20 June 2018

Supremes

How Do People Think About the Supreme Court When They Care?' by David Fontana in (2018) 90 NYU Law Review Online 50 comments
This Essay — part of a symposium hosted by the Brennan Center at NYU Law School on the Trump Administration — responds to a new paper by political scientists James Gibson and Michael Nelson about public opinion related to courts in the Trump Era. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high — precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.

Robot Lawyering and Roadmaps

'Law Without Mind: AI, Ethics, and Jurisprudence' by Joshua P. Davis comments
Anything we can conceive that computers may do, it seems that they end up doing and that they end up doing it better than us and much sooner than we expected. They have gone from calculating mathematics for us to creating and maintaining our social networks to serving as our personal assistants. We are told they may soon become our friends and make life and death decisions driving our cars. Perhaps they will also take over interpreting our laws. It is not that hard to conceive of computers doing so to the extent legal interpretation involves mere description or prediction. It is much harder to conceive of computers making substantive moral judgments. So the ultimate bulwark against ceding legal interpretation to computers—from having computers usurp the responsibility and authority of attorneys, citizens, and even judges—may be to recognize the role of moral judgment in saying what the law is. That possibility connects the cutting edge with the traditional. The central dispute in jurisprudence for the past half century or more has been about the role of morality in legal interpretation. Suddenly, that dispute has great currency and urgency. Jurisprudence may help us to clarify and circumscribe the role of computers in our legal system. And contemplating AI may help us to resolve jurisprudential debates that have vexed us for decades.
The QUT A Robotics Roadmap for Australia 2018 characterises robots
as a tool to unlock human potential, modernise the economy, and build national health, well-being and sustainability 
Robotics in Australia will maintain our living standards, help protect the environment, provide services to remote communities, reduce healthcare costs, provide safer more fulfilling jobs, prepare the next generation for the future, encourage investment and reshore jobs back to Australia.
The authors state
Australia’s first Robotics Roadmap is a guide to how Australia can harness the benefits of a new robot economy. Building on Australia’s strengths in robot talent and technologies in niche application areas, the roadmap acts a guide to how Australia can support a vibrant robotics industry that supports automation across all sectors of the Australian economy.
1 We must develop new high-tech firms and a vibrant robotics industry in Australia if we are to maintain our standard of living 
2 We can prepare the next generation for the jobs of the future by providing education and upskilling opportunities to equip all Australians with Industry 4.0 relevant skills 
3 We have the opportunity to become a testbed for robotics technology by leading the world in ethical, legal and standards frameworks 
4 We can build national capability in robotics by forming research and technology clusters to develop existing talents and encourage new talent, technology and businesses 
5 We must develop an entrepreneurial culture to set moon shot goals and challenges and encourage VC investment in the robotics industry
Further
Australia has a unique opportunity to take advantage of our human talents and unique environment to transition to a robot-ready economy while retraining and upskilling its workforce. This requires the collaborative, multi-sector approach outlined in this summary of A Robotics Roadmap for Australia. This roadmap shows a pathway to the future we envision for Australia. 
A future where:
  • Robots do the dull, dirty and dangerous tasks not suited to human beings; 
  • Robots solve many of the world’s most pressing challenges such as war, famine, natural disasters and environmental damage; 
  • Robots help humans unlock potential and explore the furthest reaches of our universe.
This is a future where a prosperous Australia embraces a robot economy and builds national health, well-being and sustainability despite the challenges of our vast and remote geography. 
Underpinning A Robotics Roadmap for Australia are five key principles 
Jobs matter A robotics industry will enhance economic competitiveness to create meaningful jobs and, with the right policy settings, help adapt existing ones 
Time matters The right use of robotics eliminates workplace routine, improves efficiency and allows workers to dedicate time to interesting and more fulfilling tasks 
Safety is imperative Robotics reduces the risk of workers being placed in hazardous situations 
Remote communities need to be served Automation helps provide better and more consistent services to remote areas difficult to serve 
Certainty counts Investment decisions need clarity of understanding. 
The roadmap offers the means to find that clarity as well as demonstrating the current and likely future state of robotics in Australia
The consequent recommendations are -
Industry - Ensure Australia’s ongoing prosperity by stimulating formation of new hi-tech firms, encouraging global tech giants to invest in Australia, and reskilling Australian workers
  • Encourage formation of new hi-tech firms The venture capital sector is essential to technology investment but is small by international standards Encourage investment by large multinationals Quality graduates and researchers need stable employment to stay onshore 
  • Develop skills in firms Small- to medium- sized enterprises need help to build their capabilities to take advantage of robotics 
Education - Equip all Australians with Industry 4.0 relevant skills 
  • Build national capacity - More focus on education and better gender balance will build a skilled workforce 

