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The Robots Are Coming

A. Michael Froomkin & Zak Colangelo, Self-Defense Against Robots, We Robot 2014 Conference Draft (2014).

Deployment of robots in the air, the home, the office, and the street inevitably means their interactions with both property and living things will become more common and more complex. This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy.

In the real world where Asimov’s Laws of Robotics ((Isaac Asimov introduced the three laws (“1. A robot may not injure a human being or, through inaction, allow a human being to come to harm. 2. A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law. 3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.”) in Runaround, a short story originally published in the March 1942 issue of Astounding Science Fiction and subsequently included in ISAAC ASIMOV, I ROBOT (1950).)) do not exist, robots can pose—or can appear to pose—a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.

The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases—drone overflights, autonomous cars—national, state, and even local regulation may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots—perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.

Part II discusses common-law self-help doctrine, which states that conduct, otherwise tortious, is privileged where it cures, prevents, or mitigates a more serious tort that is, or reasonably seems to be, about to occur. In the protection-of-person context, the issue is simple because we value life more than property. One may destroy even expensive property in the reasonable belief that the destruction is necessary to save one’s own life or that of another. The same general rule applies to non-life-threatening personal injury, subject to a reasonableness test as to the relative damages. On the other hand, one may not destroy expensive property to protect inexpensive property. The test is one of cost-benefit: the chattel that poses the threat may be harmed only if the cost of that harm is less than the cost of the harm that will otherwise be done by the chattel.

Privacy intrusions complicate the calculus. Intrusion upon seclusion is a recognized, if somewhat exotic, tort, but its rarity in the courts means that the scope of permissible self-help against privacy-invading chattels—like the camera planted by the landlord in the tenant’s bedroom—is poorly charted legal territory. In principle, a tort is a tort, so some self-help should be justified.

Cite as: Michael Froomkin, The Robots Are Coming, JOTWELL (April 17, 2014) (reviewing A. Michael Froomkin & Zak Colangelo, Self-Defense Against Robots, We Robot 2014 Conference Draft (2014)), https://zetasec2.jotwell.com/the-robots-are-coming/.

WordPress 3.9 and Theme 1.15 Updates

A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014).

Personal privacy in developed countries is disappearing faster than the polar ice caps. The rapid growth in the number and breadth of databases, the continuing drop in the costs of information processing, the spread of cheap sensors and of self-identification practices, all have combined to make this the era of Big Data. Much like global warming, drift-net data collection and collation creates widespread harms substantially caused by actions not visible to most of those affected. Both the private sector and the government find value in collecting vast amounts of information about everyone: firms collect personal data for marketing and revenue maximization; governments collect personal data for everything from efficiency to security. Practically nothing and nowhere is exempt: Data are collected in the home, from cell phones, online, and in public spaces. Market failures, information asymmetries – including, we have recently learned, a stunning lack of government transparency about domestic surveillance – and collective action problems characterize many aspects of the current privacy crisis, much as they did the environmental problem in the 1960s. ((This is a test footonote.))

Modeling mass surveillance disclosure regulations on an updated form of environmental impact statement will help protect everyone’s privacy. Mandating disclosure and impact analysis by those proposing to watch us in and through public spaces will enable an informed conversation about privacy in public. Additionally, the need to build in consideration of the consequences of surveillance into project planning, as well as the danger of bad publicity arising from excessive surveillance proposals, will act as a counterweight to the adoption of mass data collection projects, just as it did in the environmental context. In the long run, well-crafted disclosure and analysis rules could pave the way for more systematic protection for privacy – as it did in the environmental context. Effective US substantive regulation will require the regulator to know a great deal about who and what is being recorded and about the costs and benefits of personal information acquisition and uses. At present we know relatively little about how to measure these; the privacy equivalent of the environmental impact statement will not only provide case studies, but occasions to grow expertise.

