Algorithmic Jim Crow

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on the back end in the form of designing, interpreting, and acting upon vetting and screening systems in ways that result in a disparate impact

Democracy and Digital Authoritarianism: An Assessment of the EU’s External Engagement in the Promotion and Protection of Internet Freedom. College of Europe EU Diplomacy Paper 01/2020

The past decade has seen a gradual global increase in digital authoritarianism. Internet shutdowns, online censorship, mass surveillance and violations of privacy rights have all become more frequent in parts of the world where citizens are not guaranteed sufficient digital rights. The task of defending, promoting and protecting internet freedom is becoming increasingly relevant for the European Union (EU) − for internal digital and cybersecurity policies as well as for the EU’s external promotion of democracy and human rights. Whilst much has been written about the various internal policies which establish and protect internet freedom within the European Union and its member states, the EU’s external engagement in this field remains critically under-researched. To what extent does the EU engage externally in the promotion and protection of internet freedom? This paper answers this question by covering a wide variety of policy fields including human rights and democracy promotion, digital policy, enlargement and neighbourhood policy, development cooperation and trade policy. Whereas the EU faces a limited opportunity to shape global norms with regard to internet freedom or to change the course of digitally authoritarian states, it has demonstrated several strengths which deserve not to be overlooked. These include, for example, the externalisation of internal data protection and policies and the provision of direct support and protection for civil society. Despite facing significant obstacles, the promotion and protection of internet freedom has become an important area of the EU’s external action which is only set to become more relevant in the coming years

Fourth Amendment Codification and Professor Kerr\u27s Misguided Call for Judicial Deference

This essay critiques Professor Orin Kerr\u27s provocative article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). Increasingly, Fourth Amendment protection is receding from a litany of law enforcement activities, and it is being replaced by federal statutes. Kerr notes these developments and argues that courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies. Kerr\u27s key contentions are that (1) legislatures create rules that are more comprehensive, balanced, clear, and flexible; (2) legislatures are better able to keep up with technological change; and (3) legislatures are more adept at understanding complex new technologies. I take issue with each of these arguments. Regarding Kerr\u27s first contention, I argue that Congress has created an uneven fabric of protections that is riddled with holes and weak safeguards. Kerr\u27s second contention - that legislatures are better able to update rules quickly as technology shifts - is belied by the historical record, which suggests Congress is actually far worse than the courts in reacting to new technologies. As for Kerr\u27s third contention, shifting to a statutory regime will not eliminate Kerr\u27s concern with judges misunderstanding technology. In fact, many judicial misunderstandings stem from courts trying to fit new technologies into an old statutory regime that is built around old technologies. Therefore, while Kerr is right that our attention must focus more on the statutes, he is wrong in urging for a deferential judicial approach to the Fourth Amendment