Saturday, June 1
Challenges to Law & Regulation with New Technology
Sat, 6/1: 10:00 AM - 11:45 AM, Hyatt Congressional A
Chair/Discussant: Slobodan Tomic, University College Dublin (UCD)
Double Vision: Conflicting Ambitions in the EU’s Regulation of Synthetic Biology
Olivia Hamlyn, University of Leicester
This paper identifies a contradiction in EU’s policy ambitions for the governance and regulation of synthetic biology. At times, policy supports ambitiously opening up governance and research to public debate. At other times, a focus in policy on instrumental approaches to participation, public acceptability and attempts to control debate conflict with those more ambitious visions. The paper seeks to explain these conflicting policy ambitions by reference to two differing understandings of ‘governance’ at play in EU innovation policy. One, currently embodied in the notion of ‘responsible research and innovation, promotes openness, deliberation and the social control of technology; the other relies on technical assessments of risk and works to depoliticise the contestation which typically characterises emerging technologies. By engaging with these competing understandings of governance in an EU context, the article also aims to contribute more generally to discourse on governance. Finally, the paper highlights the effects of this conflict on the legislation governing synthetic biology and assesses the potential for adapting the regulatory framework to the specific challenges of synthetic biology in light of this conflict.
How Has the Rise of Digital Technologies Reshaped the Regulatory Landscape in Online Betting Markets?
Slobodan Tomic, University College Dublin (UCD)
The rise of IT has led to a rapid increase in online betting, particularly across national borders. While expanding business opportunities, the newly globalised betting space - with its unharmonised regulatory regimes - has also created new risks to businesses, customers, and state authorities: more scope for underage gambling, and for exploitation of problem gambling; easier monetisation of match-fixing; and greater possibilities for money-laundering. At the same time, the digital technologies that underpin the online betting platforms offer new tools and opportunities to tackle these risks, featuring enhanced capacities for data analysis and data sharing. This paper explores how the rise of digital technologies has transformed the regulatory landscape in betting markets. It questions how the involved actors have complied with the traditional forms of regulation, how they have contested those traditional regulatory regimes, and what has been the resultant regulatory landscape that has emerged in the meantime. The paper focuses on the question of regulatory standards - how have the standards, risks and the notion of regulatory violations been redefined; and how have the observed challenges shaped the cross-border exchange among betting stakeholders, including national regulators, betting operators and other actors. The paper advances our understanding of how organisations operating in an environment of rapid technological innovation comply with and contest regulation.
Modularity Theory as Applied to Trademark and Copyright Law
Min-Chiuan Wang, School of Law, National Chiao Tung University
Modularity theory studies the organization principles of a complex system. To solve the problem of high communication costs in a complex system, designers decompose a complex system into a set of subsystems. Interactions within a subsystem is frequent and intense; while interactions between subsystems are sparse and weak. Important features of modularity theory include near decomposability, interactions, and hiding information between modules. Modularity theory has been used on topics such as organization design, property law, contract law, and merger and acquisition deals. Henry E. Smith applies modularity theory to property law. He argues that the exclusion strategy forms property modules, keeping unspecified uses of property opaque to outsiders, while the governance strategy serves as the interface between property modules. Smith also extends modularity theory to the study of boilerplate contracts. This Article applies modularity theory (and its extension to property law) to the study of trademark and copyright law. In trademark law, genericness and secondary meaning are incompatible concepts. However, there are a few cases where a generic term has a de facto secondary meaning. The de facto secondary meaning is an example of inter-module flow of information. At this moment, courts must establish interface rules to deal with the situation where the trademark meaning overflows the module boundaries. In copyright law, originality, with its normal rule of minimal creativity, forms a module whose boundaries can be determined formally. However, some exceptional situations can be considered governance regimes which become the interfaces between modules. For example, the “de facto monopoly” issue in the protection of derivative works may require substantial variation rather than distinguishable variation for a derivative work to be copyrightable and is itself an interface rule.
Policies and Regulations on Blockchain Technology and Blockchain Business in China
Jiaying Jiang, Emory University
Blockchain technology has been bringing about disruptive changes to human life. Technology itself is neutral, however, its implementations in different industries can either improve or erode human dignity. Therefore, it’s critical to use policies and regulations to shape the effects blockchain technology brings to human dignity. This article takes china as an example. The first part of the article will introduce current policies and regulatory regimes of blockchain and blockchain business in China. I will describe the overall blockchain landscape-the types of blockchain business that are active and some notable recent blockchain innovation trends within particular subsectors (e.g. payments, asset management, supply chain management, and judicial applications). I will analyze the overall policies and regulatory frameworks for the blockchain industry and how the types of blockchain related activities are regulated. The second part of the article will offer suggestions for further policies and regulatory regimes on blockchain technology and blockchain business. First, I will identify the risks associated with current regulatory regimes and categorize challenges of establishing a sound regulatory framework in China. The risks include that the new technology conflicts with current laws and regulations, legal vacancies in some areas lead to illegal practices, and hasty policy responses sometimes bring about adverse effects on technology innovation. The challenges come from technical, legal, ideological and cultural aspects at different stages. Following the risks and challenges identified, I will recommend three principles when crafting a sound regulatory regime: balancing technology innovation and systemic risk, focusing on consumer protection and education, and shifting to a technology-driven regulatory scheme. In the end, I propose a regulatory sandbox for both countries. I will explain how this strategy matches the goals of the policies and regulations in China.
