Frank Pasquale (Cornell Law) has posted “Review of High Wire: How China Regulates Big Tech and Governs its Economy” (Regulation and Governance, Volume 18 (forthcoming, 2024)) on SSRN. Here is the abstract:

High Wire should prove a vital starting point for both experts and non-experts seeking to understand the nature of Chinese technology regulation. Building from a focus on technology platforms, Zhang has also developed a more general theory of economic regulation. I expect to see future studies of Chinese economic governance apply and build upon her framework.

Akash Wasil (Georgetown U) et al. have posted “Verification Methods for International AI Agreements” on SSRN. Here is the abstract:

What techniques can be used to verify compliance with international agreements about advanced AI development? In this paper, we examine 10 verification methods that could detect two types of potential violations: unauthorized AI training (e.g., training runs above a certain FLOP threshold) and unauthorized data centers. We divide the verification methods into three categories: (a) national technical means (methods requiring minimal or no access from suspected non-compliant nations), (b) access-dependent methods (methods that require approval from the nation suspected of unauthorized activities), and (c) hardware-dependent methods (methods that require rules around advanced hardware). For each verification method, we provide a description, historical precedents, and possible evasion techniques. We conclude by offering recommendations for future work related to the verification and enforcement of international AI governance agreements.

Diana M. Popa (Delft U Technology) has posted “An EU Approach to Regulating Technologies in the Race for Strategic Technological Autonomy” on SSRN. Here is the abstract:

In the current shifting geopolitical context, characterized by competition for strategic materials and technologies, the EU adopts a unique strategy of focusing its regulatory frameworks for key enabling technologies on a value centred approach and by building the narrative for trustworthy focused technology regulations, thus adopting a soft diplomacy approach in its ambitions to reach Open Strategic Autonomy. While previous research and policy papers have analysed in detail the importance of trustworthiness and put forward evaluation frameworks in relation to the regulation of key enabling technologies such as is the case of AI, the present paper takes a novel approach and demonstrate how focusing on trustworthiness represents a narrative construction used in a diplomatic manner to reach broader geopolitical objectives in the global race for technological supremacy and strategic autonomy. The paper goes to show that EU’s approach to regulating technologies is unique, as it constructs a narrative of technology centred around values that in fact serves the purpose of reaching strategic autonomy. By doing so, it focuses its discourse on promotion rather than protection measures, in a soft-power approach to de-risking. The article makes this case by analysing a key piece of legislation on regulating novel technology-namely the EU Artificial Intelligence Act.

Doni Bloomfield (Fordham U Law; Johns Hopkins) has posted “U.S. Export Controls of AI Models” on SSRN. Here is the abstract:

Artificial intelligence models may pose serious risks in the coming years. In this paper, taking biosecurity risks as a case study, I provide an overview of what U.S. export control laws are, how they currently address AI biosecurity risks, and how they might be used to reduce such risks in the future. I make two main arguments. First, model developers and deployers may face substantial liability under current export control rules if their AI models materially assist anyone in the development or deployment of biological weapons. Second, the export control agencies likely have the statutory and regulatory authority to restrict model developers from (1) making the model weights of frontier models freely available for download, and (2) allowing their models to convey certain forms of dangerous expertise. Although both rules could face substantial First Amendment challenges, courts are likely to uphold narrowly targeted regulations that are well justified on national security grounds. In addition, courts are more likely to uphold controls on generative models that perform technical biological work—known as biological design tools (BDTs)—than controls on models, such as large language models (LLMs), with more traditionally expressive output If and when it is advisable to regulate AI models, U.S. export controls represent one ready, if imperfect tool to mitigate biosecurity risks. Export control rules govern the movement of U.S.-made products around the world, certain actions of U.S. citizens and permanent residents, and the transfer of U.S. technical information to foreign persons. These laws are flexible, backed by substantial criminal sanction, and generally exempt from stringent judicial review under the Administrative Procedure Act. The Commerce and State Departments have extensive leeway to use these laws as they see fit. Export controls have also been used for many decades to reduce biosecurity risks, largely in coordination with U.S. allies through the Australia Group. And export controls have been used historically to control the spread of technical information, software, and computer files, albeit with mixed success.

