Data Sovereignty

'Protecting Policy Space for Indigenous Data Sovereignty Under International Digital Trade Law' by Andrew D. Mitchell and Theo Samlidis comments 

The impact of economic agreements on Indigenous peoples’ broader rights and interests has been subject to ongoing scrutiny. Technological developments and an increasing emphasis on Indigenous sovereignty within the digital domain have given rise to a global Indigenous data sovereignty movement, surfacing concerns about how international economic law impacts Indigenous peoples’ sovereignty over their data. This Article examines the policy space certain governments have reserved under international economic agreements to introduce measures for protecting Indigenous data or digital sovereignty (IDS). We argue that treaty countries have secured, under recent international digital trade chapters and agreements, the benefits of a comprehensive economic treaty and sufficient regulatory autonomy to protect Indigenous data sovereignty. 

Pharma

'Countermovements from the core: the assetization of pharmaceuticals, transparency activism and the access to medicines movement' by Théo Bourgeron and Susi Geiger in (2024) Socio-Economic Review comments 

The assetization of essential goods brings to high-income countries the logics of scarcity that have been dominant for long in low-to-middle income countries—fostering the rise of new forms of activism. Will this new activism strengthen already existing social movements or weaken them through more moderate politics? Building on interviews and the observation and mapping of activist events, we investigate this question through the case of pharmaceuticals. We detail how the assetization of pharmaceutical drugs has triggered the constitution of a new ‘flank’ in the access to medicines (A2M) movement—pharmaceutical transparency activism. We argue that transparency activism has expanded the contestation of the pharmaceutical state of affairs, by bringing into the broader A2M movement countries that were previously at the core of global pharmaceutical chains. Our article illuminates how the assetization of essential goods creates forms of activism that have significant impact on existing social movements. 

In May 2019, the World Health Assembly (WHA; the decision-making body of the World Health Organization) voted for an important resolution requesting all countries to increase transparency over the prices of medicines and the public funding that pharmaceutical companies receive to develop them (World Health Assembly, 2019). Although this resolution was not binding for its 194 member countries, it was claimed as a victory for an activist movement that had been campaigning since the mid-2010s for what they called ‘pharmaceutical transparency’, a struggle they found crucial to curb the increasingly high prices of new medicines (Health Policy Watch, 2019). Remarkably, this was the first time that a WHA united under the same resolution the low- and middle-income countries that had been critical of the global pharmaceutical market order for decades (e.g. Mexico, Brazil and Thailand), but also countries at the core of global pharmaceutical markets (e.g. Italy, the Netherlands and Norway), which were traditionally favourable to the interests of multinational pharmaceutical corporations. As representatives from these countries would confess themselves, this shift had resulted from their dissatisfaction of ever-rising prices for new medicines marketed by large pharmaceutical companies, itself the result of the increasingly financialized nature of these companies (Health Policy Watch, 2019). This WHA resolution therefore revealed how recent changes in the pharmaceutical sector had actually expanded the coalition of countries contesting the global pharmaceutical order. 

Through the example of the assetization of pharmaceuticals and the access to medicines (A2M) movement, this article investigates the nature and dynamics of countermovements that emerge to contest the assetization of essential goods. Since the 1980s, the ownership and production of pharmaceuticals have been increasingly embedded into financial markets, resulting in rapidly rising pharmaceutical prices and detrimental effects on access to medicines (Gaudilliere and Sundar Rajan, 2021). This has led to the rise of the A2M movement, with activism developing throughout the world to achieve better access to innovative medicines for patients (Baker, 2020). Recently, the vertiginous rise in prices particularly for highly innovative medicines has come to threaten access to medicines in countries that were previously spared by such issues, including in Europe (Krikorian and Torreele, 2021). Focusing on the case of the movement for pharmaceutical price transparency, we trace the rise of A2M movements in countries where such contestation was previously residual. We contend that the recent period has led to a ‘flank movement’ in access to medicines activism, with a triple shift in its orientation compared to previous forms of activism: (a) a shift from the contestation of the root causes of high drug prices to their institutional implementation; (b) from patient-led activism to state-led activism; and (c) from marginal to peripheral and even some core countries in global pharmaceutical markets (see Table 1 for a definition of these terms). We investigate the role that the assetization of pharmaceutical drugs has played in the rise of this movement and the ultimately positive impact that this movement had on the broader A2M one. ... 

