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.
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
From John Flood & Lachlan Robb, Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation (Aug. 21, 2018):
Machine learning has entered the world of the professions with differential impacts. Engineering, architecture, and medicine are early and enthusiastic adopters. Other professions, especially law, are late and in some cases reluctant adopters. And in the wider society automation will have huge impacts on the nature of work and society. This paper examines the effects of artificial intelligence and blockchain on professions and their knowledge bases. We start by examining the nature of expertise in general and then how it functions in law. Using examples from law, such as Gulati and Scott’s analysis of how lawyers create (or don’t create) legal agreements, we show that even non-routine and complex legal work is potentially amenable to automation. However, professions are different because they include both indeterminate and technical elements that make pure automation difficult to achieve. We go on to consider the future prospects of AI and blockchain on professions and hypothesise that as the technologies mature they will incorporate more human work through neural networks and blockchain applications such as the DAO. For law, and the legal profession, the role of lawyer as trusted advisor will again emerge as the central point of value.
From the blurb for Blockchain: A Practical Guide to Developing Business, Law, and Technology Solutions (McGraw-Hill Education, Feb. 16, 2018), by Joseph J. Bambara et al.:
Get the most out of cutting-edge blockchain technology using the hands-on information contained in this comprehensive resource. Written by a team of technology and legal experts, Blockchain: A Practical Guide to Developing Business, Law, and Technology Solutions demonstrates each topic through a start-to-finish, illustrated case study. The book includes financial, technology, governance, and legal use cases along with advantages and challenges. Validation, implementation, troubleshooting, and best practices are fully covered. You will learn, step-by-step, how to build and maintain effective, reliable, and transparent blockchain solutions.
•Understand the fundamentals of decentralized computing and blockchain
•Explore business, technology, governance, and legal use cases
•Review the evolving practice of law and technology as it concerns legal and governance issues arising from blockchain implementation
•Write and administer performant blockchain-enabled applications
•Handle cryptographic validation in private, public, and consortium blockchains
•Employ blockchain in cloud deployments and Internet of Things (IoT) devices
•Incorporate Web 3.0 features with Swarm, IPFS, Storj, Golem, and WHISPER
•Use Solidity to build and validate fully functional distributed applications and smart contracts using Ethereum
•See how blockchain is used in crypto-currency, including Bitcoin and Ethereum
•Overcome technical hurdles and secure your decentralized IT platform
On In Custodia Legis, Leah K. Ibraheem, the web metrics analyst in the Office of the Chief Information Officer of the Library of Congress, answers the title’s question in the affirmative. She writes “As traffic to has grown over the past four years, the percentage of mobile traffic has also grown. In 2014, 21% of traffic was mobile. In the first 5 months of 2018, 44% of visits were from users on mobile devices. It’s also notable that in the first 5 months of 2018, there were more mobile visits than for all of 2014, 2015, and 2016. … What’s behind this trend? A societal pivot from desktop/laptop devices to mobile/tablet devices.” — Joe
Sagewise has published a survey of smart contract and blockchain legislation by state. The survey identifies proposed, pending, and passed blockchain and smart contract legislation in each of the 50 U.S. states. — Joe
Yesterday, the GPO announced that it was “collaborating with the Office of the Clerk of the House of Representatives, the Office of the Secretary of the Senate, and the Office of the Federal Register on parallel projects to convert a subset of enrolled bills, public laws, the Statutes at Large, the Federal Register, and the Code of Federal Regulations into United States Legislative Markup (USLM) XML. A draft of the United States Legislative USLM 2.0.0 schema, a schema review guide, and sample USLM XML files are now available for comment on GPO’s GitHub repository.” — Joe
Here’s the abstract for Michal Gal’s Algorithms as Illegal Agreements, Berkeley Technology Law Journal, Forthcoming:
Despite the increased transparency, connectivity, and search abilities that characterize the digital marketplace, the digital revolution has not always yielded the bargain prices that many consumers expected. What is going on? Some researchers suggest that one factor may be coordination between the algorithms used by suppliers to determine trade terms. Simple coordination-facilitating algorithms are already available off the shelf, and such coordination is only likely to become more commonplace in the near future. This is not surprising. If algorithms offer a legal way to overcome obstacles to profit-boosting coordination, and create a jointly profitable status quo in the market, why should suppliers not use them? In light of these developments, seeking solutions – both regulatory and market-driven – is timely and essential. While current research has largely focused on the concerns raised by algorithmic-facilitated coordination, this article takes the next step, asking to what extent current laws can be fitted to effectively deal with this phenomenon.
