NewYorkUniversity
LawReview

Topics

Technology

Results

Regulating the Pedestrian Safety Crisis

Gregory H. Shill

In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46% that decade, outpacing the increase in all other traffic deaths by nine to one. The early 2020s have seen an intensification of this trend. These fatalities magnify racial disparities, placing Black pedestrians at a two-thirds higher risk of being killed than their white counterparts. While the pedestrian safety crisis has many causes, there is growing evidence that the enlargement of the American vehicle has played a key role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater creature comforts. But the size, height, and weight necessary for those comforts has been shown to make these vehicles far deadlier for those who have the misfortune of being struck by them. Carmakers do not disclose these risks to the car-buying public—but even if they did, individual consumers lack appropriate incentives to internalize the social costs of the vehicles they buy. Like pollution, this negative externality presents a classic case for regulation. Yet America’s vehicle safety regulator (the National Highway Transportation Safety Administration, or NHTSA), conceived in the wake of the Ralph Nader consumer revolution of the 1960s, considers the safety of pedestrians—who are third parties rather than consumers—almost completely alien to its mission.                    

This Essay presents a different model, based on NHTSA’s own statutory mandate to protect “the public” as a whole from risks posed by motor vehicles. It argues that pedestrians are, quintessentially, a group whose well-being vehicle safety regulators should prioritize—even though when acting as pedestrians they are not consumers of the regulated product. Pedestrians are maximally exposed to dangerous vehicles, and by definition they benefit from neither vehicle comforts nor most occupant-focused safety features. They may even be endangered by some of them. NHTSA should expressly incorporate the welfare of pedestrians and other non-occupants into its mission. To that end, this Essay develops four policy actions NHTSA should undertake as part of a policy update it launched in 2022: include pedestrian safety in its marquee safety evaluation program; regulate the design of vehicles to protect people outside of them; use technology to protect pedestrians; and update its safety tests so they are more representative of common fatal pedestrian crash victims and scenarios.

Disability and Design

Christopher Buccafusco

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, the pace and direction of innovation for accessible design.

This Article argues that two of the most important drivers of innovation for accessible design have been social welfare laws and antidiscrimination laws. Both were responsible, in part, for the revolution in accessibility that occurred in the second half of the twentieth century. Unlike standard innovation incentives, however, these laws operate on the demand side of the market. Social welfare laws and antidiscrimination laws increase the ability and willingness of parties to pay for accessible technology, ultimately leading to greater supply. But in doing so, these laws generate a different distribution of the costs and benefits of innovation than supply-side incentives. They also produce their own sets of innovation distortions by allowing third parties to make decisions about the designs that people with disabilities have to use.

The law can promote innovation, and it can hinder it. For example, the law’s relationship to the wheelchair, the most important accessibility innovation of the twentieth century, produced both results. Policymakers have choices about which legal incentives doctrines they can use and how they can use them. This Article evaluates those tools, and it provides guidelines for their use to encourage accessible technology in particular and innovation generally.

Should Law Subsidize Driving?

Gregory H. Shill

A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity. 

The Second Digital Disruption: Streaming and the Dawn of Data-Driven Creativity

Kal Raustiala, Christopher Jon Sprigman

This Article explores how the explosive growth of online streaming is transforming the market for creative content. Two decades ago, the popularization of the internet led to what we refer to here as the first digital disruption: Napster, file-sharing, and the re-ordering of numerous content industries, from music to film to news. The advent of mass streaming has led us to a second digital disruption, one driven by the ability of streaming platforms to harvest massive amounts of data about consumer preferences and consumption patterns. Coupled to powerful computing, the data that firms like Netflix, Spotify, and Apple collect allows those firms to know what consumers want in incredible detail. This knowledge has long shaped advertising; now it is beginning to shape the content streaming firms purchase or even produce, a phenomenon we call “data-driven creativity.” This Article explores these phenomena across a range of firms and content industries. In particular, we take a close look at the firm that is perhaps farthest along in its use of data-driven creativity. We show how MindGeek, the little-known parent company of Pornhub and a leader in the market for adult entertainment, has leveraged streaming data not only to organize and suggest content to consumers but even to shape creative decisions. MindGeek is itself the product of the same forces—the shift to digital distribution and the accompanying explosion of free content—that transformed mainstream creative industries and paved the way for the rise of streaming. We first show how the adult industry adapted to the first digital disruption; that story aligns with similar accounts of how creative industries adapt to a loss of control over intellectual property. We then show how MindGeek and other streaming firms such as Netflix, Spotify, and Amazon are leveraging the second digital disruption, using data to make decisions about content promotion, aggregation, dissemination, and investment. Finally, we consider what these trends suggest for competition and innovation in markets for creative work. By making creative production far less risky, data-driven creativity may drive down the need for strong IP rights and reshape conventional assumptions about the purpose and role of IP. At the same time, the rise of data-driven creativity may reinforce the tendency of online markets toward dominance by a few major firms, with significant implications for competition and innovation.

Safe Sharing Sites

Lisa M. Austin, David Lie

In this Article we argue that data sharing is an activity that sits at the crossroads of privacy concerns and the broader challenges of data governance surrounding access and use. Using the Sidewalk Toronto “smart city” proposal as a starting point for discussion, we outline these concerns to include resistance to data monopolies, public control over data collected through the use of public infrastructure, public benefit from the generation of intellectual property, the desire to broadly share data for innovation in the public interest, social—rather than individual— surveillance and harms, and that data use be held to standards of fairness, justice, and accountability. Data sharing is sometimes the practice that generates these concerns and sometimes the practice that is involved in the solution to these concerns.

