Articles by mjlst

Caught in the Digital Dragnet: The Controversy Over Geofence Warrants and Privacy Rights

February 7, 2025
Uncategorized

Yaoyu Tang, MJLST Staffer

 

Picture this: A sunny Saturday afternoon at a bustling shopping mall. Children’s laughter echoes as they pull their parents toward an ice cream stand. Couples meander hand-in-hand past glittering storefronts, while teenagers crowd the food court, joking and snapping selfies. It’s a portrait of ordinary life—until chaos quietly unfolds. A thief strikes a high-end jewelry store and vanishes into the crowd, leaving no trail behind. Frustrated and out of options, law enforcement turns to a geofence warrant, demanding Google provide location data for every smartphone within a quarter-mile radius during the heist. In the days that follow, dozens of innocent shoppers, workers, and passersby find themselves under scrutiny, their routines disrupted simply for being in the wrong place at the wrong time.

This story is not hypothetical—it mirrors real-life cases where geofence warrants have swept innocent individuals into criminal investigations, raising significant concerns about privacy rights and constitutional protections.

Geofence warrants are a modern investigative tool used by law enforcement to gather location data from technology companies.[1] These warrants define a specific geographic area and time frame, compelling companies like Google to provide anonymized location data from all devices within that zone.[2] Investigators then sift through this data to identify potential suspects or witnesses, narrowing the scope to relevant individuals whose movements align with the crime scene and timeline.[3]

The utility of geofence warrants is undeniable. They have been instrumental in solving high-profile cases, such as identifying suspects in robberies, assaults, and even the January 6 Capitol riots.[4] By providing a way to access location data tied to a specific area, geofence warrants enable law enforcement to find leads in cases where traditional investigative techniques might fail.[5] These tools are particularly valuable in situations where there are no direct witnesses or physical evidence, allowing law enforcement to piece together events and identify individuals who were present during criminal activity.[6]

However, the benefits of geofence warrants come with significant risks. Critics argue that these warrants are overly broad and invasive, sweeping up data on innocent bystanders who happen to be in the area.[7] In addition, civil liberties organizations, such as the ACLU and the Electronic Frontier Foundation (EFF), have strongly criticized geofence warrants.[8] They argue that the geofence warrants infringe on privacy rights and disproportionately affect marginalized communities. Without strict limitations, geofence warrants could become tools of mass surveillance, disproportionately targeting marginalized communities or chilling free movement and association. [9] Moreover, this indiscriminate collection of location data raises serious Fourth Amendment concerns, as it can be seen as a form of digital general warrant—a modern equivalent to the invasive searches that the Framers sought to prevent.[10] Tension between their investigative utility and potential for privacy violations has made geofence warrants one of the most controversial tools in modern law enforcement.

The legality of geofence warrants is far from settled, with courts offering conflicting rulings. In United States v. Smith, the Fifth Circuit declared geofence warrants unconstitutional, stating that they amount to general searches.[11] The court emphasized the massive scope of data collected and likened it to rummaging through private information without sufficient cause.[12] The decision heavily relied on Carpenter v. United States, where the Supreme Court held that accessing historical cell-site location information without a warrant violates the Fourth Amendment.[13] In Carpenter, the Court recognized that cell-site location information (CSLI) provides an intimate record of a person’s movements, revealing daily routines, frequent locations, and close personal associations.[14] This information, the Court held, constitutes a “search” within the meaning of the Fourth Amendment, requiring a warrant supported by probable cause.[15] Conversely, the Fourth Circuit in United States v. Chatrie upheld the use of geofence warrants, arguing that users implicitly consent to data collection by agreeing to terms of service with tech companies.[16] The court leaned on the third-party doctrine, which holds that individuals have reduced privacy expectations for information shared with third parties.[17] These conflicting rulings highlight the broader struggle to apply traditional Fourth Amendment principles to digital technologies. The Fifth Circuit’s ruling highlights discomfort with the vast reach of geofence warrants, pointing to their lack of Fourth Amendment particularity.[18] Conversely, the Fourth Circuit’s reliance on the third-party doctrine broadens law enforcement access, framing user consent as a waiver of privacy.[19] This split leaves courts struggling to reconcile privacy with evolving surveillance technology, underscoring the urgent need for clearer standards.

Tech companies like Google play a pivotal role in the geofence warrant debate. Historically, Google stored user location data in a vast internal database known as Sensorvault.[20] This database served as a central repository for location data collected from various Google services, including Google Maps, Search, and Android devices.[21] Law enforcement agencies frequently sought access to this data in response to geofence warrants, making Sensorvault a crucial point of contention in the legal and privacy debates surrounding this technology.[22] However, in 2023, Google announced significant changes to its data policies: location data would be stored on user devices instead of the cloud, backed-up data would be encrypted to prevent unauthorized access, including by Google itself, and default auto-delete settings for location history would reduce data retention from 18 months to three months.[23] These policy changes significantly limit the availability of location data for law enforcement agencies seeking to execute geofence warrants.[24] By storing data locally on user devices and implementing robust encryption and auto-deletion features, Google has effectively reduced the amount of location data accessible to law enforcement.[25] This highlights the significant influence that corporate data policies can exert on law enforcement practices.[26] Other companies, like Apple, have adopted even stricter privacy measures, refusing to comply with all geofence warrant requests.[27]

The debate surrounding the legality and scope of geofence warrants remains contentious. Courts grapple with varying interpretations, legislators struggle to enact comprehensive legislation, and public opinion remains divided. This uncertainty necessitates authoritative guidance. Whether through judicial precedent, legislative reform, or technological advancements that mitigate privacy concerns, achieving a consensus on the permissible use of geofence warrants is crucial. Only with such a consensus can society navigate the delicate balance between public safety and individual privacy rights in the digital era.

 

Notes:

[1] Ronald J. Rychlak, Geofence Warrants: The New Boundaries, 93 MISS. L. Rev. 957-59 (2024).

[2] Id.

[3] Id.

[4] Mark Harris, A Peek Inside the FBI’s Unprecedented January 6 Geofence Dragnet, WIRED(Nov. 28, 2022, 7:00 AM), https://www.wired.com/story/fbi-google-geofence-warrant-january-6/.

[5] Jeff Welty, Recent Developments Concerning Geofence Warrants, N.C. CRIM. L. (Nov. 4, 2024), https://nccriminallaw.sog.unc.edu/recent-developments-concerning-geofence-warrants/.

[6] Prathi Chowdri, Emerging tech and law enforcement: What are geofences and how do they work, POLICE1(Nov. 16, 2023, 9:06 PM), https://www.police1.com/warrants/google-announces-it-will-revoke-access-to-location-history-effectively-blocking-geofence-warrants.

[7] Jennifer Lynch, Is This the End of Geofence Warrants, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2023/12/end-geofence-warrants.

[8] ACLU, ACLU Argues Evidence From Privacy-Invasive Geofence Warrants Should Be Suppressed, https://www.aclu.org/press-releases/aclu-argues-evidence-from-privacy-invasive-geofence-warrants-should-be-suppressed#:~:text=In%20the%20brief%2C%20the%20ACLU,they%20were%20engaged%20in%20criminal.

[9] LYNCH, supra note 7.

[10] Id.

[11] United States v. Smith, 110 F.4th 817 (5th Cir. 2024).

[12] Id. at 28-30.

[13] Id. at 27-29.

[14] Carpenter v. United States, 585 U.S. 296 (2018)

[15] Id.

[16] United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024).

[17] Id. at 326-57.

[18] Smith, 110 F.4th 817, at 27-30.

[19] Chatrie, 107 F.4th 319, at 326-57.

[20] Jennifer Lynch, Google’s Sensorvault Can Tell Police Where You’ve Been, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2019/04/googles-sensorvault-can-tell-police-where-youve-been?.

[21] Id.

 

[22] Id.

[23] Skye Witley, Google’s Location Data Move Will Reshape Geofence Warrant Use, BLOOMBERG L. (Dec. 20, 2023, 4:05 AM), https://news.bloomberglaw.com/privacy-and-data-security/googles-location-data-move-will-reshape-geofence-warrant-use?.

[24] Id.

[25] Id.

 

[26] Id.

 

[27] APPLE, Apple Transparency Report: Government and Private Party Requests, https://www.apple.com/legal/transparency/pdf/requests-2022-H1-en.pdf.

The Crime of Ecocide

February 4, 2025
Uncategorized

Sarah Chaoui, MJLST Staffer

 

“The immense destruction brought about by indiscriminate bombing, by large-scale use of bulldozers and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention.”[i]

– Olof Palme, Former Prime Minister of Sweden, at the UN Conference on the Human Environment (1972).

The term ecocide was first coined at the Conference on War and National Responsibility by Arthur W. Galston, a professor and biologist who first identified the defoliant effects of the chemicals that later developed into Agent Orange.[ii] Gaston characterized ecocide as the massive destruction and damage of ecosystems and proposed an international agreement to ban ecocide at the conference.[iii] In 2021, an expert panel convened by the Stop Ecocide Foundation proposed the following legal definition of ecocide: “For the purposes of this Statute, ‘ecocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” [iv] While ecocide is not yet universally recognized as a crime under international law, there is growing advocacy to establish it as a fifth international crime, along with genocide, crimes against humanity, war crimes, and the crime of aggression.[v]

Recognizing ecocide as a crime is important for many reasons. First, it would create accountability for deliberate or negligent environmental destruction both in the context of armed conflicts and in times of peace.[vi] In theory, the proposed crime would allow responsible parties to be prosecuted for large-scale environmental harms resulting from state actions such as mass bombings or other actions resulting in oil spills and extensive air pollution.[vii] Second, the criminal penalties associated with committing the proposed crime would deter corporations and government actors from engaging in harmful practices and potentially reduce their overall negative environmental impact.[viii] Third, it would be an additional measure to protect biodiversity and ecosystems necessary for human and animal survival.[ix] Finally, the recognition of ecocide as a crime would legitimize and emphasize the severity of environmental harm, especially as we are in the midst of a climate crisis.[x]

While an international crime of ecocide does not yet exist, several countries have an existing or proposed national crime of ecocide. These countries include Ecuador, Vietnam, Uzbekistan, and France, among others.[xi] According to the co-founder and executive director of

Stop Ecocide International, interest in criminalizing ecocide has grown dramatically in recent years, largely because of the broad legal definition that focuses on the environmental consequences rather than specific activities.[xii] As more countries consider adopting domestic laws criminalizing environmental destruction, have reinforced the need for an ecocide crime at the international level.[xiii]

Despite the growing popularity of domestic ecocide laws, there are several barriers to establishing ecocide as an international crime. There is first the legal barrier of amending the Rome Statute, the international treaty establishing the International Criminal Court.[xiv] The legal process for making ecocide an international crime would require a Head of State to propose an amendment to the Rome Statute and submit it at least three months before a meeting of the States Parties to the Rome Statute.[xv] If there is a simple majority at that meeting, the amendment can be considered and adopted with the agreement of at least ⅔ of the member states.[xvi] However, there will likely be resistance or opposition from industrialized countries whose economies rely heavily on resource extraction and polluting industries.

