Future of the Internet Symposium: (Im)Perfect Enforcement

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5 Responses

  1. Frank Pasquale says:

    Fascinating post. I am interested in how the work of “Neil Katyal, Elizabeth Joh, Edward Cheng” (who “argued for more regulation by architecture on the basis that it is less discriminatory or more effective”) interacts with that of our symposium organizer Danielle Citron, who has explored the many ways in which “technological due process” needs to be brought to automated systems.

    I would emphasize that, at least in the realm of finance, a definite “sorcerer’s apprentice” quality has been arising in automated technology. Amar Bhide has described it in the HBR:
    http://hbr.org/2010/09/the-big-idea-the-judgment-deficit/ar/1

    “In recent times . . . a new form of centralized control has taken root—one that is the work not of old-fashioned autocrats, committees, or rule books but of statistical models and algorithms. These mechanistic decision-making technologies have value under certain circumstances, but when misused or overused they can be every bit as dysfunctional as a Muscovite politburo.”

    If these are a form of “regulation by architecture,” we should be afraid!

  2. Ryan Calo says:

    Thanks, Frank! Great question. As I think about it, Elizabeth Joh’s argument in “Discretionless Policing” is in a way the flip side of Danielle’s in TDP.

    Elizabeth argues that we ought to automate traffic enforcement precisely because it heads off the kinds of biases minorities regularly experience at the hands of some police. (A traffic light camera simply does not care whether the offender is white or black.) She might argue, and we can ask her, that benefits decisions should also be automated so that everyone gets a fair shake.

    On the other hand, Danielle will counter that automation brings its own troubles, including potentially unreviewable mistakes. But I’ll let her describe her own, wonderful article.

  3. Joel Reidenberg says:

    Subsequent to Lex Informatica, I have also argued in “Technology and Internet Jurisdiction” that technologically-based enforcement should subject to legal pre-conditions including an adjudicatory authorization process that evaluates constitutional, statutory and international constraints. Tethered appliances certainly make it easier to sanction wrongful behavior. But, I am skeptical that perfect enforcement is possible.

  4. Danielle Citron says:

    This is a fantastic post, Ryan. Like Frank, I am indeed worried about this kind of perfect enforcement. Joel’s Penn piece is indeed helpful here to sort our ways to bring rule of law commitments to automated jurisdiction and decision-making. Thanks so much for bringing TDP into the discussion!

  5. Ryan Calo says:

    I love that essay, Joel, and I apologize for not mentioning it. I only wish countries (I’m thinking of Brazil in the YouTube case) would be so careful.

    I think JZ is asking a slightly different question, however, one that I’m trying to get out with my disulfiram example. There literally could not be more process than what led to Prohibition. Yet we might still be concerned about an enforcement action that stamped out all resistance.