To meet this challenge, this article advances in three stages. The first part analyzes the effects of algorithms on the ability of competitors to coordinate their conduct. While this issue has been addressed by other researchers, this article seeks to contribute to the analysis by systematically charting the technological abilities of algorithms that may affect coordination in the digital ecosystem in which they operate. Special emphasis is placed on the fact that the algorithms is a “recipe for action”, which can be directly or indirectly observed by competitors. The second part explores the promises as well as the limits of market solutions. In particular, it considers the use of algorithms by consumers and off-the-grid transactions to counteract some of the effects of algorithmic-facilitated coordination by suppliers. The shortcomings of such market solutions lead to the third part, which focuses on the ability of existing legal tools to deal effectively with algorithmic-facilitated coordination, while not harming the efficiencies they bring about. The analysis explores three interconnected questions that stand at the basis of designing a welfare-enhancing policy: What exactly do we wish to prohibit, and can we spell this out clearly for market participants? What types of conduct are captured under the existing antitrust laws? And is there justification for widening the regulatory net beyond its current prohibitions in light of the changing nature of the marketplace? In particular, the article explores the application of the concepts of plus factors and facilitating practices to algorithms. The analysis refutes the Federal Trade Commission’s acting Chairwoman’s claim that current laws are sufficient to deal with algorithmic-facilitated coordination.
Omri Ben-Shahar (University of Chicago Law School) has posted Data Pollution on SSRN. Here is the abstract:
Digital information is the fuel of the new economy. But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework- data pollution-to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view-that the harm from digital data enterprise is to the privacy of the people whose information is used. It claims that a central problem has been largely ignored: how the information individuals give affects others, and how it undermines and degrade public goods and interests. The data pollution metaphor offers a novel perspective why existing regulatory tools-torts, contracts, and disclosure law-are ineffective, mirroring their historical futility in curbing the external social harms from environmental pollution. The data pollution framework also opens up a rich roadmap for new regulatory devices-an environmental law for data protection-that focus on controlling these external effects. The article examines whether the general tools society has long used to control industrial pollution-production restrictions, carbon tax, and emissions liability-could be adapted to govern data pollution.
H/T Legal Theory Blog. — Joe
The Law School Innovation Index was launch in November 2017 as a prototype that highlights 38 law school legal-service delivery innovation and technology programs of which the creators were aware as of October 31, 2017. In this prototype, the creators endeavored to build a framework for the index so that they can receive feedback before undertaking adding each of the 200+ U.S. law schools.
The objective of this study are:
- Create a measure of the extent to which each of the 200+ U.S. law schools prepare students to deliver legal services in the 21st century.
- Create a taxonomy of law school legal-service delivery innovation and technology programs.
- Differentiate between programs and courses focused on “legal-service delivery innovation and technology” and those focused on the intersection of law and technology (e.g., “law and [technology] courses”).
- Raise public awareness of law schools that are educating students about legal-service delivery innovation and technology, including awareness among employers, prospective and current law students, and alumni.
- Raise prospective and current law students’ awareness of the disciplines and skills needed to be successful in the 21st century.
To have made this prototype list, a law school must offer a course with instruction in at least one of these legal-service delivery disciplines:
- Business of law.
- Process improvement.
- Leadership for lawyers.
- Project management.
- Innovative/entrepreneurial lawyering.
- Computational law.
- Empirical methods.
- Data analytics.
- Technology basics.
- Applied technology.
Only two law schools teach all 10 disciplines: MSU Law, which is home to LegalRndD, and Chicago-Kent College of Law, home to The Law Lab and the Center for Access to Justice and Technology. Northwestern University Pritzker School of Law, Stanford Law School, Suffolk University Law School, and the University of Miami School of Law topped the index as well.
What do you think? — Joe
From the conclusion from Law Technology Today’s Legal Analytics vs. Legal Research: What’s the Difference?:
Technology is transforming the legal services industry. Some attorneys may resist this transformation out of fear that new technologies might change how they practice law or even make their jobs obsolete. Similar concerns were voiced when legal research moved from books to computers. But that transition did not reduce the need for attorneys skilled in legal research. Instead, it made attorneys better and more effective at their jobs.
Similarly, legal analytics will not make the judgment and expertise of seasoned lawyers obsolete. It will, however, enable those who employ it to provide better and more cost-effective representation for their clients and better compete with their opponents.