From the introduction to Regulating Big Tech: Legal Implications (LSB10309, June 11, 2019):
Amidst growing debate over the legal framework governing social media sites and other technology companies, several Members of Congress have expressed interest in expanding current regulations of the major American technology companies, often referred to as “Big Tech.” This Legal Sidebar provides a high-level overview of the current regulatory framework governing Big Tech, several proposed changes to that framework, and the legal issues those proposals may implicate. The Sidebar also contains a list of additional resources that may be helpful for a more detailed evaluation of any given regulatory proposal.
From the executive summary of Technological Convergence: Regulatory, Digital Privacy, and Data Security Issues (R45746, May 30, 2019):
Technological convergence, in general, refers to the trend or phenomenon where two or more independent technologies integrate and form a new outcome. … Technological convergent devices share three key characteristics. First, converged devices can execute multiple functions to serve blended purpose. Second, converged devices can collect and use data in various formats and employ machine learning techniques to deliver enhanced user experience. Third, converged devices are connected to a network directly and/or are interconnected with other devices to offer ubiquitous access to users.
Technological convergence may present a range of issues where Congress may take legislative and/or oversight actions. Three selected issue areas associated with technological convergence are regulatory jurisdiction, digital privacy, and data security.
From the abstract for James Grimmelmann, All Smart Contracts Are Ambiguous, Penn Journal of Law and Innovation (Forthcoming):
Smart contracts are written in programming languages rather than in natural languages. This might seem to insulate them from ambiguity, because the meaning of a program is determined by technical facts rather than by social ones.
It does not. Smart contracts can be ambiguous, too, because technical facts depend on socially determined ones. To give meaning to a computer program, a community of programmers and users must agree on the semantics of the programming language in which it is written. This is a social process, and a review of some famous controversies involving blockchains and smart contracts shows that it regularly creates serious ambiguities. In the most famous case, The DAO hack, more than $150 million in virtual currency turned on the contested semantics of a blockchain-based smart-contract programming language.
From the abstract for Neil Thompson & Svenja Spanuth, The Decline of Computers As a General Purpose Technology: Why Deep Learning and the End of Moore’s Law are Fragmenting Computing (Dec. 2018):
It is a triumph of technology and of economics that our computer chips are so universal. Countless applications are only possible because of the staggering variety of calculations that modern chips can compute. But, this was not always the case. Computers used to be specialized, doing only narrow sets of calculations. Their rise as a ‘general purpose technology (GPT)’ only happened because of the technical breakthroughs by computer scientists like von Neumann and Turing, and the mutually-reinforcing economic cycle of general purpose technologies, where product improvement and market growth fuel each other.
This paper argues that technological and economic forces are now pushing computing in the opposite direction, making computer processors less general purpose and more specialized. This process has already begun, driven by the slow down in Moore’s Law and the algorithmic success of Deep Learning. This trend towards specialization threatens to fragment computing into ‘fast lane’ applications that get powerful customized chips and ‘slow lane’ applications that get stuck using general purpose chips whose progress fades.
The rise of general purpose computer chips has been remarkable. So, too, could be their fall. This paper outlines the forces already starting to fragment this general purpose technology.
More and more security holes are appearing in cryptocurrency and smart contract platforms, and some are fundamental to the way they were built. This MIT Technology Review provides an overview of this development. “Blockchains are particularly attractive to thieves because fraudulent transactions can’t be reversed as they often can be in the traditional financial system. Besides that, we’ve long known that just as blockchains have unique security features, they have unique vulnerabilities. Marketing slogans and headlines that called the technology “unhackable” were dead wrong.”
