International Law

Election Security: US Lawmakers Concerned “Deepfake” Videos Are the Next Stage of Information Warfare Ahead of 2020 Election

February 6, 2019
Elections, Ethics, Forensics, International Law

By: Jack Kall

The nation’s attention has turned to the 2020 election with the 2018 midterms in the rear view mirror. Accordingly, an increasing number of US lawmakers are concerned that a form of video manipulation known as “Deepfakes” will be the next stage of information warfare. In short, Deepfake videos are hyper-realistic manipulated videos made using artificial intelligence technology. The videos are often convincing enough that it can be difficult to even tell what has or has not been manipulated. To raise attention, BuzzFeed published this video of Barack Obama delivering a public service announcement regarding dangers of the technology—except it was actually Jordan Peele.

Election security is a more important issue for US voters in the wake of Russian-led election interference in the 2016 Presidential Election. A recent Pew Research poll found that 55% of Americans say they are not too (37%) or not at all (17%) confident that elections systems are secure from hacking and other technological threats. Republicans (59% at least somewhat confident in security) express greater confidence than Democrats (34%), which is a reversal of attitudes from 2016.

While the threat of deepfakes has not garnered the same attention as Russian interference and other forms of “Fake News,” some US legislators are beginning to vocalize concern. This past September, three members of the House of Representatives—including the new chair of the House Intelligence Committee Rep. Adam Schiff (D-CA)—sent a letter expressing concern that the “technology could soon be deployed by malicious foreign actors” to the Director of National Intelligence Dan Coates. Senator Marco Rubio (R-FL) also displayed concern for the technology at a Senate Intelligence Committee by describing a scenario in which a deepfake video is released just before an election and going viral before analysts could determine it was fake.

While concern is rising, there is still a shortage of solutions. In January 2019, House Democrats unveiled several election security measures, but lacked solutions for deepfakes. The same month, Brookings Institute released advice for campaigns to protect against deepfakes. It remains to be seen whether Brooking Institute’s advice to protect infrastructure, add two-factor authentication, film the candidate at speaking engagements, and replicate a classified environment—while important general advice—is enough to protect against this ever-evolving deepfake technology.

Who Gets to Speak for Earth? Thoughts on the Anniversary of the Arecibo Message

November 15, 2018
International Law, New Technology, Space Law

Will Dooling, MJLST Staffer

November 16th marks the 43rd anniversary of the Arecibo message, an attempt to broadcast a powerful radio signal from the Arecibo Radio Telescope in Puerto Rico to the heart of the Messier 13 galaxy, more than 25,000 light years away. The Arecibo message was largely ceremonial, or experimental, no one seriously expects to hear back. However, the experiment posed interesting questions about how, exactly, humans ought to go about broadcasting messages to extraterrestrials, and who gets to speak for humanity.

If these questions seem far-fetched, that is only because we, as a society, have grown less ambitious in our hopes for space exploration. In the heady days of the early space race, these questions were seriously considered by NASA and the UN. The Arecibo Message was not a lone experiment: both the Pioneer and Voyager space probes, launched at about the same time as the Arecibo message, carried plaques designed to be easily deciphered by whoever, or whatever, would happen upon them in the future. Four decades later, well into the 21st century, we have the first signs of a robust private space industry and serious proposals in place for mining asteroids and lunar tourism but we still have not resolved the questions posed by the Arecibo Message. Who gets to speak for humanity? Should we even be broadcasting right now?

Currently, several large-scale projects are in place with the primary purpose of locating extraterrestrial life in solar systems beyond our own. By far the most ambitious are the continuing efforts of the SETI (Search for Extraterrestrial Intelligence) Institute. SETI is a United States nonprofit organization funded almost entirely by private charitable donations. Some of its largest donors include tech giants William Hewlitt, David Packard, and Paul Allen. SETI largely devotes its time to hunting for radio signals using telescope arrays all over the world. SETI uses this approach because it is relatively easy to hunt for unusual radio signals. A few nations have tried more direct attempts: NASA’s space-based Kepler telescope, and a related French mission called COROT, both launched in part to analyze the chemical composition of planets in nearby solar systems, to see if they could detect chemical compounds that could only form on planets with complex biospheres. FAST (the Five-hundred-meter Aperture Spherical Telescope), completed in 2016, is the largest conventional radio receiver on earth, it was built by China in part to hunt for extraterrestrial radio sources in a manner similar to the US’s SETI.

