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Presentations & Interviews The Federalist Society – ICLE Director of Competition Policy Kristian Stout took part in a webinar organized by the Federalist Society on Section 230, common law, . . .
The Federalist Society – ICLE Director of Competition Policy Kristian Stout took part in a webinar organized by the Federalist Society on Section 230, common law, and free speech. The full video is embedded below.
ICLE Issue Brief As currently drafted, the text of the EU's proposed Artificial Intelligence Act would define virtually all software as AI.
European Union (EU) legislators are considering legislation— the Artificial Intelligence Act (AIA), the original draft of which was published by the European Commission in April 2021[1]—that aims to ensure the safety of AI systems in uses designated as “high risk”. As originally drafted, however, the AIA’s scope was not at all limited to AI; it would instead cover virtually all software. EU governments seem to have realized this problem and are trying to fix the proposal, while some pressure groups have pushed to move the draft in the opposite direction.
The AIA proposal is currently under consideration by specialized committees of the European Parliament. The parliamentary stage began with a long disagreement among the various committees regarding who should have decisive influence over the Parliament’s position on the bill. With that disagreement now resolved, discussions on the legislation’s merits are ongoing.
The purpose of this brief is to inform debate on the proposal’s fundamental features: its scope and the key provisions setting out prohibited AI practices (related to so-called “subliminal techniques” and “social scoring”).
Read the full issue brief here.
[1] Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts, European Commission, (Apr. 21, 2021), available at https://perma.cc/RWT9-9D97.
Popular Media The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade . . .
The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade tech providers from using encryption. But amid ongoing debate about Section 230 and the role of tech platforms in our public discourse, legislation like EARN IT could, if paired with carefully crafted procedural protections, offer a model for how Congress can address bipartisan concerns about child sexual abuse material (CSAM) and other illegal content online.
Read the full piece here.
Popular Media COVID-19 disrupted — and may continue to disrupt — in-person learning at many public schools across the country. For many high schoolers, this has led . . .
COVID-19 disrupted — and may continue to disrupt — in-person learning at many public schools across the country. For many high schoolers, this has led to reduced academic achievement and a decline in mental health. As schools transitioned to online and hybrid teaching, many states and local districts lowered graduation requirements, causing students, colleges, and employers to question the value of a high school diploma.
TL;DR While Congress is considering legislation that would dictate the terms that major app stores can offer to app developers, several states have similarly pursued legislation to regulate app stores.
While Congress is considering legislation that would dictate the terms that major app stores can offer to app developers, several states have similarly pursued legislation to regulate app stores. In particular, bills requiring app-store providers to permit the practice of “sideloading,” or prohibiting them from requiring that specific payment mechanisms be used, have gained traction in several states. Some state bills also would create a private right of action against app stores.
A proliferation of state regulations threatens to create a patchwork of rules for mobile app stores, which operate globally. In this landscape, it is likely that one or two large states could set the regulatory baseline for the entire country. Smaller states that set burdensome rules could force app stores to cease distributing apps from developers domiciled in their jurisdictions.
These bills are ill-advised on their own terms. Mandating that closed app-store platforms permit the use of alternative payment options could see large developers and rival payment processors free ride on an app store’s own investments. Denying closed platforms the ability to prohibit “sideloading” could compromise cybersecurity. These state bills would substitute regulatory fiat for consumer choice, sacrificing the benefits currently enjoyed by many consumers.
Read the full explainer here.
TOTM In Fleites v. MindGeek—currently before the U.S. District Court for the District of Central California, Southern Division—plaintiffs seek to hold MindGeek subsidiary PornHub liable for alleged . . .
In Fleites v. MindGeek—currently before the U.S. District Court for the District of Central California, Southern Division—plaintiffs seek to hold MindGeek subsidiary PornHub liable for alleged instances of human trafficking under the Racketeer Influenced and Corrupt Organizations (RICO) and the Trafficking Victims Protection Reauthorization Act (TVPRA). Writing for the International Center for Law & Economics (ICLE), we have filed a motion for leave to submit an amicus brief regarding whether it is valid to treat co-defendant Visa Inc. as a proper party under principles of collateral liability.
Amicus Brief An ICLE amicus brief filed in U.S. District Court in California supporting a motion to dismiss a suit in which holding Visa collaterally liable would generate massive social cost.
The attached was submitted Jan. 17, 2022, by the International Center for Law & Economics (ICLE) to the U.S. District Court for the Central District of California, Southern Division, as a proposed amicus brief in case of Fleites v. MindGeek in support of co-defendant Visa Inc.’s motion to dismiss.
Visa sits outside the boundaries of liability contemplated by statutes like RICO and TVPRA. At the very outer boundaries, liability for indirect actors under these statutes is analogous to the sorts of collateral liability sometimes found in other statutes and in common law tort.[1] But the nature of the relationship between Visa and the alleged direct actors in this case, dictated by the mechanics of payment networks, does not support the traditional economic and policy rationales for assigning collateral liability. This amicus brief elucidates the law and economics of collateral liability and applies it to the circumstances of Visa’s alleged participation in the alleged enterprises at issue. As discussed further below, the general principles of collateral liability counsel strongly against holding Visa liable for the harms suffered by Plaintiffs. To hold otherwise would be sure to generate a massive amount of social cost that would outweigh the potential deterrent or compensatory gains sought.
Read the full brief here.
[1] This amicus brief uses the term “collateral liability” to encompass a range of theories of civil liability aimed at secondary actors not directly responsible for causing harm. Thus, the term contemplates causes of action like premises liability for third-party injury, distributor liability for defamation, civil aiding and abetting liability for fraud, contributory and inducement liability for copyright infringement, and various theories of vicarious liability under the doctrine of respondeat superior. See generally Reiner Kraakman, Third-Party Liability, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 583 (Peter Newman ed., 1998).
Presentations & Interviews ICLE Director of Competition Policy Sam Bowman joined The CapX Podcast for a discussion of the biggest stories of 2021. The full episode is embedded . . .
ICLE Director of Competition Policy Sam Bowman joined The CapX Podcast for a discussion of the biggest stories of 2021. The full episode is embedded below.
Popular Media Section 230 of the Communications Decency Act continues to play a surprisingly large role in our political discourse, given its status as the last remaining . . .
Section 230 of the Communications Decency Act continues to play a surprisingly large role in our political discourse, given its status as the last remaining vestige of a quarter-century-old law that was largely struck down by the courts long ago. The immunity shield the law grants to online platforms has been implicated in issues as broad-ranging as Twitter’s decision to ban former President Trump to whether Instagram exacerbates eating disorders among teens.