Developed by thought leaders from Lex Mundi member firms across the United States, the Lex Mundi Blockchain Whitepaper Series is designed to provide in-house counsel and key stakeholders with a high-level introduction to the practical application of blockchain technology in specific practice areas and industries. The 10 in-depth article series addresses blockchain topics spanning practice areas and industries:
- Accepting Payment in Bitcoin: Considerations for Merchants
- Bitcoin, ICOs and the IRS — U.S. Tax Issues
- Blockchain and Insurance
- Blockchain and Real Property Recording
- Blockchain and Data Privacy
- Estate Planning for Cryptocurrency Doesn’t Need to be Cryptic
- Financial Institutions and the Drive to Leverage Cryptocurrency
- Minimizing Litigation Risk for Crypto and Blockchain Companies
- Unleashing the U.S. Life Sciences Industry with Blockchain Technology
- Supply Chain DLT and Token Legal Considerations
From the abstract for Orly Lobel, The Law of the Platform ___ Minnesota Law Review ___ (2016):
New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. New business models such as Uber, Airbnb, and Aereo have received massive amounts of support from venture capitalists but have also received immense pushback from incumbent stakeholders, regulators, and courts. This article argues that the platform economy is presenting not only a paradigm shift for business but also for legal theory. The platform economy does not only disrupt regulated industries but also demands that we inquire into the logic of their correlated regulations. It requires that we go back to first principles about public intervention and market innovation. The article thus poses a foundational inquiry: Do the regulations we have carry over to the platform economy? By unpacking the economic and social drives for the rise of the platform economy, the article develops a new framework for asking whether digital disruptions comprise loopholes akin to regulatory arbitrage, most prominently studied in the tax field, circumvention akin to controversial copyright protection reforms, or innovation-ripe negative spaces akin to design-around competition in patent law. Bringing together these different bodies of law, the article offers a contemporary account of the relevance of regulation for new business models. The article concludes that, as a default, legal disruption by the platform economy should be viewed as a feature rather than a bug of regulatory limits.
Michael Murphy, Just and Speedy: On Civil Discovery Sanctions for Luddite Lawyers, 25 George Mason Law Review 36 (2017) presents a theoretical model by which a judge could impose civil sanctions on an attorney – relying in part on Rule 1 of the Federal Rules of Civil Procedure – for that attorney’s failure to utilize time- and expense-saving technology. From the abstract:
Rule 1 now charges all participants in the legal system to ensure the “just, speedy and inexpensive” resolution of disputes. In today’s litigation environment, a lawyer managing a case in discovery needs robust technological competence to meet that charge. However, the legal industry is slow to adopt technology, favoring “tried and true” methods over efficiency. This conflict is evident in data showing clients’ and judges’ frustration with the lack of technological competency among the Bar, especially as it pertains to electronic discovery. Such frustration has led judges to publicly scold luddite attorneys, and has led state bar associations to pass anti-luddite ethical rules. Sanctions for “luddite” attorneys are an extreme, but theoretically possible, amplification of that normative movement. Sanctions leveraging Rule 1 require a close reading of the revised rule, and challenge the notion of Rule 1 as a “guide” to the Rules, but a case can be made for such sanctions based on the Rule’s affirmative charge.
The article briefly explores two examples of conduct warranting such sanctions in rare scenarios such as: (1) the failure of an attorney to utilize machine intelligence and concept analytics in the review of information for production and (2) the failure of an attorney to produce documents in accessible electronic format.
The article concludes by suggesting that well-publicized sanctions for “luddite” attorneys may break through the traditional barriers that limit innovation in the legal industry.
The Center for Digital Government announced the results of its 2018 Digital States Survey, a biennial evaluation of the technology practices of all 50 states, last month. The Digital States Survey evaluates states’ use of technology to improve service delivery, increase capacity, streamline operations and reach policy goals and assigns each state a grade based on quantifiable results. Since the last biennial survey in 2016, grades improved in 17 states, declined in 6 and stayed the same in 27. Michigan, Missouri, Ohio and Utah maintained their A grade and Georgia moved up to A designation.
An investigation by The New York Times revealed how Facebook fought back against its critics of the Company’s response to the election crisis with delays, denials and a full-bore campaign in Washington. See also How Facebook Wrestled With Scandal: 6 Key Takeaways From The Times’s Investigation.
Pew Charitable Trusts is entering the A2J field, with a plan to develop two applications: one for online dispute resolution, and the other to provide better access to legal information by way of legal navigator websites, using natural language processing to help people diagnose their legal issues and identify a path forward. See Susan K. Urahn’s (Executive vice president and chief program officer for the Pew Charitable Trusts) comments on Governing, this Bob Ambrogi Above the Law post and this Artificial Lawyer post for more.
A snip from Barriers to Using Government Data: Extended Analysis of the U.S. Commission on Evidence-Based Policymaking’s Survey of Federal Agencies and Offices (2018):
In 2016, Congress and the president established the U.S. Commission on Evidence-Based Policymaking and charged it with developing a strategy for addressing these barriers. During the commission’s fact-finding efforts, it launched a survey of agencies and units across the federal government to better understand existing barriers to data access and use. The data collected in the survey then provided initial evidence that the commission considered in making its recommendations.
