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Law.com
What's Next
Future + Law
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Ben Hancock
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Hello and welcome to the first edition of What’s Next for 2018. Happy New Year! I hope all you readers had a restful holiday. I’d love to hear your predictions for the months ahead. Bets on how SCOTUS will rule in the Microsoft case—or how high the price of Bitcoin will go? Drop me a line at bhancock@alm.com and if you haven’t already, make sure to subscribe.
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Watch This Space: Cleared for Takeoff?
Flying cars have been part of the popular imagining of the future since, well, not long after there were regular cars. Henry Ford is quoted by the magazine Popular Science as saying in 1940, “Mark my word. A combination airplane and motor car is coming. You may smile. But it will come.” The dream has stuck with us. Just watch Blade Runner—both of them.
But what neither Ford nor the rest of us seemed to imagine is that these vehicles would be self-piloted. Now, as we enter 2018, there are a host of companies racing to get “autonomous aerial vehicles” off the ground: EHang, Terrafugia, Vahana, and Zee Aero, to name a few.
Just don’t call them “flying cars,” says Sasha Rao.
Rao, a lawyer at Maynard Cooper & Gale's who advises Airbus unit A³ (say: “A-cubed”) and its Project Vahana, points out that the Vahana prototype doesn’t go on the road. If it did, it would probably be subject to regulation by the federal National Highway Transportation Authority. The regulatory landscape for autonomous passenger aircraft is complicated enough, she says.
A couple of days a week, Rao has been heading to A³’s Silicon Valley headquarters to help think through the legal, policy and regulatory issues that could impact the development of its vertical-liftoff aircraft. There is, of course, Federal Aviation Administration regulation—which determines whether an aircraft can be certified as airworthy. But there are also local noise ordinances, zoning requirements for landing and takeoff pads, and just general public acceptance of the idea of lots of little planes zipping over our homes.
But even with those challenges, and amid all the hype around self-driving cars, there are reasons to think self-piloted aircraft might actually become reality in the near term too. Rao notes the safety considerations are in some ways simpler when you’re up in the air. “For example, you don’t have to worry about a child running across the sky,” she says. Flight paths will be (mostly) pre-determined—craft will still have to monitor for birds, etc.—and NASA has been working on how to manage airspace for low-flying craft.
Alright. So when is she going up for a test run? “Well, I volunteered,” Rao says with a laugh. “But I don’t think that’s going to happen.”
>> Think Ahead: Even with lots of money and brainpower, adoption of aerial vehicles is going to require policymakers and the public to accept risk, Rao notes. “If you’re waiting for something to be infallible before you allow it to be on the road or in airspace, we wouldn’t be here today.”
[Image: A³ by Airbus]
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On the Radar: 3 Things to Watch in 2018
1. Implementation of the GDPR—Mark your calendars: May 25.
After much hand-wringing by companies and lawyers, the European Union’s General Data Protection Regulation finally enters into force this year in May. Among the litany of unanswered questions are how the WHOIS internet protocol will comport with new privacy requirements, and how tech companies will comply with new, rigorous affirmative consent rules.
Meanwhile, the threat looms that the Privacy Shield and Standard Contractual Clauses could get the ax from the EU’s high court (remember Safe Harbor?)—but that probably won’t happen until 2019.
2. Courts and companies will wrestle with the ICO/security question.
With two splashy enforcement actions late in the year, the Securities and Exchange Commission made clear that it’s paying close attention to the issuance of initial coin offerings. Still TBD: Will it give any more guidance on what is and what is not a “utility token” exempt from the securities laws?
And how will judges wrestle with the question of what is a security? The Tezos ICO litigation may be the first to offer a glimmer of an answer to that question.
3. SCOTUS will shape the future of state surveillance.
By July, the U.S. Supreme Court will have handed down decisions on whether authorities can compile historical records of a cellphone user’s movement without a warrant, and whether they can access digital records stored outside the U.S.
The court seemed to be leaning against the government on the first question, in Carpenter v. U.S., during oral argument in November. Argument is set for Feb. 27 on the second question in U.S. v. Microsoft.
< Listen Up! >
Ross Todd, bureau chief of The Recorder, and I lay out our predictions for the big legal battles affecting the tech industry in 2018 in the latest Unprecedented podcast. Listen and subscribe to the podcast on your iOS or Android device. Or you can listen on your web browser and check out the show notes here.
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“It's almost definitional that machine learning is going to pick up and perhaps amplify existing human biases. The issues are inescapable."
— Arvind Narayanan, assistant professor of computer science at Princeton, talking to Engadget about AI and how algorithms need to be rejiggered to be ethical and avoid bias.
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In Futuro: Money to Burn
Increasingly, litigation finance seems to be weaving itself into the fabric of the modern legal industry. Funders had a big year in 2017—with eye-popping dollar figures, a bunch of Big Law hires, and some spectacular controversies.
But if 2017 was characterized by big money, then 2018 is the year the industry tries to find cases for all that cash. “There’s probably too much money flowing into this space, too quickly,” said Allison Chock, head of Bentham IMF’s operations in the United States.
Read more here on the trends to look out for in litigation funding.
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Dose of Dystopia
Anyone who’s used e-discovery tools knows the power of computer-aided text analysis; it lets lawyers boast in court that they searched “millions of pages of documents” after running a search with a few keystrokes.
But what if that kind of bulk analysis could be applied to images—not just random ones on the internet or on a specific computer, but of the real world? Researchers at Stanford are finding ways to do that, reports The New York Times:
“For the first time, helped by recent advances in artificial intelligence, researchers are able to analyze large quantities of images, pulling out data that can be sorted and mined to predict things like income, political leanings and buying habits. In the Stanford study, computers collected details about cars in the millions of images it processed, including makes and models.
‘All of a sudden we can do the same kind of analysis on images that we have been able to do on text,’ said Erez Lieberman Aiden, a computer scientist who heads a genomic research center at the Baylor School of Medicine. He provided advice on one aspect of the Stanford project.”
Location-based demographic profiling is nothing new, the article notes, but as this technology develops it could be done with an eerie level of precision—raising new question about privacy and consumer choice.
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Happy 2018! Thanks for reading, and keep plugged in with What's Next.
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