Alan Z. Rozenshtein (University of Minnesota Law School) has posted “Cost-Benefit Analysis and the Digital Fourth Amendment” (40 Criminal Justice Ethics (2021 Forthcoming)) (reviewing Review of Ric Simmons, Smart Surveillance: How to Interpret the Fourth Amendment in the Twenty-First Century (2019)) on SSRN. Here is the abstract:

In “Smart Surveillance,” Ric Simmons argues for the application of cost-benefit analysis (CBA) to digital surveillance. This review argues that, although Simmons is right to look to CBA as a tool for applying the Fourth Amendment to new technology, his faith in the courts as the main practitioners of surveillance CBA is misguided. Across a variety of dimensions of institutional competence, the political branches, not the courts, are best placed to make surveillance policy under conditions of technological change.

Any Cyphert (WVU College of Law) has posted “Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk” (Seton Hall Law Review, Vol. 51, 2020) on SSRN. Here is the abstract:

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018. The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism. The resulting tool—PATTERN—was released in the summer of 2019 and quickly updated in January of 2020. It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic. It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors. But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government’s decision to dismiss repeated calls to release more information about it. Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions. This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.

The Download of the Week is “Internet Federalism” by Tejas N. Narechania (University of California, Berkeley – School of Law) and Erik Stallman (University of California, Berkeley – School of Law). Here is the abstract:

The internet is not a cloud. Rather, it is a series of real cables, wires, radio links, and switches connecting places that employ real people and house real computers. Each of these components of the internet’s infrastructure operates in a distinct locale and is subject to distinct market constraints.

This basic yet significant descriptive insight has important implications for regulatory cooperation and competition between state and federal authorities regarding broadband internet access. In the latest battles over network neutrality regulation, for example, state and federal regulators have found themselves at odds over the scopes of their respective authority. The Federal Communications Commission has suggested that the internet’s “inherently interstate” nature, together with its own disavowal of regulatory power over broadband carriage, preempts state regulatory power. But some states insist that they retain the authority to regulate various aspects of these services, local and beyond.

So where on the internet does state power end and federal power begin? The long history of competition and cooperation between state and federal communications regulators suggests a tradition—incomplete and imperfect in places—of subsidiarity, locating decisional power at the most immediately salient local jurisdiction. Such an approach can—and should—inform the allocation of shared regulatory authority over the internet’s infrastructure and services, too. The internet is not one grand, monolithic, interstate thing, immune from state and local regulation under the dormant commerce clause, doctrines of federal preemption, or related limits on state power. Rather, whether states may (and should) regulate depends on technical specifics and regulatory effects. Hence, where local concerns predominate, local authorities may be our most competent regulators; and where federal concerns predominate, federal authorities should take the regulatory reins. Such a pragmatic approach yields important lessons for regulatory power online. Some aspects of internet service require a local touch. Others do not. But identifying an appropriate site for resolving such policy matters demands a close understanding of the technical, market, and regulatory structure of the communications networks that form the modern internet.

Tejas N. Narechania (University of California, Berkeley – School of Law) and Erik Stallman (University of California, Berkeley – School of Law) have posted “Internet Federalism” (Harvard Journal of Law & Technology, Forthcoming) on SSRN. Here is the abstract:

The internet is not a cloud. Rather, it is a series of real cables, wires, radio links, and switches connecting places that employ real people and house real computers. Each of these components of the internet’s infrastructure operates in a distinct locale and is subject to distinct market constraints.

This basic yet significant descriptive insight has important implications for regulatory cooperation and competition between state and federal authorities regarding broadband internet access. In the latest battles over network neutrality regulation, for example, state and federal regulators have found themselves at odds over the scopes of their respective authority. The Federal Communications Commission has suggested that the internet’s “inherently interstate” nature, together with its own disavowal of regulatory power over broadband carriage, preempts state regulatory power. But some states insist that they retain the authority to regulate various aspects of these services, local and beyond.

So where on the internet does state power end and federal power begin? The long history of competition and cooperation between state and federal communications regulators suggests a tradition—incomplete and imperfect in places—of subsidiarity, locating decisional power at the most immediately salient local jurisdiction. Such an approach can—and should—inform the allocation of shared regulatory authority over the internet’s infrastructure and services, too. The internet is not one grand, monolithic, interstate thing, immune from state and local regulation under the dormant commerce clause, doctrines of federal preemption, or related limits on state power. Rather, whether states may (and should) regulate depends on technical specifics and regulatory effects. Hence, where local concerns predominate, local authorities may be our most competent regulators; and where federal concerns predominate, federal authorities should take the regulatory reins. Such a pragmatic approach yields important lessons for regulatory power online. Some aspects of internet service require a local touch. Others do not. But identifying an appropriate site for resolving such policy matters demands a close understanding of the technical, market, and regulatory structure of the communications networks that form the modern internet.

Recommended.