  • Develop micro-credentials and vocational education in robotics - Addition of micro-credentials to university programs offers Australia a chance to leapfrog other nations
 Government - Lead the region in catalysing robotics activity by setting ethical, legal, regulatory and standards frameworks, adopting robotics in government services
  • Develop ethical, legal and regulatory frameworks - Clear rules will build trust and create certainty for industry 
  • Create support infrastructure for robots - New network technologies and adequate bandwidth are essential to encourage robot use 
  • Collect information on robotics and robotics-related companies in Australia - Robotic activity is subsumed by the industries they serve but a full picture will guide national policy 
  • Develop policies to upskill and retrain and support skilled migration - Building Australia’s talent base helps build our capacity 
  • Establish robotics test beds - Our land mass and low population density makes us the ideal location to trial technologies 
  • Develop appropriate standards - More and more robots will work in public, unconstrained environments so safety is essential
R and D - Develop clusters of robotics activity, encourage VC investment, develop pathways to commercialisation and encourage application of the social sciences
  • Form robotics technology clusters - Hothouses for new ideas can bring together researchers, technologists and investors 
  • Develop appropriate funding framework for robotics technologies - Funding needs to be more accessible for new and existing firms to embrace robotics 
  • Develop robotics-related industry knowledge priorities - Prioritise R and D funding to make best use of existing strengths and avoid duplication 
  • Encourage inter-disciplinary research and develop social licence for robotics - Technology and social science collaboration will create robots that will be accepted and adopted
Culture - Support an entrepreneurial culture around Australia’s niche robotics capability and harness the nation’s imagination through aspirational goals solving Australian challenges
  • Develop national robotics strategy - Collaboration will help develop standards and to co-ordinate activity  
  • Improve awareness of benefits of robotics - Encourage narratives which show the success stories of robotics - safety, efficiency, reshoring 
  • Develop research priorities and challenges - The staging of technology challenges will spark creativity and imagination and solve real problems

Paramedicine

The Paramedicine Board of Australia has announced that it has approved an interim set of codes, guidelines and policies that outline the professional standards for the paramedicine profession.

 The Board states that it
is required to develop codes and guidelines for the profession to make professional standards clear, so they can deliver appropriate, safe and effective services within an ethical framework. 
These interim professional standards are based on a multi-professional approach to health practitioner regulation revised in 2014, which will provide for the effective regulation of the profession under the National Law. 
The four interim professional standards for paramedicine which take effect today are the:   
  • Code of conduct 
  • Guidelines for advertising regulated health services 
  • Guidelines for mandatory notifications, and 
  • Social media policy.
The Board is currently engaged in a multi-professional review of these professional standards to ensure they are relevant, contemporary and effective. 
The revised versions will be released for public consultation in the coming months. 
The Board urges all paramedics to familiarise themselves with this guidance to ensure their practice is in line with professional standards when paramedicine becoming regulated under the National Scheme in late 2018.
The Board states
From late 2018, paramedics must be registered with the Paramedicine Board of Australia (the Board) and meet the Board’s registration standards in order to practise in Australia. 
Registration standards 
There are five mandatory registration standards which the Board will be developing and consulting on. These are:
  • continuing professional development 
  • criminal history 
  • English language skills 
  • professional indemnity insurance arrangements, and 
  • recency of practice.
In addition, the Board has also released a time-limited grandparenting registration standard, which temporarily provides a path to registration for current paramedics who don’t have an approved or accepted qualification, but can demonstrate their competency via other training, qualification and/or experience. 
These registration standards were approved by the Ministerial Council on 13 April 2018. 
Codes and guidelines
The Board will also develop, or use the existing multi-profession codes, guidelines and policies to provide guidance to the profession. 
These will include:
  • guidelines for mandatory notifications 
  • code of conduct 
  • guidelines for advertising regulated health services, and 
  • social media policy.

