Curing Bias or Causing It?

Episode 425 of the Cyberlaw Podcast Looks at the White House "AI Bill of Rights"

It's been a jam-packed week of cyberlaw news, but the big debate of the episode is triggered by the White House blueprint for an AI 'bill of rights'. I've just released a long post about the campaign to end "AI bias" in general, and the blueprint in particular. In my view, the bill of rights will end up imposing racial and gender (not to mention intersex!) quotas on a vast swath of American life. Nick Weaver argues that AI is in fact a source of secondhand racism and sexism, something that will not be fixed until we do a better job of forcing the algorithm to explain how it arrives at the outcomes it produces. We do not agree on much, but we do agree that lack of explainability is a big problem for the new technology.

President Biden has issued an executive order meant to resolve the U.S.-EU spat over transatlantic data flows -- at least for a few years, until the anti-American EU Court of Justice finds it wanting again. Nick and I explore some of the mechanics created by the executive order. I argue that masking the identities of foreign intelligence targets will be bad for the comprehensibility of U.S. intelligence reports and for the privacy of U.S. persons. On the other hand, the quasijudicial system the order creates is cleverly designed to discourage litigant grandstanding.

Matthew Heiman covers the biggest CISO news of the week, the month, and the year – the criminal conviction of Uber's CSO, Joe Sullivan, for failure to disclose a data breach to the Federal Trade Commission. Matthew is less surprised by the verdict than others, but we agree that it will change the way CISOs do their job and relate to their fellow corporate officers.

Brian Fleming joins us to cover an earthquake in U.S.-China tech trade – the sweeping new export restrictions on U.S. chips and technology. This will be a big deal for all U.S. tech companies, we agree, and probably a disaster for them in the long run if U.S. allies don't join the party.

I go back to dig a little deeper on a story we covered with just a couple of hours' notice last week – the Supreme Court's grant of review in two cases touching on Big Tech's liability for hosting the content of terror groups. It turns out that only one of the cases is likely to turn on section 230. That's Google's almost laughable claim that holding YouTube liable for recommending terrorist videos is holding it liable as a publisher. The other case will almost certainly turn on when distribution of terrorist content can be punished as "material assistance" to terror groups.

Brian walks us through the endless negotiations between TikTok and the U.S. over a security deal. We are both puzzled over the partisanization of the TikTok security issue, although I suggest one reason why that might be happening.

Matthew catches us up on a little-covered Russian hack and leak operation aimed at former MI6 boss Richard Dearlove and British Prime Minister Boris Johnson. Matthew gives Dearlove's security awareness a low grade.

Finally, two updates:

• Nick catches us up on the Elon Musk-Twitter fight. Nick's gloating now, but he is sure he'll be booted off the platform when Musk takes over.
• And I pass on some very unhappy feedback from a friend at the Election Integrity Partnership (EIP), who feels we were too credulous in commenting on a JustTheNews story that left a strong impression of unseemly cooperation in suppressing election integrity misinformation. The EIP's response makes several good points in its own defense, but I remain concerned that the project as a whole raises real concerns about how tightly Silicon Valley, NGOs, and the government embraced each other to suppress speech "delegitimizing" election results.

Download the 425th Episode (mp3)

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Comments

[Rev. Arthur L. Kirkland]

An authoritarian wingnut discussing "stolen election" nonsense from Just The News (John Solomon)? How does this rubbish (not faux libertarian -- more "fuck you, libertarians") get published regularly at an ostensibly libertarian website?

The answer, of course, starts with a white, male, faux libertarian, bigot-friendly, right-wing blog . . .

Carry on, clingers. Your betters will let you know how far and how long, as always.

[Stephen Lathrop]

Response to questions about election results is not so simple. What is happening can be speech, or it can be activity.

With regard to instances of speech, if Joe Citizen thinks something is fishy about an election, he has an unquestionable free speech right to say so, using whatever means he personally can command. Whether he gets to say so using someone else’s private property to amplify his message is a different question. The answer to that one is, not unless the other party agrees to let him do it. And if the other party is a publisher, like Facebook or Twitter, then 1A press freedom answers the question. Publishers are free to include would-be contributions at pleasure, or to exclude them. Government is not empowered to force publishers to do otherwise.