The Deregulation of Satellite Imagery: Exploring Concepts of Privacy in a Newly Disrupted Industry
Idil Ali, Cornell University
WIP: Once a closely-guarded form of state intelligence, high-resolution satellite imagery is becoming increasingly available through a decades-long process of deregulation by the US government. This form of remote sensing, combined with machine learning applications, is regarded as a less costly yet effective way to monitor assets, coordinate aid in disasters, and more. In her foundational text, Cultures in Orbit, communications scholar Lisa Parks reveals the connection between state production and interpretation of satellite imagery; more recently, STS scholars Nina Witjes and Philipp Olbrich highlight the enduring connection between private satellite imagery companies and state actors, and question the form of transparency providers are advertising, as these companies remain tied to national security and geopolitical interests. However, as greater control of imagery continues to shift from the public to private sector, I argue that the ethical frameworks and policies developed by private companies in this space are becoming more salient to the notion of privacy, rather than national security. In this paper, I examine how ethical and privacy concerns are conceptually framed and technically instantiated by satellite imagery and analysis firms. I do so by collecting and analyzing primary source documents from leading satellite imagery and analytics companies. My initial findings show demonstrated values in conceptual frameworks of omniscience and transparency and manifest through an unremitting pursuit of information and sharing said information with the global community.
Law, Technology, and Social Media
Sat, 6/1: 2:45 PM - 4:30 PM, Hyatt Capitol B
Chair/Discussant: Akshaya Kamalnath, Deakin Law School
Constituent Power 2.0: Unpacking the Impact of Digitalisation and Democratic Participation on Constitution-Making in Switzerland
Sophie Weerts, University of Lausanne
Constituent power and constitutional amendment are two of the conceptual cornerstones of constitutional law. The two concepts must be analyzed in light of recent phenomena as the internalization of the law, democratization of political processes or digitalization. Indeed, these phenomena have all proved to be disruptive to political decision-making, provoking changes in the very practice of constitution-making. This paper aims to analyze the impact of these phenomena – in particular, democratization and digitalization – on the practice of constitution-making, and in doing so, contribute to a contemporary understanding of the classical concepts of constitutional law. The case study at the heart of this inquiry involves the constitution-making process in the canton of Valais – one of Switzerland’s 26 states – which began on 4 March 2018. A citizen’s movement arose in coordination with the project, as part to the constitution-making process. An algorithm has selected the representatives of the movement and a web platform will produce legal resources to inform decision-making. Such technical developments combined with popular participation introduce a new generation of actors in constitution-making. Drawing on interviews and institutional documentations, analysis of this project reveals the impact of these innovations on the constitution-making process as well as on key concepts in the field of constitutional law.
Digital Oversight: How Social Media Users “Oversee” Police Misconduct in North America
Daniel Konikoff, University of Toronto
In the summer of 2016, former FBI director James Comey attributed a rise in the United States’ crime rates to the possibility of a ‘viral video effect’ blunting police work. According to Comey’s description of this ‘effect,’ officers have shied away from proactive policing for fear of being caught on camera and pilloried on social media. Though there are no data to attest to the credence of Comey’s claims, the prospect of a viral video effect raises interesting questions about policing in the digital age. How, for example, has the public’s capacity to not only document violent interactions between police and the public, but to also disseminate it online, impacted the manner in which police are held accountable for their actions? Have ordinary citizens’ newfound abilities to keep a watchful eye on their blue-clad protectors and scrutinize them in an online sphere altered the manner in which civilians conduct oversight of police behaviour? This essay will explore how tweets, Facebook posts, and YouTube comments pertaining to specific cases of police violence demonstrate the potential of social media users to engage in online activity that digitally mirrors the ideal characteristics, objectives, and outcomes of real-world civilian oversight bodies. It will be argued that this “digital oversight” emulates civilian oversight’s bodied structure; its objectives to investigate incidents, scrutinize officers, recommend discipline, hold police accountable, and suggest broader improvements; and its outcomes of either justifying or condemning police use of force. It will also be argued that, by virtue of its grounding in widely available technologies and social networks, digital oversight helps users maintain dignity through democratic engagement with social issues, and allows them to overcome some of the drawbacks of civilian oversight bodies, such as lengthy and impersonal complaint processes, a lack of resources, and inaccessibility.
