Category: Articles and Books

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LTAAA Symposium: Artificial Agents and the Law of Agency

I am gratified that Deborah DeMott, whose work on agency doctrines was so influential in our writing has written such an engaged (and if I may so, positive)  response to our attempt, in A Legal Theory for Autonomous Artificial Agents, to co-opt the common law agency doctrine for use with artificial agents. We did so, knowing the fit would be neither exact, nor precise, and certainly would not mesh with all established intuitions.
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LTAAA Symposium: Legal Personhood for Artificial Agents

In this post, I’d like to make some brief remarks on the question of legal personhood for artificial agents, and in so doing, offer a response to Sonia Katyal’s and Ramesh Subramanian’s thoughtful posts on A Legal Theory for Autonomous Artificial Agents. I’d like to thank Sonia for making me think more about the history of personhood jurisprudence, and Ramesh for prompting to me to think more about the aftermath of granting legal personhood, especially the issues of “Reproduction, Representation, and Termination” (and for alerting me to  Gillick v West Norfolk and Wisbech Area Health Authority)

I have to admit that I don’t have as yet, any clearly formed thoughts on the issues Ramesh raises. This is not because they won’t be real issues down the line; indeed, I think automated judging is more than just a gleam in the eye of those folks that attend ICAIL conferences. Rather, I think it is that those issues will perhaps snap into sharper focus once artificial agents acquire more functionality, become more ubiquitous, and more interestingly, come to occupy roles formerly occupied by humans. I think, then, we will have a clearer idea of how to frame those questions more precisely with respect to a particular artificial agent and a particular factual scenario.
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Artificial Agents and the Law: Some Preliminary Considerations

I am grateful to Concurring Opinions for hosting this online symposium on my book A Legal Theory for Autonomous Artificial Agents. There has already been some discussion here; I’m hoping that once the book has been read and its actual arguments engaged with, we can have a more substantive discussion. (I notice that James Grimmelmann and Sonia Katyal have already posted very thoughtful responses; I intend to respond to those in separate posts later.)

Last week, I spoke on the book at Bard College, to a mixed audience of philosophy, computer science, and cognitive science faculty and students. The question-and-answer session was quite lively and our conversations continued over dinner later.  Some of the questions that were directed at me are quite familiar to me by now: Why make any change in the legal status of artificial agents? That is, why elevate them from non-entities in the ontology of the law to the status of legal agents, or possibly even beyond? How can an artificial agent, which lacks the supposedly distinctively-human characteristics of <insert consciousness, free-will, rationality, autonomy, subjectivity, phenomenal experience here> ever be considered an “agent” or a “person”? Aren’t you abusing language when you say that a program or a robot can be attributed knowledge? How can those kinds of things ever ”know” anything? Who is doing the knowing?

I’ll be addressing questions like these and others during this online symposium; for the time being, I’d like to make a couple of general remarks.

The modest changes in legal doctrine proposed in our book are largely driven by two considerations.

First, existent legal doctrine, in a couple of domains, most especially contracting, which kicks off our discussion and serves as the foundations for the eventual development of the book’s thesis, is placed under considerable strain by its current treatment of highly sophisticated artificial agents. We could maintain current contracting doctrines as is (i.e., merely tweak them to accommodate artificial agents without changing their status vis-a-vis contracting) but run the risk of imposing implausible readings of contract theories in doing so. This might be seen as a reasonable price to pay so that we can maintain our intuitions about the kinds of beings some of us take artificial agents to be. I’d suggest this kind of retention of intuitions starts to become increasingly untenable when we see the disparateness in the entities that are placed in the same legal category. (Are autonomous robots really just the same as tools like hammers?). Furthermore, as we argue in Chapter 1 and 2, there is a perfectly coherent path we can take to start to consider such artificial agents as legal agents (perhaps without legal personality at first). This strategy is philosophically and legally coherent and the argument is developed in detail in Chapter 1 and 2.  The argument in the latter case suggest that they be considered as legal agents for the purpose of contracting; that in the former lays out a prima facieargument for considering them legal agents. Furthermore, in Chapter 2, we say “The most cogent reason for adopting the agency law approach to artificial agents in the context of the contracting problem is to allow the law to distinguish in a principled way between those contracts entered into by an artificial agent that should bind a principal and those that should not.”

