WIPIP, part 2

H. Brian Holland, We Are All Cyborgs Now: A Cognitive Theory
of the Third-Party Doctrine
Once upon a time there were categorical protectsion for
private papers against search & seizure. Courts then ruled that personal
property was no longer categorically exempt from search and seizure.
Distinction b/t papers and other effects was broken down.  There’s a warrant requirement, though.  But an exception if the gov’t’s acts aren’t a
“search” under the 4A.  A search occurs
when the gov’t violates a reasonable expectation of privacy.  Third party doctrine comes in to show there’s
no reasonable expectation of privacy. Voluntary assumption of the risk that a
third party would disclose to the gov’t—gov’t needs only subpoena or similar
Sotomayor: Ill-suited to digital age, given our sharing of
more information with more third parties. 
“Sharing” means something different—not just intentional tangible
exchange. Not necessary to commercial relationship; now baked into basic
tech.  Personal papers stored on third
party servers such as those of Dropbox—covered by 3d party doctrine even though
there may be no person on the other end! 
Does not comport w/reasonable expectations of privacy.
What is to be done?  First,
personal papers are not mere effects, which are separately mentioned in the
4A.  Worthy of special, if not
categorical, protection.  Specifically,
3d party doctrine should be narrowed to protect personal memory artifacts that
are created, communicated, and stored on tech designed to structure, replace or
augment human memory.  Looking at
cognition and memory, linking function to doctrine.  Related to the idea of embodied cognition and
the extended mind.  These cognitive
memory artifacts are part of our cognitive systems; should be protected b/c of
relations b/t 1A, 4A, 5A—they play a role in freedom of thought and freedom of
conscience.  Linked to idea of security
of persons.  Bodily integrity linked to
autonomy, dignity, and identity—the extended mind is also an extension of the
Consistent w/other theories; passes Orin Kerr’s test of
being tech neutral in the sense that you don’t gain a benefit as a criminal by
using digital tech.
Many people agree that the 3d party doctrine should be
curtailed but we haven’t had a theory w/a judicial impact.  My solution: reinvigorate “papers” as a distinct
object of protection w/their own theory. 
Problem: b/c of the history, there’s little literature on the protection
of papers under the 4A; most is focused on the place where the papers were
found—the home—and the papers as property. But that’s not descriptively
accurate any more.  Should we look at
scholarship on creativity? 
RT: Skeptical that would help b/c it’s not clear that papers
are different—thinking about Erving Goffman & Peggy Radin, where it’s
possible that other property will be equally important to personhood.  Framers?
A: they said nothing about why they used both papers and
effects! In England, the history is largely about searches for (seditious)
pamphlets, which ended up being found in the home but were intended for broad
distribution; in the US, the history is largely about searches for untaxed
items/tax records.
Q: Recent case—police got pacemaker data—under 3d party doctrine.  But if he wanted to get the information himself,
DRM might have prevented him from
doing that. 
Stacey Dogan: what’s the line?
A: there is no absolute line—some people take pictures of
everything they want to remember.  I’d
rather look at the 3d party instead of the particular use.
Dogan: but you may lose people who don’t believe that a song
in your cloud storage is a personal appendage.
Amanda Levendowski, Fair Use for Fair Artificial
Lots of scholarship on biased AI.  There are lots of ways to introduce bias—the people
creating the algorithms; the data selection; data classification. IP
scholarship hasn’t addressed how © can channel AI.  E.g., training facial recognition algorithms
on white faces.  Amazon’s same-day
delivery rollout didn’t include Roxbury, predominantly black area—result that
people in that area didn’t get the same access. 
ProPublica’s investigation of machine learning algorithm for reoffending
after exiting the prison system; African-Americans were assigned higher risks
for lesser crimes. This could change bail, sentencing, parole for the
worse.  Likelihood of arrest was related
to overcriminalization/overpolicing in predominantly black areas.  Word mapping: Google News showed gendered
patterns.  Neutral: king is to man as
queen is to woman.  Man is to computer
programmer as woman is to homemaker—the algorithm picked up bias by reading
human works.  Training an AI on the Enron
emails is going to be based on the habits of a bunch of white oil & gas
guys from Texas.  Latanya Sweeney: people
searching “black” names aren’t going to get good job ads and are likely to get “search
for a criminal record” ads instead.  This
isn’t how we should train our algorithms.
Low-friction data (easy to acquire) are biased.  Twitter firehose: API allows most tweets to
be used in research. Userbase skews young, white, and urban—made Hurricane Sandy
