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Blockworks – ICLE Academic Affiliate Thibault Schrepel was quoted by Blockworks in a story about Article 30 of the EU Data Act. You can read full piece here.

Thibault Schrepel, an associate professor at the VU University Amsterdam, noted in a tweet that this new bill “endangers smart contracts to an extent that no one can predict.”

“Article 30 does not provide clarity as to who should be able to ‘terminate the continued execution of transactions,’” Schrepel tweeted. “Is it the creator of the smart contract? Public authorities? Courts?”

Cointelegraph – ICLE Academic Affiliate Thibault Schrepel was quoted by Cointelegraph in a story about the EU Data Act’s “kill switches” for smart contracts. You can read full piece here.

Professor Thibault Schrepel of the Vrije Universiteit Amsterdam said in a tweet that the act “endangers smart contracts to an extent that no one can predict,” and pointed out sources of legal uncertainty in the act. In particular, he found that it did not specify who could stop or interrupt a smart contract.

KITCO – ICLE Academic Affiliate Thibault Schrepel was quoted by KITCO in a story about the EU Data Act’s Article 30. You can read full piece here.

“The immutability of smart contracts is key to their survival (i.e., immutability is their main differentiating feature),” Thibault Schrepel, an Associate Professor at VU Amsterdam University, tweeted ahead of the vote. “Article 30, as currently drafted, goes a step too far in addressing the issues raised by immutability. Instead of enacting “practical immutability” (where immutability remains the principle and alterability the exception), it makes alterability the principle. In doing so, it endangers smart contracts to an extent that no one can predict.”

According to Schrepel, who is a specialist in blockchain legal issues, the legal text is unclear as to who would be responsible for triggering the kill switch on a smart contract, which interferes with the fundamental principle that the automated programs can’t be altered by anyone.

“As currently drafted, Article 30 does not provide clarity as to who should be able to ‘terminate the continued execution of transactions,’” Schrepel wrote. “Is it the creator of the smart contract? Public authorities? Courts? If the EP wishes to proceed with Article 30, future versions should at least make it clear that only the creator of a smart contract can terminate it.”

 

Ledger Insights – ICLE Academic Affiliate Thibault Schrepel was quoted by Ledger Insights in a story about how the EU Data Act affects smart contracts for data sharing. You can read full piece here.

Professor Thibault Schrepel, Co-Director of the Amsterdam Law & Technology Institute at VU Amsterdam, noted that the smart contract clause doesn’t define ‘smart contracts for data sharing’. If this is cleared up to apply for example to machine to machine (M2M) data sharing, then some of the other aspects of the clause might be less concerning.

He notes on Twitter that a key issue is who should have control over a smart contract kill switch. It could be the smart contract creator, some public authorities, or the courts. Our take is that, in practice, it makes sense to be the creator because the whole point is to be able to act in an emergency. This would have the side effect of making it hard to argue that the creator doesn’t control the smart contract, something protocol creators prefer not to have to argue they are decentralized. However, if the scope is M2M data sharing, control might not be as contentious. On the other hand, if it applied to DeFi, it could raise additional concerns.

 

Coindesk – ICLE Academic Affiliate Thibault Schrepel was quoted by Coindesk in a story about the EU Data Act’s “kill switches” for smart contracts. You can read full piece here.

Background: The European Commission is about to unveil draft regulation that will more tightly regulate how patents are incorporated into technology standards. The Commission’s expert report and call for comments suggest that it wants to create a regime of third-party checks that would verify whether inventors’ patents are truly essential to a technology standard (i.e., “essentiality checks”). The goal ultimately is to ensure that standard-essential patents (SEPs) are adequately disclosed to would-be licensees. There are thousands of SEPs that underpin the technologies powering the digital economy, thus making it essential that firms coordinate to develop and implement these technologies.

However… It is unclear that such regulation would improve upon the status quo. While it might not be perfect, the existing approach to essentially checks has seen SEP-reliant industries provide countless technological breakthroughs. This has led industries where SEPs are particularly relevant to occupy key geostrategic positions. By contrast, imposing heavy-handed regulation risks not only that there will be harm to consumers, but the potential that the West’s strategic position relative to adversarial foreign powers like China or Russia may be weakened.