All these are attempts to locate extraterrestrial life. What should we do if we find any, and should we be sending any more messages in the meantime? The past few years have seen a renewed interest in actively contacting extraterrestrials via Arecibo-like radio broadcasts. (See for example 2017’s Tromsø broadcast from a radio observatory in Norway to the nearby red dwarf star GJ 273). There have even been proposed commercial broadcasts where customers could pay for the novel experience of having personal messages broadcast into space. This increased interest in broadcasting has provoked some controversy: In 2016, a group of prominent “futurists” including astronomer Lucianne Walkowicz and Tesla CEO Elon Musk signed and circulated a letter objecting to any active attempts to contact extraterrestrial life. The letter expressed concern that the content of any deliberate communications should result from international consensus not “a decision based upon the wishes of a few individuals with access to powerful communications equipment.” The letter called for “vigorous international debate by a broadly representative body prior to engaging further in this activity.” It opened with an even more dire observation: “We know nothing of ETI’s [Extraterrestrial Intelligence’s] intentions and capabilities, and it is impossible to predict whether ETI will be benign or hostile.”

Ultimately, active communication with extraterrestrial life is an issue rather like the militarization of space and climate change. It is an international problem that requires international regulatory solutions. Individual actors have little incentive to self-regulate: the presence of any single unregulated actor makes the regulation ineffective. Neither the United Nations Committee on the Peaceful Uses of Outer Space nor the United Nations Office for Outer Space Affairs has taken a position on attempts to broadcast to extraterrestrial civilizations, though they could,and perhaps they should.

It is possible this is not an issue worth considering. It is possible that we are alone in the universe and there is nothing out there to hear us, through this would raise troubling questions of its own. It would mean humanity was a freak exception in an otherwise empty universe. It would mean that every other planet, around every other star, was completely devoid of life. It would be, in a word, weird. The alternative, only slightly less weird, is that something out there has the potential to hear us someday.  In the meantime, perhaps we should engage in “vigorous international debate” on this issue while it is still merely speculative.

In Space We Trust: Regulate the Race

October 28, 2018
Business Law, Environmental Law, Ethics, International Law, Social Welfare, Space Law

By: Hannah Payne, MJLST Staffer

In 1999, the UN General Assembly launched “World Space Week,” an annual celebration observed from October 4th (the date of Sputnik’s launch in 1957) to October 10th (the day The Outer Space Treaty entered into force in 1967). This year’s theme was “Space Unites the World.” The UN said the theme “celebrates the role of space in bringing the world closer together.” Unfortunately, the words ring hollow in light of the U.S.’s Space Force plans, as well as the recent escalation of inter-planetary militarization by China, Russia and the EU. Additionally, activities of SpaceX and others raise concerns about privatization, space pollution and the plans of the uber-wealthy to leave the world behind. These forces threaten to marginalize the awe-inspiring exploration of space into a scheme concerned only with war, profit, and advancing inequality. The dominance of such interests calls for a coherent system of global space regulation.

Some have observed that many recent activities violate the 1967 Outer Space Treaty, which declared: “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty also states that space and all celestial bodies are unowned and open to exploration by all. The U.S. and over 100 countries signed and ratified it, and America did not reserve the right to alter its obligations, as it often does in agreements. However, with no real international enforcement mechanism and our ceaseless profit-seeking, countries have—and will continue to—disregard the goals of the 1967 agreement. Last year, Ted Cruz expressed excitement that “the first trillionaire will be made in space.” He proposed amending the treaty to foster commercialization – and correct its erroneous assumption that worthy goals exist besides wealth and power. His motive seems to be formalistic, as was Congress’ in 2015 when it declared in the Commercial Space Launch Competitiveness Act that “the United States does not, by enactment of this Act, assert sovereignty . . . exclusive rights . . . or ownership of, any celestial body[,]” but in the same act granted U.S. citizens the right to own and sell any “space resource.” Though the U.S. track record of treaty violations makes their disregard of the agreement perhaps unsurprising, the serious consequences of space militarization and privatization call for critical advancement in space regulation.