look like it was centered in Manhattan, not Rockaway where they lacked
electricity.  Wikipedia: largest CC
source of data: fewer than 10% of active Wikipedia editors are women. If you’re
using Wikipedia for low-risk natural languages training, you get the bias of
the people who edit Wikipedia.  Same
thing happens with public domain books, and judicial opinions (largely written
by old white guys w/degrees from Harvard and/or Yale).
Solution: Google Books. 
Messy ethical question: do we actually want our robots to be really good
at recognizing people, or talking to us?
Q: Copyright Compendium’s argument that copying by a machine
isn’t expressive at all?
A: Compendium’s focus is whether computers can author.  It’s not copying, it’s scraping; there are
different words for the same thing. But Judge Koh in Meltwater was very
concerned about scraping that ignored robots.txt.  It wasn’t a true CFAA case, but the idea of
scraping can create issues with CFAA.
Alex Roberts: what’s the protected by copyright but unbiased
corpus that could be used instead?
Q: works by feminist authors or those w/intersectional approach,
post-1923.  If you want a robot that
doesn’t code homosexual as a slur, you need recent books.
Tiffany Li, Robots vs. Animals: Toward a Unified Theory on
Intellectual Property Rights on Non-Human Creators
Elephants paint; the monkey selfie; computers or algorithms
can create art or new discoveries. No consensus on applying IP principles to
those two categories.
Why does this matter? 
Today’s science fiction is tomorrow’s science fact.  What incentivizes non-humans?  Should we try to do so?  Do we only want to incentivize human
creativity?  Fairness theory: should
trees have ©?  Who determines who the
creator was if there’s no human author? 
Personality theory: does a nonhuman have any moral rights?
Monkey selfie: is the author the person who pressed the
button on the camera? Or the person aware of the work being created?  David Post says pressing a button b/c it
makes a funny sound isn’t authorship b/c authorship requires an awareness that
a work is being created.
Algorithms don’t work the same way computer generated art
does. Right now our computers are not aware of an act of creation. If we
consider authorship as only something human, there’s no point in discussing
this, but I’d argue that what creativity is shouldn’t be limited to humans—there
will almost certainly be AI that can decide to create, or will create what
looks like the same mode as human.  Ultimate
Q: what does it mean to create, produce, or author a work?  Comparing computers to animals can lead to
interesting conclusions about envisioning a photo v. clicking a button. 
RT: Why care? Compare this question to 3D printing, which
also to me raises “why care” questions insofar as the principles seem pretty
similar even if the outputs are different.
Holland: does it matter whether it’s the animal incentivized
by the click of the camera or the computer incentivized by its
programming?  If the point of © is more
works, which is a big if, then would it matter whether it was a human?
Cathy Gellis, Testing the Limits of the Section 230 IP Exemption
Stealth provision from Sen. Wyden to counteract the rest of
the CDA—to make sure that censorship wouldn’t be too easy.
Trademark, not part of the Progress Clause—why does it get
shoved under the rubric of intellectual property?  Paper tries to explore that.  How do we figure out what IP is?  Why do we think that, and can we push back on
it?  One reason this is important: lots
of people use workarounds.  Lots of
people frame their problems as © problems; Google v. Garcia was not about the
film’s distribution being harmful for reasons that had anything to do w/©.  Registrars are willing to break anonymity too
easily—anonymous speech is protected by the 1A. So she wants to get TM out of
230 to avoid evasion.
There are other things that go wrong. In the 9th
Circuit, the IP exemption means federal IP; other circuits, and even California
state law, include state based IP claims.
Dogan: Need to argue on two levels: if you’re making an
argument that this statute should be interpreted to exclude TMs, you have to
look at the legislative history to figure that out.  Even though there’s been pushback against use
of IP as a label more broadly, it’s undeniable that in common parlance lots of
people include TMs as IP.
A: there doesn’t seem to be legislative history on this.
Dogan: can you fix this if © workaround still exists?  You generally want there to be less liability
for intermediaries and this is a way you think you can get there—more persuasive
to give a principled reason.
A: one of these things is not like the others.

Silbey: since 230 was supposed to be easily operable
immunity, the idea that it was exempting federal criminal law and IP should
also be easily identifiable as such.  One
might think registered IP could be included. 
What is IP is too hard a question to answer, but which IP for easy
on/off immunity switch might be easier. 
Could also be how people claim the IP, rather than preemption.

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