There are also possible jurisdictional issues. The ICC can only prosecute crimes committed by nationals of states that are parties to the Rome Statute.[xvii] Non-signatory states, such as the United States, China, and India, also three of the world’s largest polluters[xviii], would not fall under ICC jurisdiction. There is, however, an all-inclusive form of jurisdiction known as “universal jurisdiction” that allows national courts to investigate and prosecute an entity suspected of committing a crime “anywhere in the world regardless of the nationality of the accused or the victim or the absence of any links to the state where the court is located”.[xix] More broadly, because ecocide often involves numerous actors across various jurisdictions, determining the accountable jurisdiction or party can be particularly difficult. While these challenges are significant, growing global awareness of environmental crises may drive the necessary legal and political solutions to address them. Criminalizing ecocide is an essential step toward robust legal environmental protections and would mark a cultural shift that legitimizes the severity of environmental harm. As Valérie Cabanes, a French lawyer and proponent of ecocide as an international crime aptly stated, “[b]y destroying the ecosystems on which we depend, we are destroying the foundations of our civilization and mortgaging the living conditions of all future generations. “This is no less serious than war crimes, crimes against humanity, or the crimes of genocide or aggression. As well as being a major issue of global socio-environmental justice, is it not ultimately the survival of the human species that is at stake?”[xx] Recognizing environmental destruction as a legitimate crime reminds us that the environment is our shared habitat and therefore our shared responsibility; its deliberate destruction should be treated as a matter of utmost international importance.[xxi]

 

Notes:

1 Sean Fleming, What is ecocide and which countries recognize it in law?, World Econ. F.

(Aug. 30, 2021), https://www.weforum.org/stories/2021/08/ecocide-environmental-harm-international-crime/

2 https://ecocidelaw.com/history/ (click on “1970s”, then click “read more” on “1970 First coining of the term ecocide”) (alternative source: https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf, pg. 4)

3 Id.

4 June 2021: historic moment as Independent Expert Panel launches definition of ecocide, Stop Ecocide Int’l,

https://www.stopecocide.earth/legal-definition

5 See supra note 1; see generally How the Court works, Int’l Crim. Ct., https://www.icc-cpi.int/about/how-the-court-works

6 Rachel Killean, The Benefits, Challenges, and Limitations of Criminalizing Ecocide, IPI Glob. Observatory (Mar. 30, 2022),  https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/#:~:text=As%20environmental%20harms%20can%20be,once%20a%20crime%20was%20introduced (stating that the most obvious advantage of ecocide as a crime is the “expansion of international accountability for enviornmental harms.”)

7 Id.

8 See Rebecca Hamilton, Why Criminalize Ecocide? Experts Weigh In, Just Security (Sept. 23, 2024),

https://www.justsecurity.org/100172/why-criminalize-ecocide-experts/#:~:text=The%20recent%20submission%20by%20Vanuatu,than%20merely%20compensating%20for%20it.

9 World Econ. F., The Global Risks Report 2024, p. 38 (Jan. 10, 2024), https://www3.weforum.org/docs/WEF_The_Global_Risks_Report_2024.pdf

(explaining that biodiversity loss is a larger global challenge than previously thought).

10 United Nations, The Climate Crisis—A Race We Can Win (2020), https://www.un.org/en/un75/climate-crisis-race-we-can-win

11 See generally Ecocide / serious environmental crimes in national jurisdictions, Ecocide Law, https://ecocidelaw.com/existing-ecocide-laws/ (last visited Nov. 24, 2024).

12 Isabella Kaminski, Growing number of countries consider making ecocide a crime, The Guardian

(Aug. 26, 2023), https://www.theguardian.com/environment/2023/aug/26/growing-number-of-countries-consider-making-ecocide-crime

13 Id.

14 See Resource library, Int’l Crim. Ct.,  https://www.icc-cpi.int/resource-library#:~:text=The%20Rome%20Statute%20of%20the%20International%20Criminal%20Court%20is%20the,and%20judicial%20assistance%2C%20and%20enforcement.

15 FAQs–Ecocide & the Law, Stop Ecocide Int’l, https://www.stopecocide.earth/faqs-ecocide-the-law#:~:text=A%20Head%20of%20State%20(or,and%20didn’t%20make%20it?

16 Id.

17 See generally Understanding the International Criminal Court, Int’l Crim. Ct.

https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf

18 Which countries are the world’s biggest carbon polluters?, Climate Change News (May 17, 2021), https://climatetrade.com/which-countries-are-the-worlds-biggest-carbon-polluters/#:~:text=Below%2C%20you’ll%20discover%20the,792%20bn%20tons%20of%20CO2

19 Amnesty Int’l, Universal Jurisdiction: Questions and Answers Concerning Universal Jurisdiction (2001), https://www.amnesty.org/en/documents/ior53/020/2001/en/

20 Supra note 1

21 Stephanie Safdie, Ecocide–Definition and Examples, Leaf

(updated Nov. 7, 2023), https://greenly.earth/en-us/blog/ecology-news/ecocide-definition-and-examples

Tomorrow’s Originalism: Would a Time Machine Solve Originalism’s Implementation Problem?

January 23, 2025
Constitutional Law, Ethics, Jurisprudence, Psychology, Sociology

Solomon Park, MJLST Staffer

I. Tomorrow’s Originalism: After Original Public Meaning Originalism & the Implementation Problem

When interpreting the Constitution, the threshold question is what “meaning [did] the text ha[ve] for competent speakers of American English at the time [the relevant] provision of the text was framed and ratified?”[1] This philosophy—known as Public Meaning Originalism (“PMO”)—has become the predominant way judges approach Constitutional questions.[2] But PMO hasn’t always been the majority methodology.[3] Contrary to the prevalence of PMO in the Roberts Court, it was only relatively recently in District of Columbia v. Heller, that PMO really found its footing. As Justice Scalia then wrote: “in interpreting [the Constitution] we are guided by the principle that ‘[t]he constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”[4] This passage in Heller— and subsequent cases involving constitutional challenges—would usher in a new age of originalism and solidify the prevalence of PMO in modern constitutional jurisprudence.[5]

Although today’s originalism has been defined by PMO as the initial starting point, significant debate persists with how originalism should be implemented. Known as the “implementation problem,” legal scholars have critiqued originalism for its inability to “address how practicing judges and attorneys should apply originalist theories.”[6] This concern over implementation—and workability writ large[7]—has proven to be a significant point of contention in recent Supreme Court cases. And no case better exemplifies these challenges than United States v. Rahimi—a Second Amendment case decided just last term. In five separate concurring opinions, and a single dissent, the Justices took originalism to task—engaging with each other to express their support and concerns with PMO.[8]

This current discord preludes tomorrow’s originalism. But unlike the shift from Original Intent to Original Public Meaning, tomorrow’s originalism will likely not be one of substantive form—but rather of content (i.e. not whether PMO is the correct starting point, but rather what tools should be permissible/given more weight to conduct PMO analysis). Foreshadowing the future, we might consider the wealth of literature that surrounds textualism (i.e. rules surrounding semantic/substantive canons, as well as legislative history) as an indicator of the rigor that originalist jurisprudence might eventually arrive at.

This blog post suggests that before we arrive at tomorrow’s originalism, it may be helpful to take a step back. At its core, PMO has a simple premise: competent speakers of American English around ratification had an idea of what the Constitution meant, and it is this meaning that lawyers, judges, and Justices should now strive to locate.

Focusing on the fundamentals, what if we could literally go back in time and ask these speakers of American English? How exactly would we go about doing so? What sort of parameters would shape the questions we ask? Who would we seek out? This very brief blog post, proposes and shows how the following Mondale Time Machine hypothetical could: concretize ongoing discussions about implementation, and provide a way to clarify, and evaluate, existing originalist tools.

II. The Mondale Time Machine (“MTM”) Hypothetical: Core Capabilities & Limitations

The Mondale Time Machine (“MTM”) Hypothetical—Somewhere in the depths of Minnesota Law’s library, there is a time machine…

This very real device has yet to have been activated but can teleport willing “speakers of American English” to the present. The current plan is to then survey these speakers about the Original Public Meaning of a specific provision of the Constitution.

MTM possesses the following initial capabilities, it can teleport any number of people: from anywhere (i.e. geographic area); from anytime (i.e. can limit the search to a specific range of years); and can even teleport people possessing any permutation of specific characteristics or demographics (i.e. of a certain socioeconomic class, race, or gender). Note: this list of capabilities is non-exhaustive and additional capabilities can be added/subtracted by the reader.

MTM requires researchers—meaning the reader—to actually make these decisions. In preparation for the first round of time travel, and in order to best reflect PMO’s objectives, the reader has been asked to provide parameters—and their rationale—to the list of the above capabilities.

III. MTM Raises Two Core Questions/Opportunities:

This hypothetical raises at least two core questions. First, as a procedural matter how much of an issue is the implementation problem—as well as other problems that have been leveled against PMO? Afterall, if we conclude that not even asking a thousand people from the founding era would be sufficient, then the implementation problem is indeed serious. Some of the best arguments for this side could be that: any number of time travelers are probably under inclusive; the selected time travelers would not be representative of the founding era as a population; and evaluation problems could arise when there is disagreement amongst the time travelers.

Second, the hypothetical provides an opportunity to clarify and evaluate desirable features in current/future originalist tools. For example, if we conclude that teleporting an expert linguist from the founding era would be sufficient—then tools like dictionaries (which reflect the opinion of a small but highly educated group of people) should also receive an elevated status. Answering the hypothetical provides a clear platonic ideal for originalism. For example, if we decide that the time machine should transport people possessing various demographics, then the tools we use for originalist analysis should also reflect this ideal. For this reason, a tool which fails to capture these perspectives lacks a signature quality—perhaps even a necessary one—which should demote the persuasive weight given to the tool.