Which brings me to my second point. A change in a  legal doctrine can bring about better outcomes. One of the crucial arguments in our Chapter 2, (one I really hope readers engage with) is an assessment in the economic dimension of  contracting by artificial agents considered as legal agents. I share the skepticism of those in the legal academy that economic analysis of law not drive all doctrinal changes but in this case, I’d suggest the risk allocation does work out better. As we note “Arguably, agency law principles in the context of contracting are economically efficient in the sense of correctly allocating the risk of erroneous agent behavior on the least-cost avoider (Rasmusen 2004, 369). Therefore, the case for the application of agency doctrine to artificial agents in the contractual context is strengthened if we can show similar considerations apply in the case of artificial agents as do in the case of human agents, so that similar rules of apportioning liability between the principal and the third party should also apply.”

And I think we do.

An even stronger argument can be made when it comes to privacy. In Chapter 3, the dismissal of the Google defense (“if humans don’t read your email, your privacy is not violated”) is enabled precisely by treating artificial agents as legal  agents. (This follows on the heel of an analysis of knowledge attribution to artificial agents so that they can be considered legal agents for the purpose of knowledge attribution.)

Much more on this in the next few days.

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The Daily You: A Mandatory Read

Over at the Business Insider, Doug Weaver has a terrific review of our guest blogger Joe Turow’s new book The Daily You, demonstrating its practical importance to people in the field like Weaver as well as to policymakers and scholars.Here’s the review:

Listening to the insider discussions and industry reporting about online marketing provides a numbing sense of false comfort.  But every so often, we go outside the bubble and hear civilians talking about what we do.  I’m sure most of us have had someone at a party or family gathering share their ‘creeped out’ moment;  that instance where they finally saw clearly that somehow they were being ‘followed’ online.   Other times, they offer us largely unformed general concerns about online privacy: they don’t really have a sense of what’s going on but they instinctively know they don’t like it.  And once in a great while you’ll hear from someone who’s really done their homework and brings crystal clarity to the issue from the consumer point of view.

That moment came for me when I stumbled on an NPR radio interview with Joseph Turow, author of “The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth.”  After using up my ten minute commute, I found myself sitting my car in the parking lot of my office for another 30 minutes just listening to this guy.  It was kind of like hearing someone talk about you in a bathroom when they don’t know you’re in one of the stalls.  Except they’re totally getting it right.  Turow, an associate dean at the Annenberg Communication school at Penn, has done a lot of homework.  The book is detailed and rigorous, but also extremely accessible to the curious consumer.  While it’s probably not going to sell millions of copies, I believe it’s going to be a hugely influential and important book for several reasons.

  • To my knowledge, it’s the first crossover book that’s attempted to explain in great detail our industry’s use of data to the consumer.  And while explaining it all to the consumer, Turow also explains it all to the business and consumer press.  Perhaps for the first time, they will really understand the digital marketing ecosystem.  And that understanding is almost certain to drive a lot more reporting.  Expect a lot more stories like the Wall Street Journal’s 2010 “What They Know” series, only better informed.
  • “The Daily You” is also clear eyed and inclusive.  Turow is not a wild eyed privacy crusader tilting at windmills.  A walk through his index and end notes is like thumbing through a digital marketing “who’s who” — you’ll recognize a lot of names, companies and concepts right off the bat.
  • And finally, the book builds an intellectual bridge that’s the link to a very powerful idea:  that on some level this is not just a privacy issue, but a human rights issue.  For Turow, the real issue is the digital caste system that’s being imposed on consumers without their knowledge or consent.  Over time, one consumer will enjoy better discounts and better access to quality brands and offers than his less fortunate counterpart.  Perhaps more important are the ways in which these two consumers content experiences will diverge as a result of all the profiling that’s been done.  Like it or not, each of us is getting an online data version of an invisible credit score.  Turow gets this and his readers will too.