From an environmental law perspective, the language of the 1967 treaty evokes the seldom-used Public Trust Doctrine (PTD). Traced back to the Roman era, the Public Trust Doctrine is described as “requir[ing] government stewardship of the natural resources upon which society . . . depends for continued existence.” The PTD places the government/sovereign as the trustee, obligated to protect the rights of the public/beneficiary in the trust, which is comprised of things like navigable waterways. It has mostly been applied to water rights, and successfully reclaimed property for the “public good” in Illinois and California. However, in 2012 the Supreme Court suggested that the PTD is no stronger than state common law. Even so, the doctrine should be remembered by those who think the privileged cannot, by right, hoard or destroy resources – including those in space. In the 1970s, Joseph Sax argued for the PTD’s use as sweeping environmental common law. Some have since theorized about the extension of the PTD to space. These scholars identify issues such as the lack of a sovereign to act as trustee. That problem would not likely be solved by allowing every country to exert self-interested sovereignty in space. At least no one has been so bold as to outright claim the moon – yet.

The PTD is just one tool that may be useful in designing a peaceful move forward. The Expanse, a near-future science fiction series in which humanity has colonized the solar system, offers a thought-provoking look ahead. Earth and the moon are governed by the UN. Mars is a sovereign as well, and the asteroid belt a colonial structure with fractured governance. Space is highly commercialized and militarized, and personal opportunity is hard to come by – but humanity has avoided self-destruction. Their global governance allows for some cooperation between Earth and Mars in space. Depending on one’s dreams of the future, the situation represents an overpopulated, inefficiently run hellscape – or a less-bad option out of the possibilities that now seem likely. It begs the question – how do we expand while avoiding astronomical inequality and self-destruction?

Perhaps it is nearly impossible, but Earth needs real, global regulation of outer space. A weak U.N. cannot do it; private companies and wealthy countries should not be given free reign to try. Last month, the U.N. held the First United Nations Conference on Space Law and Policy.  It’s good to see the international community ramping up these discussions. Hopefully, the PTD’s underlying philosophy of equitable preservation will be central to the conversation. Done right, the exploration of space could be the most inspiring, community-building, and even profitable experience for humanity. If approached thoughtfully, inclusively, carefully –  we could have much more than just a Space Force.

The Great Minnesota Divide: Can a Solution to Address the Urban/Rural Split Over Copper-Nickel Mining Come From Conservation Efforts Abroad?

October 22, 2018
Environmental Law, International Law

Allie Jo Mitchell, MJLST Staffer

Two different companies are attempting to undertake copper-nickel mining projects in the Superior National Forest on watersheds that feed Lake Superior and the Boundary Waters Canoe Area (the nation’s most popular national wilderness area). Copper-nickel mining would be new to the Iron Range, a region in Northeastern Minnesota that has long been mined for taconite, or iron ore. Support or opposition over copper-nickel sulfide mining in Minnesota tends to trend along the urban-rural divide.

For instance, a survey conducted by a pro-mining group found that 57% of voters in the Iron Range, support copper-nickel mining. Compare this with a poll paid for by Save the Boundary Waters that showed statewide 70% of Minnesota voters opposed this new type of mining in the state. This urban-rural divide is not an unheard of phenomenon. The New York Times published an in depth article in 2017 exploring the rift between the “working class” and “progressive activists” as played out in the fight over these new mining proposals in Northern Minnesota.

Both sides of the argument tend to paint in broad brush strokes. Advocates of the mines want the freedom to earn a steady income in a region where their family has– often– been living for generations. They see new mining projects as a way to provide economic development and stability to a region reeling from decades of job losses and a shrinking population. They also believe copper-nickel mining can be done without jeopardizing the environment. However, Minnesota’s regulations have not been updated since the 1990s and are not adequately adapted for this new type of mining. Furthermore, copper-nickel sulfide mines have been the cause of devastating environmental disasters in British Columbia and Chile.

Opponents, on the other hand, believe that the BWCA watershed, Lake Superior, and Superior National Forest contain some of Minnesota’s most pristine waters and wild areas. They fear that the destructive impacts of copper-nickel mining could destroy some of Minnesota’s greatest treasures. Opponents also contend that ecotourism and a growing market for outdoor recreation can revitalize the slumped region and replace an economy centered around mining. Despite these claims, ecotourism jobs tend to be seasonal and are unlikely to replace the high-wage jobs mining offers. As pointed out in the NYT article, there’s also a hypocrisy to “elitists” living in urban centers dictating what rural Northern Minnesotan’s can and cannot do with the land while benefiting from metals produced from mining.

Perhaps this harsh dichotomy doesn’t have to exist. Minnesota’s BWCA and Lake Superior offer some of the world’s most abundant and pristine fresh water resources. In an era rife with water shortages/crises, extreme heat, and rampaging wildfires, the immense value of these resources shouldn’t be taken for granted. The BWCA also provides an escape for many from a loud, noisy, and interconnected world.

