Selbst & Barocas on Unfair Artificial Intelligence: How FTC Intervention Can Overcome the Limitations of Discrimination Law

Andrew D. Selbst (UCLA School of Law) and Solon Barocas (Microsoft Research; Cornell University) have posted “Unfair Artificial Intelligence: How FTC Intervention Can Overcome the Limitations of Discrimination Law” (171 University of Pennsylvania Law Review, forthcoming). Here is the abstract:

The Federal Trade Commission has indicated that it intends to regulate discriminatory AI products and services. This is a welcome development, but its true significance has not been appreciated to date. This Article argues that the FTC’s flexible authority to regulate ‘unfair and deceptive acts and practices’ offers several distinct advantages over traditional discrimination law when applied to AI. The Commission can reach a wider range of commercial domains, a larger set of possible actors, a more diverse set of harms, and a broader set of business practices than are currently covered or recognized by discrimination law. For example, while most discrimination laws can address neither vendors that sell discriminatory software to decision-makers nor consumer products that work less well for certain demographic groups than others, the Commission could address both. The Commission’s investigative and enforcement powers can also overcome many of the practical and legal challenges that have limited plaintiffs’ ability to successfully seek remedies under discrimination law. The Article demonstrates that the FTC has the existing authority to address the harms of discriminatory AI and offers a method for the Commission to tackle the problem, based on its existing approach to data security.

Gursoy, Kennedy & Kakadiaris on A Critical Assessment of the Algorithmic Accountability Act of 2022

Furkan Gursoy (University of Houston), Ryan Kennedy (same), and Ioannis Kakadiaris (same) have posted “A Critical Assessment of the Algorithmic Accountability Act of 2022” on SSRN. Here is the abstract:

On April 3rd, 2022, a group of US lawmakers introduced the Algorithmic Accountability Act of 2022. The legislation proposed by Democrats requires sizable entities to conduct impact assessments for automated decision systems deployed for a set of critical decisions. The bill comes at an opportune moment because algorithms have an increasingly substantial influence on human lives, and topics such as transparency, explainability, fairness, privacy, and security are receiving growing attention from researchers and practitioners. This article examines the bill by (i) developing a critical summary and (ii) identifying and presenting ten ambiguities and potential shortcomings for debate. This study paves the way for further discussions to shape algorithmic accountability regulations.

Abraha on The Role of Article 88 GDPR in Upholding Privacy in the Workplace

Halefom H. Abraha (University of Oxford) has posted “A pragmatic compromise? The role of Article 88 GDPR in upholding privacy in the workplace” on SSRN. Here is the abstract:

The distinct challenges of data processing at work have led to long-standing calls for sector-specific regulation. This leaves the European legislature with a dilemma. While the distinct features of employee data processing give rise to novel issues that cannot adequately be addressed by an omnibus data protection regime, a combination of legal, political, and constitutional factors have hindered efforts towards adopting harmonised employment-specific legislation at the EU level. The ‘opening clause’ in Art. 88 GDPR aims to square this circle. It aims to ensure adequate and consistent protection of employees while also promoting regulatory diversity, respecting national peculiarities, and protecting Member State autonomy. This paper examines whether the opening clause has delivered on its promises. It argues that while the compromise has delivered on some of its promises in promoting diverse and innovative regulatory approaches, it also runs counter to the fundamental objectives of the GDPR itself by creating further fragmentation, legal uncertainty, and inconsistent implementation, interpretation, and enforcement of data protection rules.

Goforth on Critiquing the SEC’s On-Going Efforts to Regulate Crypto ExchangesGoforth on

Carol R. Goforth (U Arkansas Law) has posted “Critiquing the SEC’s On-Going Efforts to Regulate Crypto Exchanges” (14 William & Mary Business Law Review (Forthcoming 2022)) on SSRN. Here is the abstract:

Despite the so-called “Crypto Winter” in the spring of 2022, which saw a deep plunge in global crypto markets, interest in the appropriate way to develop, use, and regulate cryptoassets and crypto-based businesses continues to be high. In the U.S., a Presidential Executive Order and multiple bills that seek to tackle various issues of crypto regulation are regularly highlighted in the news, suggesting the appropriate treatment of crypto is a growing national priority. Despite these discussions, which tend to focus on finding a balanced way to regulate those within the industry without stifling the technology, the Securities and Exchange Commission (SEC) continues to seek to asset its jurisdiction unilaterally. A pending proposal from the SEC, misleadingly characterized as an attempt to regulate trading in government securities, would broaden the definition of “exchange” with potentially destructive consequences. This Article carefully considers the existing definition of “exchange” under the Securities Exchange Act of 1934 (the ’34 Act), and then examines a proposal from the Commission that would substantially broaden the current interpretation to reach a much larger group of persons involved in trading cryptoassets without adding clarity or a path to compliant operation for such persons. It then evaluates why the proposal creates problems, identifying a number of such issues, before concluding that a better approach would be to allow the legislative process to play out.

Hollis & Raustilia on The Global Governance of the Internet

Duncan B. Hollis (Temple University Law) and Kal Raustiala (UCLA Law) have posted “The Global Governance of the Internet” (in Duncan Snidal & Michael N. Barnnett (eds.), The Oxford Handbook of International Institutions (2023)) on SSRN. Here is the abstract:

This essay surveys Internet governance as an international institution. We focus on three key aspects of information and communication technologies. First, we highlight how, unlike natural commons such as sea or space, digital governance involves a socio-technical system with a man-made architecture reflecting particular and contingent technological choices. Second, we explore how private actors historically played a significant role in making such choices, leading to the rise of existing “multistakeholder” governance frameworks. Third, we examine how these multistakeholder structures favored by the U.S. and its technology companies have come under increasing pressure from multilateral competitors, particularly those championed by China under the banner of “internet sovereignty,” as well as more modest efforts by the European Union to employ an approach akin to “embedded liberalism” for digital governance. The future of the Internet turns on how what we term these Californian, Chinese, and Carolingian visions of Internet governance compete, evolve, and interact. Thus, this essay characterizes Internet governance as a heterogenous, dynamic, multi-layered set of principles, regimes and institutions—a regime complex—that not only governs cyberspace today, but has adapted and transformed along pathways that may serve as signposts for international institutions that regulate other global governance challenges.