IV. Conclusion: Would a Time Machine Solve Originalism’s Implementation Problem?

 “Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult… Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.”—Justice Gorsuch, United States v. Rahimi[9]

This passage from Justice Gorsuch’s concurrence in Rahimi captures two simultaneous truths. Originalism is, and likely will remain, the “imperfect guide” used to interpret the Constitution. But at the same time, originalism has challenging flaws which arise out of its implementation.

Ultimately, my hypothetical highlights these two realities. On the one hand, a gut feeling tells us that a time machine should be able to solve the implementation problem. Afterall, if not even a thousand people from the founding era could resolve the issue, then what could? On the other hand, working through the hypothetical shows the line drawing problems created by the implementation critique. In the face of that difficulty—and as Justice Gorsuch reminds us—that doesn’t mean the inquiry is over.

I hope this blog post presents an interesting, and entertaining, thought experiment. My answer to the hypothetical would take too many words to write. However, I do think that the hypothetical probably strengthens tools that are capable of more holistically representing communities—such as Corpus Linguistics.

 

 

Notes:

[1] Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B. U. L. Rev. 1953, 1957 (2022).

[2] See, e.g., Lawrence B. Solum, Original Public Meaning, 807 Mich. St. L. Rev. 897, 810 n. 5-7 (2024) (providing an in-depth analysis of the use of PMO in: the Supreme Court, various federal courts of appeal, and state supreme courts); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 761 (2009) (“Original public meaning is now the predominant originalist theory”); see also William Baude, Is Originalism Our law?, 115 Colum L. Rev. 2349, 2391 (2015) (concluding that “originalism seems to best describe our law”). But see Justice Stephen Breyer, Pragmatism or Textualism, 138 Harv. L. Rev. 718, 722 (2025) (“While the Court may well be in the midst of a paradigm shift toward textualism and originalism, the unworkability of these approaches in practice will push the Court back toward the traditional approach — gradually and with time”).

[3] See generally Keith E. Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599, 599-613 (2004) (describing and explaining the shift from Original Intent Originalism to Original Public Meaning Originalism).

[4] District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

[5] See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev.  1095, 1095 (2009) (“District of Columbia v. Heller has been hailed by its supporters as a model of ‘new originalism,’ a methodology that focuses on original public meaning and eschews any concern for original intent.”).

[6] Michael L. Smith and Alexander S. Hiland, Originalism’s Implementation Problem, 30 Wm & Mary Bill of Rts. J. 1063, 1064 (2022).

[7] See generally Kurt Eggret et al., Chapman Law Review Debate: Does Originalism Work?, 26 CHAP. L. REV. 237, 244 (2023) (manuscript of a debate between Professor Kurt Eggert and Professor Lee Strang over Originalism’s workability issue); see also Justice Stephen Breyer, supra note 2, at 722.

[8] Compare United States v. Rahimi, 602 U.S. 680, 692 (2024) (“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition) (citing N.Y. ST. Rifle and Pistol Ass’n., Inc v. Bruen, 597 U.S. 1, 26-31 (2022), with Rahimi, 602 U.S. at 702-703 (Sotomayor, J. & Kagan, J. concurring) (critiquing the dissent as being “so exacting as to be useless”), with id. at 711-712 (Gorsuch, J. concurring) (writing to emphasize the importance of originalism. “Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow”), with id. at 714, 719, 719-731 (Kavanaugh, J. concurring) (clearly supporting original public meaning originalism, and examining the role of “pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text”), with id. at 737-738, 739-740 (Barrett, J. concurring) (explaining the “basic premises of originalism,” and explaining the problem of “level[s] of generality”), with id. at 744, 745-747 (Jackson, J. concurring) (explaining that Bruen’s test has led to serious workability issues for lower courts, and that significant questions remain with originalism’s scope), with id. at 753-763 (Thomas, J. dissenting) (explaining why “[t]he Government does not offer a single historical regulation that is relevantly similar to [the applicable statute]”).

[9] United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J. concurring).

How Workers Can Respond to Increased Use of Generative Artificial Intelligence

January 21, 2025
Artificial Intelligence, Employment, Employment Law, Industry, Regulatory

Yessenia Gutierrez, MJLST Staffer

Recent advances in generative Artificial Intelligence (AI) have generated a media buzz and revived worries about the future of work: How many jobs are at risk of being eliminated? Can workers be retrained to work new jobs that did not exist before, or new versions of their now technologically-augmented jobs? What happens to those workers who cannot be retrained? What if not enough jobs are created to compensate for those lost?

It is hard to calculate the pace, extent, and distribution of job displacement due to technological advancements.[1] However, there is general agreement among business leaders that there will be significant job losses due to AI.[2] Professions spanning the education and income spectrum may be impacted, from surgeons to investment bankers to voice actors.[3]

Nevertheless, the jobs predicted to be most impacted are lower-paid jobs such as bank tellers, postal service clerks, cashiers, data entry clerks, and secretaries.[4]

Proponents of rapid AI adoption emphasize its potential for creating “a productivity boost for non-displaced workers” and a resultant “labor productivity boom.”[5] While that will likely be true, what remains uncertain is who will reap the majority of the benefits stemming from this boom — employers or their now more productive workers.

One of the main concerns about increasing use of AI in the workplace is that entire job classifications will be eliminated, leaving large swaths of workers unemployed. There is no consensus over whether technology has created or eliminated more jobs.[6] However, even assuming technological advances have created more jobs than those rendered obsolete, the process of large numbers of workers switching from one type of job to another (perhaps previously nonexistent) job still creates serious challenges.

For one, this process adds stress on an already economically- and emotionally-stressed population.[7] The Center for Disease Control credits “fears about limited employment opportunities, perceptions of job insecurity, and anxiety about the need to acquire new skills” as contributing to “public health crises such as widespread increases in depression, suicide, and alcohol and drug abuse (including opioid-related deaths).”[8] Those workers able to keep their jobs have less bargaining power, as they fear speaking up about possible health, safety, and other concerns for fear of losing their job.[9]

To assist in this transition, some argue that more government intervention is necessary.[10] In fact, several states have enacted legislation regulating the use of AI in employment matters, including protections against discrimination in employment decisions made using AI.[11] Some states are also experimenting with AI training for high school seniors and state employees, sometimes with encouragement from major employers.[12] Federal politicians are also considering legislation, although none has passed.[13]

Some commentators argue that workers themselves have a responsibility to learn skills to remain competitive in the labor market.[14] Still others argue that employers should take up the task of retraining employees, with benefits for employers including ensuring an adequate supply of skilled labor, reducing hiring costs, and increasing employee loyalty, morale, and productivity.[15] One subset of this approach are partnerships between employers and labor unions, such as that between Microsoft Corp. and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).[16] Announced in December of 2023, the partnership lists its goals as (1) sharing information about AI trends with unions and workers, (2) integrating worker feedback into AI development, and 3) influencing public policy in support of affected workers.

Others point to the need for strong worker organizations that are capable of bargaining about and achieving protections related to AI and other technology in the workplace.

Collective Bargaining

The Economic Policy Institute, a think-tank aligned with labor unions, argues that the “best ‘AI policy’ that [policymakers] can provide is boosting workers’ power by improving social insurance systems, removing barriers to organizing unions, and sustaining lower rates of unemployment.”[17] Union officials agree on the importance of unions protecting their members from technological displacements, and have started pushing for “requirements that companies must notify and negotiate with worker representatives before deploying new automation technologies.”[18]

The above-mentioned partnership between the AFL-CIO and Microsoft includes a “neutrality framework” which “confirms a joint commitment to respect the right of employees to form or join unions, to develop positive and cooperative labor-management relationships, and to negotiate collective bargaining agreements that will support workers in an era of rapid technological change.”[19] Ideally, this means that Microsoft would not attempt to dissuade any employees that try to unionize, including through common “union avoidance” measures.[20] Employer neutrality can provide more favorable conditions for unionizing, which provides a formal mechanism for workers to collectively bargain for technology policies calibrated to their particular industry and tasks.

Unfortunately, achieving these measures, whether through legislation or Collective Bargaining Agreements (CBAs), will likely require applying tremendous pressure on employers.

For example, in 2023, the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) union and the Writers Guild of America (WGA) simultaneously went on strike for the first time in sixty years.[21] One of the main demands for both unions was protections against AI use. Both achieved partial concessions after 118 days and 148 days out on strike, respectively.[22]

SAG-AFTRA and WGA enjoyed considerable leverage that other workers likely will not have. As Politico reported, Hollywood serves as a “key base for wealthy Democratic donors” which is especially important in California, where much of the industry is based.[23] Entertainment workers occupy an important place in many of our daily lives and support an economically important industry.[24] Unlike healthcare workers or state employees, withholding their labor cannot be portrayed as dangerous, a characterization that seeks to undermine public support for some striking workers.[25]

The resolve and strategic action of both unions charts a path for other unions to ensure worker input into the use of technology in the workplace, while revealing how difficult this path will be.

Conclusion

Although the exact effects of increased AI-adoption by employers are still unknown, there are clear reasons to take their potential effects on workers seriously, today. Workers across the income spectrum are already feeling the pressure of job losses, job displacements, the need to retrain for a new job, and the economic and emotional stress these cause. Bolstering retraining programs, whether run by the government, employers, or through joint efforts are a step towards meeting the demands of tomorrow. However, to truly assuage employee fears of displacement, workers must have meaningful input into their working conditions, including the introduction of new technology to their workplace. Unions hold an important role in achieving this goal.

 

 

Notes:

[1] Chia-Chia Chang et al., The Role of Technological Job Displacement in the Future of Work, CDC’s NIOSH Science Blog (Feb. 15, 2022), https://blogs.cdc.gov/niosh-science-blog/2022/02/15/tjd-fow/.

