Author Archive for ryan-calo

Judge Posner’s Surveillance Argument Would Not Withstand An Economic Analysis

posted by Ryan Calo

Judge Richard Posner took the occasion of the Boston bombing to remind us of his view that privacy should lose out to other values.  Privacy, argues Judge Posner, is largely about concealing truths “that, if known, would make it more difficult for us to achieve our personal goals.”  For instance: privacy helps the victims of domestic violence achieve their personal goal of living free from fear; it helps the elderly achieve their personal goal of staying off of marketing “sucker lists;” and it helps children achieve their personal goal of avoiding sexual predators online.

To be fair, Judge Posner acknowledges that some concealment is fine and that privacy laws may even “do some good.”  He worries rather about civil libertarians who would limit the expansion of surveillance to the point that we can neither deter, nor apprehend terrorists like the men responsible for bombing the marathon.  “There is a tendency to exaggerate the social value of privacy,” Judge Posner believes, and it just might get us killed.

Judge Posner is a founding member of the law and economics movement and, as such, it would seem fair to analyze his claim from the perspective of incentives.  Does video surveillance deter crime in general?  Empirical evidence suggests that cameras merely displace crime, and Judge Posner concedes that picking terrorists out of a crowd before they act is impracticable.  Does video surveillance help with identification?   Sure.  But the quick identification of the Boston bombers from private footage suggests we have enough surveillance.   Moreover, hardened terrorists have proven willing to die in an attack, making identification moot.

Then there are the unintended consequences—a mainstay of economic analyses of the law.  The fact that an act of terrorism will be caught on video and spread to every screen in America greatly enhances its intended impact, which in turn makes the option more attractive to our enemies.

One can quibble with my data points.  But any honest, empirically-informed cost-benefit analysis of additional surveillance will yield at best a mixed picture.  I submit that Judge Posner’s argument yesterday is dead wrong by the terms of the very movement he founded.

  April 30, 2013 at 2:20 pm   Posted in: Economic Analysis of Law, Privacy   Print This Post   10 Comments

Robots Take Over University of Washington School of Law

posted by Ryan Calo

I recently returned from a two-day conference at Stanford Law School on robotics and the law to find that robots had, in my absence, taken over my own law school.  Setting aside my thirty-student (15 law, 15 engineering) robotics and the law seminar, my colleague Lea Vaughn is using a telepresence company as the quarter-long case study in her employment law class.  Bill Covington’s tech policy clinic has a dozen students working on driverless car and drone legislation.  Our entrepreneurial law clinic is helping a robotics start up think about product liability.  And our law review is hosting a symposium on law and artificial intelligence in March 2014 (including a contribution by Concurring Opinions’ own Frank Pasquale and Danielle Citron).  It is increasingly clear to me that I will have to buy this t-shirt.

  April 19, 2013 at 5:49 pm  Tags: Robotics  Posted in: Uncategorized   Print This Post   No Comments

“Brain Spyware”

posted by Ryan Calo

As if we don’t have enough to worry about, now there’s spyware for your brain.  Or, there could be.  Researchers at Oxford, Geneva, and Berkeley have created a proof of concept for using commercially available brain-computer interfaces to discover private facts about today’s gamers. Read the rest of this post »

  April 14, 2013 at 12:57 am   Posted in: Bioethics, Civil Rights, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Technology, Uncategorized   Print This Post   One Comment

FOIA For Firms?

posted by Ryan Calo

Lay people do not always appreciate the state action doctrine. We lawyers are quick to point out that the Bill of Rights, at least, is not there to limit the conduct of private parties. This feels like gospel. Marsh v. Alabama has little by way of progeny, whereas United States v. Miller has proven rather feracious. Even those who are generally sympathetic to the claim that “code is law” tend to balk at Lawrence Lessig’s corollary that we subject the activities of Internet companies to First Amendment scrutiny.

It may not feel right applying public constraints to private entities, but the reverse is not true: we are plenty comfortable bringing market forces to bear on perceived government shortcomings. Outsourcing government functions to for-profit organizations—privatization—is commonplace. Many efforts to reform government search for analogs for profit and seek to foster forms of competition to increase efficiency. Read the rest of this post »

  April 5, 2013 at 2:02 am   Posted in: Uncategorized   Print This Post   5 Comments

Snapshot Of The Legal Market

posted by Ryan Calo

Like a blog barnacle, I continue to hang on to the good ship Concurring Opinions.  At least for another month.  Thank you for inviting me to stay on.

