In this Article, I explore the impending conflict between the protection of civil rights and artificial intelligence (AI). While both areas of law have amassed rich and well-developed areas of ...scholarly work and doctrinal support, a growing body of scholars are interrogating the intersection between them. This Article argues that the issues surrounding algorithmic accountability demonstrate a deeper, more structural tension within a new generation of disputes regarding law and technology. As I argue, the true promise of AI does not lie in the information we reveal to one another, but rather in the questions it raises about the interaction of technology, property, and civil rights. For this reason, I argue that we are looking in the wrong place if we look only to the state to address issues of algorithmic accountability. Instead, we must turn to other ways to ensure more transparency and accountability that stem from private industry, rather than public regulation. The issue of algorithmic bias represents a crucial new world of civil rights concerns, one that is distinct in nature from the ones that preceded it. Since we are in a world where the activities of private corporations, rather than the state, are raising concerns about privacy, due process, and discrimination, we must focus on the role of private corporations in addressing the issue. Towards this end, I discuss a variety of tools to help eliminate the opacity of AI, including codes of conduct, impact statements, and whistleblower protection, which I argue carries the potential to encourage greater endogeneity in civil rights enforcement. Ultimately, by examining the relationship between private industry and civil rights, we can perhaps develop a new generation of forms of accountability in the process.
In October of 2017, before a jam-packed hearing at City Hall in New York, Council Member James Vacca listened to a series of testimonies that outlined two dramatically divergent visions for the ...future of technology, open data, and governance. ' This is the largest attendance a technology meeting has ever had," Vacca apparently said. "How am I going to top this next month?" The occasion for the hearing was a bill with a lengthy (and seemingly snooze-worthy) title: "A Local Law to amend the administrative code of the city of New York, in relation to automated processing of data for the purposes of targeting services, penalties, or policing to persons." Essentially, the bill required all agencies that use algorithms or other automated processing to publish their source code for public investigation. On a more abstract level, the bill would force the government to share its processes of automated government decision making and become essentially open source, reversing a long-standing trend toward opacity.
The "Numerus Clausus" of Sex Katyal, Sonia K.
The University of Chicago law review,
12/2017, Letnik:
84, Številka:
1
Journal Article
Recenzirano
There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender ...rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity. Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris's groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.
Our legal system has historically operated under the general view that courts should defer to the legislature. There is one significant exception to this view: cases in which it appears that the ...political process has failed to recognize the rights or interests of minorities. This basic approach provides much of the foundational justifications for the role of judicial review in protecting minorities from discrimination by the legislature. Today, the rise of AI decision-making poses a similar challenge to democracy’s basic framework. As I argue in this essay, the rise of three trends – privatization, prediction, and automation in AI – have combined to pose similar risks to minorities. In this essay, I outline what a theory of judicial review would look like in an era of artificial intelligence, analyzing both the limitations and the possibilities of judicial review of AI. Here, I draw on cases in which AI decision-making has been challenged in courts, to show how concepts of due process and equal protection can be recuperated in a modern AI era, and even integrated into AI, to provide for better oversight and accountability.
Technoheritage Katyal, Sonia K.
California law review,
08/2017, Letnik:
105, Številka:
4
Journal Article
Recenzirano
This Article explores the legal revolution that is swiftly unfolding regarding the relationship between technology, user interactivity, and cultural institutions, both inside and outside of the law. ...At the same time that cultural properties are facing destruction from war and environmental change, we are also living in an age of unprecedented interactivity and reproduction—everywhere, museums are offering their collections for open access, 3-D printing, and new projects involving virtual and augmented reality. With the advent of other sophisticated forms of digital technology, the preservation and replication of antiquities have never been easier. Today's archaeological moment demonstrates both the possibilities and limitations behind "technoheritage" —the marriage of technology and cultural heritage. Toward that end, this Article argues that, in order to understand the relationship between technology and cultural heritage, it might be helpful to study the theoretical dimensions behind interactivity itself Just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly with regards to the intersection of copyright law with cultural identity. Unpacking this further, this Article offers a tripartite taxonomy of interactivity: the first, described as extractive (drawing upon the accumulation and selection of data); the second, immersive (drawing upon new forms of user participation through virtual and augmented reality); and the third, derivative (drawing upon new possibilities of user creation). Normatively, I argue that these models of interactivity provide us with an important framework with which to examine the importance of copyright protection for cultural heritage. In the concluding section, I suggest a potential way of rethinking the museum by drawing on the logic and legal protection extended to databases and archives in an age of unprecedented user interactivity.