Dignity in Death? Not on the Internet
Nicolas Leistenschneider, Université de Montréal
In the summer of 2016, former FBI director James Comey attributed a rise in the United States’ crime rates to the possibility of a ‘viral video effect’ blunting police work. According to Comey’s description of this ‘effect,’ officers have shied away from proactive policing for fear of being caught on camera and pilloried on social media. Though there are no data to attest to the credence of Comey’s claims, the prospect of a viral video effect raises interesting questions about policing in the digital age. How, for example, has the public’s capacity to not only document violent interactions between police and the public, but to also disseminate it online, impacted the manner in which police are held accountable for their actions? Have ordinary citizens’ newfound abilities to keep a watchful eye on their blue-clad protectors and scrutinize them in an online sphere altered the manner in which civilians conduct oversight of police behaviour? This essay will explore how tweets, Facebook posts, and YouTube comments pertaining to specific cases of police violence demonstrate the potential of social media users to engage in online activity that digitally mirrors the ideal characteristics, objectives, and outcomes of real-world civilian oversight bodies. It will be argued that this “digital oversight” emulates civilian oversight’s bodied structure; its objectives to investigate incidents, scrutinize officers, recommend discipline, hold police accountable, and suggest broader improvements; and its outcomes of either justifying or condemning police use of force. It will also be argued that, by virtue of its grounding in widely available technologies and social networks, digital oversight helps users maintain dignity through democratic engagement with social issues, and allows them to overcome some of the drawbacks of civilian oversight bodies, such as lengthy and impersonal complaint processes, a lack of resources, and inaccessibility. Social Media and Legal Reform: How Twitter and Facebook Have Impacted the Student-Led Pro Gun Control Movements after the Stoneman Douglas High School Shooting.
Alexandre Fleck, University of New South Wales - Sydney
Debates today no longer take place exclusively in public squares, as Habermas writes, but rather increasingly occur on social media (Habermas, 1996; Isin, 2000). Our network society has shifted its democratic battleground from the public sphere to the virtual world. Mason (2013) and Castells (2015) have investigated about the impacts that the internet and social media have had in connecting protesters and activists. Social media is enabled people to connect, organize themselves and promote their agenda by sharing information and campaigning. On the other hand, the US 2016 election and the fake news phenomena have also showed the negative role of social media. For Sunstein (2017), Facebook has created echo chambers, enabling populism and assisting in the confusion between fact and opinion. Howard (2017) argues it has enabled elective affinity and encouraged selective exposure, threatening to impoverish the political debate. This research aims to understand how this digital public sphere has altered the way social movements that seek law reform organize themselves, act and think about law. It is designed as a case study based on the #NeverAgain pro gun control reform group. The study will zero in on which ways social media structures and overarching values have influenced the activism of the students who survived the Stoneman Douglas High School shooting in Parkland, Florida, USA. The observation of these practices will then be utilized to develop and complement a theoretical framework under which we can understand what shape and form law reform activism in a digital network society has.
The Social Case for Equity Crowdfunding in India
Akshaya Kamalnath, Deakin Law School
India recently mandated that large corporations have to spend a certain percentage of their profits on ‘corporate social responsibility activities’. The government’s broad rationale for this law is that corporations should also be involved in ‘nation building’. This paper looks at smaller enterprises, start-ups and individuals who are voluntarily seeking to invest in projects with social benefits and argues that equity crowdfunding fits within the government’s policy to involve private participants in nation-building by facilitating access to finance. Crowdfunding or sourcing money from a crowd of ordinary people (i.e. they need not be sophisticated people) for a project is not new to India. This paper assesses the benefits of crowdfunding in India and makes the case for the law to facilitate equity crowdfunding. A key argument in the context of developing countries like India is that crowdfunding can be (and often works as) a vehicle for channelling investment into projects that have a social purpose. By allowing crowdfunding, the government has the opportunity to facilitate funding for social and innovative projects. To support the argument, this paper will draw from (i) a survey of the social benefits of non-equity crowdfunding (i.e. donation and reward crowdfunding) thus far; and (ii) a survey of the social benefits of equity crowdfunding in other developing countries. Finally, the paper will evaluate the policy paper on equity crowdfunding in India, put forth by the market regulator, and recommend a more optimal framework.
Roundtable: The State of Immigration Surveillance
Sat, 6/1: 2:45 PM - 4:30 PM, Hyatt Regency A Table 2
New and emerging technologies are transforming how immigration enforcement is carried out and experienced by communities across the United States. This roundtable session, featuring scholars, legal practitioners and human rights advocates, will address the myriad ways in which immigration enforcement has become an information-centered and technology-driven enterprise, operating without geographic bounds to surveil the mobility, speech and conduct of citizens and noncitizens alike. Panelists will address the lack of transparency and oversight, the role of private industry, and discriminatory impacts of the new state of immigration surveillance on communities of color, including Muslim-Americans and Latino/a communities accused of gang involvement, as well as promising avenues for public engagement, redress and reform.
Chair/Discussant Annie Lai, University of California, Irvine
Caitlin Bellis, University of California, Irvine Anil Kalhan, Drexel University Ana Muniz, University of California, Irvine Paromita Shah, National Immigration Project - National Lawyers Guild Azadeh Shahshahani, Project South