One possible solution is to look outside the United State’s borders at successful programs centered around payments for environmental services (“PES”). These programs can “encourage projects that enhance restoration, production, and rural development.” An example is the UN REDD+ program which creates financial value for carbon stored in forests by offering incentives for developing countries to reduce carbon emissions from deforestation/degradation. The Guardian has compared PES programs to a public utility that generates electricity, “[j]ust as we pay for electricity services, and thus ensure their continuing provision, so . . . should [we] pay for the climate service that tropical forests provide.” In fact, carbon offset credit markets now exist where individuals can pay for carbon reduction/eliminating services to  offset their carbon footprint.

While the resources the BWCA, Lake Superior, and the Superior National Forest offer are distinct from carbon sequestration services of forests in tropical regions, the fundamental principles behind PES can still be applied. Because the proposed mines would sit on public lands, payments for land preservation would need to be returned to communities with a focus on economic stimulation of the region. While direct payments have worked in other contexts (e.g. giving money directly to residents of neighboring communities that would be harmed by a moratorium on mining), this would not negate the social/cultural need many have to work a steady job. Furthermore, if the state attempted to transfer payments to Iron Range residents through the tax system, it could face equal protection challenges. See Zobel v. Williams, 457 U.S. 55 (1982) (holding that a taxation scheme wherein residents were paid a graduated rebate based on how many years they had lived in-state violated the equal protection clause).

Ultimately, a PES program in Minnesota would raise significant legal and cultural implications. But if 70% of Minnesotan’s oppose copper-nickel mining in Northern Minnesota, maybe they’d be willing to pay to keep that wilderness wild.

New Data Protection Regulation in European Union Could Have Global Ramifications

March 21, 2018
International Law, Internet, Privacy

Kevin Cunningham, MJLST Staffer

 

For as long as the commercial web has existed, companies have monetized personal information by mining data. On May 25, however, individuals in the 28 member countries of the European Union will have the ability to opt into the data collection used by so many data companies. The General Data Protection Regulation (GDPR), agreed upon by the European Parliament and Council in April 2016, will replace Data Protection Directive 95/46/ec as the primary law regulating how companies protect personal data of individuals in the European Union. The requirements of the new GDPR aim to create more consistent protection of consumer and personal data across the European Union.

 

Publishers, banks, universities, data and technology companies, ad-tech companies, devices, and applications operating in the European Union will have to comply with the privacy and data protection requirements of the GDPR or be subject to heavy fines (up to four (4) percent of annual global revenue) and penalties. Some of the requirements include: requiring consent of subjects for data processing; anonymizing collected data to protect privacy; providing data breach notifications within 72 hours of the occurrence; safely handling the transfer of data across borders; requiring certain companies to appoint a data protection officer to oversee compliance of the Regulation. Likewise, the European Commission posted on its website that a social network platform will have to adhere to user requests to delete photos and inform search engines and other websites that used the photos that the images should be removed. This baseline set of standards for companies handling data in the EU will better protect the processing and movement of personal data.

 

Companies will have to be clear and concise about the collection and use of personally identifiable information such as name, home address, data location, or IP address. Consumers will have the right to access data that companies store about the individuals, as well as the right to correct false or inaccurate information. Moreover, the GDPR imposes stricter conditions applying to the collection of ‘sensitive data’ such as race, political affiliation, sexual orientation, and religion. The GDPR will still allow businesses to process personally identifiable information without consumer consent for legitimate business interests which include direct marketing through mail, email, or online ads. Still, companies will have to account

 

The change to European law could have global ramifications. Any company that markets goods or service to EU residents will be subject to the GDPR. Many of the giant tech companies that collect data, such as Google and Facebook, look to keep uniform systems and have either revamped or announced a change to privacy settings to be more user-friendly.

Privatizing the ISS, Deregulating Space Travel, and Making Money

February 23, 2018
International Law, Space Law

Jon Watkins, MJLST Staffer

 

To many, space feels more exciting than it has been in years. SpaceX launched the Falcon Heavy recently to great fanfare and YouTube’s second-biggest live stream ever; the stream peaked at over 2.3 million concurrent viewers. In a move which is perhaps intended to ride the coattails of this popularity, the Trump administration recently announced a new policy intended to bolster the domestic space industry through deregulation and commercialization. While information discussing what the administration specifically wants to do is somewhat limited, some clues do exist. One of these clues is a NASA internal document which allegedly contains a proposal to turn the International Space Station over to private ownership by 2024.