18 June 2018

US Trade Secrets

'Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System' by Rebecca Wexler in (2018) 70(5) Stanford Law Review 1343 comments
The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises undertheorized tensions between life, liberty, and property interests. 
This Article offers the first wide-ranging account of trade secret evidence in criminal cases and develops a framework to address the problems that result. In sharp contrast to the general view among trial courts, legislatures, and scholars alike, this Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is ahistorical, harmful to defendants, and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purposes behind either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.

17 June 2018

Spaces

Privacy Spaces' by Bert-Jaap Koops in (2018) 121 West Virginia Law Review comments 
Privacy literature contains conceptualizations of privacy in relation to role-playing and identity construction, and in relation to access control and boundary-management. In this paper, I combine both strands to introduce the concept of privacy spaces: spaces in which you can play, in your own way, the relevant role(s) you have in social life. Drawing from privacy conceptions in legal scholarship, philosophy, sociology, anthropology, human geography, and psychology, a systematic overview of traditional privacy spaces is offered, including mental bubbles, the body, personal space, personal writings, the home, private conversation space, cars, stalls, intimacy bubbles, professional black boxes, coffee house spaces, public places, and political privacy places. 
This overview yields important insights: privacy is an infrastructural condition relevant in all zones of social life (from personal to public); privacy boundaries can be visible or invisible, fluid or stable, impenetrable or permeable; privacy protection relies on complementary mechanisms of access restriction and discretion (a distinction that captures privacy protection more accurately than that between access and control); and, most importantly, privacy protection is primarily a process of social regulation rather than legal regulation. 
These insights are used to briefly discuss why digital, online, and onlife spaces pose privacy challenges. While traditional spaces of social interactions are being scrambled and rehashed into digital and onlife spaces, associated social norms do not necessarily co-evolve. Since digital spaces are often interconnected and interoperable, fewer boundaries avail to clearly delimit privacy boundaries, and digital spaces more often trigger different partial identities than traditional spaces do. Moreover, the co-habitation of service providers in digital spaces contrasts with traditional physical spaces, where “space providers” do not usually or systematically observe what people do. Thus, digital, or onlife, impression management virtually requires people to be aware of all their selves all of the time, severely hampering their feeling they can safely be “themselves” in any given situation, and leading to a demise of backstage spaces where people can relax from impression management.