Our project addresses the important political issue of how assetization changes the social movement landscape. To do so, our analysis bridges two streams of literature: scholarship on assetization countermovements, which has explored how the transformation of goods into financial assets provokes the rise of new social movements that contest such processes; and radical flank theory, which explores how different forms of activism shape social movement dynamics, their objectives and their chances of success. The case of pharmaceutical price transparency activism in the broader context of the A2M movement allows us to investigate a situation where an emerging form of activism arising from the consequences of assetization affects an already-existing social movement. The conditions for the emergence and success of these movements often remain unclear, along with their ultimate political consequences. 

We shed light on the ambivalent nature of such counter-‘flanks’ arising from the core of global markets, asking whether they may be more or less effective at achieving institutional or societal change than more radical countermovements that have remained at the margins. Our investigation therefore contributes to understanding how the assetization of essential goods reconfigures social movement dynamics. Beyond this theoretical argument, the ‘flank movement’ that we investigate could have considerable consequences on the space for manoeuvring of the pharmaceutical sector. It brings new groups to the A2M movement, in particular actors that are more moderate than the traditional A2M activists focused on abolishing pharmaceutical patents. It also threatens the coalition between core countries’ governments, pharmaceutical corporations and industry-friendly groups of activists and thus disturbs the ‘quiet politics’ (Culpepper, 2012) that had heretofore prevailed in this sector. In the final count, it thus fundamentally alters the ‘system of alignment’ in the pharmaceutical sector (Hartley, 2002). 

In the following sections, we detail the literature on assetization countermovements and radical flank theory before introducing our case context—the transformation of pharmaceuticals into financial assets and its impact on access to medicines. After a brief description of our methods, we develop three empirical sections, which investigate (a) how the A2M movement has been traditionally divided between a radical flank in marginal countries (‘patent activism’) and a broadly cooperative one in core countries (‘patient activism’), (b) how the recent period has seen the rise of a third strand of A2M activism (‘pharmaceutical transparency’) with intermediary objectives; and (c) how this new form of activism has had an ultimately positive impact on the A2M movement, gathering NGOs and individuals from the radical flank with state agencies from core and peripheral countries into contentious activism. We close by discussing the significance of this development for the future of the access to medicines movement and its interactions with the pharmaceutical sector, and we signal the conceptual implications of our case for other assetization countermovements.

Emotion

'Physiognomic Artificial Intelligence' by Luke Stark and Jevon Hutson in (2022) 32 Fordham Intellectual Property, Media and Entertainment Law Journal 922 comments 

The reanimation of the pseudosciences of physiognomy and phrenology at scale through computer vision and machine learning is a matter of urgent concern. This Article—which contributes to critical data studies, consumer protection law, biometric privacy law, and antidiscrimination law—endeavors to conceptualize and problematize physiognomic artificial intelligence (“AI”) and offer policy recommendations for state and federal lawmakers to forestall its proliferation. 

Physiognomic AI, as this Article contends, is the practice of using computer software and related systems to infer or create hierarchies of an individual’s body composition, protected class status, perceived character, capabilities, and future social outcomes based on their physical or behavioral characteristics. Physiognomic and phrenological logics are intrinsic to the technical mechanism of computer vision applied to humans. This Article observes how computer vision is a central vector for physiognomic AI technologies and unpacks how computer vision reanimates physiognomy in conception, form, and practice and the dangers this trend presents for civil liberties. 