Coverage of the ISS proposal tends to fall along predictably partisan lines- National Review is head-over-heels for the proposal, while Vox is strongly against it. However, both accounts fail to discuss whether the proposal would actually be legal. National Review suggests that private companies that pay the U.S.’s share of operations on the space station would automatically be permitted to conduct research on board. However, this is anything but clear. The ISS is governed by an inter-governmental agreement (IGA) that each of the fifteen governments involved in the ISS are signatories; Memoranda of Understanding (MOUs) between NASA and each other Space Agency in addition to several contractual and non-contractual agreements between space agencies. The UN Outer Space Treaty and other documents are incorporated into the IGA.

Articles 5 and 9 of the IGA vindicate National Review to some extent- utilization rights and jurisdiction are indeed derived from the provision of goods to the ISS. Article 9(3)(a) of the IGA in particular also seems to imply that private entities selected by partners (like NASA) may use “user elements” of the ISS, even though other private entities would not be able to do so. This probably makes it possible for NASA to transfer their use rights to a private entity, at least insofar as NASA has use rights over a portion of the ISS. However, NASA hasn’t actually provided that much of the ISS– while Russia owns the Zvezda, Pirs, Polsk, and Rassvet modules, NASA only owns the Zarya module outright, and shares ownership of the Destiny, Kibo, and Columbus modules with other agencies. This means that NASA has exclusive rights over a tiny portion of the ISS, and any private entity which purchased NASA’s rights would be forced to share all systems on the station in the same way NASA does currently.

Limiting the user rights to the portions owned by NASA isn’t the only limitation which would be faced by a private entity which were to purchase NASA’s rights in the ISS- the IGA and MOUs are filled with fairly detailed restrictions on behavior and research on the ISS, of which one of the most important is Article 9(5): “Each Partner shall assure access to and use of its Space Station elements to the other Partners in accordance with their respective allocations.” This is essentially an anti-monopolization provision, which is reasonable in the context of an international cooperative project, but may be a highly unappealing provision for a private entity. As another example, Article 11.6 of the MOU between NASA and the Russian Space Agency states that “the entire crew will operate under a single timeline for performance of all operations and utilization activities.” This is a similarly unappealing provision for a private entity which is interested in operating on its own schedule and performing its own research. It is unclear what private entity would want to operate under these restrictions, and no private entity has yet stated that they intend to do so.

Additionally, in what is likely a minor technicality, Article 16.3 of the MOU between NASA and the Russian Space Agency states that “the Parties undertake to grant high priority to their Space Station programs in developing their budgetary plans.” The Trump Administration’s allegedly expressed intent to eliminate government funding for the ISS may violate this provision of the MOU, since it means ISS funding is clearly not a “high priority.”

To be completely fair to the Trump Administration, the path they’ve chosen here is at least predictable. Much of the discussion of permits for switching launchpads in the announcement was referenced earlier in Gwynne Shotwell’s speech in October at the National Space Council, and the general trajectory of the space industry since the second Bush administration has been towards deregulation and commercialization. The Bush administration stated in the NASA Authorization Act of 2005 that NASA should “develop a sustained human presence on the Moon . . . as a stepping stone,” which has more than a facial similarity to the Trump administration’s refocus on developing a lunar base. The Obama administration was likely forced to defund some of these more expensive projects with the NASA Authorization Act of 2010 right after a major recession, but the Obama administration’s 2010 space policy purported to “[lean] farther forward in support of U.S. business interests than any previous space policy,” and recommended that the Federal Government “Minimize, as much as possible, the regulatory burden for commercial space activities.”

Deregulation and commercialization of the American space industry are therefore clearly nothing new. However, what is new are fairly aggressive proposals to use private rockets to get human payloads into space. Private rockets, an external safety report states, are insufficiently safe and an optimistic proposal to privatize NASA’s share of the ISS, a proposal which is likely legal under the international agreements governing the ISS.

Made in China: How IP Theft Became a Norm in China

November 8, 2017
Intellectual Property, International Law

Tiffany Saez, MJLST Staffer

 

While discussions regarding North Korea and trade have comprised much of President Trump’s tour around Asia insofar, the President has yet to arrive in China – China is the third stop of his Asia tour. This has left many speculating as to what will result from the President’s visit to Beijing. This may be since Trump advocated a stronger stance against China during his campaign and has taken no significant action with respect to China’s economic policies during his presidency.

