Download of the Week

The Download of the Week is “Artificial Intelligence and the Rule of Law” by Azziz Z. Huq (University of Chicago School of Law). Here is the abstract:

This book chapter examines an interaction between technological shocks and the “rule of law.” It does so by analyzing the implications of a class of loosely related computational technologies termed “machine learning” (ML) or, rather less precisely “artificial intelligence” (AI). These tools are presently employed in the pre-adjudicative phase of enforcing of the laws, for example facilitating the selection of targets for tax and regulatory investigations.

Two general questions respecting the rule of law arise from these developments. The more immediately apparent one is whether these technologies, when integrated into the legal system, are themselves compatible or in conflict with the rule of law. Depending on which conception of the rule of law is deployed, the substitution of machine decision-making for human judgment can kindle objections based on transparency, predictability, bias, and procedural fairness. A first purpose of this chapter is to examine ways in which this technological shock poses such challenges. The interaction between the normative ambitions of the rule of law and ML technologies, I will suggest, is complex and ambiguous. In many cases, moreover, the more powerful normative objection to technology arises less from the bare fact of its objection, and more from the socio-political context in which that adoption occurred and the dynamic effect of technology on background disparities of power and resources. ML’s adoption likely exacerbates differences of social power and status in ways that place the rule of law under strain.

The second question posed by new AI and ML technologies has also not been extensively discussed. Yet it is perhaps of more profound significance. Rather than focusing on the compliance of new technologies with rule-of-law values, it hinges on the implications of ML and AI technologies for how the rule of law itself is conceived or implemented. Many of the canonical discussions of the rule of law—including Dicey’s and Waldron’s—entangle a conceptual definition and a series of institutional entailments. Many assume that the rule of law requires the specific institutional form of courts. They presumably also posit human judges exercising discretion and making judgments as necessary rather than optional. For these institutional entailments of the rule of law, a substitution of human for ML technologies likely has destabilizing implications. It sharpens the question whether the abstract concept of the rule of law needs to be realized by a particular institutional form. It raises a question whether instead technological change might demand amendments to relationship between the concept(s) and the practice of the rule of law. For pre-existing normative concepts and their practical, institutional correlates may no longer hold under conditions of technological change. At the very least then, specification of institutional forms of the rule of law under such conditions raises challenges not just as a practical matter but also in terms of legal theory.

Wagner & Murillo on Exploring the Accountability Challenges in Environmental and Public Health Regulation

Wendy E. Wagner (University of Texas School of Law) and Martin Murillo (Institute of Electrical and Electronics Engineers) have posted “Is the Administrative State Ready for Big Data?: Exploring the Accountability Challenges in Environmental and Public Health Regulation” (in Data and Democracy (Knight First Amendment Institute, Columbia University (2021)) on SSRN. Here is the abstract:

In this contribution to a symposium on “Data and Democracy” hosted by the Knight First Amendment Institute, we explore the administrative state’s growing use of complex statistical models and the challenges this trend poses for accountable administrative governance. We document how agencies’ use of big data can obscure critical framing decisions underlying policies, hide subjectivity in the design and development of models, and undermine scientific integrity. Legal process requirements should in theory counteract these tendencies to sideline public deliberation and oversight. But in practice, the threat of judicial review, protracted comment processes, and other features of administrative law sometimes tacitly reward agencies for developing and using algorithmic tools that are inaccessible to the public. To address these challenges, we propose standardized, interdisciplinary processes that encourage agency staff to comprehensibly explain—using best practices—the framing, algorithm choices, and procedures used to ensure the integrity of their analyses. We also suggest the use of rewards, such as increased judicial deference for accessible explanations, to promote the development of high quality and transparent models.

Buccafusco & Garcia on Pay-to-Playlist: The Commerce of Music Streaming

Christopher Buccafusco (Yeshiva University – Benjamin N. Cardozo School of Law) and Kristella Garcia (University of Colorado Law School) have posted “Pay-to-Playlist: The Commerce of Music Streaming” on SSRN. Here is the abstract:

Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the 19th century. Most prominently, the term has been used to refer to the practice of record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the 20th century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.

As streaming music platforms continue to siphon off listeners from analog radio, a new form of payola has emerged. In this new streaming payola, record labels, artists, and managers simply shift their payments from radio to streaming music platforms like Spotify, YouTube, TikTok, and Instagram. Instead of going to DJs, payments go to playlisters or to influencers who can help promote a song by directing audiences toward it. Because online platforms do not fall under the FCC’s jurisdiction, streaming pay-for-play is not currently regulated at the federal level, although some of it may be subject to state advertising disclosure laws.

In this Article, we describe the history and regulation of traditional forms of pay-for-play, and explain how streaming practices differ. Our account is based, in substantive part, on a novel series of qualitative interviews with music industry professionals. Our analysis finds the normative case for regulating streaming payola lacking: contrary to conventional wisdom, we show that streaming pay-for-play, whether disclosed or not, likely causes little to no harm to consumers, and it may even help independent artists gain access to a broader audience. Given this state of affairs, regulators should proceed with caution to preserve the potential advantages afforded by streaming payola and to avoid further exacerbating extant inequalities in the music industry.

Haupt on Regulating Speech Online: Free Speech Values in Constitutional Frames 

Claudia E. Haupt (Northeastern University School of Law, Yale Information Society Project) has posted “Regulating Speech Online: Free Speech Values in Constitutional Frames” (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:

Regulating speech online has become a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of merely relitigating old debates over the permissibility and extent of regulating speech. This Essay suggests that the normative balance between speech protection and speech regulation as a constitutional matter has been struck in different ways around the world, and this fundamental balance is unlikely to be upset by new speech mediums. To illustrate, this Essay uses a German statute, NetzDG, and its reception in the United States as a case study.

Contemporary U.S. legal discourse on online speech regulation has developed two crucial blindspots. First, in focusing on the domestic understanding of free speech, it doubles down on an outlier position in comparative speech regulation. Second, within First Amendment scholarship, the domestic literature heavily emphasizes the marketplace of ideas, displacing other theories of free speech protection. This emphasis spills over into analyses of online speech. This Essay specifically addresses these blindspots and argues that the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult. It ends by sketching the contours of a normative approach for evaluating regulatory efforts in light of different constitutional frameworks.

Huq on The Public Trust in Data

Azziz Z. Huq (University of Chicago Law School) has posted “The Public Trust in Data” (Georgetown Law Journal, Vol. 110, 2020) on SSRN. Here is the abstract:

Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.

This Article proposes a novel regulatory intervention to mitigate the harms from transforming personal data into an asset. States and municipalities should create “public trusts” as governance vehicles for their residents’ locational and personal data. An asset in “public trust” is owed and managed by the state. The state can permit its use, and even allow limited alienation, if doing so benefits a broad public rather than a handful of firms. Unique among the legal interventions proposed for new data economies, a public trust for data allows a democratic polity to durably commit to public-regarding management of its informational resources, coupled to judicially enforceable limits on private exploitation and public allocation decisions. The public trust itself is a common-law doctrine of ancient roots revived in the Progressive Era as an instrument to protect public assets against private exploitation. Both federal and state courts, including the U.S. Supreme Court, have since endorsed a variety of doctrinal formulations. The result today is a rich repertoire of rules and remedies for the management of common property. Personal data, usefully, has many similarities to assets long managed by public trust. And familiar justifications for creation of a public trust logically extend to personal data. Indeed, municipalities in the United States, Europe, and Canada have started to experiment with limited forms of a public trust in data. Generalizing from those experiences, this Article offers a more general ‘proof of concept’ for how personal data economies can be leashed through the public trust.