This Article thus argues for legislative action to forestall and roll back the proliferation of physiognomic AI. To that end, it considers a potential menu of safeguards and limitations to significantly limit the deployment of physiognomic AI systems, which hopefully can be used to strengthen local, state, and federal legislation. This Article foregrounds its policy discussion by proposing the abolition of physiognomic AI. From there, it posits regimes of U.S. consumer protection law, biometric privacy law, and civil rights law as vehicles for rejecting physiognomy’s digital renaissance in AI. Specifically, it contends that physiognomic AI should be categorically rejected as oppressive and unjust. Second, it argues that lawmakers should declare physiognomic AI unfair and deceptive per se. Third, it proposes that lawmakers should enact or expand biometric privacy laws to prohibit physiognomic AI. Fourth, it recommends that lawmakers should prohibit physiognomic AI in places of public accommodation. It also observes the paucity of procedural and managerial regimes of fairness, accountability, and transparency in addressing physiognomic AI and attend to potential counterarguments in support of physiognomic AI.

The robust and important 'Neurorights: The Land of Speculative Ethics and Alarming Claims?' by Frederic Gilbert and Ingrid Russo in (2024) 15(2) AJOB Neuroscience 113 comments 

 The intersection of AI and neurotechnology has resulted in an increasing number of medical and non-medical applications and has sparked debate over the need for new human rights, or “neurorights,” to better protect users. In his article, Bublitz critically examines the prospect of an international instrument regarding Neurotechnologies and Human Rights. In evaluating the feasibility of establishing new human rights, Bublitz argues in favor of advancing the law without introducing novel rights (Bublitz 2024). He acknowledges the criticality of protecting certain fundamental aspects of the mind—specifically, the unconditionally protected core of freedom of thought and opinion—alongside qualified rights to mental integrity and privacy which protect against less severe neurotechnological interferences (Bublitz 2024). In this commentary, we build upon Bublitz’s position by examining the calls for new human rights based on assertions that the mind requires safeguarding from invasive ‘reading’ technologies (Bublitz 2024). 

Let us look at the ‘reading’ terminology used in these assertions. First, we need to delve into the veracity of terms like “brain-reading” and “mind-reading” in the context of neurotechnological advancements to discern whether the claims are underpinned by evidence or hype. In recent years, there has been a surge in news media reports discussing the potential of AI applications to decode brain activity for mind-reading purposes. The portrayal of AI mind-reading capabilities is both remarkable and concerning. Recent headlines, such as “The brain is the final frontier of our privacy, and AI is about to breach it” (Yahoo News), “Mind-reading technologies have arrived” (VOX), “AI makes non-invasive mind-reading possible by turning thoughts into text” (The Guardian), “This ‘mind-reading’ AI system can recreate what your brain is seeing” (Euronews), “AI-Powered ‘Thought Decoders’ Won’t Just Read Your Mind—They’ll Change It” (Wired), are so commonplace that one feels ‘AI ability to read the mind’ is mainstream reality. 

However, given that news media also often depict brain-computer interfaces (BCIs) in an unjustifiably overall positive and sensationalist tone, a degree of skepticism arises regarding the claims that AI can access and decrypt hidden aspects of the mind (Gilbert et al. 2019; Pham and Gilbert 2019). 

Interestingly, the claims about AI-enabled mind-reading find resonance even within the most respected and influential institutions. For instance, the International Bioethics Committee of UNESCO’s report on ‘The Risks and Challenges of Neurotechnologies for Human Rights’ underscores the multifaceted impacts of combining AI and neurotechnologies capable of ‘reading’ and ‘writing’ brain activity. Furthermore, academic journals contribute to this discourse, with titles like “Mind-reading devices are revealing the brain’s secrets” (Nature) and “Artificial intelligence is learning to read your mind—and display what it sees” (Science). 

We conducted a scoping review of 1017 academic articles to gain insights into the current state of the art and examine assertions made by academics (Gilbert and Russo under review). Our analysis revealed that up to 91% of the examined articles suggest the possibility of mind reading through brain reading (Figure 1). Overall, we observed an increase in the number of articles connecting brain reading and mind reading by year (Figure 2), along with discussion that mind-reading will be possible in the future (Figure 3). Ethical issues discussed frequently include mental privacy, mental freedom, and personhood.

