, Phillip Harmon

Washington and Lee Law Review

In the United States, state data breach notification laws protect citizens by forcing businesses to notify those citizens when their personal information has been compromised. These laws almost universally include an exception for encrypted personal data. Modern encryption methods make encrypted data largely useless, and the notification laws aim to encourage good encryption practices.

This Note challenges the wisdom of laws that place blind faith in the continued infallibility of encryption. For decades, Shor’s algorithm has promised polynomial-time factoring once a sufficiently powerful quantum computer can be built. Competing laboratories around the world steadily continue to march toward this end. …

Comment: The Necessary Evolution Of State Data Breach Notification Laws: Keeping Pace With New Cyber Threats, Quantum Decryption, And The Rapid Expansion Of Technology, Beth Burgin Waller, Elaine Mccafferty

Washington and Lee Law Review

The legal framework that was built almost two decades ago now struggles to keep pace with the rapid expansion of technology, including quantum computing and artificial intelligence, and an ever-evolving cyber threat landscape. In 2002, California passed the first data breach notification law, with all fifty states following suit to require notice of unauthorized access to and acquisition of an individual’s personal information.1 These data breach notification laws, originally designed to capture one-off unauthorized views of data in a computerized database, were not built to address PowerShell scripts by cyber terrorists run across thousands of servers, leaving automated accessed data …

Conflicts With Religious Or Worldview Dimensions: Why They Matter And How To Engage Them, Michelle Lebaron, Maged Senbel

Cardozo Journal of Conflict Resolution

This Article discusses conflicts with religious or worldview dimensions, and why creative approaches are uniquely suited to intervening in them. Conflicts centered around identity, cosmology, and other aspects of worldviews need tools that reach beyond presenting logic and traditional conflict intervention approaches to parties' "grammars of being." "Grammars of being" refer to structural ideas and values below the surface of conscious awareness that influence beliefs, opinions, and actions, just as grammar organizes written or spoken language. Arts-based strategies are promising because they offer aesthetic, embodied pathways that are often missed in more traditional interventions. Case examples drawn from our and …

The "End" Of Neutrality: Tumultuous Times Require A Deeper Value, Carol Pauli

Cardozo Journal of Conflict Resolution

American political talk has grown so fragmented and polarized that some observers say that "[w]e are no longer in any 'public conversation." Accusations of "fake news" are followed by disheartening discoveries that providing people with accurate information may only serve to further entrench their erroneous beliefs. One longtime journalism professor worries aloud that "what's at risk is the idea of a public that is even 'inform-able."' Putting the problem in terms familiar to mediation, can we get the parties back to the table? This essay will focus on journalists, whose ideal has been to maintain a neutral position from which …

Extra Life: An Odr Mediation System As A Moderation Tool For Live Streaming Platforms, Myeonghwan Cha

Cardozo Journal of Conflict Resolution

No abstract provided.

“I Bet You Don’T Get What We Get”: An Intersectional Analysis Of Technology-Facilitated Violence Experienced By Racialized Women Anti- Violence Online Activists In Canada, Nasreen Rajani

Canadian Journal of Law and Technology

Despite growing attention to violence that women face in online settings, a relatively small proportion of academic work centres on the experiences and perspectives of racialized women in Canada. Informed by an intersectional framework, I draw on semi-structured interviews with nine women across Canada, all of whom are involved in anti-violence online activism, about their experiences of technology-facilitated violence (TFV). Their experiences revealed less prominent narratives, including instances of TFV beyond instances of intimate partner violence (IPV) and beyond sources of anonymous trolling by supposed white men, such as violence perpetrated by peers, white women, and racialized men. In this …

Intimate Images And Authors’ Rights: Non- Consensual Disclosure And The Copyright Disconnect, Meghan Sali

Canadian Journal of Law and Technology

This article responds to a brand of legal realpolitik that says using property law to respond to the non-consensual distribution of intimate images (NCDII) is appropriate and even necessary, because its remedial frameworks are well developed and provide the relief that is often most sought after by targets of an assault: the immediate removal of photos from online platforms. While some targets are not considered the ‘‘authors’’ of their intimate images, most of the images that are the subject of NCDII are selfies, taken by the target themselves. In these cases, that person rightfully owns the copyright in those images …