Our safe sharing site approach to data sharing focuses on resolving key risks associated with data sharing, including protecting the privacy and security of data subjects, but aims to do so in a manner that is independent of the various legal contexts of regulation and governance. Instead, we propose that safe sharing sites connect with these different contexts through a legal interface consisting of a registry that provides transparency in relation to key information that supports different forms of regulation. Safe sharing sites could also offer assurances and auditability regarding the data sharing, further supporting a range of regulatory interventions. It is therefore not an alternative to these interventions but an important tool that can enable effective regulation.

A central feature of a safe sharing site is that it offers an alternative to the strategy of de-identifying data and then releasing it, whether within an “open data” context or in a more controlled environment. In a safe sharing site, computations may be performed on the data in a secure and privacy-protective manner without releasing the raw data, and all data sharing is transparent and auditable. Transparency does not mean that all data sharing becomes a matter of “public” view, but rather that there is the ability to make these activities visible to organizations and regulators in appropriate circumstances while recognizing the potential confidentiality interests in data uses.

In this way, safe sharing sites facilitate data sharing in a manner that manages the complexities of sharing while reducing the risks and enabling a variety of forms of governance and regulation. As such, the safe sharing site offers a flexible and modular piece of legal-technical infrastructure for the new economy.

Machines as the New Oompa-Loompas: Trade Secrecy, the Cloud, Machine Learning, and Automation

Jeanne C. Fromer

In previous work, I wrote about how trade secrecy drives the plot of Roald Dahl’s novel Charlie and the Chocolate Factory, explaining how the Oompa-Loompas are the ideal solution to Willy Wonka’s competitive problems. Since publishing that piece I have been struck by the proliferating Oompa-Loompas in contemporary life: computing machines filled with software and fed on data. These computers, software, and data might not look like Oompa-Loompas, but they function as Wonka’s tribe does: holding their secrets tightly and internally for the businesses for which these machines are deployed.

Computing machines were not always such effective secret-keeping Oompa Loompas. As this Article describes, at least three recent shifts in the computing industry—cloud computing, the increasing primacy of data and machine learning, and automation—have turned these machines into the new Oompa-Loompas. While new technologies enabled this shift, trade secret law has played an important role here as well. Like other intellectual property rights, trade secret law has a body of built-in limitations to ensure that the incentives offered by the law’s protection do not become so great that they harm follow-on innovation—new innovation that builds on existing innovation—and competition. This Article argues that, in light of the technological shifts in computing, the incentives that trade secret law currently provides to develop these contemporary Oompa-Loompas are excessive in relation to their worrisome effects on follow-on innovation and competition by others. These technological shifts allow businesses to circumvent trade secret law’s central limitations, thereby overfortifying trade secrecy protection. The Article then addresses how trade secret law might be changed—by removing or diminishing its protection—to restore balance for the good of both competition and innovation.

Data Standardization

Michal S. Gal, Daniel L. Rubinfeld

With data rapidly becoming the lifeblood of the global economy, the ability to improve its use significantly affects both social and private welfare. Data standardization is key to facilitating and improving the use of data when data portability and interoperability are needed. Absent data standardization, a “Tower of Babel” of different databases may be created, limiting synergetic knowledge production. Based on interviews with data scientists, this Article identifies three main technological obstacles to data portability and interoperability: metadata uncertainties, data transfer obstacles, and missing data. It then explains how data standardization can remove at least some of these obstacles and lead to smoother data flows and better machine learning. The Article then identifies and analyzes additional effects of data standardization. As shown, data standardization has the potential to support a competitive and distributed data collection ecosystem and lead to easier policing in cases where rights are infringed or unjustified harms are created by data-fed algorithms. At the same time, increasing the scale and scope of data analysis can create negative externalities in the form of better profiling, increased harms to privacy, and cybersecurity harms. Standardization also has implications for investment and innovation, especially if lock-in to an inefficient standard occurs. The Article then explores whether market-led standardization initiatives can be relied upon to increase welfare, and the role governmental-facilitated data standardization should play, if at all.

License to Hack

Dyane L. O’Leary

Legal hackathons are exploding in popularity. “Hacking” is a term often associated with illegal behavior, but a hackathon is something different. At a hackathon, lawyers, technologists, data scientists, public interest organizations, law students, and just about anyone who is interested converge in a friendly, time-pressured competition aimed at solving some defined problem. For more than a decade, different industries have looked to hackathons as a source of new ideas. Today, the legal industry uses hackathons to spark creation of innovative tools to chip away at the access to justice crisis and improve the delivery of legal services.

But often lost in the excitement is a key piece to hackathon success: treatment of the intellectual property. For example, who owns the copyright in software created at a hackathon? What about a new business method? What about the rights to trademark a new design? Most hackathons have some form of a participant agreement, but many outright ignore the “who owns it” question or fail to address it in a purposeful manner.This is a problem in need of a solution—or at least some concrete guidance.

This Article explores intellectual property rights in the context of legal hackathons. How intellectual property is approached at the start can impact the success (or not) of creations at the end. Taking rights away from participants risks alienating them and interfering with the collaborative and fun spirit most hackathons embody. Yet giving participants all the marbles may not be preferable either, especially if it disincentivizes organizers to support future development and help a tool survive beyond the hackathondoors. In circumstances where one size doesn’t fit all, this Article discusses pros and cons of varying approaches to intellectual property in hackathon participant agreements. Embodying the hackathon resolve to create something tangible and useful for others, the Article connects readers to an online repository of sample agreements as well as a participant agreement template.