[2] See e.g., Jack Kelly, Goldman Sachs Predicts 300 Million Jobs Will be Lost or Degraded by Artificial Intelligence, Forbes (Mar. 31, 2023), https://www.forbes.com/sites/jackkelly/2023/03/31/goldman-sachs-predicts-300-million-jobs-will-be-lost-or-degraded-by-artificial-intelligence/; G Krishna Kumar, AI-led Job Loss is Real, Govt Must Intervene, Deccan Herald (July 21, 2024), https://www.deccanherald.com/opinion/ai-led-job-loss-is-real-govt-must-intervene-3115077.

[3] Kelly, supra note 2.

[4] Ian Shine & Kate Whiting, These Are the Jobs Most Likely to be Lost – And Created – Because of AI, World Economic Forum (May 4, 2023), https://www.weforum.org/stories/2023/05/jobs-lost-created-ai-gpt/.

[5] Kelly, supra note 2.

[6] See e.g., Peter Dizikes, Does Technology Help or Hurt Employment?, MIT News (Apr. 1, 2024), https://news.mit.edu/2024/does-technology-help-or-hurt-employment-0401.

[7] See e.g., Hillary Hoffower, Financial Stress is Making Us Mentally and Physically Ill. Here’s How to Cope, Fortune (May 10, 2024), https://fortune.com/well/article/financial-stress-mental-health-physical-illness/; Majority of Americans Feeling Financially Stressed and Living Paycheck to Paycheck According to CNBC Your Money Survey, CNBC News Releases (Sept. 7, 2023), https://www.cnbc.com/2023/09/07/majority-of-americans-feeling-financially-stressed-and-living-paycheck-to-paycheck-according-to-cnbc-your-money-survey.html.

[8] Chang et al., supra note 1.

[9] Id.

[10] See e.g., Chris Marr, AI Poses Job Threats While State Lawmakers Move With Caution, Bloomberg Law (Aug. 13, 2024), https://news.bloomberglaw.com/daily-labor-report/ai-poses-job-threats-while-state-lawmakers-move-with-caution.

[11] Sanam Hooshidary et al., Artificial Intelligence in the Workplace: The Federal and State Legislative Landscape, National Conference of State Legislatures (updated Oct. 23, 2024), https://www.ncsl.org/state-federal/artificial-intelligence-in-the-workplace-the-federal-and-state-legislative-landscape.

[12] Kaela Roeder, High School Seniors in Maryland Are Getting Daily AI Training, Technical.ly (Nov. 8, 2024), https://technical.ly/workforce-development/high-school-ai-training-howard-county-maryland/; Maryland to Offer Free AI Training to State Employees, Government Technology (Sept. 25, 2024), https://www.govtech.com/artificial-intelligence/maryland-to-offer-free-ai-training-to-state-employees; Marr, supra note 10 (“A coalition of major tech companies is urging state lawmakers to focus their efforts on retraining workers for newly emerging jobs in the industry.”).

[13] Marr, supra note 10.

[14] Rachel Curry, Recent Data Shows AI Job Losses Are Rising, But the Numbers Don’t Tell the Full Story, CNBC (Dec. 16, 2023), https://www.cnbc.com/2023/12/16/ai-job-losses-are-rising-but-the-numbers-dont-tell-the-full-story.html.

[15] See John Hall, Why Upskilling and Reskilling Are Essential in 2023, Forbes (Feb. 24, 2023), https://www.forbes.com/sites/johnhall/2023/02/24/why-upskilling-and-reskilling-are-essential-in-2023/; The 2020s Will be a Decade of Upskilling. Employers Should Take Notice, World Economic Forum (Jan. 10, 2024), https://www.weforum.org/stories/2024/01/the-2020s-will-be-a-decade-of-upskilling-employers-should-take-notice/.

[16] Press Release, AFL-CIO and Microsoft Announce New Tech-Labor Partnership on AI and the Future of the Workforce, AFL-CIO (Dec. 11, 2023), https://aflcio.org/press/releases/afl-cio-and-microsoft-announce-new-tech-labor-partnership-ai-and-future-workforce.

[17] Josh Bivens & Ben Zipperer, Unbalanced Labor Market Power is What Makes Technologu–Including AI–Threatening to Workers, Economic Policy Institute (Mar. 28, 2024), https://www.epi.org/publication/ai-unbalanced-labor-markets/.

[18] Marr, supra note 10.

[19] Press Release, supra note 16.

[20] See e.g., Roy E. Bahat & Thomas A. Kochan, How Businesses Should (and Shouldn’t) Respond to Union Organizing, Harvard Business Review (Jan. 6, 2023), https://hbr.org/2023/01/how-businesses-should-and-shouldnt-respond-to-union-organizing; Ben Bodzy, Best Practices for Union Avoidance, Baker Donelson (last visited Nov. 18, 2024), https://www.bakerdonelson.com/files/Uploads/Documents/Breakfast_Briefing_11-17-11_Union_Avoidance.pdf; Carta H. Robison, Steps for Employers to Preserve a Union Free Workplace, Barett McNagny (last visited Nov. 18, 2024), https://www.barrettlaw.com/blog/labor-and-employment-law/union-avoidance-steps-for-employers.

[21] Chelsey Sanchez, Everything to Know About the SAG Strike That Shut Down Hollywood, Harpers Bazaar (Nov. 9, 2023), https://www.harpersbazaar.com/culture/politics/a44506329/sag-aftra-actors-strike-hollywood-explained/#what-is-sag-aftra.

[22] Jake Coyle, In Hollywood Writers’ Battle Against AI, Humans Win (For Now), AP News (Sept. 27, 2023), https://apnews.com/article/hollywood-ai-strike-wga-artificial-intelligence-39ab72582c3a15f77510c9c30a45ffc8; Bryan Alexander, SAG-AFTRA President Fran Drescher: AI Protection Was A ‘Deal Breaker’ In Actors Strike, USA Today (Nov. 10, 2023), https://www.usatoday.com/story/entertainment/tv/2023/11/10/sag-aftra-deal-ai-safeguards/71535785007/.

[23] Lara Korte & Jeremy B. White, Newsom Signs Laws to Protect Hollywood from Fake AI Actors, Politico (Sept. 17, 2024), https://www.politico.com/news/2024/09/17/newsom-signs-law-hollywood-ai-actors-00179553; Party Control of California State Government, Ballotpedia, https://ballotpedia.org/Party_control_of_California_state_government (last visited Nov. 18, 2024).

[24] Advocacy: Driving Local Economies, Motion Picture Ass’n, https://www.motionpictures.org/advocacy/driving-local-economies/ (last visited Jan. 17, 2025).

[25] See, e.g., Ryan Essex & Sharon Marie Weldon, The Justification For Strike Action In Healthcare: A Systematic Critical Interpretive Synthesis, 29:5 Nursing Ethics 1152 (2022) https://doi.org/10.1177/09697330211022411; Nina Chamlou, How Nursing Strikes Impact Patient Care, NurseJournal (Oct. 10, 2023), https://nursejournal.org/articles/how-nursing-strikes-impact-patient-care/.

Reloaded: What’s Next for Guns After Cargill & Rahimi?

December 5, 2024
Constitutional Law, Litigation, Public Safety, Second Amendment, Weapon Law

Evan Bracewell, MJLST Staffer

In 2024, the Supreme Court released two major opinions related to gun safety laws, United States v. Rahimi and Garland v. Cargill.[1] Rahimi involved what types of people can possess guns.[2] Cargill involved what types of guns (or more accurately gun technology) people can possess.[3] In Cargill, the Supreme Court struck down an ATF rule that banned bump stocks.[4] A bump stock is an attachment added to a gun which uses the momentum of the gun’s kick to bump the gun between the shooter’s shoulder and trigger finger back and forth causing an increased fire rate.[5] To some, this signaled “another example of the [C]ourt’s hostility towards gun regulation in general.”[6] However, one week after Cargill was decided, the Court ruled in favor of a federal gun safety law in U.S. v. Rahimi. In Rahimi, the Court upheld a federal statute that “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.”[7]

These two cases were the first major rulings on gun safety from the Supreme Court since it established the Bruen framework for handling gun control laws.[8] In New York State Rifle & Pistol Ass’n v. Bruen, the Court held “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[9] This means that for cases where someone is alleging a law has violated a citizen’s Second Amendment rights, in order for the law to survive, judges must find a comparison for the modern law in American regulatory traditions. Following the Bruen framework, uncertainty and confusion spread across the lower courts tasked with applying the historical comparison to modern statutes.[10] Because Cargill concerned an ATF regulation over whether a bump stock fits into the definition of machine guns and was not a Second Amendment challenge, it did not employ the Bruen framework.[11] Rahimi, however, was the Court’s chance to clarify the Bruen test—a chance some say it failed to capitalize on.[12]

The Bruen analysis has received criticism from a wide range of judges.[13] A common issue brought up with Bruen is that it demands judges to be historical researchers and experts and make fact finding on the history of gun control laws.[14] This can result in unpredictable and inconsistent results.[15] Other judges have pointed out that the test may entrench gun laws in the past without any room for modern solutions.[16] The Bruen test has left some judges scratching their heads over history textbooks. When it is combined with the differing outcomes of Cargill and Rahimi, the future of gun laws appears cloudy. On the other hand, it also makes upcoming gun cases potentially incredibly impactful.

Looking ahead, the next significant Supreme Court case on the topic might already be in motion. A petition for certiorari in Bianchi v. Brown has been filed and if granted could be a pivotal decision for gun safety.[17] In Bianchi, the Fourth Circuit recently re-evaluated Maryland’s state law that generally prohibits the sale and possession of assault weapons through a Bruen analysis.[18] The majority decided the law was constitutional because the assault weapons specifically restricted by it are not protected by the Second Amendment and, even if they were, there is a “historical tradition of restricting the use and possession of weapons exceptionally dangerous to civilians.”[19] The Fourth Circuit ultimately upheld a strict gun technology law even in a post-Bruen world.

If the Supreme Court chooses to hear this case, the resulting decision could produce monumental shockwaves for gun laws. Eight other states have adopted assault weapon bans similar to Maryland’s,[20] and an opinion upholding the ban might spark more states to adopt a similar statute. Not to mention, it could demonstrate how the judicial branch may approach a federal ban on assault weapons.[21] The Supreme Court striking down the ban would be a major obstruction to the potential for future strict gun control laws. If the case is heard, hopefully the Supreme Court will use the opportunity to clarify the “labyrinth”[22] that is Bruen which could allow for more predictability in legislating gun technology and safety.