16 June 2018

Self-driving Vehicles and US Employment

America’s workforce and the self-driving future: Realizing Productivity Gains and Spurring Economic Growth from Securing America's Future Energy (SAFE) comments
In the last several years, the development and adoption of autonomous vehicles (AVs) has emerged as a central policy subject, both in the United States and across the world. The vision of a future where vehicles drive themselves has captured the imagination of the public, promising the potential for significant improvements in roadway safety, economic productivity, accessibility, and reducing fuel consumption and accompanying emissions.
At the same time, some have expressed concern about the long-term impacts of the technology, most intensely with regard to the question of the potentially farreaching impacts of the technology on the U.S. labor force. The individual identities of Americans are often intertwined both with the vehicles they drive and their occupations. The potential significant changes on both fronts in the years and decades to come is, understandably, an unsettling prospect for some. To ensure that policy decisions are made on the basis of solid evidence, SAFE engaged us to answer a series of questions that cut to the core of these issues. The questions were:
1. What precedents should we look to in thinking about the impacts AVs will have on society and the economy?
2. What are some concrete examples that illustrate the nature and magnitude of the economic and social benefits that AVs can offer?
3. What will be the medium- to long-term impacts of vehicle automation on the workforce? Upon what will the scale and timing of those impacts depend? What steps can be taken today to ensure the best outcome for both the public that stands to gain from AVs and the workers whose jobs could be impacted?
These questions were selected because of the importance of improving the social impact of the technology, the potential for impacts on the labor force, and the importance of these considerations to policymakers in weighing AV regulation. A deeper knowledge of the broader economic impacts of AVs will help to encourage constructive choices in a resource-constrained world. 
Over the last six months, we divided these questions amongst this group, with a report dedicated to each question. We performed independent and rigorous research utilizing well-accepted methods of economic analysis that culminated in three reports—referred to in this brief as the Compass Transportation report (focused on the question of precedents), the Montgomery AV benefits report (focused on the benefits of AVs) and the Groshen employment report (focused on the employment impacts)—that each addressed one of the questions posed above.
The authors state
Although they are not yet in widespread commercial use, there is intense public interest in autonomous vehicles (AVs). Much of the focus has been on the broad societal benefits this technology can offer. AVs also have the potential to influence society in a way unseen since the invention of the automobile. In addition to dramatically reducing traffic accidents and roadway fatalities, AVs hold the promise of improved mobility—critical for economic growth and quality of life. AVs can dramatically improve the lives of communities underserved by our current transportation system and those most vulnerable to its inefficiencies, namely Americans with disabilities, seniors, and wounded veterans. 
However, some have raised concerns about the potential for AVs to negatively impact workers and exacerbate wealth inequality. SAFE believes that AV-related labor displacement concerns—many of which have been expressed sensationally—must be addressed seriously rather than merely dismissed out of hand or repeated without verification. In response to these concerns, SAFE commissioned a panel of highly regarded transportation and labor economists to conduct a fact-based and rigorous assessment of the economic costs and benefits of AVs, including labor impacts.
The commissioned research painted a detailed outlook for the future economic and labor market impacts of AVs. They found:
• AVs have many of the characteristics of “catalyzing innovations” whose positive impacts are felt broadly throughout the economy. 
• Significant economic benefits from the widespread adoption of AVs could lead to nearly $800 billion in annual social and economic benefits by 2050, mostly from reducing the toll of vehicle crashes, but also from giving productive time back to commuters, improving energy security by reducing dependence on oil, and providing environmental benefits. 
• A study of traffic patterns and job locations found that some economically depressed regions could see improved access to large job markets for their residents through the deployment of AVs. 
• AVs will create new jobs that will, in time, replace jobs eliminated by automation. Strong workforce development infrastructure can both mitigate employment disruption and speed the evolution of worker skill requirements that will contribute to full employment and economic growth. 
• There is significant time before the impacts of AVs on employment are fully realized. Simulations of the impact of AVs on employment showed a range of impacts that would be felt starting in the early 2030s but would only increase the national unemployment rate by 0.06–0.13 percentage points at peak impact sometime between 2045 and 2050 before a return to full employment. 
• The economic and societal benefits offered by AVs in a single year of widespread deployment will dwarf the cost to workers incurred over the entire multidecadal deployment of AVs when measured in purely economic terms. The benefits of AVs are sufficiently large to enable investment of adequate resources in assisting impacted workers. 
• By pursuing a rapid deployment of AVs, combined with investments in workforce policies that seek to mitigate costs to workers and policies that address other risks or costs that might emerge alongside greater AV adoption, the United States can enjoy the full benefits of AVs as soon as possible while simultaneously preparing the workforce for the jobs of the future. 
Economic and Societal Impact Many of the most compelling benefits of autonomous vehicle technology will be intangible or undetectable from modeling designed to capture incremental gains. Any economic estimates of these benefits should be understood as an attempt to capture just a portion of gains from AVs. This conservative microeconomic analysis estimates economic benefits of up to $800 billion per year with full deployment of AVs. Utilizing the projections for AV deployment that SAFE developed, the value of AV benefits through 2050 will likely be between $3.2 trillion and $6.3 trillion. This is a partial estimate looking at a narrow set of case studies—a full estimate would likely be significantly higher. 
A projection of the annual consumer and societal benefits of AVs is in Figure A. The breakdown of these benefits (upon full adoption) is in Table A. 