Luciano Floridi (Oxford Internet Institute; Bologna Law) has posted “The Fight for Digital Sovereignty: What It Is, and Why It Matters, Especially for the EU” on SSRN. Here is the abstract:

Digital sovereignty, and the question of who ultimately controls AI seems, at first glance, to be an issue that concerns only specialists, politicians and corporate entities. And yet the fight for who will win digital sovereignty has far-reaching societal implications. Drawing on five case studies, the paper argues that digital sovereignty affects everyone, whether digital users or not, and makes the case for a hybrid system of control which has the potential to offer full democratic legitimacy as well as innovative flexibility.

Anupam Chander (Georgetown University Law Center) has posted “Artificial Intelligence and Trade”
(in Big Data and Global Trade Law 115-127 (Mira Burri ed., Cambridge: Cambridge University Press 2021)) on SSRN. Here is the abstract:

Artificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals how the WTO agreements leave room for governments to insist on locally responsible AI, while at the same time promoting international trade powered by AI.

Anupam Chander (Georgetown University Law Center) & Haochen Sun (The University of Hong Kong – Faculty of Law) have posted “Sovereignty 2.0” on SSRN. Here is the abstract:

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, are often double-edged—useful both to protect citizens and to control them. Digital sovereignty can magnify the government’s powers by making legible behaviors that were previously invisible to the state. Thus, the same rule can be used to safeguard or repress–a feature that legislators across the Global North and South should anticipate by careful checks and balances.

Ganesh Sitaraman (Vanderbilt Law School) has posted “The Regulation of Foreign Platforms” (Stanford Law Review, Vol. 74, 2022) on SSRN. Here is the abstract:

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken against Chinese tech platforms, but more than any others, the ban on TikTok sparked immediate outrage, confusion, and criticism. This Article offers a framework for thinking about national security restrictions on foreign tech platforms. A growing body of important scholarship connects tech platforms to “regulated industries,” “infrastructure industries,” and “public utilities” and draws on principles from them to show how the regulation of tech platforms is not only viable but also has significant precedents and pedigree. Firms in these sectors — banking, communications, transportation, and energy — have long been subject to distinct and comprehensive regulatory regimes because they raise political economy concerns that are unlike those of ordinary tradable goods and services.

In many of these sectors, there has also been a long and continuing history of legal restrictions on the foreign ownership, control, and influence of platforms — something that may be surprising, given the contours of the contemporary debate on tech platforms. “Tech neoliberals” object to placing any restrictions on foreign tech platforms because regulations would threaten the open internet. “National security technocrats” advocate for a case-by-case assessment of dangers, narrowly tailored mitigation measures, and audits to ensure compliance. Both of these dominant paradigms suffer from a variety of conceptual and practical problems, and neither take foreign tech platforms seriously as platforms, akin to platforms in other sectors.

This Article tells the history of restrictions on foreign platforms in traditional regulated industries, critiques the dominant paradigms in the debate over foreign tech platforms, and offers an alternative — platform democracy. The platform democracy approach recognizes that democratic control of platforms is important and legitimate, given their distinctive political economy. Taking lessons and strategies from the history of platform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulae for preventing national security harms. The platform democracy approach would also require efforts at international interconnection and domestic public investments.

Michael N. Schmitt (University of Reading School of Law; Lieber Institute, USMA at West Point, Naval War College – Stockton Center for the Study of International Law “Autonomous Cyber Capabilities and the International Law of Sovereignty and Intervention” (96 International Law Studies 549-576 (2020)) on SSRN. Here is the abstract:

This article explores the intersection of autonomous cyber capabilities and two primary rules of international law — the respect for the sovereignty of other States and the prohibition on coercive intervention into another State’s internal or external affairs. Of all the rules of international law, these are the likeliest to be violated through employment of cyber capabilities, whether autonomous or not. This raises the question of whether a cyber operation that involves autonomous capabilities presents unique issues with respect to the application of the two rules. The article concludes that while there are numerous unsettled issues surrounding their application to cyber operations, the fact that a cyber operation employs autonomous capabilities has little legal bearing on the resolution of those issues. Rather, autonomy simply makes it more difficult, at least at times, to confidently apply the rules because of the uncertainty as to the consequences. Yet, these are dilemmas of fact, not law, and must be understood and acknowledged as such.

Recommended.