Contempt

The UK Law Commission has released a consultation paper reviewing the law on contempt of court. It states 

 “Contempt of court” refers to a wide variety of conduct that may impede or interfere with the administration of justice. For example, taking photographs in a courtroom, making an audio recording of proceedings, assaulting court staff or witnesses, and refusing to answer a court’s questions if called as a witness. It may also be committed by conduct that occurs elsewhere – for instance, by journalists, bloggers or members of the public publishing material that risks prejudicing a trial or publishing in breach of reporting restrictions. 

Contempt is not a criminal offence – but the sanctions that may follow include imprisonment for up to two years and unlimited fines. On average, each year at least 100 people receive an immediate or suspended prison sentence.... 

The Law Commission proposes to do away with centuries-old distinctions between “criminal contempt” and “civil contempt” in favour of a modern, streamlined set of contempt laws. 

The Commission proposes that there should be three forms of contempt of court.

“General contempt”. Examples include abusing court staff or witnesses, disrupting a hearing, or making unauthorised recordings of proceedings. Proceedings may be commenced by the court itself or by the Attorney General, who has a constitutional role as guardian of the public interest in the administration of justice. 

“Contempt by breach of court order or undertaking”. Examples include litigants in high value commercial disputes taking assets out of the country in contravention of a “freezing order” requiring them not to do so, or protesters entering on land when an injunction prohibits it, or people subject to Anti-Social Behaviour Injunctions (ASBIs) breaching the terms of those injunctions. Proceedings may be commenced by, for instance, the litigant in a commercial dispute who obtained the freezing order, the landowner that took out an injunction to prevent protesters causing disruption, or a local authority who obtained the ASBI. Proceedings can only be commenced with permission of the court. 

“Contempt by publication when proceedings are active”. Examples include media reporting or social media posts that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. For instance, when a publication reveals information that may not be admissible in evidence then it may carry a risk of influencing a jury in a criminal trial. Proceedings can only be commenced with the permission of the Attorney General or, more commonly, the Attorney General takes action by commencing proceedings. 

Among the specific proposals for reform are several relating to:

Community sentences: Currently, courts are very limited in the sanctions they can impose; mostly, prison or a fine are the only options. These are not always suitable. Where vulnerable people have breached the conditions of an ASBI then prison may not be appropriate, and they may have no money to pay a fine. The Law Commission proposes expanding sentencing options to include community orders, which may include unpaid work, drug or alcohol treatment, and restrictions on places that a person may go or where they must live. 

Imprisonment: The maximum sentence for contempt is two years imprisonment. The Law Commission proposes to retain that. However, as there is a strong public interest in knowing about proceedings that are before the courts, the Commission is seeking views on whether the option of imprisonment should be removed when freedom of expression is engaged and a defendant’s culpability is lower, for example because the defendant did not intend to interfere with the administration of justice. 

Tribunals: extending contempt protection and powers to tribunals. Currently, the law of contempt does not apply in many tribunals and that is a significant constraint on their ability to address conduct that disrupts proceedings or breaches orders made to protect the parties. Contempt powers will help tribunals to ensure proceedings are fair, effective and efficient. 

Criminal records: ensuring that a contempt finding is not entered on the Police National Computer and does not appear on a criminal records check, as contempt is not a criminal offence. There is evidence that contempt sometimes does appear on criminal records.

Scraping

'The Great Scrape: The Clash Between Scraping and Privacy' by Daniel J Solove and Woodrow Hartzog comments 

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping” – the automated extraction of large amounts of data from the internet. A great deal of scraped data is about people. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archival, and meaningful scientific research, scraping for AI can also be objectionable or even harmful to individuals and society. 

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this Article, we contend that scraping must undergo a serious reckoning with privacy law. Scraping violates nearly all of the key principles in privacy laws, including fairness; individual rights and control; transparency; consent; purpose specification and secondary use restrictions; data minimization; onward transfer; and data security. With scraping, data protection laws built around these requirements are ignored. 

Scraping has evaded a reckoning with privacy law largely because scrapers act as if all publicly available data were free for the taking. But the public availability of scraped data shouldn’t give scrapers a free pass. Privacy law regularly protects publicly available data, and privacy principles are implicated even when personal data is accessible to others. 

This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the “great scrape.” There must now be a great reconciliation.