'Machine Speech' by Tim Wu in (2013) 161
University of Pennsylvania Law Review 1495
comments that
Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?
Wu argues
The question of “rights for robots,” if once limited to science fiction, has
now entered the public debate. In recent years, firms like Verizon and
Google have relied on First Amendment defenses against common-law and
regulatory claims by arguing that some aspect of an automated process is
speech protected by the Constitution. These questions will only grow in
importance as computers become involved in more areas of human decisionmaking.
A simple approach, favored by some commentators, says that the First
Amendment presumptively covers algorithmic output so long as the program
seeks to communicate some message or opinion to its audience. But
while simplicity is attractive, so is being right. In practice, the approach
yields results both absurd and disruptive;3 the example of the car alarm
shows why. The modern car alarm is a sophisticated computer program that
uses an algorithm to decide when to communicate its opinions, and when it
does it seeks to send a particularized message well understood by its audience.
It meets all the qualifications stated: yet clearly something is wrong
with a standard that grants Constitutional protection to an electronic
annoyance device. Something is missing.
The big missing piece is functionality. More specifically, what’s being
overlooked is the differential treatment courts should accord communications
closely tied to some functional task. A close reading of the relevant cases
suggests that courts, in fact, limit coverage in a way that reserves the power of the state to regulate the functional aspects of the communication process,
while protecting its expressive aspects. Here, I go further and suggest that
the law contains a de facto functionality doctrine that must be central to any
consideration of machine speech.
The doctrine operates in two distinct ways. First, courts tend to withhold
protection from carrier/conduits—actors who handle, transform, or
process information, but whose relationship with speech or information is
ultimately functional. Definitive examples are Federal Express or the
telephone company, common carriers to whom the law does not grant
speech rights. Those who merely carry information from place to place
(courier services) generally don’t enjoy First Amendment protection, while
those who select a distinct repertoire, like a newspaper or cable operator, do.
Similarly, those who provide the facilities for job interviews are not recognized
as speakers, nor are the manufacturers of technologies that record or
transform information from one form into another—like a typewriter,
photocopier, or loudspeaker.
Second, courts do not normally protect tools—works whose use of information
is purely functional, such as navigational charts, court filings, or
contracts. The reasons are complex, and related to a broader nonprotection
of information that by its very communication performs some task. In the
words of language philosophers these are “speech acts,” “illocutionary acts,”
or “situation-altering utterances.” The broader category includes the
communications embodied in criminal commands, commercial paper,
nutritional information, and price-fixing conspiracies.
Combined, these two tendencies form a de facto functionality doctrine,
which, as we shall see, is central to understanding the First Amendment in
the context of algorithmic output (and, thankfully, excludes car alarms from
the protections of the Constitution). For one thing, in many cases the fact
that an algorithm makes the decisions in software cases is in tension with
the requirement of knowing selection or intimate identification. Other
times, algorithmic output falls into the category of communication that acts
by its very appearance. Warnings, status indications, directions, and similar
signals are common outputs for computer software in this category. These
outputs act to warn or instruct and are therefore similar analytically to
something like a criminal command or conspiracy.
In an area as complex as this, a rule of thumb might be useful. Generally,
we can distinguish software that serves as a “speech product” from that
which is a “communication tool.” Communication tools fall into the categories
just described: they primarily facilitate the communications of another
person, or perform some task for the user. In contrast, speech products are
technologies like blog posts, tweets, video games, newspapers, and so on,
that are viewed as vessels for the ideas of a speaker, or whose content has
been consciously curated.
The boundary between one and the other may be imperfect, but it must
be drawn somewhere if the First Amendment is to be confined to its
primary goal of protecting the expression of ideas, and if we are to prevent
its abuse. If a software designer is primarily interested in facilitating some
task for the user, he will be unlikely to have the space to communicate his
own ideas. At a minimum, his ideas must bend to operations. Thus, the
intent is not to communicate ideas, or, as the Supreme Court puts it, “affect
public attitudes and behavior in a variety of ways, ranging from direct
espousal of a political or social doctrine to the subtle shaping of thought
which characterizes all artistic expression.”
In what follows, I introduce these ideas more thoroughly and, along the
way, consider the speech status of blogging and microblogging software like
Twitter, GPS navigation software, search engines, and automated concierges.
The importance of these matters cannot be overstated. Too little protection
would disserve speakers who have evolved beyond the printed pamphlet.
Too much protection would threaten to constitutionalize many areas of
commerce and private concern without promoting the values of the First
Amendment.
‘Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles’ by Jeffrey Gurney in (2013) 2
Journal of Law, Technology and Policy 101
argues that
Autonomous vehicles will revolutionize society in the near future. Computers, however, are not perfect, and accidents will occur while the vehicle is in autonomous mode. This Article answers the question of who should be liable when an accident is caused in autonomous mode. This Article addresses the liability of autonomous vehicle by examining products liability through the use of four scenarios: the Distracted Driver; the Diminished Capabilities Driver; the Disabled Driver; and the Attentive Driver.
Based on those scenarios, this Article suggests that the autonomous technology manufacturer should be liable for accidents caused in autonomous mode because the autonomous vehicle probably caused the accident. Liability should shift back to the “driver” depending on the nature of the driver and the ability of that person to prevent the accident. Thus, this Article argues that an autonomous vehicle manufacturer should be liable for accidents caused in autonomous mode for the Disabled Driver and partially for the Diminished Capabilities Driver and the Distracted Driver. This Article argues the Attentive Driver should be liable for most accidents caused in autonomous vehicle. Currently, products liability does not currently allocate the financial responsibility of an accident to the party that is responsible the accident, and this Article suggests that courts and legislatures need to address tort liability for accidents caused in autonomous mode to ensure that the responsible party bears responsibility for accidents.
