Category Archives: Law

Yes, We Have Reached a New Low

…and I suspect we’ll go lower.

A lawyer from the US Department of Justice argued (with by all accounts a straight face and no embarrassment) to a federal court of appeals that the US has no obligation to give soap or toothbrushes to children being detained — in cages — in a federal facility while their asylum claims are pending.

Meanwhile the online crowds are debating what to call these places where kids sleep on concrete floors under foil blankets, and will no longer get English lessons or even playground access.

Is it wrong to call them “concentration camps”? That’s what the British authorities called the camps in which they imprisoned Afrikaners; the US called the WWII-era camps in which they put US citizens of Japanese origin “internment camps” but I’ve head people call them concentration camps. The terminology gets muddied when one brings in the Nazis. Historians distinguish between the Nazis’ “concentration camps” and the Nazis’ “death camps”, but I suspect a large part of the non-Jewish public today mostly doesn’t.

Personally, although I have no problem with the term “concentration camp” since it’s historically accurate, I think the best word is “atrocity”.

PS. Just to head off one common and inaccurate rejoinder, a recent study shows that “When families and unaccompanied children have access to legal representation, the rate ofcompliance with immigration court obligations is nearly 98 percent.”

And to anticipate a second rejoinder, Godwin’s Law does not apply here.

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New Paper–“Big Data: Destroyer of Informed Consent”

Just posted: A near-final draft of my latest paper, Big Data: Destroyer of Informed Consent. It will appear later this year in a special joint issue of the Yale Journal of Health Policy, Law, and Ethics and the Yale Journal of Law and Technology.

Here’s the tentative abstract (I hate writing abstracts):

The ‘Revised Common Rule’ took effect on January 21, 2019, marking the first change since 2005 to the federal regulation that governs human subjects research conducted with federal support or in federally supported institutions. The Common Rule had required informed consent before researchers could collect and use identifiable personal health information. While informed consent is far from perfect, it is and was the gold standard for data collection and use policies; the standard in the old Common Rule served an important function as the exemplar for data collection in other contexts.

Unfortunately, true informed consent seems incompatible with modern analytics and ‘Big Data’. Modern analytics hold out the promise of finding unexpected correlations in data; it follows that neither the researcher nor the subject may know what the data collected will be used to discover. In such cases, traditional informed consent in which the researcher fully and carefully explains study goals to subjects is inherently impossible. In response, the Revised Common Rule introduces a new, and less onerous, form of “broad consent” in which human subjects agree to as varied forms of data use and re-use as researchers’ lawyers can squeeze into a consent form. Broad consent paves the way for using identifiable personal health information in modern analytics. But these gains for users of modern analytics come with side-effects, not least a substantial lowering of the aspirational ceiling for other types of information collection, such as in commercial genomic testing.

Continuing improvements in data science also cause a related problem, in that data thought by experimenters to have been de-identified (and thus subject to more relaxed rules about use and re-use) sometimes proves to be re-identifiable after all. The Revised Common Rule fails to take due account of real re-identification risks, especially when DNA is collected. In particular, the Revised Common Rule contemplates storage and re-use of so-called de-identified biospecimins even though these contain DNA that might be re-identifiable with current or foreseeable technology.

Defenders of these aspects of the Revised Common Rule argue that ‘data saves lives’. But even if that claim is as applicable as its proponents assert, the effects of the Revised Common Rule will not be limited to publicly funded health sciences, and its effects will be harmful elsewhere.

This is my second foray into the deep waters where AI meets Health Law. Plus it’s well under 50 pages! (First foray here; somewhat longer.)

Posted in AI, Law: Privacy, Writings | Leave a comment

Florida Legalizes Fully Autonomous Vehicle Testing

Waymo Self-driving car
Source: Grendelkhan

Florida law now allows the testing of fully autonomous vehicles without a backup driver.

Since autonomous car tend to have trouble with bad weather–snow and sometimes rain–flat, sunny Florida would seem to be a natural testing grounds. Indeed, Ford is supposedly running or planning to run a test in Miami, although I haven’t heard of actual sightings yet. Then again, we have some of the craziest drivers in the US, which could be seen as a positive or negative, depending on what sort of torture test you want to give the AIs.

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Machine M.D. in Ottawa

I’m in Ottawa today for the Machine M.D. conference.  My panel, on “Regulating Health and Safety” started at 8:30am, so now that it’s over I get to enjoy the rest of the very packed schedule.