THE ROLE OF ESSENTIALITY CHECKS

Technical standards (e.g., 5G, WiFi, USB-C, etc.) often rely on hundreds—sometimes thousands—of distinct inventions that can each be covered by multiple patents. 

Firms that commercialize goods incorporating these technologies need to know which patents are essential to those standards—thus avoiding situations where license fees are paid for technologies that are not necessary to practice a given standard.

Essentiality checks can potentially streamline this process, thereby limiting the over- and/or under-disclosure of SEPs. But this is a complex and costly endeavor. The benefits of achieving perfect disclosure of SEPs—be it via market forces or regulation—are thus unlikely to outweigh the costs.

WHO SHOULD ASSESS ESSENTIALITY?

As things stand, a patent’s essentiality is determined in various ways. These include the use of patent pools, self-assessments by inventors, and evaluations outsourced to third-party experts. 

Whatever one thinks of that heterogeneous approach, it is clear that the SEP industry has thrived under this laissez-faire paradigm, and that competition among the various inventors, implementers, and standards-development organizations (who bring inventors and implementers together) has played a useful role in optimizing these processes. Regulators should thus be wary not to upset the apple cart.

In contrast, the Commission’s expert report and its call for comments both suggest that it favors a more centralized system in which government institutions, such as patent offices, would act as backstops for essentiality checks. 

Such a system would not be without risks. Indeed, there is little evidence that SEP-heavy industries are underperforming. Any reform thus risks creating more friction than it removes.

WHAT ABOUT SANCTIONS?

There are fears that excessive sanctions for failing to adequately disclose essential patents could tilt the bargaining power in SEP-reliant industries toward implementers. In turn, this could undermine inventors’ incentive to produce new technologies.

In recent years, courts around the world have sought to strike an appropriate balance between the interests of inventors and implementers. In doing so, they have foiled attempts by several regulators to limit the royalties that inventors can extract; to prevent them from obtaining injunctions against infringers of their patents; and to determine the level of the value chain at which royalties are to be calculated. 

One concern is that the draft regulation may seek to forward those goals by assessing penalties for failing to comply with its provisions. For instance, inventors may lose the ability to bring injunctions against infringers if a third party deems their patent to be non-essential. Given the vital role that these injunctions play, such a policy would be misguided.

GEOSTRATEGIC IMPACT 

Finally, overburdening firms that are active in the SEP space could erode the West’s technological leadership relative to states with manufacturing-reliant economies whose political leaders routinely undermine the intellectual property rights of foreign firms.

Many SEPs, particularly those relevant to the telecommunications sector, are held by companies in the West and specifically in the United States. The lion’s share of implementers, by contrast, are based in China. Policies that impose significant costs on inventors and benefit implementers may thus amount to a subsidy to Chinese firms and a tax on Western innovation.

These harmful consequences are magnified in light of China’s strategic effort to shape international technology standards. With European firms systematically deterred from participating in the development of open technology standards, Chinese firms—directed by their government authorities—will gain significant control of the technologies that underpin tomorrow’s digital goods and services. The consequences are potentially catastrophic.

For more on this issue, see ICLE’s academic output on standard essential patents here and here, and our response to the Commission’s recent consultation here. 

Rep. Carter and the Members of NCOIL,

Thank you for inviting me. My name is R.J. Lehmann, and I am the editor-in-chief and a senior fellow with the International Center for Law & Economics. ICLE is a think tank based in Portland, Oregon, dedicated to promoting the law & economics approach to legal analysis, and to issues of public policy more generally.

Some of you may know me from my prior work at the R Street Institute, which I co-founded in 2012. Among the hats I wore at R Street was running the institute’s insurance policy project, and I was the author of the first nine editions of R Street’s annual report card evaluating insurance regulation in the 50 states.

