THE GREAT SCRAPE: THE CLASH BETWEEN SCRAPING AND PRIVACY; SSRN, July 3, 2024

Daniel J. Solove, George Washington University Law School; Woodrow Hartzog, Boston University School of Law; Stanford Law School Center for Internet and Society; THE GREAT SCRAPE: THE CLASH BETWEEN SCRAPING AND PRIVACY

"ABSTRACT

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."

NJ Bar Association Warns the Practice of Law Is Poised for Substantial Transformation Due To AI; The National Law Review, June 4, 2024

  James G. Gatto of Sheppard, Mullin, Richter & Hampton LLP, The National Law Review; NJ Bar Association Warns the Practice of Law Is Poised for Substantial Transformation Due To AI

"The number of bar associations that have issued AI ethics guidance continues to grow, with NJ being the most recent. In its May 2024 report (Report), the NJ Task Force on Artificial Intelligence and the Law made a number of recommendations and findings as detailed below. With this Report, NJ joins the list of other bar associations that have issued AI ethics guidance, including Florida, California, New York, DC as well as the US Patent and Trademark Office. The Report notes that the practice of law is “poised for substantial transformation due to AI,” adding that while the full extent of this transformation remains to be seen, attorneys must keep abreast of and adapt to evolving technological landscapes and embrace opportunities for innovation and specialization in emerging AI-related legal domains.

The Task Force included four workgroups, including: i) Artificial Intelligence and Social Justice Concerns; ii) Artificial Intelligence Products and Services; iii) Education and CLE Programming; and iv) Ethics and Regulatory Issues. Each workgroup made findings and recommendations, some of which are provided below (while trying to avoid duplicating what other bar associations have addressed). Additionally, the Report includes some practical tools including guidance on Essential Factors for Selecting AI Products and Formulating an AI Policy in Legal Firms, provides a Sample Artificial Intelligence and Generative Artificial Intelligence Use Policy and Questions for Vendors When Selecting AI Products and Services, links to which are provided below.

The Report covers many of the expected topics with a focus on:

• prioritizing AI education, establishing baseline procedures and guidelines, and collaborating with data privacy, cybersecurity, and AI professionals as needed;
• adopting an AI policy to ensure the responsible integration of AI in legal practice and adherence to ethical and legal standards; and
• the importance of social justice concerns related to the use of AI, including the importance of transparency in AI software algorithms, bias mitigation, and equitable access to AI tools and the need to review legal AI tools for fairness and accessibility, particularly tools designed for individuals from marginalized or vulnerable communities.

Some of the findings and recommendations are set forth below."

Controversy Hides Within US Copyright Bill; Intellectual Property Watch, May 29, 2018

Steven Seidenberg, Intellectual Property Watch; Controversy Hides Within US Copyright Bill

"In a time when partisanship runs wild in the USA and the country’s political parties can’t seem to agree on anything, the Music Modernization Act is exceptional. The MMA passed the House of Representatives on 25 April with unanimous support. And for good reason. Almost all the major stakeholders back this legislation, which will bring some badly needed changes to copyright law’s treatment of music streaming. But wrapped in the MMA is a previously separate bill – the CLASSICS Act – that has been attacked by many copyright law experts, is opposed by many librarians and archivists, and runs counter to policy previously endorsed by the US Copyright Office."

Patents can stifle, as well as protect, stifle innovation; Albuquerque Journal, June 26, 2017

Joel Jacobsen, Albuquerque Journal; 

Patents can stifle, as well as protect, stifle innovation

"The absence of patent protection would make it difficult if not impossible for many inventors to profit from their ingenuity. But when a second inventor vastly improves on an original idea, as Curtiss did, isn’t he equally entitled to reap the rewards of his own ingenuity? Even apart from questions of fairness, society benefits from both the original invention and its subsequent improvement. Both types of progress deserve legal protection."

When a Computer Program Keeps You in Jail; New York Times, June 13, 2017

Rebecca Wexler, New York Times; When a Computer Program Keeps You in Jail

"The criminal justice system is becoming automated. At every stage — from policing and investigations to bail, evidence, sentencing and parole — computer systems play a role. Artificial intelligence deploys cops on the beat. Audio sensors generate gunshot alerts. Forensic analysts use probabilistic software programs to evaluate fingerprints, faces and DNA. Risk-assessment instruments help to determine who is incarcerated and for how long.

Technological advancement is, in theory, a welcome development. But in practice, aspects of automation are making the justice system less fair for criminal defendants.

The root of the problem is that automated criminal justice technologies are largely privately owned and sold for profit. The developers tend to view their technologies as trade secrets. As a result, they often refuse to disclose details about how their tools work, even to criminal defendants and their attorneys, even under a protective order, even in the controlled context of a criminal proceeding or parole hearing."