The difference in the rulings of Rahimi and Cargill could be viewed as the Court being more comfortable with laws regulating who can possess guns than rules regulating what gun technology people can possess. Viewing Bianchi through that lens, the Maryland statute may be deemed unconstitutional because it is a ban on guns, not a ban on who can possess guns. However, the Supreme Court could appreciate the Fourth Circuit’s examination of the law under the Bruen framework and comparison to 18th and 19th century regulations of “pistols, bowie knives, brass knuckles, and sand clubs, among other weapons” as excessively dangerous to the public.[23]

Bianchi is not the only case on the horizon for gun laws. “[E]ven if the Court declines to take up the pending [Bianchi v. Brown] petition, it will almost certainly see more petitions soon.”[24] The next major gun technology case will be decided by the Supreme Court this term in Garland v. VanDerStok. That case concerns a “federal rule regulating so-called ‘ghost guns’” which are “untraceable weapons without serial numbers, assembled from components or kits that can be bought online.”[25] Other future gun cases could concern a recently overturned Illinois state law banning certain assault weapons,[26] the minimum age to purchase guns,[27] Connecticut’s ban on assault rifles and large-capacity magazines,[28] or red flag laws that allow a law enforcement agency to temporarily prevent someone deemed an extreme risk from possessing guns.[29]

“Rahimi’s greatest takeaway is likely that the court faces a challenging landscape ahead, which it will have to wade through largely on a case-by-case basis.”[30] The Supreme Court could use a case like Bianchi to clarify the post-Bruen world, bring a sliver of stability to gun laws, and maybe even alleviate the concerns of judges nationwide entrenched in history books.

 

Notes

[1] United States v. Rahimi, 144 S. Ct. 1889 (2024); Garland v. Cargill, 602 U.S. 406 (2024).

[2] See Rahimi, 144 S. Ct. at 1894.

[3] See Cargill, 602 U.S. at 410.

[4] Id. at 415.

[5] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times, https://nyti.ms/43NEi6b (last updated June 14, 2024).

[6] Joel Brown, Supreme Court Strikes Down Ban on Gun Bump Stocks, BU Today (June 14, 2024) https://www.bu.edu/articles/2024/supreme-court-strikes-down-ban-on-gun-bump-stocks/ (quoting Cody Jacobs, a Boston University School of Law lecturer).

[7] Rahimi, 144 S. Ct. at 1894 (referencing 18 U.S.C. § 922(g)(8)).

[8] See Michael McCarthy, Justices’ 1st Post-Bruen Gun Ruling Provides Little Guidance, Law360 (June 28, 2024, 4:41 PM), https://www.law360.com/articles/1852462/justices-1st-post-bruen-gun-ruling-provides-little-guidance.

[9] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2024).

[10] Dave S. Sidhu, Cong. Rsch. Serv., LSB11219, Divided En Banc Federal Appeals Court Rejects Second Amendment Challenge to Maryland’s Ban on “Assault Weapons” 3 (2024) (“Six judges joined the majority opinion in full but wrote separately to highlight the ‘confusion’ that lower courts are experiencing in applying Bruen.”).

[11] Garland v. Cargill, 602 U.S. 406 (2024).

[12] Adam Liptak, Supreme Courtʼs Gun Rulings Leave Baffled Judges Asking for Help, N.Y. Times (Sept. 23, 2024), https://www.nytimes.com/2024/09/23/us/supreme-court-guns-second-amendment.html (“Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, ‘offered little instruction or clarity.’”).

[13] Clara Fong et al., Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Just. (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable (“In the short time since Bruen was issued, federal judges appointed by Presidents Reagan, Clinton, George W. Bush, Obama, Trump, and Biden have all questioned the opinion.”).

[14] Id.; Liptak, supra note 12 (Quoting Judge Pamela Harris speaking at a conference and describing the issue of receiving two competing briefs where one says something happened in history and the other claims it did not happen).

[15] United States v. Bartucci, 658 F. Supp. 3d 794, 800 (2023) (“In the short time post-Bruen, this has caused disarray among the lower courts when applying the new framework.”).

[16] See Worth v. Harrington, 666 F. Supp. 3d 902, 926 (2023) (“Second Amendment jurisprudence now focuses a lens entirely on the choices made in a very different time, by a very different American people.”); Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3 (“More broadly, the six judges cautioned that overemphasizing the importance of historical analogues may ‘fossilize’ modern legislative attempts and ‘paralyze’ democratic efforts.”).

[17] Andrew Willinger, An Update on Challenges to State Assault Weapon and Magazine Bans, Duke Ctr. for Firearms L. (Nov. 6, 2024), https://firearmslaw.duke.edu/2024/11/an-update-on-challenges-to-state-assault-weapon-and-magazine-bans. It should be noted that the case will be re-named Snope v. Brown if the Supreme Court decides to hear it but Bianchi is used throughout this blog post to avoid confusion.

[18] Bianchi v. Brown, 111 F.4th 438, 442 (4th Cir. 2024) (en banc) (referencing Md. Code Ann., Crim. Law § 4-303 (West 2018)) (“The statute defines ‘assault weapon’ as ‘(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.’”).

[19] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

[20]Which States Prohibit Assault Weapons?, Everytown Rsch. & Pol’y, https://everytownresearch.org/rankings/law/assault-weapons-prohibited/ (last updated Jan. 4, 2024).

[21] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 4. (“Judicial evaluations of similar state bans, like Maryland’s, under the Second Amendment may provide an indication of how a federal ban could fare in the courts.”).

[22] Bianchi, 111 F.4th at 473–74 (Diaz, C.J., concurring) (“Bruen has proven to be a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”).

[23] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.

[24] Willinger, supra note 17. The Court remanded several cases after Rahimi that could eventually make their way back to the Supreme Court. These cases involve prohibitions on gun possession by certain nonviolent offenders of crimes, certain drug users, and certain people with felony convictions. Dave S. Sidhu, Cong. Rsch. Serv., LSB1108, The Second Amendment at the Supreme Court: Challenges to Federal Gun Laws 2–4 (2024).

[25] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/.

[26] Lauren Berg, Ill. Assault Rifle Ban Struck As Unconstitutional, AG To Appeal, Law360 (Nov. 8, 2024, 11:44 PM), https://www.law360.com/articles/2259026/ill-assault-rifle-ban-struck-as-unconstitutional-ag-to-appeal.

[27] Daniel Ducassi, 10th Circ. Backs Colorado Age Limits For Gun Buyers, Law360 (Nov. 6, 2024, 10:43 PM), https://www.law360.com/articles/2257228/10th-circ-backs-colorado-age-limits-for-gun-buyers.

[28] Aaron Keller & Brian Steele, 2nd Circ. Scrutinizes Conn. Restrictions On AR-15s, Law360 (Oct. 16, 2024, 8:39 PM), https://www.law360.co.uk/articles/1890635/2nd-circ-scrutinizes-conn-restrictions-on-ar-15s.

[29] George Woolston, Attorney Says NJ Red Flag Law Violates 2nd Amendment, Law360 (Oct. 28, 2024, 4:57 PM), https://www.law360.com/pulse/articles/2252661/attorney-says-nj-red-flag-law-violates-2nd-amendment.

[30] McCarthy, supra note 8.

DNR Regulations Could Help Ensure Availability of Walleye for Future Minnesotans

December 2, 2024
Environment, Environmental Justice, Public Lands, Regulatory

Elizabeth Thilges, MJLST Staffer

 

The Minnesota Department of Natural Resources (“DNR”) recently announced that it plans to amend its fishing regulations to lower the number of walleye that can be taken and possessed per day from six to four walleye.[1] If the DNR does promulgate a rule lowering the daily taking and possession limits, it would be a step in the right direction towards ensuring that walleye are available for future generations of Minnesotans.

Lower Taking and Possession Limits Are Necessary Due to the Spread of Zebra Mussels.

Walleye are a North American species of freshwater fish sought after by both commercial and recreational fishers.[2] However, angling activity and the presence of invasive zebra mussels are both linked to decreases in walleye populations.[3] Zebra mussels cause increased water clarity because they are filter feeders.[4] Walleye retinal structures are adapted to lower light conditions, so an increase in water clarity decreases the availability of their preferred habitat.[5] A study of Mille Lacs, a popular lake for walleye fishing in Minnesota, found the introduction of zebra mussels, along with other sources of increased water clarity, to be connected to a decline in the walleye population.[6] While the DNR has made efforts to control zebra mussels, they have unfortunately continued to spread and harm ecosystems across Minnesota.[7] As complete eradication of zebra mussels is not yet achievable, the DNR’s plan to lower the daily bag limit would mitigate at least one strain on walleye populations.

The DNR Should Also Clarify Size Limits for Walleye in its Regulations.

The Minnesota Constitution provides that “fishing and the taking of … fish [is] a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.”[8] This provision has been interpreted by Minnesota courts as “recogniz[ing] the ‘need for effective regulation to protect the viability of our state’s fish and game resources.’”[9] The Minnesota Game and Fish Laws puts this provision of the Minnesota Constitution into effect by providing a general requirement that “[u]nless otherwise provided in this chapter, the commissioner [of natural resources] shall, by rule, prescribe the limits on the number of each species of fish that may be taken in one day and the number that may be possessed.”[10] In addition, Section 97C.401(2) provides a specific limit on the possession of walleye, requiring that “[a] person may have no more than one walleye larger than 20 inches in possession.”[11]

DNR fishing regulations set the “[d]aily and [p]ossession [l]imits” for walleye at “6 in aggregate” for inland waters, unless the waters  “are subject to experimental or special regulations or are closed for taking and possessing fish.”[12] Section 97C.401(2) leaves the DNR with the discretion to set these limits on the daily taking and possession of walleye, as it can be interpreted as not specifying a limit on possession of walleye smaller than 20 inches.[13] While Section 97C.401(2) could alternatively be read as only allowing possession of one walleye larger than 20 inches, and no walleye smaller than 20 inches, Minnesota courts would likely defer to the DNR’s interpretation if the statute is ambiguous and the DNR’s interpretation is reasonable.[14] Additionally, possessing and taking fish have different definitions. The Game and Fish Laws define “possession” as “both actual and constructive possession and control of the things referred to,” while “taking” is defined as “pursuing, shooting, killing, capturing, trapping, snaring, angling, spearing, or netting wild animals, or placing, setting, drawing, or using a net, trap, or other device to take wild animals.”[15] A person could take six walleye in a day but only possess one if that person releases the fish before taking another. However, while DNR regulations set size limits for other fish species, they do not set one for walleye.[16] If the DNR amends its regulations to lower the daily limit to four walleye, it also has the opportunity to amend its regulations to clarify that only one walleye in possession can be larger than 20 inches, as required by Section 97C.401(2). This amendment is necessitated both by existing statute and by the spread of zebra mussels in Minnesota waters.