It was actually early in our days at R Street that I first encountered the topic before us today. After the tragic shootings at Sandy Hook Elementary in December 2012, there was a pressing call for new and creative thinking about ways to address the scourge of firearms violence. Being a research center that was, at that point, devoted almost exclusively to insurance issues, we explored whether mandatory insurance could be part of the solution to promote firearms safety, just as mandatory auto insurance has served to promote driving safety and mandatory workers compensation insurance has served to promote workplace safety. So, while I’m about to tell you why I think these mandates are a bad idea, I want to note at the top that I do understand the intuition.

What we concluded, after batting around various iterations of what a mandate might look like, is that it was fundamentally unworkable. That insurance could not possibly respond in the overwhelming number of cases that were of public concern and that in the limited set where it could respond – which is, basically, true accidents that befall third parties – coverage already exists, either through a homeowners policy or a renters policy.

The two central problems that limit the applicability of any firearms-insurance mandate are that intentional acts are uninsurable and that it is the nature of liability insurance that only harms to third parties are covered.

Taking those one at a time, the claim that intentional acts are uninsurable begs two other obvious questions, each of which, unfortunately, can take us down some rather unproductive detours. What does it mean for an act to be intentional and what does it mean for an event to be insurable?

On intentionality, there’s a whole rabbit hole one can head down on free will and determinism and whether all actions are intentional or whether no actions are intentional. This is not a philosophy class, so I’d like to rescue us from that particular rabbit hole.

The question of insurability returns me to a theme I found myself echoing a lot in another recent public policy discussion—which is whether business interruption for pandemics is insurable. What I said then and will say here is that insurability is a spectrum. Things may be more or less insurable, meaning, in a nutshell, that the willingness of capital to participate in risk-transfer solutions for any particular class of event will vary.

The framing that I think is most helpful for these purposes is to say the sorts of events that are most insurable are those that are fortuitious—which is to say, they happen by chance, rather than by design—and where there is a broad alignment between the goals of the insurer and the insured. When I step into my car, I would like to avoid getting into an accident. My insurer would also like me to avoid getting into an accident. If I do nonetheless get into an accident, it’s a fortuitous event. That event is insurable. If, rather than an accident, I willfully try to run someone down on the road, then we’re not aligned. That’s not insurable and claims for vehicular homicide are excluded—even though, in some places and some cases, the insurer may still be required by a judge or jury to pay a claim.

Applying that logic to the example of firearms incidents offers some context for just how many potential claims are excluded the realm of insurability simply from the fact that insurers are not willing to extend coverage to intentional acts. According to the Centers of Disease Control and Prevention, more than 70% of firearms injuries are the result of assaults, while less than 20% are unintentional. Among firearms-related deaths, the National Safety Council finds that 54% are suicides, 43% are homicides, and only about 1% are accidental.

We therefore start with proposition that only about one-fifth of firearms injuries, and only about 1 in 100 firearms deaths, are even potentially insurable. That universe of potentially insurable claims shrinks even further—although the data on this is harder to find—when you consider that it is the nature of liability policies that they only cover injuries to third parties. If a contractor slips and falls on your property, that might be covered under your homeowners insurance policy. If you slip and fall, it will not be. If your dog bites your neighbor, it might be covered. If your dog bites you, it will not be covered.

So, similarly, if there’s a firearms accident in your home and a third party is injured, that might be covered. Indeed, even if the accident is outside your home—say, you’re the vice president of the United States and you accidentally shoot your hunting partner in the face—your homeowners policy very well might cover that.

But the insured in a homeowners policy is the household, not an individual. If one member of your household accidentally shoots another member of your household—even in the very tragic incidents we hear about involving children—that’s not going to be an insured claim.

Another factor that likely shrinks the universe of claims even further is the language of the HO-3 policy itself. The policy has always excluded injuries or property damage that the insured “expected or intended.” But in 2000, the Insurance Services Office actually broadened that exclusion quite a bit, and the standard policy now states that coverage is excluded for an action that is “of a different kind, quality or degree than initially expected or intended” or “is sustained by a different person, entity, real or personal property, than initially expected or intended.” That’s a pretty broad exclusion and courts have tended to read it as covering even negligently careless actions that result in unintentional injuries.

