Archive for the ‘Technology’ Category

LTAAA Symposium: Complexity, Intentionality, and Artificial Agents

posted by Samir Chopra

I would like to respond to a series of related posts made by Ken Anderson, Giovanni Sartor, Lawrence Solum, and James Grimmelmann during the LTAAA symposium. In doing so, I will touch on topics that occurred many times in the debate here: the intentional stance, complexity, legal fictions (even zombies!) and the law. My remarks here will also respond to the very substantive, engaged comments made by Patrick O’Donnell and AJ Sutter to my responses over the weekend. (I have made some responses to Patrick   and AJ in the comments spaces where their remarks were originally made).

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  February 20, 2012 at 4:32 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Articles and Books, Cyberlaw, Legal Theory, Symposium (Autonomous Artificial Agents), Technology   Print This Post   4 Comments

Ben Stein and the ABA’s Facepalm

posted by Derek Bambauer

The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?

This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.

Hat tip: health law expert Margo Kaplan.

Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!

Cross-posted at Info/Law.

  February 20, 2012 at 11:27 am   Posted in: Blogging, Bright Ideas, Conferences, Culture, Current Events, Cyberlaw, Education, Humor, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Science Fiction, Technology   Print This Post   8 Comments

LTAAA Symposium: Response to Pagallo on Legal Personhood

posted by Samir Chopra

Ugo Pagallo, with whom I had a very useful email exchange a few months ago, has written a very useful response to A Legal Theory for Autonomous Artificial Agents.  I find it useful because I think in each of his four allegedly critical points, we are in greater agreement than Ugo imagines.
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  February 19, 2012 at 6:40 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Articles and Books, Cyberlaw, Legal Theory, Symposium (Autonomous Artificial Agents), Technology   Print This Post   No Comments

LTAAA Symposium: Response to Surden on Artificial Agents’ Cognitive Capacities

posted by Samir Chopra

I want to thank Harry Surden for his rich, technically-informed response  to A Legal Theory for Autonomous Artificial Agents, and importantly, for seizing on an important distinction we make early in the book when we say:

There are two views of the goals of artificial intelligence. From an engineering perspective, as Marvin Minsky noted, it is the “science of making machines do things that would require intelligence if done by men” (Minsky 1969, v). From a cognitive science perspective, it is to design and build systems that work the way the human mind does (Shanahan 1997, xix). In the former perspective, artificial intelligence is deemed successful along a performative dimension; in the latter, along a theoretical one. The latter embodies Giambattista Vico’s perspective of verum et factum convertuntur, “the true and the made are…convertible” (Vico 2000); in such a view, artificial intelligence would be reckoned the laboratory that validates our best science of the human mind. This perspective sometimes shades into the claim artificial intelligence’s success lies in the replication of human capacities such as emotions, the sensations of taste and self-consciousness. Here, artificial intelligence is conceived of as building artificial persons, not just designing systems that are “intelligent.”

The latter conception of AI as being committed to building ‘artificial persons’ is what, it is pretty clear, causes much of the angst that LTAAA’s claims seem to occasion. And even though I have sought to separate the notion of ‘person’ from ‘legal persons’ it seems that some conflation has continued to occur in our discussions thus far.

I’ve personally never understood why artificial intelligence was taken to be, or ever took itself to be, dedicated to the task of replicating human capacities, faithfully attempting to build “artificial persons” or “artificial humans”. This always seemed such like a boring, pointlessly limited task. Sure, the pursuit of cognitive science is entirely justified; the greater the understanding we have of our own minds, the better we will be able to understand our place in nature. But as for replicating and mimicking them faithfully: Why bother with the ersatz when we have the real? We already have a perfectly good way to make humans or persons and it is way more fun than doing mechanical engineering or writing code. The real action, it seems to me, lay in the business of seeing how we could replicate our so-called intellectual capacities without particular regard for the method of implementation; if the best method of implementation happened to be one that mapped on well to what seemed like the human mind’s way of doing it, then that would be an added bonus. The multiple-realizability of our supposedly unique cognitive abilities would do wonders to displace our sense of uniqueness, acknowledge the possibility of other modes of existence, and re-invoke the sense of wonder about the elaborate tales we tell ourselves about our intentionality, consciousness, autonomy or freedom of will.

Having said this, I can now turn to responding to Harry’s excellent post.
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  February 19, 2012 at 3:26 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Articles and Books, Cyberlaw, Legal Theory, Psychology and Behavior, Symposium (Autonomous Artificial Agents), Technology   Print This Post   6 Comments

LTAA Symposium: Response to Matwyshyn on Artificial Agents and Contracting

posted by Samir Chopra

Andrea Matwyshyn’s reading of the agency analysis of contracting  (offered in A Legal Theory for Autonomous Artificial Agents and also available at SSRN) is very rigorous and raises some very interesting questions. I thank her for her careful and attentive reading of the analysis and will try and do my best to respond to her concerns here. The doctrinal challenges that Andrea raises are serious and substantive for the extension and viability of our doctrine. As I note below, accommodating some of her concerns is the perfect next step.