Today, an observation about the legal market (and a plug for a friend’s start up). Len Gray is a former Latham & Watkins associate who, prior to law school, worked as a headhunter in Atlanta.  Even so, Len was turned off by legal headhunters, whom he regarded as too aggressive and often insensitive to finding the right fit. Read the rest of this post »

  April 1, 2013 at 6:08 pm   Posted in: Law Practice, Law School   Print This Post   No Comments

Some Thoughts On Florida v. Jardines

posted by Ryan Calo

Amidst all of the discussion of gay marriage at One First Street NW today, you may have missed that the Supreme Court decided Florida v. Jardines.  In a five-four opinion by Justice Scalia, the Court held that bringing a police dog within the curtilage (in this case, the front porch) of the home to sniff for drugs constitutes a search for purposes of the Fourth Amendment.  As Orin Kerr predicted, the opinion turned on the lack of implied consent to approach with a dog, which converted the detectives’ action into a trespass.  Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s opinion.  Justice Alito wrote for the dissent, joined by Justices Kennedy, Breyer, and the Chief Justice.  Justice Kagan, joined by Justices Ginsburg and Sotomayor, wrote separately to note that they “could just as happily have decided [the case] by looking to Jardines’ privacy interests.” Read the rest of this post »

  March 26, 2013 at 1:21 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Uncategorized   Print This Post   2 Comments

Robotics And The Law Conference At Stanford Law School

posted by Ryan Calo

In a few weeks (April 8 and 9), the Stanford Center for Internet and Society and Rock Center for Corporate Governance will be holding a robotics and the law conference at Stanford Law School.  The conference follows up on the inaugural We Robot 2012 at the University of Miami School of Law.  This year’s conference focuses more specifically on the immediate commercial prospects of robotics.  Participants include Mark Lemley, Michael Froomkin, Ian Kerr, Kenneth Anderson, Leila Takayama (Willow Garage), Elizabeth Grossman (Microsoft), Dan Siciliano, and many other established and emerging scholars and practitioners.  We will discuss product liability, privacy, and much more.  The event is free and open to the public.  Details— including the draft agenda and how to RSVP—can be found on the conference website.  Outside sponsors include Microsoft, Ropes & Gray LLP, and AUVSI.  Hope to see you there!

  March 23, 2013 at 1:08 pm  Tags: Robotics  Posted in: Uncategorized   Print This Post   No Comments

“The Future of Drones in America” Hearing

posted by Ryan Calo

I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response.  It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party.  I feel they had fair notice that this might be on the exam.

  March 21, 2013 at 7:42 pm  Tags: Robotics  Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology, Tort Law   Print This Post   No Comments

Driverless Cars May Avoid Accidents, But Not Headlines

posted by Ryan Calo

As Deven Desai points out yesterday, driverless cars could bring a variety of benefits.  For instance: driverless cars may be much safer than human drivers.  Human error accounts for an enormous percentage of driving fatalities, which number in the tens of thousands. In a “perfect,” post-driver world, the circle of fatalities caused by vehicles would simply shrink.  The resulting diagram would look something like this:

  March 18, 2013 at 5:47 pm  Tags: Robotics  Posted in: Cyberlaw, Uncategorized   Print This Post   3 Comments

How To Regulate Drones

posted by Ryan Calo

I started to think about the intersection of robotics and the law in earnest a few years ago when I left private practice.  In 2011, I came to the conclusion that drones had the potential to create a new Warren and Brandeis moment.  Some combination of our visceral reaction to robotic technology, our fascination with flight, and our association of drones with the theater of war could, I thought, trigger a reexamination of privacy law. Drones have indeed captured the public imagination. And we are entering something of a policy window, to borrow a concept from Priscilla Regan. But just how citizens and lawmakers ultimately come down on the domestic use of drones remains to be seen. In this post, I will talk about what I think are the worst and best ways to regulate drones with respect to privacy. Read the rest of this post »

  March 10, 2013 at 4:33 am   Posted in: Uncategorized   Print This Post   18 Comments

Senator Rand Paul Drones On

posted by Ryan Calo

Concurring Opinions readers might get a kick out of the fact that, at one point in his twelve hour, old school filibuster of John Brennan’s nomination as CIA director this evening, Senator Rand Paul reads aloud from my 2011 online essay in Stanford Law Review on the domestic use of drones.  Video of the clip here.  I suppose it beats a phone book!