For my money, “The Daily You” should be a mandatory read for anyone in our industry.  It’s the beginning of an important new conversation about sustainable and inclusive data practices, a conversation that will form much quicker than many of us might imagine.

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Contracts in the Real World: Ready for Pre-Ordering

This new book on contracts, regaling readers with stories ripped from the headlines, will be published soon and can be pre-ordered now on amazon.com and other fine booksellers.  

Contracts in the Real World: Stories of Popular Contracts is intended to be a fun, fast, reliable read. It is very useful for 1Ls struggling with the subject, perfect for anyone thinking about going to law school, and designed to entertain devotees of pop culture. It will also captivate experts in contract law by connecting current events with venerable principles and classic cases.

Stories feature such notables as Eminem, Lady Gaga, Charlie Sheen, Donald Trump, and Sandra Bullock, as well as examples such as your cell phone contract, lottery sharing partnership, and on-line privacy policy.

List price is $33. The table of contents follows. 

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Cybersecurity Puzzles

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

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The Year in Privacy Books 2011

Here’s a list of notable privacy books published in 2011.

Previous lists:

Privacy Books 2010

Privacy Books 2009

Privacy Books 2008

 

Saul Levmore & Martha Nussbaum, eds., The Offensive Internet (Harvard 2011)

 

This is a great collection of essays about the clash of free speech and privacy online.  I have a book chapter in this volume along with Martha Nussbaum, Cass Sunstein, Brian Leiter, Danielle Citron, Frank Pasquale, Geoffrey Stone, and many others.

Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011)

 

Nothing to Hide “succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty.” — David Cole, New York Review of Books

Jeff Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live (Simon & Schuster 2011)

 

I strongly disagree with a lot of what Jarvis says, but the book is certainly provocative and engaging.

Daniel J. Solove & Paul M. Schwartz, Privacy Law Fundamentals (IAPP 2011)

 

“A key resource for busy professional practitioners. Solove and Schwartz have succeeded in distilling the fundamentals of privacy law in a manner accessible to a broad audience.” – Jules Polonetsky, Future of Privacy Forum

Eli Pariser, The Filter Bubble (Penguin 2011)

 

An interesting critique of the personalization of the Internet.  We often don’t see the Internet directly, but through tinted goggles designed by others who determine what we want to see. 

Siva Vaidhyanathan, The Googlization of Everything (U. California 2011)

 

A vigorous critique of Google and other companies that shape the Internet.  With regard to privacy, Vaidhyanathan explains how social media and other companies encourage people’s sharing of information through their architecture — and often confound people in their ability to control their reputation.

Susan Landau, Surveillance or Security? The Risk Posed by New Wiretapping Technologies (MIT 2011)

 

A compelling argument for how designing technologies around surveillance capabilities will undermine rather than promote security.

 


Kevin Mitnick, Ghost in the Wires (Little Brown 2011)

 

A fascinating account of the exploits of Kevin Mitnick, the famous ex-hacker who inspired War Games.  His tales are quite engaging, and he demonstrates that hacking is often not just about technical wizardry but old-fashioned con-artistry.

Matt Ivester, lol . . . OMG! (CreateSpace 2011)

 

Ivester created Juicy Campus, the notorious college gossip website.  After the site’s demise, Ivester changed his views about online gossip, recognizing the problems with Juicy Campus and the harms it caused.  In this book, he offers thoughtful advice for students about what they post online.

Joseph Epstein, Gossip: The Untrivial Pursuit (Houghton Mifflin Harcourt 2011)

 

A short engaging book that is filled with interesting stories and quotes about gossip.  Highly literate, this book aims to expose gossip’s bad and good sides, and how new media are transforming gossip in troublesome ways.