At the outset, I should state what some of our motivations were for adopting agency doctrine for artificial agents in contracting scenarios (these helped inform the economic incentivizing argument for maintaining some separation between artificial agents and their creators or their deployers.

First,

[A]pplying agency doctrine to artificial agents would permit the legal system to distinguish clearly between the operator of the agent i.e., the person making the technical arrangements for the agent’s operations, and the user of the agent, i.e., the principal on whose behalf the agent is operating in relation to a particular transaction.

Second,

Embracing agency doctrine would also allow a clear distinction to be drawn between the authority of the agent to bind the principal and the instructions given to the agent by its operator.

Third, an implicit, unstated economic incentive.

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  February 19, 2012 at 2:10 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Contract Law & Beyond, Cyberlaw, Economic Analysis of Law, Legal Theory, Symposium (Autonomous Artificial Agents), Technology, Tort Law   Print This Post   No Comments

LTAA Symposium: Response to Sutter on Artificial Agents

posted by Samir Chopra

I’d like to thank Andrew Sutter for his largely critical, but very thought-provoking, response to A Legal Theory for Autonomous Artificial Agents. In responding to Andrew I will often touch on themes that I might have already tackled. I hope this repetition comes across as emphasis, rather than as redundancy. I’m also concentrating on responding to broader themes in Andrew’s post as opposed to the specific doctrinal concerns (like service-of-process or registration; my attitude in these matters is that the law will find a way if it can discern the broad outlines of a desirable solution just ahead; service-of-process seemed intractable for anonymous bloggers but it was solved somehow).
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  February 18, 2012 at 3:05 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Articles and Books, Cyberlaw, Symposium (Autonomous Artificial Agents), Technology   Print This Post   7 Comments

The Memory Hole

posted by Derek Bambauer

On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.

Cross-posted at Info/Law.

  February 17, 2012 at 12:01 pm   Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0   Print This Post   No Comments

Cary Sherman and the Lost Generation

posted by Derek Bambauer

The RIAA’s Cary Sherman had a screed about the Stop Online Piracy and PROTECT IP Acts in the New York Times recently. Techdirt’s Mike Masnick brilliantly gutted it, and I’m not going to pile on – a tour de force requires no augmentation. What I want to suggest is that the recording industry – or, at least, its trade group – is dangerously out of touch.

Contrast this with at least part of the movie industry, as represented by Paramount Pictures. I received a letter from Al Perry, Paramount’s Vice President Worldwide Content Protection & Outreach. He proposed coming here to Brooklyn Law School to

exchange ideas about content theft, its challenges and possible ways to address it. We think about these issues on a daily basis. But, as these last few weeks [the SOPA and PROTECT IP debates] made painfully clear, we still have much to learn. We would love to come to campus and do exactly that.

Jason Mazzone, Jonathan Askin, and I are eagerly working to have Perry come to campus, both to present Paramount’s perspective and to discuss it with him. We’ll have input from students, faculty, and staff, and I expect there to be some pointed debate. We’re not naive – the goal here is to try to win support for Paramount’s position on dealing with IP infringement – but I’m impressed that Perry is willing to listen, and to enter the lion’s den (of a sort).

And that’s the key difference: Perry, and Paramount, recognize that Hollywood has lost a generation. For the last decade or so, students have grown up in a world where content is readily available via the Internet, through both licit and illicit means; where the content industries are the people who sue your friends and force you to watch anti-piracy warnings at the start of the movies you paid for; and where one aspires to be Larry Lessig, not Harvey Weinstein. Those of us who teach IP or Internet law have seen it up close. In another ten years, these young lawyers are going to be key Congressional staffers, think tank analysts, entrepreneurs, and law firm partners. And they think Hollywood is the enemy. I don’t share that view – I think the content industries are amoral profit maximizers, just like any other corporation – but I understand it.

And that’s where Sherman is wrong and Perry is right. The old moves no longer work. Buying Congresspeople to pass legislation drafted behind closed doors doesn’t really work (although maybe we’ll find out when we debate the Copyright Term Extension Act of 2018). Calling it “theft” when someone downloads a song they’d never otherwise pay for doesn’t work (even Perry is still on about this one).

One more thing about Sherman: his op-ed reminded me of Detective John Munch in Homicide, who breaks down and shouts at a suspect, “Don’t you ever lie to me like I’m Montel Williams. I am not Montel Williams.” Sherman lies to our faces and expects us not to notice. He writes, “the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents.” Yes, it was carefully devised – by content industries. SOPA was introduced at the end of October, and the single hearing that was held on it was stacked with proponents of the bill. “Carefully devised?” Key proponents didn’t even know how its DNS filtering provisions worked. He argues, “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” Because censorship is when the government blocks you from accessing speech before a trial. “A thorough review of evidence” is a flat lie: SOPA enabled an injunction filtering a site based on an ex parte application by the government, in contravention of a hundred years of First Amendment precedent. And finally, he notes the massive opposition to SOPA and PROTECT IP, but then asks, “many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation?” This is a McCarthyite tactic: associating the remarkable democratic opposition to the bills – in stark contrast to the smoke-filled rooms in which Sherman worked to push this legislation – with Anonymous and other miscreants.