Environmental impact statements may be out of fashion today, but they played an important role in educating the public, policy-makers, and also builders about environmental risks and costs, especially in the early days of environmental regulation. In the US, these are still the early days of privacy regulation. We can apply what we have learned from more than thirty years of environmental disclosures to craft a better regime for disclosure, and thus analysis and debate, of the rapidly increasing number of public and private projects that involve mass surveillance.

Part I of this article gives examples of mass surveillance activities drawn from both the private and public sectors. It argues that mass surveillance is already very great, is growing, and that it is difficult to monitor and poorly understood. This Part also discusses how the deployment of privacy-destroying technology can be seen as a form of market failure. Part I then provides the context for the argument that follows. It briefly surveys the limited and inadequate doctrinal legal tools available to respond to the deployment of mass surveillance technologies and notes the existence of a wide gap when it comes to surveillance in or through public spaces. Then it provides a very quick summary of the Privacy Impact Notice (PINs) proposal, noting that the aim of this article is to make the case in principle for the utility and validity of Privacy Impact Notices without tying the argument to any particular level of coverage.

Part II first explains how, with the National Environmental Policy Act of 1969 (NEPA), environmental law responded to a similar set of market failure problems relating to physical harms to the environment. It outlines the main features of the Environmental Impact Statement (EIS) requirement for environmentally sensitive projects and then argues that we can learn from NEPA’s successes and defects in order to craft a Privacy Impact Notice (PIN) requirement triggered by plans to engage in mass surveillance. It contrasts the PIN proposal to the existing, much more limited, federal privacy analysis requirement, known as Privacy Impact Assessments. Part II also provides an initial sketch of what a PIN proposal would cover, in particular which sorts of activities would have presumptive safe harbors and which would likely be subject to the most thorough analysis and disclosure requirements. The final section of Part II examines whether the PINs proposal would have applications to surveillance and data-collection in online public spaces such as Facebook, Twitter, and other virtual spaces. It also considers what the PINs proposal would have to offer towards addressing the now-notorious problem of the NSA’s drift-net surveillance of telephone conversations, emails, and web-based communications.

Cite as: Michael Froomkin, WordPress 3.9 and Theme 1.15 Updates, JOTWELL (April 16, 2014) (reviewing A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014)), https://zetasec2.jotwell.com/worpress-3-9-and-theme-1-15-updates/.

Second Test of 1.2

  • Lawrence W. Waggoner, The American Law Institute Proposes Simplifying the Doctrine of Estates (May 21, 2010). U of Michigan Public Law Working Paper No. 198,  available at SSRN.
  • Lawrence W. Waggoner, Curtailing Dead-Hand Control: The American Law Institute Declares the Perpetual-Trust Movement Ill Advised (June 1, 2010). University of Michigan Public Law Working Paper No. 199, available at SSRN.
  • Lawrence W. Waggoner, The American Law Institute Proposes a New Approach to Perpetuities: Limiting the Dead Hand to Two Younger Generations (June 1, 2010). University of Michigan Public Law Working Paper No. 200, available at SSRN.
  • Lawrence W. Waggoner, Congress Should Impose a Two-Generation Limit on the GST Exemption: Here's Why (July 15, 2010). U of Michigan Public Law Working Paper No. 205, available at SSRN.

Predictions have ranged from cybernetic anarchy (both utopian and distopian) to the instantiation of a fascistic regime of surveillance that would make Orwell look like a piker. Some see a winner-take-all economy of massive new monopolies emerging on the back of network effects, others see the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges — and evading their taxes. Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies. One would think that such contrasting predictions cannot all be correct. Strangely, however, there is at least some truth in each of them, for the Internet phenomenon is becoming as complicated as the world into which it is woven. The Internet is neither “fraud’s playground” nor democracy’s. Indeed, there is more than one “Internet”. Thus, today, lawyers and policymakers should not let themselves be blinded by the term, but rather must identify the very few areas where the Internet genuinely creates a radical change that requires a radical legal response, reserving for the large majority of cases a nuanced and evolutionary approach to the political and legal challenge of cheap worldwide digital communications.