Anita Allen, Unpopular Privacy (Oxford 2011)

 

My blurb: “We live in a world of increasing exposure, and privacy is increasingly imperiled by the torrent of information being released online. In this powerful book, Anita Allen examines when the law should mandate privacy and when it shouldn’t. With nuance and thoughtfulness, Allen bravely tackles some of the toughest questions about privacy law — those involving the appropriate level of legal paternalism. Unpopular Privacy is lively, engaging, and provocative. It is filled with vivid examples, complex and fascinating issues, and thought-provoking ideas.”

Frederick Lane, Cybertraps for the Young (NTI Upstream 2011)

 

A great overview of the various problems the Internet poses for children such as cyberbullying and sexting.  This book is a very accessible overview for parents.

Clare Sullivan, Digital Identity (University of Adelaide Press 2011)

 

Australian scholar Clare Sullivan explores the rise of “digital identity,” which is used for engaging in various transactions.  Instead of arguing against systematized identification, she sees the future as heading inevitably in that direction and proposes a robust set of rights individuals should have over such identities.  This is a thoughtful and pragmatic book, with a great discussion of Australian, UK, and EU law.

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New Edition of Information Privacy Law Casebooks

The new edition of my casebook, Information Privacy Law (4th edition) (with Paul M. Schwartz) is hot off the presses.  And there’s a new edition of my casebook, Privacy, Information, and Technology (3rd edition) (with Paul M. Schwartz).   Copies should be sent out to adopters very soon.  If you’re interested in adopting the book and are having any difficulties getting a hold of a copy, please let me know.

You also might be interested in my concise guide to privacy law, also with Paul Schwartz, entitled Privacy Law Fundamentals.   This short book was published earlier this year.  You can order it on Amazon or via IAPP.  It might make for a useful reference tool for students.

 

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The PII Problem: Privacy and a New Concept of Personally Identifiable Information

My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here’s the abstract:

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.

In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.

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The Month Ahead: Spies, Lies, Russia, and Terrorist Watchlists

It’s great to be back at Concurring Opinions (and thanks to Danielle for the generous (re)introduction last week).  This month, I plan to blog on a few ongoing projects and some upcoming news events.  Here are two topics soon to come, with two more after the break.

(1)  Spies.  Immigration authorities seize a suspected spy in Manhattan on the grounds that he entered the country unlawfully.  Rather than process him through the immigration system, or transfer him to the criminal justice system, he is secretly flown more than a thousand miles away, interrogated without a lawyer, and kept virtually incommunicado for almost seven weeks in a government facility on the Texas-Mexican border.  When he doesn’t break, he is transferred back to New York to be tried in federal court for a capital offense.  The evidence from his warrantless arrest and secret detention helps to convict him. 

When did this happen?

No surprise that the story resonates with our national security debates today.  But it all happened during the Eisenhower Administration.  Rudolf Abel was the top Soviet spy in North America before he was convicted of atomic espionage.  Thanks to his lawyer, his life was spared (and he was later exchanged for U-2 pilot Francis Gary Powers).  I think that there are lessons to be learned from this history today, but mine seems to be the minority view.

(2)  Lies.  Okay, not lies exactly, but pretext.  (You try rhyming pretext with anything.  You’ll wind up perplexed, if not vexed, with the text that comes next.)  Pretextual use of the law is all around us.  The most common example is the law governing arrests.  In Whren v. United States, the Supreme Court unanimously agreed that the police were free to do “under the guise of enforcing the traffic code what they would like to do for different reasons,” namely, stop and search Whren’s car for drugs.  Abel’s case (referenced in Whren) presented another classic instance of pretext: his detention for an immigration violation was used for the unintended purpose of counterespionage, neatly skirting in the process constitutional protections against warrantless searches and seizures, not to mention official disappearances.  When Abel’s able lawyer argued pretext, however, the Supreme Court sustained the conviction.

Sometimes the law abhors pretext.  For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose.  How should citizens regard the pretextual use of the law by state officials?  Does such use tend to weaken the rule of law in ways that should matter to us as individuals or as a society?  When tempted to use a law for an unintended purpose, how should the “good” official distinguish an innovative pretextual use from a destructive one?  The Supreme Court dodged these questions just last term in Ashcroft v. Al-Kidd and I’d like to think hard about why.

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