Science and Technology Law Commons^™

Derivative Data: Rethinking Market Definitions In The Age Of Generative Ai, Andrew Dang

UC Law Science and Technology Journal

Antitrust law fails to keep pace with the data-driven realities of the dig- ital economy, and foundation models further exacerbate the issue. Founda- tion models such as ChatGPT, Claude, and Gemini are trained on broad datasets across different domains. While traditional antitrust frameworks fo- cus on narrow market definitions and readily observable effects, these frameworks fail to capture the anti-competitive potential of derivative data— data that is derived by a business through its operations and exerts cross- market influence—thereby fueling new forms of dominance.

Moreover, the dynamics of foundation model training data create a “Tragedy of the Data Commons,” where …

Weaponizing Ai, Stephen T. Black

UC Law Science and Technology Journal

No abstract provided.

Surveying Cyber Espionage: A Growing Threat To Businesses, The Economy, And Our Privacy, Kaitlyn Ford

UC Law Science and Technology Journal

Americans are quick to celebrate the release of new technology each year; and, while advancing technology is exciting, it also creates challenges for American businesses, the U.S. Economy, and Americans’ right to privacy. As more businesses rely on vulnerable technology, cyber espionage raises critical issues such as the exposure of trade secrets, privacy breaches, loss of revenue, and more. This Article first explores the history of cyber espionage, describing major cyberattacks on American businesses and their consequences. It then explains why the legal framework regulating cybercrimes is inadequate due to the increased sophistication of modern cyber spies and their ability …

From Data To Decisions: Safeguarding Athletes In The Age Of Ai, Nathan Elmer

SLU Law Journal Online

Artificial intelligence (AI) and data analytics are transforming professional sports by enhancing player performance, injury prevention, and scouting. However, the rapid adoption of AI raises significant concerns about data privacy, ownership, and decision-making biases that affect athletes. While collective bargaining agreements in major sports leagues provide some protections, they fail to address the complexities of AI-driven data collection and processing. The United States should adopt a regulatory framework similar to the European Union’s General Data Protection Regulation (GDPR) to safeguard athletes’ personal data. Implementing explicit consent requirements, addressing power imbalances, and ensuring transparency in AI decision-making would protect athletes while …

Generative Artificial Intelligence In Hollywood: The Turbulent Future That Lies Ahead, Zachary T. Young

West Virginia Law Review

Since the dawn of time, the human race has used some form of technology to assist their unwavering dedication to push society forward. From the first stone tool to the first computer, some sort of regulation controlled their usage, ranging from government regulations to industry standards. When artificial intelligence (“AI”) entered the arena of technology, regulatory bodies froze at the daunting task of controlling such a powerful tool. Across almost every industry, artificial intelligence has found its home in various work functions. Generative artificial intelligence has furthered the complexity that stems from regulating a new, and never before seen technology. …

Scientific Educations Among U.S. Judges, Christa Laser

Law Faculty Articles and Essays

Should more judges have technical and scientific educations than are currently prevalent in the federal judiciary? This empirical study of the educational background of federal judges reports the undergraduate and graduate majors of active U.S. federal Article III judges. Information on the subject area of study is largely not publicly available, especially for judges appointed decades ago. This is the first and only publicly available research study of the subject areas of study of U.S. judges, collected via phone and email surveys to U.S. judges. The results of this study show that only 7.35% offederal judges have majors in science …

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’ …

Beyond Human Discretion: Reconciling Ai Systems With Traditional Legal Frameworks, Daniel Ikem

University of the District of Columbia Law Review

In February 2023, attorneys representing a plaintiff in a personal injury case against Avianca Airlines submitted a legal brief containing multiple citations to nonexistent judicial decisions generated by ChatGPT. When questioned by the court, the attorneys admitted they had relied on research generated by artificial intelligence (AI) without verification, resulting in sanctions and reputational damage. Mata v. Avianca both represents professional negligence by legal professionals and a complex intersection of human and artificial intelligence. Unlike traditional research tools that retrieve existing information, generative AI (GAI) creates novel content that appears authoritative, introducing unique verification challenges that traditional ethical frameworks did …