(I’m missing the also wonderful annual Privacy Law Scholars conference to be here, an example of the difficulties in trying to write in, and keep up in, multiple areas even within technology law.)

My argument in my talk was that, contrary to a number of articles by others that are now in press, we don’t want a super-AI regulator, but rather need to find a way to strengthen the AI capacity of existing sectoral regulators like the FDA, NHTSA and many others.  The exception(s) to this general rule arise(s) only if the AI aspect of a regulatory question predominates over the sectoral — something I argue is rare, and probably limited to issues regarding access to data, to data quality, to job losses due to AI, and possibly to the regulation (or at least liability for) AI emergent behavior.

Unsurprisingly, some members of the audience, many of whom are health professionals, pushed back against the idea that when it comes to AI health really isn’t all that different from transport, finance, sentencing, or other predictive profiling applications. A polite discussion — we are after all in Canada — ensued.

Posted in AI, Talks & Conferences | Leave a comment

I’ve Joined the Editorial Board of the Technology & Regulation Journal

I’m proud to be part of the editorial board committee of the brand new Journal of Technology and Regulation (TechReg), housed at the Tilburg Institute for Law, Technology, and Society (TILT) at Tilburg University in the Netherlands.

Technology and Regulation (TechReg) is an international journal of law, technology and society, with an interdisciplinary identity. TechReg provides an online platform for disseminating original research on the legal and regulatory challenges posed by existing and emerging technologies (and their applications) including, but by no means limited to, the Internet and digital technology, artificial intelligence and machine learning, robotics, neurotechnology, nanotechnology, biotechnology, energy and climate change technology, and health and food technology. We conceive of regulation broadly to encompass ways of dealing with, ordering and understanding technologies and their consequences, such as through legal regulation, competition, social norms and standards, and technology design (or in Lessig’s terms: law, market, norms and architecture).

We aim to address critical and sometimes controversial questions such as:

  • How do new technologies shape society both positively and negatively?
  • Should technology development be steered towards societal goals, and if so, which goals and how?
  • What are the benefits and dangers of regulating human behavior through technology?
  • What is the most appropriate response to technological innovation, in general or in particular cases?

It is in this sense that TechReg is intrinsically interdisciplinary: we believe that legal and regulatory debates on technology are inextricable from societal, political and economic concerns, and that therefore technology regulation requires a multidisciplinary, integrated approach. Through a combination of monodisciplinary, multidisciplinary and interdisciplinary articles, the journal aims to contribute to an integrated vision of law, technology and society.

We invite original, well-researched and methodologically rigorous submissions from academics and practitioners, including policy makers, on a wide range of research areas such as privacy and data protection, security, surveillance, cybercrime, intellectual property, innovation, competition, governance, risk, ethics, media and data studies, and others.

TechReg is double-blind peer-reviewed and completely open access for both authors and readers. TechReg does not charge article processing fees.

Posted in AI, Personal, Readings | Leave a comment

ICE Routinely Seeks to Detain US Citizens in Miami-Dade County

When I can summon the energy to do so, I worry that the current unpleasantness threatens to exhaust my capacity for outrage.

However, I am now able to report that some news still shocks and surprises, such as this report from the ACLU, Citizens on Hold: A Look at ICE’s Flawed Detainer System in Miami-Dade County. It is not pretty reading.

Miami-Dade County’s records show that between February 2017 and February 2019, ICE sent the jail 420 detainer requests for people listed as U.S. citizens, only to later cancel 83 of those requests—evidently because the agency determined, after the fact, that its targets were in fact U.S. citizens. The remaining individuals’ detainers were not canceled, and so they continued to be held for ICE to deport them.

The ACLU reports that false detainer requests are fairly common across the country, but that we here in Miami are the epicenter.

Immigrant-rights groups say ICE’s databases are filled with outdated information. (And the ACLU says ICE’s data bases often fails to reflect that people become naturalized citizens.) And, ACLU notes a CNN investigation that showed ICE agents routinely forging their bosses’ signatures on critical detention warrants to skip mandatory document reviews.

Meanwhile, the State Legislature is considering a bill that would require local cops to honor ICE requests.

(Spotted via New Times, ICE Issued False Deportation Requests for 420 U.S. Citizens in Miami-Dade, ACLU Reports.)

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