 

In light of the President’s visit, however, some are already urging him to crack down on China’s human rights violations. Others are asking President Trump to confront China about North Korea’s nuclear threats. China’s rampant intellectual property theft is one issue that has long been overlooked by political agendas but deserves more attention. IP theft by China continues to present a serious threat to the US economy. Annual cost currently exceed $225 billion in counterfeit goods, pirated software, and theft of trade secrets; this figure is expected to reach $600 billion.

 

Chinese IP theft has slowly made its way into the spotlight following the release of the HiPhone in 2008. The HiPhone is a cheap Chinese knock-off of Apple’s iPhone. The HiPhone was just the beginning of a series of IP disputes between China and both American and European businesses. Many businesses have accused Chinese nationals of illegally reproducing their creations and then misleading consumers into thinking that they are purchasing authentic products.

 

With a weak IP regime that has done little to curb a growing copycat culture among Chinese businesses and individuals alike, it is no wonder that China has become the leading country for IP theft. The Chinese intellectual property and manufacturing policies in place are largely to blame for the increase in IP theft.

 

Boasting a population of 1.38 billion, China has become one of the world’s largest markets for companies looking to expand their marketplace. The country is not only full of potential consumers but it has also demonstrated its ability as a manufacturing powerhouse. Doing business in China, however, has proven to be rather problematic since a stake in one of China’s industries often entails a trade-off in terms of technology. That is because foreign firms that wish to do business in one of China’s industries are required to enter into joint ventures with local partners or share their technologies with the state’s regulatory agencies. Such partnerships often lead to IP theft by Chinese companies

 

The United States’ intellectual property disputes with China represent only a fraction of a much larger debate over IP rights in the global context. Proponents of IP rights insist that stronger rights are needed to foster innovation and encourage individuals to participate in research and development by ensuring they will be economically rewarded for their contributions. Meanwhile critics of stronger IP rights argue that such rights favor wealthier countries over developing ones. Even so, US companies, such as Apple and IBM, – who are often the first to be impacted by Chinese IP theft – are hoping that the Trump administration will capitalize on the trip to Beijing and finally take stronger measures against China’s lax IP laws.

In Doge We Trust

September 29, 2017
Economics, International Law, Internet

Richard Yo, MJLST Staffer

Despite the closure of virtually all U.S.-based Bitcoin exchanges in 2013 due to Congressional review and the uncertainty with which U.S. banks viewed its viability, the passion for cryptocurrencies has remained strong, especially among technologists and venture capitalists. This passion reached an all-time high in 2017 when one Bitcoin exchanged for 5000 USD.** Not more than five years ago, Bitcoin exchanged for 13 USD. For all its adoring supporters, however, cryptocurrencies have yet to gain traction in mainstream commerce for several reasons.

Cryptocurrencies, particularly Bitcoin, have been notoriously linked to dark web locales such as the now-defunct Silk Road. A current holder of Bitcoin, Litecoin, or Monero, would be hard pressed to find a completely legal way to spend his coins or tokens without second guessing himself. A few legitimate enterprises, such as Microsoft, will accept Bitcoin but only with very strict limitations, effectively scrubbing it of its fiat currency-like qualities.

The price of your token can take a volatile 50% downswing or 3000% upswing in a matter of days, if not hours. If you go to the store expecting to purchase twenty dollars’ worth of groceries, you want to be sure that the amount of groceries you had in mind at the beginning of your trip is approximately the amount of groceries you will be able to bring back home.

After the U.S. closures, cryptocurrency exchanges found havens in countries with strong technology bases. Hotbeds include China, Russia, Japan, and South Korea, among others. However, the global stage has recently added more uncertainty to the future of cryptocurrency. In March 2017, the Bank of Japan declared Bitcoin as an official form of payment. Senators in Australia are attempting to do the same. China and Russia, meanwhile, are home to most Bitcoin miners (Bitcoin is “mined” in the sense that transactions are verified by third-party computers, the owners of which are rewarded for their mining with Bitcoins of their own) due to low energy costs in those two nations and yet are highly suspicious of cryptocurrencies. China has recently banned the use of initial coin offerings (ICOs) to generate funds and South Korea has followed suit. Governments are unsure of how best to regulate, or desist from regulating, these exchanges and the companies that provide the token and coins. There’s also a legitimate question as to whether a cryptocurrency can be regulated given the nimbleness of the technology.

