Hi there everyone, I hope you had a great holiday!
As we settle into the grind of 2019, I wanted to give you a quick briefing on some of the major tech issues we’ll likely watch play out before courts, regulators and lawmakers in the coming year. You’ll see some new twists on familiar futuristic actors here—crypto conundrums and the like—as well as some more novel issues.
Tech Troubles on the Horizon—2019 Edition
➤ Section 230 of the Communications Decency Act is going to be big in 2019, and I’m not alone in this opinion. In a convo last fall, Electronic Frontier Foundation’s Andrew Crocker told me the moderation of content by intermediaries will be a hot issue.
Quick rewind: Section 230 basically protects internet companies like Google from liability over info third parties publish on their websites. You may recall it coming up in a D.C. Circuit spat over a lawsuit against search engine providers for allegedly publishing “scammer locksmith” info that siphoned business from mom-and-pop outlets. The providers used Section 230 as grounds for the lower court to toss the suit. And the issue of internet immunity, Crocker said, likely isn’t going anywhere.
“We’re going to continue to see pushing back on the immunity granted on these platforms,” he added. “We’ll see first amendment challenges to the platforms themselves, which is certainly novel legal theory in a lot of cases, but not going away. So that sort of bundle of issues is sort of the biggest right now.”
➤ Biometrics technology is popping up everywhere, and it’s likely going to have a bigger presence in the courts in the coming months. But Edelson PC’s J. Eli Wade Scott thinks the biggest biometric focus should be on lawmakers: “I think that coming up with sensible regulation is going to be the biggest issue. Legislators across the country are paying more attention to this. The question is just how do you approach it in a way that allows biometrics to be used?”
He’s got a point. London police in December conducted their seventh trial run of facial recognition tools since 2016, while Amazon’s facial recognition technology has already been pushed on law enforcement in the United States. The technology will likely be used even more in 2019.
According to Scott: “I don’t think any legislative body is thinking this should be prevented entirely. The question is how do we regulate this, and what does enforcement look like? That’s going to be something that state’s are grappling with more and more.”
➤ ‘Crypto Development.’ Of course cryptocurrency has a place on this list, but one of the key issues for 2019 may go beyond how courts and regulators tackle the security status of ICOs. According to UCLA’s James Parker, who you may recall authored a policy paper on cryptocurrency, one of the biggest issues on the horizon appears to be how future offerings are developed.
I’ll let him explain: “Fundamentally, the issues is how it’s gonna be developed—is it gonna be developed through big companies who are certainly using blockchain and will continue to use it? Or is there more room for smaller, decentralized projects and entrepreneurs who can build things that are not in the corporate context? That to me is kind of the big issue for the next year or so.”
➤ ‘Bots’ Breaking, Boggling and Using the Law. Sometimes automation shakes things up for the worse. Just consider last summer’s stir over an automated bot used to send bunk, yet effective Digital Millennium Copyright Act takedown notices to sites not actually infringing any copyrights. As University of Idaho’s Annemarie Bridy told me in August, things could get worse as “the market takes a while to discipline bad actors.”
But there’s also “automation” for registering copyrights and trademarks. That’s the approach of PatentBot, which according to its site uses chat bots to help users check and register trademarks, as well as “timestamp” copyright on a blockchain (another tech in law whose hype is coming to fruition). Interestingly, the company announced its launch in China in December, an arena not known for its stringent IP protection.
➤ Automation Woes. Bots are only the tip of the iceberg when it comes to automation issues. Just consider the injuries caused by self-driving cars in 2018. And, by the looks of things, these cars are already looking to make their return to the road. In the opinion of Stanford’s Mark Lemley, a foremost expert on both IP and tech, “AI and robotics” in general are “the biggest coming issue in the courts.”
“Courts are increasingly going to confront issues of legal responsibility for injury, discrimination, and privacy violations committed not by people but by AIs. How they resolve those issues will have a significant impact on how AI is developed and deployed,” he added.
Thanks for reading! Here’s to the year ahead!