Accident Reduction: In 2010, the National Highway Traffic Safety Administration (NHTSA) estimated the economic costs of car crashes to be $242 billion per year. When quality-of-life costs are added into the estimate, the total value of societal harm was approximately $836 billion per year. Extrapolating these values based on more recent crash and driving data puts the annual societal cost of crashes at over $1 trillion today. Using a conservative methodology in which we assume AVs would only address crashes resulting from a gross driver error (e.g. distraction, alcohol, and speeding), the annual benefit would exceed $500 billion. Given that human error contributes to over 94 percent of accidents, benefits could exceed this amount. 
Reduce Oil Consumption: Oil holds a virtual monopoly on vehicle fuels, with petroleum accounting for 92 percent of the fuel used to power the U.S. transportation system. By precipitating a shift away from petroleum as the dominant fuel source, AVs can substantially reduce America’s reliance on oil. An analysis of the energy security and environmental benefits of increased EV uptake as a result of AV deployment supports an estimated $58 billion societal benefit. 
Congestion: Crashes are a major source of road congestion and improved safety from AVs and better throughput (e.g. through reduced bottlenecks) could significantly reduce the current costs of congestion: Close to 7 billion hours are lost in traffic and over 3 billion gallons of fuel similarly are wasted every year. 
Improved Access to Retail and Jobs: SAFE modelling of road speeds around specific retail establishments found that the increased willingness of shoppers to travel—even by just two minutes each way—could increase a mall’s customer base by nearly 50 percent in some instances. Additionally, SAFE modeling identified numerous economically disadvantaged localities for whom better transportation options would lead to greater employment opportunities. For a group of four struggling cities (Gary, IN, Benton Harbor, MI, Elmira, NY, and Wilmington, DE), SAFE modeled how increased traffic speeds from AV adoption and greater willingness to travel could impact the number of jobs within reach. An illustrative example is in Figure B.
The Effect of AVs on the U.S. Labor Force
From the automobile to the internet, history has demonstrated time and again that new technologies lead to sizable economic and social benefits in the long run. However, with significant change always comes the specter of potential loss, particularly in the short term. Like many new technologies before it, the public discourse around AVs has witnessed a significant focus on potential downsides, often with considerable exaggeration. However, the potential losses must be balanced with the benefits from highly significant improvements in safety, reductions in vehicle crash fatalities, gains in productivity, reduced congestion and increased fuel efficiency that will result from AV deployment. Indeed, the benefits are sufficiently large to enable investment of adequate resources in assisting those affected.
A study of historical precedents for the impacts of new technologies found a common pattern: Adoption of new technologies improves productivity and increases quality of life. Widely adopted technologies can transform our way of life and improve economic well-being at a national scale. Often, technological progress leads to improved opportunities for workers in the short term; a recent study found that the rise of e-commerce has, on net, improved jobs for high school graduates.1 However, the impacts of those technologies can also present temporary challenges for the workforce, both for employers needing skilled workers, and for workers whose skills may no longer be as competitive in the labor market.
In the absence of concrete estimates, the media and public have a tendency to concentrate on the worst possible outcome. A recent report claimed that “more than four million jobs will likely be lost with a rapid transition to autonomous vehicles.”2 The methodology used to develop this number was simply to count driving jobs in the United States and assume that they would be rapidly lost as AVs deploy. Such assumptions and conclusions lack context, nuance, or grounding in labor market dynamics and the natural cycle of labor force evolution. Using the scenarios SAFE provided for the adoption of AVs, the Groshen employment report modeled the technology’s impact on the workforce. The study concluded that AVs would not lead to the long-term loss of jobs, although some number of workers could experience unemployment and wage losses. As there are far more professionally employed truck drivers than professionally-employed car drivers, impacts would be tied more closely to the adoption of very high automation in trucks (defined as no driver “in the loop” for most of operation). In contrast, partial automation or teleoperation of trucks is not likely to have significant negative impacts on the workforce.
Figure C and Table A contextualize the job loss within a broadly understood metric—the unemployment rate. Relative to a baseline of full employment, the advent of AVs are projected to increase the unemployment rate to a small degree in the 2030s and to a somewhat larger degree in the late 2040s, with a peak, temporary addition to unemployment rates of 0.06– 0.13 percentage points. Table A contextualizes the size of this employment impact with the shock of the recent Great Recession and a previous mild recession. Policy steps to address the evolution of the labor market must ultimately be placed in the context of the broader impacts of AVs in order to ensure the best outcome. Due to the large-scale societal benefits from the deployment of AVs, policies to address labor force issues must carefully consider their potential impact in delaying the deployment and thus the benefits of AVs. 
Delaying the deployment of AVs would represent a significant and deliberate injury to public welfare. Rather than delaying the benefits, policymakers could ensure that the interests of the people who may lose jobs are well protected through effective mitigation programs. Figure D illustrates the importance of balancing these two priorities. It plots both the conservative projected AV benefits and the range of projected wages that will be lost to individual workers due to AV-related unemployment. The range of projected wage loss reaches as high as $18 billion in 2044 and 2045. However, it is essential to note that this goes hand-in-hand with projected social benefits well in excess of $700 billion for each of those years. In fact, not only are the social and economic benefits of AV deployment significantly more than their costs to workers on an annual basis, but the benefits of AVs each year are far greater than the total cost to workers over the next 35 years combined (illustrated by the middle range of this graph)

