Algorithms In Business, Merchant-Consumer Interactions, & Regulation,
2021
California Western School of Law
Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim
Faculty Scholarship
The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …
Beyond Algorithms: Toward A Normative Theory Of Automated Regulation,
2021
Texas A&M University School of Law
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,
2021
Texas A&M University School of Law
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 …
The Easterbrook Theorem: An Application To Digital Markets,
2021
Texas A&M University School of Law
The Easterbrook Theorem: An Application To Digital Markets, Joshua D. Wright, Murat C. Mungan
Faculty Scholarship
The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme …
Counterbalancing Teen Reliance On Social Media News: The Importance Of Using Street Law Methodology To Teach About Current Events,
2021
New York Law School
Counterbalancing Teen Reliance On Social Media News: The Importance Of Using Street Law Methodology To Teach About Current Events, Amy Wallace
Articles & Chapters
Globally, civic engagement of young people lags behind the general population. There is some evidence that young people are becoming more interested and engaged in world events. The pandemic and social justice movements addressing the environment, racial injustice, women’s issues, and LGBTQ rights have especially mobilized young people.
Social media has been key to the success of many grassroots movements (#MeToo, Black Lives Matter, and Greta Thunberg). Increasingly young people are also using social media as a source of news. Teachers and professionals who work with young people have noticed a dramatic surge in awareness and interest in current events. …
Antitrust's High-Tech Exceptionalism,
2021
Vanderbilt University Law School
Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth
Vanderbilt Law School Faculty Publications
American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in …
A General Defense Of Information Fiduciaries,
2021
Washington University in St. Louis School of Law
A General Defense Of Information Fiduciaries, Andrew F. Tuch
Scholarship@WashULaw
Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties of care, confidentiality, and loyalty on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information fiduciary concept flies in the face of fundamental corporate law principles that require firms to prioritize shareholder interests over those of users. Second, it is said that the overwhelming self-interest of digital companies makes fiduciary loyalty impossible as a …
Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs,
2021
American University Washington College of Law
Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray
Catholic University Journal of Law and Technology
The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …
No Ifs, Ands, Or Juuls About It: Why Influencers Must Be Held Accountable,
2021
Catholic University of America (Student)
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,
2021
The George Washington University
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 …
Reasonable Expectations Of Privacy In An Era Of Drones And Deepfakes: Expanding The Supreme Court Of Canada’S Decision In R V Jarvis,
2021
Dalhousie University Schulich School of Law
Reasonable Expectations Of Privacy In An Era Of Drones And Deepfakes: Expanding The Supreme Court Of Canada’S Decision In R V Jarvis, Suzie Dunn, Kristen Mj Thomasen
Articles, Book Chapters, & Popular Press
Perpetrators of Technology-Facilitated gender-based violence are taking advantage of increasingly automated and sophisticated privacy-invasive tools to carry out their abuse. Whether this be monitoring movements through stalker-ware, using drones to non-consensually film or harass, or manipulating and distributing intimate images online such as deep-fakes and creepshots, invasions of privacy have become a significant form of gender-based violence. Accordingly, our normative and legal concepts of privacy must evolve to counter the harms arising from this misuse of new technology. Canada’s Supreme Court recently addressed Technology-Facilitated violations of privacy in the context of voyeurism in R v Jarvis (2019). The discussion of …
Facebook's "Like" Button Plugin And User Tracking: Stretching Outdated And Ambiguous Laws To Protect User Privacy,
2021
University of Maryland Francis King Carey School of Law
Facebook's "Like" Button Plugin And User Tracking: Stretching Outdated And Ambiguous Laws To Protect User Privacy, David Brokaw
Journal of Business & Technology Law
No abstract provided.
Shifting Contour Of Data Sharing In Financial Market And Regulatory Responses: The Uk And Australian Models,
2021
Singapore Management University
Shifting Contour Of Data Sharing In Financial Market And Regulatory Responses: The Uk And Australian Models, Han-Wei Liu
Research Collection Yong Pung How School Of Law
Starting from Directive 2015/2366 on Payment Services in the Internal Market — known as PSD II in the European Union (EU) — countries across the world have or are contemplating a new framework to govern data sharing among different players in the financial market. “Open Banking,” as this trend is called, requires or encourages — depending on the regulatory models adopted in different jurisdictions — banks to share consumer-permissioned banking data with third parties securely, in a form that facilitates its use. The Open Banking initiatives have diffused from the EU, and the UK, to elsewhere. The current Open Banking …
Catalyzing Privacy Law,
2021
Georgetown University Law Center
Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran
Publications
The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for …
Agonistic Privacy & Equitable Democracy,
2021
University of Colorado Law School
Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson
Publications
This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …
Technological 'Disruption' Of The Law's Imagined Scene: Some Lessons From Lex Informatica,
2021
University of Colorado Law School
Technological 'Disruption' Of The Law's Imagined Scene: Some Lessons From Lex Informatica, Margot Kaminski
Publications
Joel Reidenberg in his 1998 Article Lex Informatica observed that technology can be a distinct regulatory force in its own right and claimed that law would arise in response to human needs. Today, law and technology scholarship continues to ask: does technology ever disrupt the law? This Article articulates one particular kind of “legal disruption”: how technology (or really, the social use of technology) can alter the imagined setting around which policy conversations take place—what Jack Balkin and Reva Siegal call the “imagined regulatory scene.” Sociotechnical change can alter the imagined regulatory scene’s architecture, upsetting a policy balance and undermining …
Conundra Of The Berne Convention Concept Of The Country Of Origin,
2021
Columbia Law School
Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg
Faculty Scholarship
This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …
Blockchain Neutrality,
2021
Benjamin N. Cardozo School of Law
Blockchain Neutrality, Samuel N. Weinstein
Georgia Law Review
Blockchain technology is transforming how markets work.
Blockchains eliminate the need for trusted gatekeepers like
banks to execute, verify, and record transactions. In the
financial markets, their disruptive potential threatens both
Wall Street banks and Silicon Valley venture capitalists. How
blockchain technology is regulated will determine whether it
encourages or inhibits competition. Some blockchain
applications present serious fraud and systemic risks,
complicating regulation. This Article explores the antitrust and
competition policy challenges blockchain presents and proposes
a regulatory strategy, modeled on Internet regulation and net
neutrality principles, to unlock blockchain’s competitive
potential. It contends that financial regulators should promote
blockchain …
Data Governance And The Elasticity Of Sovereignty,
2020
Brooklyn Law School
Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast
Brooklyn Journal of International Law
Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …
Easing The Burdens Of A Patchwork Approach To Data Privacy Regulation In Favor Of A Singular Comprehensive International Solution—The International Data Privacy Agreement,
2020
Brooklyn Law School
Easing The Burdens Of A Patchwork Approach To Data Privacy Regulation In Favor Of A Singular Comprehensive International Solution—The International Data Privacy Agreement, Scott Resnick
Brooklyn Journal of International Law
Data privacy has become one of the premier hot-button issues in today’s increasingly digital human experience. Legislatures around the globe have attempted to act swiftly in an effort to safeguard the highly coveted personal information of their citizens and combat misuse at the hands of international businesses operating with an online presence. Since the European Union’s enactment of the General Data Protection Regulation (GDPR) in 2018, countries around the globe have been grappling with how best to replicate the EU’s leading data privacy regulation while providing the same or greater level of transparency into data collection practices. While a mere …