Nonetheless, despite these manifest limitations on what an insurance mandate could possibly cover, we have watched such proposals perennially introduced in various states in the decade since Sandy Hook, with New York and Connecticut being two of the most frequent states where legislation was considered. Until this past year, when the City of San Jose and the State of New Jersey both adopted differing versions of a mandate, they never went anywhere.

But interestingly, in 2018, we saw regulatory action that, rather than mandate liability insurance for gun owners, actually would appear to forbid it, and this contradiction is important and underappreciated in the current discussion.

For a recap, back in 2018, New York State Financial Services Superintendent Maria T. Vullo brought complaints against the broker Lockton, the underwriter Chubb, and the National Rifle Association over their respective roles in administering the Carry Guard insurance program for NRA members. Some of the charges concerned alleged violations of the declinations requirements to place policies in the surplus-lines market and that the NRA was marketing policies as an unlicensed producer. Those violations aren’t of much interest here. But the core charge was that, because Carry Guard would pay legal defense costs for insureds who face civil or criminal charges related to the use of firearms (that is, where the insured pleads innocent, claims self-defense, or asserts that they are not liable in a civil proceeding) the coverage itself was fundamentally contrary to public policy establishing that criminal acts cannot be insured.

Now, as many insurance lawyers in this room could testify, it’s not always quite as simple as that. It is not unusual at all for an insurer in, say, the directors and officers, or errors and omissions, or environmental-liability lines to find themselves on the hook for the defense costs of an insured accused of a criminal act. And where they are adjudicated guilty, the insurer may try to claw back those costs. But until that point, there are fiduciary duties an insurer owes to its policyholders, and refusing to pay defense costs on a liability policy is usually a quick ticket to a bad faith lawsuit.

But more fundamentally, paying defense costs is a if not the fundamental purpose of liability insurance. So, if the Carry Guard program was contrary to public policy, that’s another way to say that liability insurance for firearms is illegal. And the primary reason I think that has to be considered in this discussion is that one of the states that filed follow-on actions in the Carry Guard case was New Jersey. Which suggests the absurd scenario that New Jersey is now requiring a form of insurance that is illegal to sell in New Jersey.

I am not a constitutional lawyer—or any kind of lawyer for that matter—so I’m going to refrain from saying too much about how these mandates would be treated under the rubric the Supreme Court promulgated in last year’s Bruen decision, although I reserve for myself the right to chime in with my amateur opinion if the subject comes up in the Q&A, which I imagine it will. I would recommend a paper by Adam Schniderman of the University of Michigan Law School that I believe is the first to look at the question, and he makes what I think is a compelling case that neither the New Jersey statute nor the San Jose ordinance would survive under Bruen analysis.

But more generally, I think it’s clear that what these proposals seek is a kind of end-run around the Second Amendment; i.e., that you can outsource to the insurance industry, through its underwriting and rate-setting processes, vetting of firearms owners that existing Second Amendment jurisprudence would appear to deny to state and local governments.

There are various problems with this, but one that I think is most important is that it’s grounded on a theory of what insurers would do to manage firearms risk that appears to be fundamentally untrue. In other words, as mentioned, we already have coverage for firearms accidents in homeowners policies. But insurers don’t charge different rates to different homeowners based on their risk of firearms accidents. Based on my understanding, there aren’t even any insurers who ask whether a policy applicant owns a firearm, so it doesn’t even appear in the underwriting side of the equation.

Now, maybe this is because liability is a relatively small part of the risk underwritten in a homeowners policy, and as mentioned, firearms incidents are an even smaller proportion of liability claims. But it should be noted that, even the NRA’s Carry Guard policy—which was a standalone policy for firearms liability—didn’t charge variable rates. It charged a flat fee.

Bespoke, targeted risk-based underwriting is such a ubiquitous part of our modern insurance markets that we sometimes take for granted just how new and novel it is. In auto insurance, it really only dates back to George Joseph’s Mercury General in the 1960s. There have always been underwriting criteria, such as Benjamin Franklin’s Philadelphia Contributionship refusing to insure homes with trees because they were likely to spread fire. But the assumption that, for any given risk, insurers will automatically have and know how to use the relevant data sets to segregate high risk from low risk, is naïve. The use of this data is actually a historical aberration.