15 June 2018

DNS Scams

The Federal Court has ordered that Domain Corp Pty Ltd and Domain Name Agency Pty Ltd (also trading as Domain Name Register) pay combined penalties of $1.95 million for breaching the Australian Consumer Law.

The ACCC states
 From November 2015 to at least April 2017, the two Domain Companies sent out approximately 300,000 unsolicited notices to businesses, which looked like a renewal invoice for the business’s existing domain name. Instead, these notices were for the registration of a new domain name at a cost ranging from $249 to $275. 
The Court declared that the Domain Companies made false and misleading representations and engaged in misleading and deceptive conduct in sending these notices. Australian businesses and organisations paid approximately $2.3 million to the Domain Companies as a result of receiving the notices. 
“The Domain Companies misled businesses into thinking they were renewing payment for the business' existing domain name, when in fact the business was paying for a new domain name,” ACCC Acting Chair Delia Rickard said. Any business or consumer receiving a renewal notice for a ‘.com’ or '.net.au’ domain name should check that the notice is to renew their proper domain name. 
“These sham operations target small businesses, capitalising on a lack of understanding of the domain name system or a busy office environment. We encourage businesses to be vigilant when paying invoices, especially if it is for a domain name registration service,” Ms Rickard said. 
The Court also declared that the sole director of both Domain Companies, Mr Steven Bell (also known as Steven Jon Oehlers), was knowingly concerned in, and a party to, the conduct. 
The Court made other orders by consent, including injunctions for three years against each of the Domain Companies and for five years against Mr Bell. These injunctions include a requirement that if any of the parties decide to send out further notices, each notice has to prominently include the words, “This notice does not relate to the registration of your current domain name. This is not a bill. You are not required to pay any money”. 
The Court also made an order disqualifying Mr Bell from managing a corporation for five years and ordered him to pay costs to the ACCC, fixed at $8,000.