  March 7, 2013 at 12:43 am   Posted in: Politics, Privacy (National Security)   Print This Post   5 Comments

Is Forensics Law?

posted by Ryan Calo

I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.”  During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation.  “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens.  Speed bumps are a classic example.  “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement. Read the rest of this post »

  March 3, 2013 at 7:37 pm   Posted in: Amazon, Architecture, Articles and Books, Conferences, Cyberlaw, Uncategorized   Print This Post   17 Comments

The Disclosure Crisis

posted by Ryan Calo

Thank you to Danielle for the lovely (re)introduction and to Concurring Opinions for inviting me to blog this month.

The Washington Law Review hosted a symposium Thursday entitled “The Disclosure Crisis,” which covered everything from privacy policies to restaurant hygiene grades. The gist of the conference, on my view, was that the only thing piling up faster than examples of mandated disclosure as a regulatory strategy is the evidence it does not work. Time and time again, officials choose to intervene in a given area by requiring companies and others to reveal information so that individuals can protect themselves and police the market. And time and time again, disclosure ends up helping few if any consumers or citizens actually make better decisions.

Read the rest of this post »

  March 2, 2013 at 6:43 pm   Posted in: Administrative Law, Articles and Books, Behavioral Law and Economics, Law Rev (Washington)   Print This Post   One Comment

“Game Of Negligence” And Other 1L Haiku

posted by Ryan Calo

We recently covered proof of negligence in my torts class at the University of Washington. I gave my students an optional assignment: write a haiku about the reading (pages 238-67 of the 12th edition of Prosser). Here is sampling of their efforts, complete with kigo. Enjoy!

 

Winter is coming
Dangerous like icy roads,
Bananas and grapes.

 

No—don’t cry, they said
Not over milk that’s been spilled
but K-Mart will cry

 

Fall’s weary pattern
Of darkness, of rain and death
It speaks for itself.

 

Read the rest of this post »

  November 17, 2012 at 12:08 pm   Posted in: Just for Fun, Tort Law, Uncategorized   Print This Post   4 Comments

Camel, Weasel, Whale

posted by Ryan Calo

Samir Chopra—whom I consider to be something of a pioneer in thinking through the philosophic and legal issues around artificial intelligence—did not much care for my initial thoughts about his and Lawrence White’s new book, A Legal Theory For Autonomous Agents. The gist of my remarks was that, while interesting and well researched, the book does not deliver on its promise of advancing “a legal theory.” Mostly what the book does (I read the book cover to cover, as you can see!) is identify new and old ways the law might treat complex software to advance various, seemingly unrelated goals. The book is largely about removing conceptual obstacles to treating software as “agreeing,” “knowing,” or “taking responsibility,” should we be inclined to do so in particular cases for independent policy reasons.

In the second chapter of the book, for instance, Chopra and White argue that treating software capable of calculating, offering, and appearing to accept terms as legal agents is not only coherent, but results in greater economic efficiency. The upshot is lesser contractual liability than treating the software as a mere instrument because, in instances where software makes the right kind of mistake, the entity that deployed the software—usually a sophisticated corporation—will not be held to the agreement. In the third chapter, the authors abandon economic efficiency entirely. Here the argument is that we ought to look to agency law in order to attribute more information to corporations because “[o]nly such a treatment would do justice to the reality of the increased power of the corporation, which is a direct function of the knowledge at its disposal.” In other words, by treating its software as agents rather than tools, we can either limit corporate liability for reasons of efficiency, or expand it for reasons of fairness. Read the rest of this post »

  February 15, 2012 at 3:55 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Symposium (Autonomous Artificial Agents)   Print This Post   2 Comments

The Law Of The Fire

posted by Ryan Calo

A corporation, it is said, “is no fiction, no symbol, no piece of the state’s machinery, no collective name for individuals, but a living organism and a real person with a body and members and a will of its own.” A ship, described as a “mere congeries of wood and iron,” on being launched, we are told, takes on a personality of its own, a name, volition, capacity to contract, employ agents, commit torts, sue and be sued.” Why do lawyers and judges assume thus to clothe inanimate objects and abstractions with the qualities of human beings?