Even if insurers do find that data, the variables that provide actuarially credible projections may not be the ones that you assume or hope for. For instance, it may be that the thing that best predicts whether you’re going to have a firearms accident is your income. That sort of correlation is always problematic and controversial, but it should be particularly concerning if what it implicates is a constitutionally protected right.

I look forward to your questions.

 

Observador – ICLE Associate Director of Legal Research Ben Sperry was quoted by the Portuguese online newspaper Observador in a story about Section 230 and the Gonzalez v. Google case before the U.S. Supreme Court. You can read full piece (in Portuguese) here.

Foi a tentativa do Congresso de proteger os primeiros passos da internet. “Era dar o poder a estas primeiras plataformas da internet para, basicamente, tomarem as suas próprias decisões de moderação sem medo de que isso as tornasse responsáveis pelo discurso de terceiros nas suas plataformas”, resume Ben Sperry ao Observador, diretor associado da área de investigação legal do International Center for Law & Economics (ICLE). “Dá imunidade às empresas online de serem responsabilizadas, pelo menos na maioria das circunstâncias, pelo que terceiros publicam quando estão nos seus sites.” Com o tempo, a Secção 230 foi ganhando diferentes apelidos, desde tábua de salvação das tecnológicas até carta livre da prisão, como no jogo Monopólio.

[Transl.] It was Congress’ attempt to protect the internet as it took its first steps. “It was about empowering those original internet platforms, basically, to make their own moderation decisions without having to worry that this would make them responsible for the speech of third parties on their platforms,” Ben Sperry, associate director of legal research for ??the International Center for Law & Economics (ICLE), summarized for the Observer. “It gives online companies immunity from liability–at least, in most cases–for what third parties post on their sites.” Over time, however, Section 230 has changed from a lifeline for a new technology to a “get out of jail free” card, as in the game Monopoly.

…Também Ben Sperry, diretor associado da área de investigação legal do International Center for Law & Economics (ICLE), reconhece que os juízes do Supremo não mostraram estar “com apetite” para “alterar significativamente a forma como funciona o artigo 230”. “Pareciam céticos aos argumentos trazidos pelos advogados dos Gonzalez, por isso parece-me provável que não vão decidir a favor da família”, acrescenta.

[Transl.]…Ben Sperry, associate director of the legal research for ??the International Center for Law & Economics (ICLE), also said that the Supreme Court justices did not appear to “have an appetite” to “significantly change the way Section 230 works.” “They seemed skeptical of the arguments made by Gonzalez’s lawyers, so it seems likely to me that they will not decide in favor of the family,” he added.

…A liberdade de expressão online também poderá ficar em causa. Nesse caso, Ben Sperry, da ICLE, considera que a resposta das redes sociais poderá passar por “restringir o conteúdo do utilizador para evitar responsabilidades”.

[Transl]…Online freedom of expression may also be at stake. Ben Sperry of ICLE believes that social networks could respond to this case by “restricting user content to avoid liability.”

…Ben Sperry, da ICLE, nota que uma decisão favorável aos Gonzalez que implique os algoritmos “não só terá impacto no YouTube e na Google, como também na vasta filosofia da economia da internet”. “Se não tivéssemos o algoritmo e as recomendações, teríamos de saber exatamente o que procuramos e como o encontrar. As redes sociais sabem aquilo que procurámos no passado [o histórico] e o contexto do que procuramos. Se se remover o algoritmo de recomendações da equação, isso tornará os produtos realmente menos úteis.”

[Transl.] …Ben Sperry of ICLE notes that a ruling for the Gonzalezes that faults the algorithms “will impact not only YouTube and Google, but the entire basis of the Internet economy.” “If we didn’t have algorithms and recommendations, we would have to know exactly what we’re looking for and how to find it. Social networks know what we have looked for in the past and the context of what we are looking for. If you remove the recommendations algorithm from the equation, it actually makes the products less useful.”

 

The Minnesota Senate Commerce Committee last week passed SF 1598, the Digital Fair Repair Bill. The bill from Sen. Rob Kupec, DFL-Moorhead, would require manufacturers to provide independent repair companies access to relevant repair information.

Read the full piece here.