On this issue, some of the most popular exchanges are sometimes referred to as “regulated.” In truth, this is usually not in the way that consumers would think a bank or other financial institution is regulated. Instead, the cryptocurrency exchange usually imposes regulations on itself to ensure stability for its client base. It requires several forms of identification and multi-factor authentication that rivals (and sometimes exceeds) the security provided by traditional banks. These were corrections that were necessary after the epic 2014 failure of the then-largest cryptocurrency exchange in the world, Mt. Gox.

Such self-adjustments, self-regulation, and stringency are revealing. In the days of the Clinton administration when internet technology’s ascent was looming, the U.S. government adopted a framework for its regulation. That framework was unassuming and could possibly be pared to a single rule: we will regulate it when it needs regulating. It asked that this technology be left in the hands of those who understand it best and allow it to flourish.

This seems to be the approach that most national governments are taking. They seem to be imposing restrictions only when deemed necessary, not banning cryptocurrencies outright.

For Bitcoin and other cryptocurrencies, the analogous technology may be the “blockchain” that underlies their structure, not the tokens or coins themselves. The blockchain is a digital distributed ledger that provides anonymity, uniformity, and public (or private) access, using complex algorithms to verify and authenticate information. When someone excitedly speaks about the possibilities of Bitcoin or another cryptocurrency, they are often describing the features of blockchain technology, not the coin.

Blockchain technology has already proven itself in several fields of business and many others are hoping to utilize it to effectuate the efficient and reliable dissemination and integration of information. This could potentially have sweeping effects in areas such as medical record-keeping or title insurance. It’s too early to know and far too early to place restrictions. Ultimately, cryptocurrencies may be the canary that gets us to better things, not the pickaxe.

 

*Dogecoin is the cryptocurrency favored by the Shina Inu breed of dog, originally created as a practical joke, but having since retained its value and now used as a legitimate form of payment.

**The author holds, or has held, Bitcoin, Ether, Litecoin, Ripple, and Bitcoin Cash.

Autonomous Weapon Systems: Legal Responsibility for the Terminator

April 19, 2017
Administrative Law, International Law, Weapon Law

Ethan Konschuh, MJLST Staffer

While technological progress has been the hallmark of the twenty-first century, the rise has been especially drastic in weapons technology.  As combatants in armed conflicts rely more and more heavily on automated systems pursuing such goals as safety, efficiency, and effectiveness on the battlefield, international law governing the use of force in armed conflicts is under threat of becoming outdated.

International law governing the application of force in conflicts is premised on notions of control.  Humans have traditionally been the masters of their weapons: “A sword never kills anybody; it is a tool in a killer’s hand.”  However, as automation in weapons increases, this relationship is becoming tenuous- so much so that some believe that there is not enough control to levy responsibility on anyone for the consequences of the use of these weapons.  These actors are calling for a preemptive ban on this technology to avoid the possibility of the offloading of moral responsibility for war crimes.  Others, however, believe that there are frameworks available that can prevent this gap in responsibility, and allow for the realization of the aforementioned benefits of using autonomous machines on the battlefield.

There are three general categories of policies proposed regarding the regulation of using these machines.  One has been proposed by Human Rights Watch (HRW), International Committee for Robot Arms Control (ICRAC), the International Committee of the Red Cross (ICRC), and other NGO’s and humanitarian organizations have called for a preemptive ban on all autonomous weapons technology, believing that human input should be a pre-requisite for any targeting or attacking decision.  The second regulatory regime has been espoused by, among others, the United Kingdom and Norther Ireland, who claim that there would be no military utility in employing autonomous weapon systems and agree they will never use them, effectively agreeing to a ban.  However, the way that they define autonomous weapon systems belies their conviction.  The definition put forth by these actors defines autonomous weapon systems in a way that effectively regulates nothing:

“The UK understands [an autonomous weapon system] to be one which is capable of understanding, interpreting and applying higher level intent and direction based on a precise understanding and appreciation of what a commander intends to do and why.  From this understanding, as well as a sophisticated perception of its environment and the context in which it is operation, such a system would decide to take – or abort – appropriate actions to bring about a desired end state, without human oversight, although a human may still be present.”