- Extended analysis of the commission survey confirms much of what the commission concluded in its final report, validating identified legal and regulatory barriers to using data. The extended analysis also leads to new findings:
- Federal offices perceive that their roles in evidence-building activities are in niches and largely do not perceive their data collection as for a broad range of purposes like evaluation that would require better coordination across an agency.
- Units within federal agencies exhibit wide variation in their capacity for data sharing and linkage.
- Challenges to using data for evidence building are distributed across virtually every policy domain. Respondents identify federal tax information as especially difficult to access and use.
Despite some offices reportedly lacking resources to conduct evidence-building activities, it is still quite common for offices to conduct at least some data sharing and linking. However, agencies still indicate substantial gaps in developing metadata, sharing with third parties, conducting disclosure reviews, and engaging in disclosure avoidance protocols to protect data. Statistical agencies were by far better positioned for this work than other agencies.
H/T to InfoDocket
Compared to other search services, Westlaw and Westlaw Edge always produce more search output with prefiltering searches compared to executing the exact same searches in postfiltering mode. No other tested search services did that. Those services (Bloomberg Law and Lexis) always posted the same number of results regardless of search mode. So why does prefiltering Westlaw-Westlaw Edge searching produce more hits than postfiltering searching?
Kevin Rothenberg tested Westlaw’s search algorithm for answers after confirming this insight from Susan Nevelow Mart’s The Algorithm as a Human Artifact: Implications for Legal [Re]Search. The black box that is Westlaw defeated Rothenberg’s efforts: “clearly, I do not understand some important aspect of West’s search algorithm,” wrote Rothenberg in Prefiltering vs. Postfiltering: Which is the Best Method for Searching? AALL Spectrum Nov.-Dec. 2018 at 36 [recommended but paywalled].
I wonder if the West Search development team would shed some light on this unique phenomenon. Perhaps CRIV can ask. (I doubt Thomson Reuters would provide an illuminating look inside West Search’s black box.)
5G is coming to a compatiable device near you. On October 1, Verizon launched the first 5G network providing 5G home service in Houston, Indianapolis, Los Angeles and Sacramento. AT&T and other carriers will start to launch 5G networks within a year. But what exactly is 5G? For background, see one or more of the below backgrounders.
Here is the abstract for Jack Balkin’s The First Amendment in the Second Gilded Age (Buffalo Law Review, 2019 Forthcoming):
How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.
To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.
Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.
This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.
The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users.
In 2012, the American Bar Association formally approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. Since then 32 states have adopted the duty of technology competence. On LawSites, Bob Ambrogi maintains a list of those states.
21-year-old Joshua Browder, creator of the chatbot DoNotPay, just released a series of free apps designed to help consumers solve common legal problems without the help of a lawyer such as filing small claims lawsuits in any US jurisdication. Plus DoNotPay has acquired Visabot to help individuals obtain visas and green cards. Bob Ambrogi interviewed Browder in his latest LawNext podcast.
From California bill regulates IoT for first time in US, Naked Security (Sept. 13, 2018):
The State legislature approved SB-327 Information privacy: connected devices’ last Thursday and handed it over to the Governor to sign. The legislation introduces security requirements for connected devices sold in the US. It defines them as any device that connects directly or indirectly to the internet and has an IP or Bluetooth address. That covers an awful lot of devices.
The legislation says:
This bill, beginning on January 1, 2020, would require a manufacturer of a connected device, as those terms are defined, to equip the device with a reasonable security feature or features that are appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information contained therein from unauthorized access, destruction, use, modification, or disclosure, as specified.
H/T PinHawk Legal Technology Digest (Sept. 14, 2018). — Joe
From Motherboard: “the federal government says it may not be able to prosecute election hacking under the federal law that currently governs computer intrusions. Per a Justice Department report issued in July from the Attorney General’s Cyber Digital Task Force, electronic voting machines may not qualify as “protected computers” under the Computer Fraud and Abuse Act, the 1986 law that prohibits unauthorized access to protected computers and networks or access that exceeds authorization (such as an insider breach).”
H/T beSpacific. — Joe
Information Warfare: Issues for Congress (R45142, Mar. 5, 2018) “offers Congress a conceptual framework for understanding IW as a strategy, discusses past and present IW-related organizations within the U.S. government, and uses several case studies as examples of IW strategy in practice. Countries discussed include Russia, China, North Korea, and Iran. The Islamic State is also discussed.” — Joe