The Law Of Heredity -- Whistelo, Whiteness And Whales, Walter J. Walsh

William & Mary Journal of Race, Gender, and Social Justice

This Article reveals the impact of an early New York case upon science and law, raising questions about heredity that spurred evidentiary progress from maternal imagination to visual resemblance, and later from blood groups to DNA paternity testing. In the Jeffersonian republic, a dark-skinned man was charged with reputedly fathering the infant daughter of a mixed-race woman. However, to most witnesses this light-skinned child appeared to be the offspring of a White man. The trial of Commissioners of the Alms-House, vs Alexander Whistelo, a Black man, being a Remarkable Case of Bastardy (1808) became a cause célèbre in both law …

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 …

Assessing The Accelerated Threat Of Bioterrorism In The Age Of Ai, Janelle Radcliffe

William & Mary Environmental Law and Policy Review

This Note argues that the accelerated use and growth of easily accessible artificial intelligence systems will result in malicious individuals using artificial intelligence to engage in acts of bioterrorism. Part I will discuss how artificial intelligence works generally. Part II will discuss how AI can be used in carrying out attacks of bioterrorism. Part III will discuss suggested governmental regulations, including the creation of a new Data Privacy, Cybersecurity, and Artificial Intelligence Regulating Department that can conduct the evaluation and limitation of publicly available information, use threat modeling to strengthen biosecurity measures, make artificial intelligence use in terrorism a criminal …

Riding On Horseback To The Moon: Consent Searches In The Age Of Smartphones And Digital Tracking, Jonathan Kerr

Washington and Lee Law Review

In 2014, when the Supreme Court ruled in Riley v. California that police must get a warrant before conducting a search of a cell phone, Chief Justice John Roberts described comparing a search of data on a cell phone to a search of other physical items as “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” A decade later, an overwhelming majority of Americans carry cell phones that contain an ever-expanding set of data showing their habits, routines, and the minutiae of their everyday lives, offering a potential wealth of information to law enforcement …

Promises, Promises: Understanding Claims Made In Social Robot Consumer Experiences, Johanna Gunawan, Sarah Elizabeth Gillespie, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Social robots are a class of emerging smart consumer electronics devices that promise sophisticated experiences featuring emotive capabilities, artificial intelligence, conversational interaction, and more. With unique risk factors like emotional attachment, little is known on how social robots communicate these promises to consumers and whether they adequately deliver upon them within their overall product experiences prior to and during user interaction.

Animated by a consumer protection lens, this paper systematically investigates manufacturer claims made for four commercially available social robots, evaluating these claims against the provided user experience and consumer reviews. We find that social robots vary widely in the …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Scholarship

The worlds of crypto and bankruptcy have collided. Once-prominent, fast-growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms.

Amid the chill of the crypto winter, bankruptcy has …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

Faculty Scholarship

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses a third line of arguments—harmonization-based arguments—and identifies select instances …

Autonomous Vehicles: Security And Privacy Concerns, Christopher Z. Shiu

Senior Honors Theses

The rapid development of self-driving vehicles provides many benefits. Even then, there are various security and privacy concerns that must be addressed. Autonomous vehicles are dependent on advanced machine learning systems in order to communicate. However, concerns about cyber threats and the misuse of data are not studied adequately enough. With the integration of technical and human factors, these developments can address communication and regulatory compliance weaknesses to offer safer implementations to autonomous vehicles. It is only after understanding these challenges, can strategies be developed to counteract threats. As artificial intelligence continues to evolve, autonomous vehicles have the potential to …

Infringing Information Architectures, Michael Goodyear

Articles & Chapters

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the …

Do You Know Where Your Trademark Is? How The Fourth Circuit’S Interpretation Of The Anticybersquatting Consumer Protection Act Correctly Protects Trademark Owners Online, Alexa Blandeburgo

St. John's Law Review

(Excerpt)