 

Notes

[1] Tony Kennedy, DNR Says Minnesota’s Longtime 6-Walleye Limit is Headed for Extinction, Minn. Star Trib. (Nov. 7, 2024), https://www.startribune.com/dnr-says-minnesotas-sacred-6-walleye-limit-is-headed-for-extinction/601177553.

[2] Lee F. G. Gutowsky et al., Quantifying Multiple Pressure Interactions Affecting Populations of a Recreationally and Commercially Important Freshwater Fish, 25 Glob. Change Biology 1049, 1050 (2019).

[3] Id. at 1055-56.

[4] Gutowsky et al. at 1057; Gretchen J. A. Hansen et al., Water Clarity and Temperature Effects on Walleye Safe Harvest: An Empirical Test of the Safe Operating Space Concept, Ecosphere, March 2019, at 1, 9.

[5] Gutowsky et al. at 1057; Hansen et al. at 2.

[6] Hansen et al. at 9.

[7] See Experimental Control of Zebra Mussels in Minnesota, Minn. Dep’t of Nat. Res. (last visited Nov. 23, 2024), https://www.dnr.state.mn.us/invasives/aquaticanimals/zebramussel/zebra-mussel-pilot-project.html; Michael A. McCartney & Sophie Mallez, The Role of Waterway Connections and Downstream Drift of Veliger Larvae in the Expanding Invasion of Inland Lakes by Zebra Mussels in Minnesota, USA, 13 Aquatic Invasions 393, 394 (2018).

[8] Minn. Const., Art. XIII, § 12.

[9] Save Mille Lacs Sportsfishing, Inc. v. Minn. Dep’t of Nat. Res., 859 N.W.2d 845, 849 (Minn. Ct. App. 2015) (quoting State v. Colosimo, 669 N.W.2d 1, 6 (Minn. 2003)).

[10] Minn. Stat. § 97C.401(1).

[11] “This subdivision does not apply to boundary waters.” Minn. Stat. §  97C.401(2).

[12] Minn. R. § 6262.0200(1)(F) (2024).

[13] Minn. Stat. §  97C.401(2).

[14] In re Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 506 (Minn. 2015).

[15] Minn. Stat. § 97A.015(36), (47).

[16] See Minn. R. § 6262.0200 (2024).

The Power of Preference or Monopoly? Unpacking Google’s Search Engine Domination

November 26, 2024
Corporate Ethics, Data, Industry, Internet, Regulatory, Trade, Trusts and Estates

Donovan Ennevor, MJLST Staffer

When searching for an answer to a query online, would you ever use a different search engine than Google? The answer for most people is almost certainly no. Google’s search engine has achieved such market domination that “to Google” has become a verb in the English language.[1] Google controls 90% of the U.S. search engine market, with its closest competitors Yahoo and Bing holding around 3% each.[2] Is this simply because Google offers a superior product or is there some other more nefarious reason?

According to the Department of Justice (“DOJ”), the answer is the latter: Google has dominated its competitors by engaging in illegal practices and creating a monopoly. Federal Judge Amit Mehta agreed with the DOJ’s position and ruled in August 2024 that Google’s market domination was a monopoly achieved through improper means.[3] The remedies for Google’s breach of antitrust law are yet to be determined; however, their consequences could have far reaching implications for the future of Google and Big Tech.

United States v. Google LLC

In October 2020, the DOJ and 11 states filed a civil suit against Google in the U.S. District Court for the District of Columbia, alleging violations of U.S. antitrust laws.[4] A coalition of 35 states, Guam, Puerto Rico, and Washington D.C. filed a similar lawsuit in December 2020.[5] In 2021, the cases were consolidated into a single proceeding to address the overlapping claims.[6] An antitrust case of this magnitude had not been brought in nearly two decades.[7]

The petitioners’ complaint argued that Google’s dominance did not solely arise through superior technology, but rather, through exclusionary agreements designed to stifle competition in online search engine and search advertising markets.[8] The complaint alleged that Google maintained its monopolies by engaging in practices such as entering into exclusivity agreements that prohibited the preinstallation of competitors’ search engines, forcing preinstallation of Google’s search engine in prime mobile device locations, and making it undeletable regardless of consumer preference.[9] For example, Google’s agreement with Apple required that all Apple products and tools have Google as the preinstalled default—essentially an exclusive—search engine.[10] Google also allegedly used its monopoly profits to fund the payments to secure preferential treatment on devices, web browsers, and other search access points, creating a self-reinforcing cycle of monopolization.[11]

According to the petitioners, these practices not only limited competitor opportunities, but also harmed consumers by reducing search engine options and diminishing quality, particularly in areas like privacy and data use.[12] Furthermore, Google’s dominance in search advertising has allowed it to charge higher prices, impacting advertisers and lowering service quality—outcomes unlikely in a more competitive market.[13]

Google rebutted the petitioners’ argument, asserting instead that its search product is preferred due to its superiority and is freely chosen by its consumers.[14] Google also noted that if users wish to switch to a different search engine, they can do so easily.[15]

However, Judge Mehta agreed with the arguments posed by the petitioners and held Google’s market dominance in search and search advertising constituted a monopoly, achieved through exclusionary practices violating U.S. antitrust laws.[16] The case will now move to the remedy determination phase, where the DOJ and Google will argue what remedies are appropriate to impose on Google during a hearing in April 2025.[17]

The Proposed Remedies and Implications

In November, the petitioners filed their final proposed remedies—both behavioral and structural—for Google with the court.[18] Behavioral remedies govern a company’s conduct whereas structural remedies generally refer to reorganization and or divestment.[19]  The proposed behavioral remedies include barring Google from entering exclusive preinstallation agreements and requiring Google to license certain indexes, data, and models that drive its search engine.[20] These remedies would help create more opportunities for competing search engines to gain visibility and improve their search capabilities and ad services. The petitioner’s filing mentioned they would also pursue structural remedies including forcing Google to breakup or divest from its Chrome browser and Android mobile operating system.[21] To ensure Google adheres to these changes, the petitioners proposed appointing a court-monitored technical committee to oversee Google’s compliance.[22]

It could be many years before any of the proposed remedies are actually instituted, given that Google has indicated it will appeal Judge Mehta’s ruling.[23] Additionally, given precedent it is unlikely that any structural remedies will be imposed or enforced.[24] However, any remedies ultimately approved would set a precedent for regulatory control over Big Tech, signaling that the U.S. government is willing to take strong steps to curb monopolistic practices. This could encourage further action against other tech giants and redefine regulatory expectations across the industry, particularly around data transparency and competition in digital advertising.

 

Notes

[1] See Virginia Heffernan, Just Google It: A Short History of a Newfound Verb, Wired (Nov. 15, 2017, 7:00 AM), https://www.wired.com/story/just-google-it-a-short-history-of-a-newfound-verb/.

[2] Justice Department Calls for Sanctions Against Google in Landmark Antitrust Case, Nat’l Pub. Radio, (Oct. 9, 2024, 12:38 AM), https://www.npr.org/2024/10/09/nx-s1-5146006/justice-department-sanctions-google-search-engine-lawsuit [hereinafter Calls for Sanctions Against Google].

[3] United States v. Google LLC, 2024 WL 3647498, 1, 134 (2024).

[4] Justice Department Sues Monopolist Google For Violating Antitrust Laws, U.S. Dep’t of Just. (Oct. 20, 2020), https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws [hereinafter Justice Department Calls for Sanctions].

[5] Dara Kerr, United States Takes on Google in Biggest Tech Monopoly Trial of 21st Century, Nat’l Pub. Radio, (Sept. 12, 2023, 5:00 AM), https://www.npr.org/2023/09/12/1198558372/doj-google-monopoly-antitrust-trial-search-engine.

[6] Tracker Detail US v. Google LLC / State of Colorado v. Google LLC, TechPolicy.Press, https://www.techpolicy.press/tracker/us-v-google-llc/ (last visited Nov. 20, 2024).

[7] Calls for Sanctions Against Google, supra note 2 (“The last antitrust case of this magnitude to make it to trial was in 1998, when the Justice Department sued Microsoft.”).

[8] Justice Department Calls for Sanctions, supra note 4.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Kerrr, supra note 5.

[15] Id.

[16] United States v. Google LLC, 2024 WL 3647498, 1, 4 (2024).

[17] Calls for Sanctions Against Google, supra note 2.

[18] Steve Brachmann, DOJ, State AGs File Proposed Remedial Framework in Google Search Antitrust Case, (Oct. 13, 2024, 12:15 PM), https://ipwatchdog.com/2024/10/13/doj-state-ags-file-proposed-remedial-framework-google-search-antitrust-case/id=182031/.

[19] Dan Robinson, Uncle Sam may force Google to sell Chrome browser, or Android OS, The Reg. (Oct. 9, 2024, 12:56 pm), https://www.theregister.com/2024/10/09/usa_vs_google_proposed_remedies/.

[20] Brachmann, supra note 18.

[21] Exec. Summary of Plaintiff’s Proposed Final Judgement at 3–4, United States v. Google LLC No. 1:20-cv-03010-APM (D.D.C. Nov. 20, 2024). Id at 4.

[22] Id.

[23] See Jane Wolfe & Miles Kruppa, Google Loses Antitrust Case Over Search-Engine Dominance, Wall Street J. (Aug. 5, 2024, 5:02 pm), https://www.wsj.com/tech/google-loses-federal-antitrust-case-27810c43?mod=article_inline.

[24] See Makenzie Holland, Google Breakup Unlikely in Event of Guilty Verdict, Tech Target (Oct. 11, 2023), https://www.techtarget.com/searchcio/news/366555177/Google-breakup-unlikely-in-event-of-guilty-verdict. See also Michael Brick, U.S. Appeals Court Overturns Microsoft Antitrust Ruling, N.Y. Times (Jun 28, 2001), https://www.nytimes.com/2001/06/28/business/us-appeals-court-overturns-microsoft-antitrust-ruling.html. (summarizing the U.S. Court of Appeals decision overturning of the structural remedies imposed on Microsoft in an antitrust case).