Joe Citizen also enjoys 1A press freedom. He is also free to become a publisher. But to do that he must perform for himself the publishing activities of assembling an audience, curating the audience to make it useful to raise money, and mobilizing the means and paying the money to enable the distribution of his preferred content to an audience.

Press freedom is not speech freedom. Press freedom is protection for publishing activities. To claim press freedom, a person must either earn the assent of an existing publisher to publish his contribution, or become a publisher himself by performing the kinds of publishing activities which press freedom protects. Some people are capable to do the former. Anyone is free to do the latter, if he can.

But Joe Citizen is not entitled on the basis of his speech freedom to claim forced access to someone else’s publishing process, which is protected from government coercion by press freedom. Nor does Joe Citizen enjoy any press freedom right to use another publisher’s resources without consent.

With regard to instances of activity, we narrow the scope of the discussion. We consider instead the more complicated cases of government officials and candidates for office. Those different kinds cases need to be distinguished.

Consider the case of government officials. In their private capacity, they enjoy speech freedom and press freedom rights alike with those of other citizens. But they also have capacity to do activities which purely private speakers and publishers do not. Those activities mobilize government resources to disseminate messages, to persuade others, and to conduct expressive activities including elections themselves. To the extent those activities are practiced as the purported personal expression of a government official, whether elected or appointed, there is a potential problem. Government should in principle be empowered to constrain activity of that sort by government officials, including elected officials. The basis of constraint should be whether the official in question exercises good faith ministerial communication, or practices instead a communicative activity with an aim to affect an election outcome.

Finally, there is the question of candidates for office, or incumbents in office, who wish to question election practices or results. They must be free to do so, but narrowly so. Pre-election objections to procedures must be confined to the interval prior to the moment balloting begins. Post-election challenges must be confined to the interval between the moment balloting ends, and the moment when the election is finally certified and accepted by authorities legitimately empowered to do so.

Any other election-specific advocacy from candidates for office, or elected office holders generally, must be treated as activity, and subject to legal control. There are two kinds of activity specifically which need to be singled out for scrutiny:

First, fund-raising in the name of efforts to overturn a completed and certified election should be outlawed. It is not lawful to overturn a certified election. Activity to raise money to overturn it should be no more legally acceptable than doing it.

Second, there needs to be recognition that when a failed candidate, or any office holder who supports one, refuses to accept an election result—which is always the outcome of exercise of the sovereign constitutive power—then those people open a contest for sovereignty against the legitimately sovereign People themselves. That activity is a grave offense, and ought to be punished severely, with full recognition that it is a crime akin to treason.

[WuzYoungOnceToo]

And if the other party is a publisher, like Facebook or Twitter…

The management of both will and have quite vociferously assured us that they are NOT publishers. What makes you think they are?

Joe Citizen also enjoys 1A press freedom. He is also free to become a publisher. But to do that he must perform for himself the publishing activities of assembling an audience

How exactly does one “assemble” an internet audience?

, curating the audience to make it useful to raise money

Wait, so publishing is defined as a for-profit activity?

, and mobilizing the means and paying the money to enable the distribution of his preferred content to an audience.

Making something available via internet access does not necessarily require paying anyone anything.

The arrogance with which you demonstrate your fundamental ignorance continues to impress.

[WuzYoungOnceToo]

Second, there needs to be recognition that when a failed candidate, or any office holder who supports one, refuses to accept an election result—which is always the outcome of exercise of the sovereign constitutive power—then those people open a contest for sovereignty against the legitimately sovereign People themselves. That activity is a grave offense, and ought to be punished severely, with full recognition that it is a crime akin to treason.

So then you support treason-like charges (whatever that would be) against Hillary Clinton and all of the other Democrats who publicly proclaimed that the 2016 election was “stolen” and that Trump was an “illegitimate president”?

[Gandydancer]

Your use of "accept" is ambiguous, no doubt intentionally so. No one is required to accept the legitimacy of a fraudulent election either before or after certification, and raising money to advance that point of view is unproblematic as well, by candidates or office holders or anyone else.

[WuzYoungOnceToo]

[Deleted]

[Sims]

Stuart, honestly, you need to keep that Nick guy off the podcast. His smarmy bias is just too much to take. All of your other regulars, and yourself, have opinions but are decent enough to be civil about them. Besides, now you'll never get Ian Musk on your show.