On The Internet, Nobody Knows You Are A Dog: Contested Authorship Of Digital Evidence In Cases Of Gender-Based Violence, Suzie Dunn, Moira Aikenhead

Canadian Journal of Law and Technology

We examine various aspects of digital evidence at GBV trials, drawing on relevant Canadian criminal case law. First, we describe some of the unique challenges related to electronic documents generally with respect to determining authorship. Second, we review some of the historical and ongoing practices within the criminal justice system that rely on harmful gendered myths about GBV and note the potential for these myths to emerge in relation to digital evidence. Third, we discuss the duty of investigating police officers to gather the necessary available digital evidence to demonstrate authorship and note potential gaps in current investigatory practices that …

Responding To Deficiencies In The Architecture Of Privacy: Co-Regulation As The Path Forward For Data Protection On Social Networking Sites, Laurent Cre ́Peau

Canadian Journal of Law and Technology

Social Networking Sites like Facebook, Twitter and the like are a ubiquitous part of contemporary culture. Yet, as exemplified on numerous occasions, most recently in the Cambridge Analytica scandal that shook Facebook in 2018, these sites pose major concerns for personal data protection. Whereas self-regulation has characterized the general regulatory mindset since the early days of the Internet, it is no longer viable given the threat social media poses to user privacy. This article notes the deficiencies of self-regulatory models of privacy and contends jurisdictions like Canada should ensure they have strong data protection regulations to adequately protect the public. …

Artificial Intelligence In Canadian Healthcare: Will The Law Protect Us From Algorithmic Bias Resulting In Discrimination?, Bradley Henderson, Colleen M. Flood, Teresa Scassa

Canadian Journal of Law and Technology

In this article, we canvas why AI may perpetuate or exacerbate extant discrimination through a review of the training, development, and implementation of healthcare-related AI applications and set out policy options to militate against such discrimination. The article is divided into eight short parts including this introduction. Part II focuses on explaining AI, some of its basic functions and processes, and its relevance to healthcare. In Part III, we define and explain the difference and relationship between algorithmic bias and data bias, both of which can result in discrimination in healthcare settings, and provide some prominent examples of healthcare-related AI …

Data Governance Frameworks For Smart Cities: Key Considerations For Data Management And Use, Jennifer Johnson, Anna Hevia, Rebecca Yergin, Shayan Karbassi, Adira Levine, Jorge Ortiz

Journal of Law and Mobility

The proliferation of “smart technologies” has created significant opportunities to leverage data to improve everyday life across sectors. In cities around the world, local governments and private enterprises, often partnering together, have launched projects that integrate smart technologies with Internet of Things (“IoT”) capabilities into public spaces in order to promote efficiency, safety, mobility, and innovation. At the same time, smart cities must balance the need for robust data in order to achieve these benefits with public concerns regarding privacy and data use.

This paper examines the key attributes of smart cities, the essential role that data plays in fueling …

Opportunities And Challenges For Deploying Connected And Automated Vehicles To Address Transportation Disparities In Urban Areas, Erika Shepard, Kimberly Napoline, Frank Douma, Adeel Lari

Journal of Law and Mobility

As the development and testing of connected and automated vehicles (CAV) accelerates, it is important for government stakeholders, planners, and policymakers to have a better understanding of the challenges and opportunities CAVs will bring to infrastructure, communities, and lifestyles. There is general consensus among scholars and transportation practitioners that CAV will “disrupt” transportation systems, land use patterns, and socioeconomic power structures as they exist today.The implications of CAV on transportation infrastructure have been the subject of numerous academic and professional studies, suggesting both positive and negative effects may occur. Furthermore, in an American context, transportation planning has historically contributed to …

The Deficiencies Of Oregon Ballot Measure 110, Jacob Towles

SMU Science and Technology Law Review

In 1970, the Federal Government enacted the Controlled Substance Act (CSA), which made certain drugs and substances illegal absent a medical prescription. The control of drugs through the CSA exists to prevent harm to the public. Nonetheless, some cities and states have enacted laws that allow for the benefit of selling or pleasure of using illegal drugs to outweigh the legal ramifications.

In November 2020, The Drug Addiction Treatment and Recovery Act, also known as Oregon Ballot Measure 110 (Measure 110), made Oregon the first state in the country to decriminalize all drugs. Measure 110 was enacted with the overarching …

Front Matter

SMU Science and Technology Law Review

No abstract provided.