Three Laws Blog: Law and Artificial Intelligence

A Mild Defense of Our Machine Overlords: Selbst Responds To Brennan-Marquez @selbst

Andrew D. Selbst, Yale Information Society Project; Georgetown University Law Center, is publishing A Mild Defense of Our New Machine Overlords in volume 70 of the Vanderbilt Law Review En Banc. Here is the abstract.

We must make policy based on realistic ideas about how machines work. In Plausible Cause, Kiel Brennan-Marquez argues first that "probable cause" is about explanation rather than probability, and second that machines cannot provide the explanations necessary to justify warrants under the Fourth Amendment. While his argument about probable cause has merit, his discussion of machines relies on a hypothetical device that obscures several flaws in the reasoning. As this response essay explains, machines and humans have different strengths, and both are capable of some form of explanation. Going forward, we must examine realistically not only where machines might fail, but also where they can improve upon the failures of a system built with human limitations in mind.

Download the review from SSRN at the link.

Donohue on Federal and State Use and Regulation of Unmanned Aircraft Systems @georgetownlaw

Laura Donohue, Georgetown University Law Center, is publishing A Tale of Two Sovereigns: Federal and State Use and Regulation of Unmanned Aircraft Systems in Handbook of Unmanned Aerial Vehicles (Kimon P. Valavanis and George J. Vachtsevanos, eds., 2017) (forthcoming). Here is the abstract.

Despite claims to the contrary, the Federal government is severely limited in what it can do to regulate unmanned aircraft systems (UAS). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and land within their bounds, before turning to the limits of federal inter-state commerce authorities. With river navigation and aviation serving as the forerunners of federal power, the chapter distinguishes the types of questions that accompany UAS, arguing that it is in relation to adjacent airspace and non-economic activities where the federal government is at its weakest in any effort to regulate the states. Up to 500 feet above the ground, states have sovereignty, with authority over roads, land, and waterways. Within this domain, Federal Commerce Clause powers only occupy a narrow area, leaving state police powers the dominant framework for UAS. The chapter concludes by highlighting the advantages of having states take the lead for UAS, focusing on the risk to rights of allowing the federal government to move into this realm and underscoring the importance in the role of the states as incubators of innovation.

Download the essay from SSRN at the link.

Reid on Rethinking the Fourth Amendment in the Age of Supercomputers, Artificial Intelligence, and Robots

Melanie Reid, Duncan School of Law, is publishing Rethinking the Fourth Amendment in the Age of Supercomputers, Artificial Intelligence, and Robots in volume 119 of the West Virginia Law Review (2017). Here is the abstract.

Law enforcement currently uses cognitive computers to conduct predictive and content analytics and manage information contained in large police data files. These big data analytics and insight capabilities are more effective than using traditional investigative tools and save law enforcement time and a significant amount of financial and personnel resources. It is not farfetched to think law enforcement’s use of cognitive computing will extend to using thinking, real-time robots in the field in the not-so-distant future. IBM’s Watson currently uses its artificial intelligence to suggest medical diagnoses and treatment in the healthcare industry and assists the finance industry in improving investment decisions. IBM and similar companies already offer predictive analytics and cognitive computing programs to law enforcement for real-time intelligence and investigative purposes. This article will explore the consequences of predictive and content analytics and the future of cognitive computing, such as utilizing “robots” such as an imaginary “Officer Joe Roboto” in the law enforcement context. Would our interactions with Officer Joe Roboto trigger the same Fourth Amendment concerns and protections as those when dealing with a flesh-and-blood police officer? Are we more afraid of a “robotic” Watson, its capabilities, and lack of feeling and biases, compared to a human law enforcement officer? Assuming someday in the future we might be able to solve the physical limitations of a robot, would a “robotic” officer be preferable to a human one? What sort of limitations would we place on such technology? This article attempts to explore the ramifications of using such computers/robots in the future. Autonomous robots with artificial intelligence and the widespread use of predictive analytics are the future tools of law enforcement in a digital age, and we must come up with solutions as to how to handle the appropriate use of these tools.

Download the article from SSRN at the link.

An Update on a Prosecutor's Request For Amazon Echo Data in a Murder Case

Bloomberg Law's Daniel Stoller updates us on the debate over an Arkansas prosecutor's request for information from Amazon for data from an Echo that might develop facts in a murder case. He notes that a parallel between this case and the Apple v. FBI encryption battle may not be so obvious.