This Note argues that the Fourth Circuit correctly held that “registration” encompasses both the initial and subsequent registration of a domain name under the ACPA. The Ninth Circuit’s narrow interpretation oversimplified the complexity of domain name ownership and thereby created a narrow loophole for cybersquatters to evade liability. Part I of this Note provides an overview of cybersquatting and the statutory framework that practitioners used prior to the enactment of the ACPA. Part II of this Note compares the ACPA and the UDRP and why a trademark owner would choose one avenue for relief as opposed to the other. …

Lie-Ability: A Technical Analysis Of The Application Of Section 230 Immunity To Chatbot Outputs, Abigail Drummond

St. John's Law Review

(Excerpt)

This Note argues that under the material contribution test for determining service provider liability under Section 230(c), software developers are likely covered under the CDA for civil and criminal liability for chatbot and other generative AI outputs. Part I will review the legislative purpose and subsequent case law of Section 230(c) of the CDA. Part I will also discuss the material contribution test, the prevailing standard for determining service provider liability developed by the Ninth Circuit and generally adopted across federal courts. Part II will provide an overview of how chatbots work and present the state of chatbot regulation …

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 …

Property Rights In Digital Assets Under Uniform State Laws In The United States, Benjamin Geva

Articles & Book Chapters

No abstract provided.

Human-Animal Chimeras: An Omen For Disaster Or An Answer To Our Prayers?, Catherine A. Zimmermann

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note discusses the purpose of chimera research, various ethical arguments, and the current perception of chimera research in the United States to address aspects of the proposed legislation. Chimeras are unique in that they have both human and animal cells. Taking this into account, I also discuss the current regulatory structure and legal protections which provide a framework for the regulation of chimera research. I explain and analyze the law regarding the NIH moratorium and explore factors that have led the United States to consider lifting the moratorium while examining different legal perspectives which explain …

One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing To Combat Voter Suppression, William Eddy

Journal of Civil Rights and Economic Development

(Excerpt)

Polarization in American politics and elections continues to rise, due in no small part to advancing digital marketing technologies co-opted by political actors. In 2016, Cambridge Analytica, a political consulting firm, spearheaded right-wing populist campaigns to political victory in the United States and United Kingdom. The firm reconfigured commercial data processing methods to process personal political viewpoint data (“PPVD”) and perform “psychological manipulation.” While the firm has since dissolved, such practices are still used to manipulate American elections.

The European Union (“EU”), also in 2016, enacted the General Data Protection Regulation (“GDPR”). As a comprehensive data privacy reform, GDPR, …

Keynote Address: The Movement To Protect Kids From Addictive Technologies, Gaia Bernstein

Seattle University Law Review

In this keynote address, I describe my personal journey starting with a school outreach program I created in 2017 to address technology overuse among kids. While I initially advocated for self-help methods, I grew to recognize that the tech industry bore responsibility. This realization led me to write Unwired: Gaining Control over Addictive Technologies, which focused on collective action to pressure the tech industry to redesign its addictive products.

I then describe the movement to control addictive technologies and protect kids, which has gained momentum since the end of the pandemic. This movement combines grassroots parent activism with legal-political action. …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

The Ai Doppelgänger Dilemma: Cloned Voices In The Music Industry, Elizabeth Shields

Seattle University Law Review

With the rise of generative artificial intelligence (AI), there has been an influx of “voice clones”—deep-learning algorithms that create synthetic speech to realistically mimic human voices. Celebrities and, in particular, music artists, have been subjected to the proliferation of AI voice clones on social media platforms like TikTok and streaming platforms such as Spotify. Despite music utilizing AI voice clones having amassed much popularity, this technology can be harmful and highly invasive to musicians whose livelihoods often depend on their distinct voices. While legal scholars have attempted to articulate various rights that could protect a person’s voice, individuals are largely …

Re-Imagining Tomorrow: A Technology, Innovation Law, And Ethics Symposium On Addictive Technology And Children, Margaret Chon

Seattle University Law Review

In this Foreword, Professor Margaret Chon introduces Seattle University's Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies.