Current Issue: Volume 2022 – Issue 2

THE EMERGENCE OF INTELLIGENT TREATY SYSTEMS AND THE FUTURE OF INTERNATIONAL LAW by Thomas F. McInerney

Ensuring that multilateral regulatory treaties fulfill their stated purposes is important to solving many intractable global problems. Despite immense challenges, the prospects for achieving these aims have improved in recent years with the emergence of what I term Intelligent Treaty Systems (ITS). I define ITS to include five core capacities within treaty regimes: (1) sensing and generating data, (2) gathering and storing data, (3) processing and analyzing data, (4) creating models, maps, and visualizations of data, and (5) applying data to targets and indicators. I argue that, taken together, ITS has potential to improve the ability of state parties and relevant stakeholders to manage treaty operations, monitor implementation, and measure and improve treaty performance. These enhanced capabilities may constitute a new basis for treaty implementation and compliance, thus supplementing prevailing explanations of treaty compliance such as managerialism, reciprocity, rational choice, or reputation. Despite this potential, the technologies used in ITS raise significant legal and ethical challenges, which may impede their use in treaty practice.In the final part of the Article, I offer suggestions for future applications of ITS and ways of improving its utility and mitigating some of the potentially negative consequences from its use. [read full article]

ANTITRUST & PRIVACY: IT'S COMPLICATED by James C. Cooper & John M. Yun

It has become almost an article of faith that large, zero-price platforms—such as Facebook and Google—exercise market power by offering lower levels of privacy. Yet, a rigorous examination of the assumptions underlying this data-price analogy is seriously lacking. Even more important, almost no empirical work has been done in this area. This Article contributes to the debate by filling these important gaps in the literature. After presenting a theoretical examination of the relationship between privacy and competition, we provide empirical evidence on the relationship between market power and privacy. First, using data from PrivacyGrade.org, we find no relationship between privacy grades and our proxies for market power. Second, we collected website traffic data from SimilarWeb and matched it to DuckDuckGo’s privacy ratings for sites in thirty-seven website categories. Again, the data suggest no systematic relationship between privacy ratings and market concentration. Our theoretical analysis and empirical results challenge conventional wisdom, suggesting that antitrust is a poor tool to address perceived privacy problems. Instead, if markets produce less than optimal levels of privacy, it is likely due to informational problems that are not based on the level of competition. We suggest that absent specific allegations on (1) the causal link between conduct and degraded privacy, and (2) the lack of benefits from increased data collection, antitrust complaints that merely assert a causal link between privacy reductions and market power should not survive the Twombly-Iqbal plausibility standard. Further, we conclude that privacy regulation and competition policy might be complementary, but only in one direction: consumer protection designed to increase consumer access to information about firms’ privacy practices—and firms’ ability to credibly commit to these promises—may help foster competition over privacy, but the converse is not true. [read full article]

THE DEATH OF LENIENCY? AN ANALYSIS OF THE IMPACT OF BLOCKCHAIN ON THE INDIAN LENIENCY PROGRAM by Aachman Shekhar & Aniket Chauhaan 

This Essay analyzes the impact blockchain will likely have on the Indian Leniency Program, and its underlying economic principles. It begins by providing a primer on how leniency programs operate worldwide and the reasons for their success. The economic principles behind the enforcement of leniency programs are enumerated and explained. It then analyzes the provisions of the Indian Leniency Program to determine the problems plaguing it currently and the challenges it may soon face. blockchain is identified as one of these potential challenges facing the program. Consequently, the Essay analyzes the particular characteristics of blockchain that can have an adverse effect on the leniency programs. It further looks at how these characteristics impact the economic principles of leniency programs. In conclusion, it advocates for the Competition Commission of India (CCI) to take a proactive approach in dealing with the challenges that blockchain poses to its leniency program and take the necessary measures to keep itself abreast of the developing best-practices in dealing with similar advanced technologies. [read full essay]

RETHINKING REDISTRICTING: STATE ALTERNATIVES TO FEDERAL CENSUS DATA by Michael Gerkin

In 2020, the decennial census and State redistricting process was challenged in ways never before experienced. As the COVID-19 pandemic halted the timely release of federal census data to begin the redistricting process, states scrambled to obtain population figures to redistrict within their own constitutional and statutory timetables. In some instances, states resorted to inaccurate and unreliable population data sets. In the background, today’s increasingly interconnected world and availability of data-centric approaches to problem solving thrives. This Note argues that states should consider alternative population data sets to the federal census to begin the redistricting process. Where states and localities have already launched civic-tech centers to improve the public sector through modern technology, application to the redistricting function of state government is becoming increasingly possible. This Note aims to arm states with census alternatives through future investment in tech-governance to positively shape the early stages of the redistricting process and to avoid the pitfalls exposed in the 2020 redistricting cycle. Importantly, alternatives advanced in this Note are viable under federal and state constitutional and statutory mandates. Absent sole reliance on a decade-by-decade federal census, redistricting may occur more frequently and a narrower focus toward population figures gathered by state-centered alternatives will increase public trust in governance. [read full note]

OMINOUS OR AUTONOMOUS? THE CASE FOR BANNING AUTONOMOUS WEAPONS SYSTEMS IN TARGETED KILLINGS by Amreen Gill

The U.N. recently released a report detailing the Libyan government’s operation to hunt down militia fighters. What made this operation different from others, however, was the use of autonomous weapons systems (AWS). The U.N. described this as the world’s first offensive AWS attack—the AWS was able to attack the militia fighters without requiring a human operator. This is concerning. AWS can be situated anywhere, use facial recognition software, and can compensate for human error. AWS can therefore select and target people or objects without human intervention. Legally and ethically, allowing AWS to develop without meaningful global regulation could be catastrophic. This Note, arguing that AWS should be banned in targeted killings, explores the history of targeted killings, current developments of AWS, different reform schemes proposed to regulate AWS, and a consensus-based approach in banning the use of AWS. [read full note]

THESE ARE NOT THE DROIDS YOU ARE LOOKING FOR: THE URGENT NEED FOR STATE REGULATION OF ARTIFICIALLY INTELLIGENT SEX ROBOTS by Dan Lev

The advancement of technology makes the creation of Artificially Intelligent sex robots (Sexbots) an inevitability within the foreseeable future. Sexbots present a unique challenge to legal structures because they will implicate laws governing third-party data sharing, biometric information, freedom of expression, sex toy regulation, and artificial intelligence (AI). After examining state laws governing AI and data privacy, it is clear neither Illinois law nor federal law is prepared to effectively govern the issues of the present, let alone the future. This Note argues Illinois should adopt wider-encompassing data privacy laws, draft stronger consumer protection laws modeled after other states, and establish an AI framework that provides oversight to how AI algorithms are drafted and executed. This Note explores the multitude of legal doctrines Sexbots may implicate and examines state, federal, and international laws governing data privacy and AI. [read full note]