 

 

Privacy at Risk: Analyzing DHS AI Surveillance Investments

November 22, 2024
Administrative Law, Agencies, Artificial Intelligence, Constitutional Law, Forensic Evidence, Law Enforcement, Public Safety, Regulatory

Noah Miller, MJLST Staffer

The concept of widespread surveillance of public areas monitored by artificial intelligence (“AI”) may sound like it comes right out of a dystopian novel, but key investments by the Department of Homeland Security (“DHS”) could make this a reality. Under the Biden Administration, the U.S. has acted quickly and strategically to adopt artificial intelligence as a tool to realize national security objectives.[1] In furtherance of President Biden’s executive goals concerning AI, the Department of Homeland Security has been making investments in surveillance systems that utilize AI algorithms.

Despite the substantial interest in protecting national security, Patrick Toomey, deputy director of the ACLU National Security Project, has criticized the Biden administration for allowing national security agencies to “police themselves as they increasingly subject people in the United States to powerful new technologies.”[2] Notably, these investments have not been tailored towards high-security locations—like airports. Instead, these investments include surveillance in “soft targets”—high-traffic areas with limited security: “Examples include shopping areas, transit facilities, and open-air tourist attractions.”[3] Currently, due to the number of people required to review footage, surveilling most public areas is infeasible; however, emerging AI algorithms would allow for this work to be done automatically. While enhancing security protections in soft targets is a noble and possibly desirable initiative, the potential privacy ramifications of widespread autonomous AI surveillance are extreme. Current Fourth Amendment jurisprudence offers little resistance to this form of surveillance, and the DHS has both been developing this surveillance technology themselves and outsourcing these projects to private corporations.

To foster innovation to combat threats to soft targets, the DHS has created a center called Soft Target Engineering to Neutralize the Threat Reality (“SENTRY”).[4] Of the research areas at SENTRY, one area includes developing “real-time management of threat detection and mitigation.”[5] One project, in this research area, seeks to create AI algorithms that can detect threats in public and crowded areas.[6] Once the algorithm has detected a threat, the particular incident would be sent to a human for confirmation.[7] This would be a substantially more efficient form of surveillance than is currently widely available.

Along with the research conducted through SENTRY, DHS has been making investments in private companies to develop AI surveillance technologies through the Silicon Valley Innovation Program (“SVIP”).[8] Through the SVIP, the DHS has awarded three companies with funding to develop AI surveillance technologies that can detect “anomalous events via video feeds” to improve security in soft targets: Flux Tensor, Lauretta AI, and Analytical AI.[9] First, Flux Tensor currently has demo pilot-ready prototype video feeds that apply “flexible object detection algorithms” to track and pinpoint movements of interest.[10] The technology is used to distinguish human movements and actions from the environment—i.e. weather, glare, and camera movements.[11] Second, Lauretta AI is adjusting their established activity recognition AI to utilize “multiple data points per subject to minimize false alerts.”[12] The technology generates automated reports periodically of detected incidents that are categorized by their relative severity.[13] Third, Analytical AI is in the proof of concept demo phase with AI algorithms that can autonomously track objects in relation to people within a perimeter.[14] The company has already created algorithms that can screen for prohibited items and “on-person threats” (i.e. weapons).[15] All of these technologies are currently in early stages, so the DHS is unlikely to utilize these technologies in the imminent future.

Assuming these AI algorithms are effective and come to fruition, current Fourth Amendment protections seem insufficient to protect against rampant usage of AI surveillance in public areas. In Kyllo v. United States, the Court placed an important limit on law enforcement use of new technologies. The Court held that when new sense-enhancing technology, not in general public use, was utilized to obtain information from a constitutionally protected area, the use of the new technology constitutes a search.[16] Unlike in Kyllo, where the police used thermal imaging to obtain temperature levels on various areas of a house, people subject to AI surveillance in public areas would not be in constitutionally protected areas.[17] Being that people subject to this surveillance would be in public places, they would not have a reasonable expectation of privacy in their movements; therefore, this form of surveillance likely would not constitute a search under prominent Fourth Amendment search analysis.[18]

While the scope and accuracy of this new technology are still to be determined, policymakers and agencies need to implement proper safeguards and proceed cautiously. In the best scenario, this technology can keep citizens safe while mitigating the impact on the public’s privacy interests. In the worst scenario, this technology could effectively turn our public spaces into security checkpoints. Regardless of how relevant actors proceed, this new technology would likely result in at least some decline in the public’s privacy interests. Policymakers should not make a Faustian bargain for the sake of maintaining social order.

 

Notes

[1] See generally Joseph R. Biden Jr., Memorandum on Advancing the United States’ Leadership in Artificial Intelligence; Harnessing Artificial Intelligence to Fulfill National Security Objectives; and Fostering the Safety, Security, and Trustworthiness of Artificial Intelligence, The White House (Oct. 24, 2024), https://www.whitehouse.gov/briefing-room/presidential-actions/2024/10/24/memorandum-on-advancing-the-united-states-leadership-in-artificial-intelligence-harnessing-artificial-intelligence-to-fulfill-national-security-objectives-and-fostering-the-safety-security/ (explaining how the executive branch intends to utilize artificial intelligence in relation to national security).

[2] ACLU Warns that Biden-Harris Administration Rules on AI in National Security Lack Key Protections, ACLU (Oct. 24, 2024, 12:00 PM), https://www.aclu.org/press-releases/aclu-warns-that-biden-harris-administration-rules-on-ai-in-national-security-lack-key-protections.

[3] Jay Stanley, DHS Focus on “Soft Targets” Risks Out-of-Control Surveillance, ALCU (Oct. 24, 2024), https://www.aclu.org/news/privacy-technology/dhs-focus-on-soft-targets-risks-out-of-control-surveillance.

[4] See Overview, SENTRY, https://sentry.northeastern.edu/overview/#VSF.

[5] Real-Time Management of Threat Detection and Mitigation, SENTRY, https://sentry.northeastern.edu/research/ real-time-threat-detection-and-mitigation/.

[6] See An Artificial Intelligence-Driven Threat Detection and Real-Time Visualization System in Crowded Places, SENTRY, https://sentry.northeastern.edu/research-project/an-artificial-intelligence-driven-threat-detection-and-real-time-visualization-system-in-crowded-places/.

[7] See Id.

[8] See, e.g., SVIP Portfolio and Performers, DHS, https://www.dhs.gov/science-and-technology/svip-portfolio.

[9] Id.

[10] See Securing Soft Targets, DHS, https://www.dhs.gov/science-and-technology/securing-soft-targets.

[11] See pFlux Technology, Flux Tensor, https://fluxtensor.com/technology/.

[12] See Securing Soft Targets, supra note 10.

[13] See Security, Lauretta AI, https://lauretta.io/technologies/security/.

[14] See Securing Soft Targets, supra note 10.

[15] See Technology, Analytical AI, https://www.analyticalai.com/technology.

[16] Kyllo v. United States, 533 U.S. 27, 33 (2001).

[17] Cf. Id.

[18] See generally, Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (explaining the test for whether someone may rely on an expectation of privacy).

 

 

AI and Predictive Policing: Balancing Technological Innovation and Civil Liberties

November 20, 2024
Artificial Intelligence, Discrimination, Evidence, Law Enforcement, Privacy, Public Safety

Alexander Engemann, MJLST Staffer

To maximize their effectiveness, police agencies are constantly looking to use the most sophisticated preventative methods and technologies available. Predictive policing is one such technique that fuses data analysis, algorithms, and information technology to anticipate and prevent crime. This approach identifies patterns in data to anticipate when and where crime will occur, allowing agencies to take measures to prevent it.[1] Now, engulfed in an artificial intelligence (“AI”) revolution, law enforcement agencies are eager to take advantage of these developments to augment controversial predictive policing methods.[2]

In precincts that use predictive policing strategies, ample amounts of data are used to categorize citizens with basic demographic information.[3] Now, machine learning and AI tools are augmenting this data which, according to one source vendor, “identifies where and when crime is most likely to occur, enabling [law enforcement] to effectively allocate [their] resources to prevent crime.”[4]

Both predictive policing and AI have faced significant challenges concerning issues of equity and discrimination. In response to these concerns, the European Union has taken proactive steps promulgating sophisticated rules governing AI applications within its territory, continuing its tradition of leading in regulatory initiatives.[5] Dubbed the “Artificial Intelligence Act”, the Union clearly outlined its goal of promoting safe, non-discriminatory AI systems.[6]

Back home, we’ve failed to keep a similar legislative pace, even with certain institutions sounding the alarms.[7] Predictive policing methods have faced similar criticism. In an issue brief, the NAACP emphasized, “[j]urisdictions who use [Artificial Intelligence] argue it enhances public safety, but in reality, there is growing evidence that AI-driven predictive policing perpetuates racial bias, violates privacy rights, and undermines public trust in law enforcement.”[8] This technological and ideological marriage clearly poses discriminatory risks for law enforcement agencies in a nation where a black person is already exponentially more likely to be stopped without just cause as their white counterparts.[9]

Police agencies are bullish about the technology. Police Chief Magazine, the official publication of the International Association of Chiefs of Police,  paints these techniques in a more favorable light, stating, “[o]ne of the most promising applications of AI in law enforcement is predictive policing…Predictive policing empowers law enforcement to predict potential crime hotspots, ultimately aiding in crime prevention and public safety.[10] In this space, facial recognition software is gaining traction among law enforcement agencies as a powerful tool for identifying suspects and enhancing public safety. Clearview AI stresses their product, “[helps] law enforcement and governments in disrupting and solving crime.”[11]

Predictive policing methods enhanced by AI technology show no signs of slowing down.[12] The obvious advantages to these systems cannot be ignored, allowing agencies to better allocate resources and manage their staff. However, as law enforcement agencies adopt these technologies, it is important to remain vigilant in holding them accountable to any potential ethical implications and biases embedded within their systems. A comprehensive framework for accountability and transparency, similar to European Union guidelines  must be established to ensure deploying predictive policing and AI tools do not come at the expense of marginalized communities. [13]

 

Notes

[1] Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion, 62 Emory L.J. 259, 265-267 (2012)

[2] Eric M. Baker, I’ve got my AI on You: Artificial Intelligence in the Law Enforcement Domain, 47 (Mar. 2021) (Master’s thesis).