But the risk for Sherman – and Paramount, and Sony, and other content industries – is not that we’ll be angry, or they’ll be opposed. It’s that they’ll be irrelevant. And if Hollywood takes the Sherman approach, rather than the Perry one, deservedly so.

Cross-posted at Info/Law.

  February 14, 2012 at 7:40 pm   Posted in: Architecture, Culture, Cyber Civil Rights, Cyberlaw, DRM, First Amendment, Google & Search Engines, Innovation, Intellectual Property, Media Law, Political Economy, Politics, Technology, Web 2.0   Print This Post   5 Comments

Personhood to artificial agents: Some ramifications

posted by Ramesh Subramanian

Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.

The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand,  the argument for according  “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong  impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and  do not have clearly defined identities), and then argue how they might be overcome legally.

Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent  independent, is not too far into the future. In fact, the aftermath of  Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”

We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project  founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if)  artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?

And  when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?

These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network?  What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent?  What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?

Are these scenarios too far away for us to worry about, or close enough? I wonder…

-Ramesh Subramanian

  February 14, 2012 at 6:00 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Bioethics, Civil Rights, Courts, Sociology of Law, Symposium (Autonomous Artificial Agents), Technology, Uncategorized   Print This Post   No Comments

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

posted by Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

• A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57);
• Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63);
• Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70);
• Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75);
• Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and
• The Right to Be Forgotten by Jeffrey Rosen (64 Stan. L. Rev. Online 88).

The text of Chief Judge Alex Kozinski’s keynote is forthcoming.

  February 13, 2012 at 1:04 pm   Posted in: Law Rev (Stanford), Law Rev Contents, Law School, Law School (Scholarship), Media Law, Military Law, Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security), Social Network Websites, Supreme Court, Technology, Tort Law   Print This Post   No Comments

Tempest in Tempe: First Amendment in the Desert

posted by Derek Bambauer

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

  February 10, 2012 at 5:10 pm   Posted in: Architecture, Civil Rights, Constitutional Law, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Politics, Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

Symposium Next Week on “A Legal Theory for Autonomous Artificial Agents”

posted by Frank Pasquale

On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

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  February 8, 2012 at 10:43 am  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Contract Law & Beyond, Criminal Law, Current Events, Cyberlaw, Social Network Websites, Symposium (Autonomous Artificial Agents), Technology, Tort Law   Print This Post   11 Comments

The Daily You: A Mandatory Read

posted by Danielle Citron

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.

  February 1, 2012 at 5:47 pm   Posted in: Architecture, Articles and Books, Innovation, Political Economy, Privacy, Technology   Print This Post   No Comments

The Hardest Thing to Predict Is the Future

posted by Derek Bambauer

SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.

This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.

Cross-posted at Info/Law.

  January 31, 2012 at 6:58 pm   Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   2 Comments

The Front Page, for Whom?

posted by Danielle Citron

Recently, Arianna Huffington, founder of the Huffington Post, announced the debut of its French version and new editor, Anne Sinclair, a journalist and former television anchor who many know as the wife of Dominique Strauss-Kahn.  In discussing her role at Le HuffPo, she explained that her husband’s legal troubles and political career would not pose a conflict of interest for her work and that “All important news will be treated normally, as it would be treated elsewhere.  Anything that should be on the front page will be on the front page.”   What caught my interest wasn’t her assurance about her professionalism.  Rather, it was her suggestion that a front page exists for online papers, at least one that is static.  In our era of personalization, news sites not only personalize the ads that we see but also news deemed of interest to us — and hence what site visitors see as they open new sites.  Lucky for us, guest blogger Joseph Turow can shed light on the varied implications of such personalization — on our culture, politics, privacy, and more.

  January 30, 2012 at 11:05 am   Posted in: Culture, Current Events, Technology   Print This Post   No Comments

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

Cybersecurity Puzzles

posted by Derek Bambauer

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.

  January 24, 2012 at 4:13 pm   Posted in: Anonymity, Architecture, Articles and Books, Current Events, Cyberlaw, Innovation, Intellectual Property, Law Rev (Minnesota), Military Law, Politics, Privacy (National Security), Technology, Web 2.0   Print This Post   No Comments

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   9 Comments

Goldilocks and Cybersecurity

posted by Derek Bambauer

It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)

The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:

increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.

But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.

(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)

Cross-posted at Info/Law.

  January 21, 2012 at 7:38 pm   Posted in: Architecture, Cyberlaw, Government Secrecy, Innovation, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

“The Workers are Animals. Let’s Replace Them with Robots.”

posted by Frank Pasquale

Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. “Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache,” said the chairman. His company has also begun building “an empire of robots” to replace a whining workforce.

To get a better sense of why the “animals” may be complaining, be sure to listen to Mike Daisey’s extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here’s one excerpt:

N-hexane is an iPhone screen cleaner. It’s great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can’t even pick up a glass.

I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It’s like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.

But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.

When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?
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  January 20, 2012 at 8:58 am   Posted in: Law and Inequality, Science Fiction, Technology   Print This Post   17 Comments

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