The growth of the Internet has provided ample occasion for futurists to make bold predictions about the changes it will bring, and their consequences for markets, governments and persons.

As these consequences become evident, governments are responding with legislation and treaties designed to hasten or, more often, forestall those developments.

Predictions have ranged from cybernetic anarchy (both utopian and distopian) to the instantiation of a fascistic regime of surveillance that would make Orwell look like a piker. Some see a winner-take-all economy of massive new monopolies emerging on the back of network effects, others see the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges — and evading their taxes. Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies. One would think that such contrasting predictions cannot all be correct. Strangely, however, there is at least some truth in each of them, for the Internet phenomenon is becoming as complicated as the world into which it is woven. The Internet is neither “fraud’s playground” nor democracy’s. Indeed, there is more than one “Internet”. Thus, today, lawyers and policymakers should not let themselves be blinded by the term, but rather must identify the very few areas where the Internet genuinely creates a radical change that requires a radical legal response, reserving for the large majority of cases a nuanced and evolutionary approach to the political and legal challenge of cheap worldwide digital communications.

Cite as: Michael Froomkin, Second Test of 1.2, JOTWELL (December 5, 2010) (reviewing Lawrence W. Waggoner, The American Law Institute Proposes Simplifying the Doctrine of Estates (May 21, 2010). U of Michigan Public Law Working Paper No. 198,  available at SSRN. Lawrence W. Waggoner, Curtailing Dead-Hand Control: The American Law Institute Declares the Perpetual-Trust Movement Ill Advised (June 1, 2010). University of Michigan Public Law Working Paper No. 199, available at SSRN. Lawrence W. Waggoner, The American Law Institute Proposes a New Approach to Perpetuities: Limiting the Dead Hand to Two Younger Generations (June 1, 2010). University of Michigan Public Law Working Paper No. 200, available at SSRN. Lawrence W. Waggoner, Congress Should Impose a Two-Generation Limit on the GST Exemption: Here's Why (July 15, 2010). U of Michigan Public Law Working Paper No. 205, available at SSRN. ), https://zetasec2.jotwell.com/second-test-of-1-2/.

ZS2 Post – Ordinary

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).

Category: Constitutional Law.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

Cite as: Michael Froomkin, ZS2 Post – Ordinary, JOTWELL (November 10, 2010) (reviewing John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)), https://zetasec2.jotwell.com/zs2-post-ordinary/.

ZS2 Post – Should not show on main page

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

ZS2 Ordinary Post With Categories

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).

I’ve categoried this as “Administrative law”. Tagging isn’t the problem, Categories are. I’ve set this to get 4 paragraphs.

In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled.

My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question.

There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff.

Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.

2-J Corporation follows the modern trend to exempt from the contract rules goods stored in a warehouse, where again the variation in values makes it hard to charge a sensible premium for the original sale. Treating the replacement engine rods in Sea-Land as original property has to make sense because this is contemplated from the outset, and the new stuff just takes the place of the old stuff, and is not added on. All in all, however, these cases do not demonstrate any principled analysis of the insurance question. Rather, they take a doctrinal category that itself is imperfectly realized and apply it to new situations.

Cite as: Michael Froomkin, ZS2 Ordinary Post With Categories, JOTWELL (November 10, 2010) (reviewing John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)), https://zetasec2.jotwell.com/zs2-ordinary-post-with-categories/.

Queued Post from Z2

I wrote this on Sat, May, 22 at 5pm, but set it to publish on Sunday at 9am.

This year we are going to reorganize the article submission and editing process in the hopes of making it easier, and also reducing the chance of any article falling through the cracks. (We’ll probably use the old system during the 2010 summer, then move to the new system in late August 2010.)

Authors will be asked to send their text to jot@sectionname.jotwell.com. This address will automatically forward to the section editors and the student editor assigned to that section.

If an author should email you directly (which was what we asked them to do in the first year), please forward the article to jot@sectionname.jotwell.com to ensure that everyone who should have a copy gets a copy.