[3] Id. at 48.

[4] Id. at 49 (citing Walt L. Perry et al., Predictive Policing: The Role of Crime Forecasting in Law Enforcement Operations, RR-233-NIJ (Santa Monica, CA: RAND, 2013), 4, https://www.rand.org/content/dam/rand/ pubs/research_reports/RR200/RR233/RAND_RR233.pdf).

[5] Commission Regulation 2024/1689 or the European Parliament and of the Council of 13 June 2024 laying down harmonized rules on artificial intelligence and amending Regulations (Artificial Intelligence Act), 2024 O.J. (L 1689) 1.

[6] Lukas Arnold, How the European Union’s AI Act Provides Insufficient Protection Against Police Discrimination, Penn. J. L. & Soc. Change (May 14,2024), https://www.law.upenn.edu/live/news/16742-how-the-european-unions-ai-act-provides#_ftn1.

[7] See Margaret Hu, Algorithmic Jim Crow, 86 Fordham L. Rev. 633, 664 (2017),

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5445&context=flr. (“Database screening and digital watchlisting systems, in fact, can serve as complementary and facially colorblind supplements to mass incarcerations systems. The purported colorblindness of mandatory sentencing… parallels the purported colorblindness of mandatory database screening and vetting systems”).

[8] NAACP, Issue Brief: The Use of Artificial Intelligence in Predictive policing, https://naacp.org/resources/artificial-intelligence-predictive-policing-issue-brief (last visited Nov. 2, 2024).

[9] Will Douglas Heaven, Artificial Intelligence- Predictive policing algorithms are racist. They need to be dismantled, MIT Tech. Rev. (July 17, 2020), https://www.technologyreview.com/2020/07/17/1005396/predictive-policing-algorithms-racist-dismantled-machine-learning-bias-criminal-justice/ (citing OJJDP Statistical Briefing Book. Estimated number of arrests by offense and race, 2020. Available: https://ojjdp.ojp.gov/statistical-briefing-book/crime/faqs/ucr_table_2. Released on July 08, 2022).

[10] See The Police Chief, Int’l Ass’n of Chiefs of Police, https://www.policechiefmagazine.org (last visited Nov. 2, 2024);Brandon Epstein, James Emerson, and ChatGPT, “Navigating the Future of Policing: Artificial Intelligence (AI) Use, Pitfalls, and Considerations for Executives,” Police Chief Online, April 3, 2024.

[11] Clearview AI, https://www.clearview.ai/ (last visited Nov. 3, 2024).

[12] But see Nicholas Ibarra, Santa Cruz Becomes First US City to Approve Ban on Predictive Policing, Santa Cruz Sentinel (June 23, 200) https://evidentchange.org/newsroom/news-of-interest/santa-cruz-becomes-first-us-city-approve-ban-predictive-policing/.

[13] See also Roy Maurer, New York City to Require Bias Audits of AI-Type HR Technology, Society of Human Resources Management (December 19, 2021), https://www.shrm.org/topics-tools/news/technology/new-york-city-to-require-bias-audits-ai-type-hr-technology.

 

The Introduction of “Buy Now, Pay Later” Products

November 20, 2024
Administrative Law, Agencies, Business Law, Financial Law, Regulatory

Yanan Tang, MJLST Staffer

As of June 2024, it is estimated that more than half of Americans turn to Buy Now, Pay Later (“BNPL”) options to purchase products during financially stressful times. [1] BNPL allows customers to split up the payment of their purchases into four equal payments, requiring a down payment of 25 percent, with the remaining cost covered by three periodic payment installments. [2]

 

Consumer Financial Protection Bureau’s Interpretive Rules

In response to the popularity of BNPL products, the Consumer Financial Protection Bureau (“CFPB”) took action to regulate BNPL products.[3] In issuing its interpretive rules for BNPL, the CFPB aims to outline how these products fit within existing credit regulations. The CFPB’s interpretive rules for BNPL products were introduced in May 2024, following a 60-day review period with mixed feedback. The rules became effective in July, aiming to apply credit card-like consumer protections to BNPL services under the Truth in Lending Act (“TILA”).

Specifically, the interpretive rules assert that these BNPL providers meet the criteria for being “card issuers” and “creditors”, and therefore should be subject to relevant regulations of TILA, which govern credit card disputes and refund rights.[4] Under CFPB’s interpretive rules, BNPL firms are required to investigate disputes, refund returned products or voided services, and provide billing statements.[5]

This blog will first explain the distinction between interpretive rules and notice-and-comment rulemaking to contextualize the CFPB’s regulatory approach. It will then explore the key consumer protections these rules aim to enforce and examine the mixed responses from various stakeholders. Finally, it will analyze the Financial Technology Association’s lawsuit challenging the CFPB’s rules and consider the broader implications for BNPL regulation.

 

Interpretive Rules and Notice-and-Comment Rulemaking Explained

In general, interpretive rules are non-binding and do not require public input, while notice-and-comment rules are binding with the force of law and must follow a formal process, including public feedback, as outlined in the Administrative Procedural Act (“APA”) §553.[6] The “legal effect test” from American Mining Congress v. MSHA helps determine whether a rule is interpretive or legislative by examining factors like legislative authority, the need for a legal basis for enforcement, and whether the rule amends an existing law.[7] While some courts vary in factors to distinguish legislative and interpretive rules, they generally agree that agencies cannot hide real regulations in interpretive rules.

 

Comments Received from Consumer Groups, Traditional Banks, and BNPL Providers

After soliciting comments, CFPB received conflicting feedback on the proposed interpretive rules.[8] However, they also urged the agency to take further action to protect consumers who use BNPL credit.[9] In addition, traditional banks largely supported the rule, because BNPL’s digital user accounts are similar to those of credit cards and should be regulated similarly.[10] In contrast, major BNPL providers protested against CFPB’s rule.[11] Many BNPL providers, like PayPal, raised concerns about administrative procedures and urged CFPB to proceed through notice-and-comment rulemaking.[12] In sum, the conflicting comments highlight the challenge of applying traditional credit regulations to innovative financial products, leading to broader disputes about the rule’s implementation.

 

Financial Technology Association’s Lawsuit against CFPB’s New Rules

After the interpretive rules went into effect in July, FTA filed a lawsuit against the agency to stop the interpretive rule.[13] In their complaint, FTA contends that CFPB bypassed APA’s notice-and-comment rulemaking process, despite the significant change imposed by the rule.[14] FTA argues that the agency exceeded statutory authority under the Truth in Lending Act (TILA) as the act’s definition of “credit card” does not apply to BNPL products.[15] FTA also argues that the rule is arbitrary and capricious because it fails to account for the unique structure of BNPL products and their compliance challenges with Regulation Z.[16]

The ongoing case between FTA and CFPB will likely focus on whether CFPB’s rule is a permissible interpretation of existing law or a substantive rule requiring formal rulemaking under APA § 553. This decision should weigh the nature of BNPL products in relation to consumer protections traditionally associated with credit card-like products. In defending the agency’s interpretive rules against FTA, CFPB could consider highlighting the legislative intent of TILA’s flexibility and rationale for using an interpretive rule.

 

Notes

[1] See Block, Inc., More than Half of Americans Turn to Buy Now, Pay Later During Financially Stressful Times (June 26, 2024), https://investors.block.xyz/investor-news/default.aspx.

[2] Id.

[3] See Paige Smith & Paulina Cachero, Buy Now, Pay Later Needs Credit Card-Like Oversight, CFPB Says, Bloomberg Law (May 22, 2024), https://news.bloomberglaw.com/banking-law/buy-now-pay-later-soon-will-be-treated-more-like-credit-cards.

[4] Id.

[5] Id.

[6] 5 U.S.C.A. § 553.

[7] Am. Mining Cong. v. Mine Safety & Health Admin., 302 U.S. App. D.C. 38, 995 F.2d 1106 (1993).

[8] See Evan Weinberger, CFPB’s ‘Buy Now, Pay Later’ Rule Sparks Conflicting Reactions, Bloomberg Law (Aug. 1, 2024), https://news.bloomberglaw.com/banking-law/cfpbs-buy-now-pay-later-rule-sparks-conflicting-reactions.

[9] See New York City Dep’t of Consumer & Worker Prot., Comment Letter on Truth in Lending (Regulation Z); Use of Digital User Accounts To Access Buy Now, Pay Later Loans, Docket No. CFPB-2024-0017 (Aug. 31, 2024), https://www.regulations.gov/comment/CFPB-2024-0017-0027; see also Nat’l Consumer L. Ctr., Comment Letter on Truth in Lending (Regulation Z); Use of Digital User Accounts To Access Buy Now, Pay Later Loans, Docket No. CFPB-2024-0017, at 1 (Aug. 1, 2024), https://www.regulations.gov/comment/CFPB-2024-0017-0028.

[10] See Independent Community Bankers of Am., Comment Letter on Truth in Lending (Regulation Z); Use of Digital User Accounts To Access Buy Now, Pay Later Loans, Docket No. CFPB-2024-0017 (July 31, 2024), https://www.regulations.gov/comment/CFPB-2024-0017-0023.

[11] See Financial Technology Ass’n, Comment Letter on Truth in Lending (Regulation Z); Use of Digital User Accounts To Access Buy Now, Pay Later Loans, Docket No. CFPB-2024-0017 (July 19, 2024). https://www.regulations.gov/comment/CFPB-2024-0017-0038.

[12] See PayPal, Inc., Comment Letter on Truth in Lending (Regulation Z); Use of Digital User Accounts To Access Buy Now, Pay Later Loans, Docket No. CFPB-2024-0017 (July 31, 2024). https://www.regulations.gov/comment/CFPB-2024-0017-0025.

[13] See Evan Weinberger, CFPB Buy Now, Pay Later Rule Hit With Fintech Group Lawsuit, Bloomberg Law (Oct. 18, 2024), https://news.bloomberglaw.com/banking-law/cfpbs-buy-now-pay-later-rule-hit-with-fintech-group-lawsuit.

[14] Complaint, Fin. Tech. Ass’n v. Consumer Fin. Prot. Bureau, No. 1:24-cv-02966 (D.D.C. Oct. 18, 2024).

[15] Id.

[16] Id.

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