Property Outlaws Penalver, Eduardo M; Katyal, Sonia
02/2010
eBook
Property Outlawsputs forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal ...regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.
The authors employ wide-ranging examples of the behaviors of "property outlaws"-the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of "property outlaws" and legal innovation should be cultivated in order to maintain this avenue of legal reform.
From trade secrecy to seclusion Graves, Charles Tait; Katyal, Sonia K
The Georgetown law journal,
06/2021, Letnik:
109, Številka:
6
Journal Article
Recenzirano
By all accounts, trade secret law is now recognized as one of the major categories of intellectual property law. Less recognized, however, is the degree to which private actors are pushing the law ...past its traditional, market-competitive boundaries and toward an all-purpose seclusion doctrine. We argue that trade secret law today is increasingly functioning not merely as a tool to protect intellectual property against misappropriation, but often as a tool for open-ended concealment. The law is moving from trade secrecy to trade seclusion. This shift raises serious concerns, ultimately distorting the flow of information that should be available to the public.
Using recent research from data scientists and technologists, this Article argues that we are at a contradictory moment in history regarding the intersection of gender and technology, particularly as ...it affects lesbian, gay, bisexual, transgender, and queer (LGBTQ+) communities. At the very same moment that we see the law embracing more and more visibility regarding gender identities and fluidity, we see an even greater reliance on surveillance technologies that are flatly incapable of working beyond the binary of male and female classifications. These technological limitations become even more fraught in today's age, when we face an unprecedented degree of surveillance- gender-related and otherwise-than we have ever seen in history. When a binary system of gender merges with the binary nature of code, the result fails to integrate LGBTQ+ communities, particularly nonbinary and transgender populations, erasing them from view. Using insights from a wide range of studies on artificial intelligence (AI) technologies-including automated body scanners, facial recognition, and content filtering on social media-we argue in this Article that we need to grapple with the reality that the relationship between AI and gender is far more complicated than the law currently suggests. Technology companies, along with multiple courts, colleges, and workplaces, must realize that the binary presumptions of male and female identity are largely outdated for some and often fail to capture the contemporary complexity of LGBTQ+ identity formation. The question for legal scholars and legislatures is how technology can and should respond to this complexity. In the final Parts, we discuss some of the legal implications of these surveillance technologies, looking at both law and the design of technology, and turn to some normative possibilities to develop greater equality and gender self-determination.
TRANSPARENTHOOD Katyal, Sonia K.; Turner, Ilona M.
Michigan law review,
06/2019, Letnik:
117, Številka:
8
Journal Article
Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law's treatment of transgender parents. We perform an ...investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law's shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of cases, however, we found evidence of persistent bias regarding the gender identity and expression of the transgender parent—which we refer to as transition, contagion, and volition related concerns—that underscores the courts' analysis. Normatively, this Article calls for a deeper interrogation of the ways in which family equality can be expanded—and even reoriented—to better protect the interests of transgender parents within the family law system. As a solution, we propose a way to balance courts' broad discretion with the disproportionate risk that bias will infect the decisionmaking, resulting in irreparable harm to both the child and the parent.
In Defense of Property Carpenter, Kristen A.; Katyal, Sonia K.; Riley, Angela R.
The Yale law journal,
04/2009, Letnik:
118, Številka:
6
Journal Article
This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent ...critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of "peoples" rather than "persons," arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples' cultural property claims in terms of nonowners' fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.
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