The answer, in part at least, is to be found in characteristics of human thought and speech not peculiar to the legal profession. Men are not realists either in thinking or in expressing their thoughts. In both processes they use figurative terms. The sea is hungry, thunder rolls, the wind howls, the stars look down at night, time is not an abstraction, rather it is “father time” or the “grim reaper”…

Bryant Smith, Legal Personality, 37 Yale Law Journal 283, 285 (1928) Read the rest of this post »

  February 15, 2012 at 12:18 am  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Symposium (Autonomous Artificial Agents)   Print This Post   3 Comments

Warning: This Post Contains Bugs

posted by Ryan Calo

Let’s say a major food company starts to use grasshopper abdomens, which they euphemistically call “melanoplus core,” as a key ingredient in cookies.  Would the law come to require a warning?  The scenario is not so far fetched.  As the most recent New Yorker and Atlantic Monthly both observe, bugs are a very cheap and efficient source of nutrients.  And they are growing in culinary popularity.

So, should the food-maker warn?  Clearly this will turn on the purpose of notice in this context.  One theory says it’s about objective harm to the consumer.  You’re taking on serious legal risk by not warning consumers that your product contains something to which many people are allergic or that might be harmful to women who are pregnant.  But what about totally harmless bugs?  Bugs that are healthier than whatever highly processed ingredient they are substituting for.  What then?

Read the rest of this post »

  September 23, 2011 at 1:22 am   Posted in: Uncategorized   Print This Post   8 Comments

Orin Kerr On An Expanded Computer Fraud And Abuse Act

posted by Ryan Calo

I know I promised to write about bugs next but I wanted to flag Orin Kerr’s important op ed in tomorrow’s Wall Street Journal.  In United States v. Lori Drew, a federal prosecutor in Los Angeles brought charges against a woman for bullying her daughter’s teenage classmate.  The case was premised on an expansive reading of the Computer Fraud And Abuse Act.  Drew allegedly violated the act by lying about her identity on the social network MySpace and contributing to a young woman’s decision to commit suicide.  A jury convicted Drew of a misdemeanor but, ultimately, the judge directed an acquittal.

In his op ed, Orin Kerr explains how Congress may be poised to expand the powers of prosecutors once again in the name of cyber-security.  According to Kerr, changes to the CFAA might make it possible to charge the Lori Drew’s of the world with a felony.  Here is an excerpt:

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don’t like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.

As the Drew case shows, charging someone is not the same as convicting them.  But you can certainly see the danger of an expanded CFAA.  I hope Kerr’s comments give some representatives pause.

  September 14, 2011 at 10:41 pm   Posted in: Uncategorized   Print This Post   No Comments

Artificial Clerks

posted by Ryan Calo

What do I and the Yale Law Journal have in common?  Not much.  Except that we both recently blogged about artificial intelligence on Concurring Opinions.  My post was about the capacity of so-called weak artificial intelligence to affect society in the near term.  The Yale Law Journal just posted an interesting thought piece by Yale Law student Betsy Cooper on whether Watson—IBM’s artificial intelligence system that recently bested two Jeopardy champions—could beat the courts (well, new textualists) at their own game.  Her answer: yes, with qualifications.  Thanks to Concurring Opinions, by the way, for inviting me to blog for a second month.

Read the rest of this post »

  September 7, 2011 at 6:06 pm   Posted in: Uncategorized   Print This Post   8 Comments

A Nudge Exception To Anti-Lottery Statutes

posted by Ryan Calo

Thanks to everyone at Concurring Opinions for inviting me to guest blog.  It has been a lot of fun.  Thanks also for your great comments and to The Volokh Conspiracy, Instapundit, PogoWasRight.org, The Guardian, and others for linking to my posts throughout the month.

A couple of years ago, Peter Tufano of Harvard Business School had a great idea.  Why not turn the allure of lotteries on its head by using them to encourage people to save more?  Eight credit unions in Michigan participated in the “Save To Win” program, where every deposit of $25 or more dollars represented a chance to win $100,000.  One could imagine other implementations that channel vice into virtue.  Walmart might sell lottery tickets to its employees, for instance, and put the proceeds into a flexible spending account to cover healthcare costs.  The blog companion to the 2008 book Nudge has a wealth of examples.

Win-win.  But I wonder whether such programs are technically legal.  Many states claim a monopoly on lotteries.  No one else can hold them.  I especially like the way the California constitution puts it:  “(a) The Legislature has no power to authorize lotteries, and shall prohibit the sale of lottery tickets in the State. … (d) Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery.”  Lotteries are defined broadly as any requirement to furnish consideration (as in contracts, virtually anything of value) in exchange for a chance to win money or other prizes.  Courts have found consideration where all a person had to do to participate in the contest was travel to the store.¹

Read the rest of this post »

  August 31, 2011 at 2:29 pm   Posted in: Uncategorized   Print This Post   No Comments

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