This definition sets the threshold of autonomy so high that there is no technology that currently exists, or will likely ever exist, that would within its purview.  The third policy framework was put forth by the United States Department of Defense.  This policy regulates fully autonomous weapon systems (no human action connected to targeting or attacking decisions), semi-autonomous weapon systems (weapon depends on humans to determine the type and category of targets to be engaged), and human-supervised autonomous weapon systems (weapon can target and attack, but a human can intervene if necessary).  This policy bans all fully autonomous weapon systems, but allows for weapons that can target and attack as long as there is human supervision, with the ability to intervene if necessary.

The debate surrounding how to regulate this type of weapons technology is continually gaining traction up in the face of advances approaching the threshold of autonomy.  I believe the U.S. policy is the best available policy to prevent the responsibility gap while preserving the benefits of using automated weapons technology, but others disagree.  Whichever policy is ultimately chosen, hopefully an international agreement is reached before it is too late, and your favorite sci-fi movies become all too realistic.

Permissionless Innovation or Precautionary Principle: the Policy Menu of the Future

October 31, 2016
3-D Printing, Administrative Law, EU Law, New Technology, Public Safety

Ethan Konschuh, MJLST Staffer

In their recent paper, Guns, Limbs, and Toys: What Future for 3D Printing?, published in the Minnesota Journal of Law, Science, and Technology Volume 17, Issue 2, Adam Thierer and Adam Marcus discussed the potential regulatory frameworks for technological innovations that could spur what they call “the next great industrial revolution.”  They believe that 3D printing, one such innovation, could offer such great benefits that it could significantly enhance global welfare.  However, they worry that preemptive regulations on the technology could undermine these benefits before giving them a chance to be realized.  The paper advocates for a method of regulation called “permissionless innovation,” as opposed to regulations following the “precautionary principle.”  While there are many pros to the former, it could leave unchecked the risks curtailed by the latter.

“Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default.”  It follows from the idea that unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated, and problems, should they arise, can be addressed later.  The authors point to numerous benefits of this approach with respect to emerging technologies.  One of the most obvious benefits is that this type of regulatory framework does not prematurely inhibit potential benefits.  “Regulatory systems based on precautionary thinking focus on preemptive remedies that aim to predict the future and its hypothetical problems. But if public policy is rooted in fear of hypothetical worst-case scenarios, it means that best-case scenarios will never come about.”  It would also preserve the modern startup culture where “just about anyone can afford to launch a business.”  Implementing a framework based on the precautionary principle will create barriers to entry and raise the cost of innovation.  This would also reduce the ability to maximize competitive advantage through trial and error, which refines the technology and efficient allocation of resources for development.  As an example of the potential detriments to competitive advantage from preemptive regulation, the authors point to the different policies of the Europe and the U.S. in the mid-nineties internet explosion where the former preemptively regulated and the latter allowed for permissionless innovation, resulting in the U.S. being a global leader in information technologies and Europe lagging far behind.

An alternative regulatory approach discussed in the article is based on the precautionary principle, which generally refers to the belief that new innovations should be curtailed or disallowed until it can be proven that they will not cause harm.  This approach, while posing problems of its own discussed above, would solve some of the problems arising under permissionless innovation.  While there are many economic and social benefits to permissionless innovation as the bedrock on which policy rests, it inherently allows for the “error” half of “trial and error.”  The whole concept is rooted in the idea of ex post regulation, creating policy to correct for problems that have already occurred.  While traditionally, as shown through the internet regulation difference and outcome between Europe and the U.S., the risk of error has not outweighed the benefits that result, new technologies pose new risks.

For example, in the realm of 3D printing, one of the hot topics is 3D printed firearms.  Current laws would not make 3D printed guns illegal, as most regulations focus on the sale and distribution of firearms, not creation for personal use.  The reasons why it might be more prudent to adopt a precautionary principle approach to regulating this technology are obvious.  To adopt an ex post approach to something that could have such dire consequences could be disastrous, especially considering the amount of time required to adopt policy and implement regulations.  Permissionless innovation could thus become a sort of self-fulfilling prophecy in that major tragedies resulting from 3D printing could result in exactly what advocates of permissionless innovation seek to prevent in the first place: strict regulation that undermines the development of the technology.

The debate will likely heat up as technology continues to develop.  In the era of self-driving cars, private drones, big data, and other technologies that continue to change the way that humans interact with the world around them, 3D printing is not the only area in which this discussion will arise.  The policy decisions that will be made in the next few years will have far reaching consequences that are difficult to predict.  Do the economic and social benefits of being able to manufacture goods at home outweigh the risks of legal, discrete self-armament and its consequences?  The proverbial pill may be too large for some to swallow.

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