Duke Law & Technology Review

By: Dalton Powell At its core, agency law governs fiduciary relationships between two distinct parties (the principal and agent) in interactions with third parties. The three separate relationships within agency (principal-agent, agent-third party, and principal-third party) create binding legal rights and obligations. To be a principal or agent, one must be a person. The Restatement (Third) of Agency’s definition of person attempts to distinguish legally recognized persons from purely organizational entities and mere instrumentalities. The emergence of AI computing, and the ongoing development of truly autonomous computer systems, will test traditional agency law with questions like who or what can be a person. At present, the Restatement views computer programs as mere instrumentalities of the using person and thus not a separate person capable of being a principal or agent. This Note will analyze the tension created within agency law’s definition of personhood by the existence of autonomous systems. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 306

By: Michelle Jackson Biometric technology promises to reshape the modern economy. With the increased prevalence of biometric technology comes a heightened risk of data breaches and identity theft. To protect consumers, state legislatures have enacted biometric privacy laws. As more state legislatures define the intangible harm of data misuse, some federal courts have restricted what constitutes an injury sufficient to create Article III standing. This analysis misapplies Spokeo and undermines legislative efforts to protect individual privacy. Because of the important interests at stake with biometric information privacy, federal courts should follow the Ninth Circuit and recognize the misuse of that data as a sufficient injury to constitute standing. Consumers usually cannot opt out of new biometric technologies implemented at airport gates, shopping centers, and workplaces. The federal courts also should not use standing doctrines to opt out of the intangible harms characterizing the information age. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 293

By: John A. Balletta After two-and-a-half decades of labor peace in Major League Baseball, storm clouds of a player strike are brewing as the operating Competitive Bargaining Agreement comes under fire. That same CBA includes Attachment 56, the most expansive allowance of wearable technology of the four major American professional sports. While the privacy of the athletes’ data might be the foremost concern under Attachment 56, there are a myriad of untapped arenas involving the use and dissemination of data from wearables, including issues in good-faith contracting and contract and trade negotiations. After situating the wearables provisions in the context of the CBA and describing the approved technologies, this Note will identify three infrequently discussed problems in Attachment 56 before positing ways around these concerns. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 268

By: Nila Bala The use of facial recognition in classrooms to monitor students’ performance is already happening in China and soon may be coming to the West. Surveilling students in their classrooms presents a number of potential harms: (1) it implicates their privacy, (2) it could have profound effects on their development and stigmatizes youth who develop differently, and (3) it might amplify current inequities in our school system. Additionally, there are societal harms from this practice to our democratic society. To the extent that educators wish to employ this technology, our current legal regime is inadequate to mitigate the harms. While some changes could be made to better protect privacy and equity, ultimately, lawmakers and schools should consider banning facial recognition within classrooms. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 249

By: Roshan Patel This Note examines the current state and implications of unionization within the eSports industry. eSports currently lags behind other industries, particularly other sports leagues like the NBA and NFL, in terms of unionization. Unaware of the benefits that unionization could bring to them, many eSports players lack bargaining power and are subject to abusive contracts and poor working and living conditions. This Note argues that eSports players hold immense power compared to workers in other industries and would greatly benefit from unionization. Although eSports players may face challenges in forming a unionized eSports industry, they are also in a unique position as a part of an industry that differs significantly in structure from traditional sports leagues. This Note will explore the possible benefits of and difficulties with achieving unionization in eSports. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 232

By: Axel Walz and Kay Firth-Butterfield The increasing use of AI and autonomous systems will have revolutionary impacts on society. Despite many benefits, AI and autonomous systems involve considerable risks that need to be managed. Minimizing these risks will emphasize the respective benefits while at the same time protecting the ethical values defined by fundamental rights and basic constitutional principles, thereby preserving a human centric society. This Article advocates for the need to conduct in-depth risk-benefit-assessments with regard to the use of AI and autonomous systems. This Article points out major concerns in relation to AI and autonomous systems such as likely job losses, causation of damages, lack of transparency, increasing loss of humanity in social relationships, loss of privacy and personal autonomy, potential information biases and the error proneness, and susceptibility to manipulation of AI and autonomous systems. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 176

Special Editor: James Boyle Download Full Symposium (PDF) Articles The Past and Future of the Internet: A Symposium For John Perry Barlow James Boyle Cite: 18 Duke L. & Tech. Rev. 1 A Declaration of the Independence of Cyberspace John Perry Barlow Cite: 18 Duke L. & Tech. Rev. 5 Selling Wine Without Bottles: The Economy of Mind on the Global Net John Perry Barlow Cite: 18 Duke L. & Tech. Rev. 8 Is the Internet Over?! (AGAIN?) James Boyle Cite: 18 Duke L. & Tech. Rev. 32 Barlow’s Legacy Cory Doctorow Cite: 18 Duke L. & Tech. Rev. 61 Inventing the Future: Barlow and Beyond Cindy Cohn Cite: 18 Duke L. & Tech. Rev. 69 A Political Economy of Utopia? Yochai Benkler Cite: 18 Duke L. & Tech. Rev. 78 Internet Utopianism and the Practical Inevitability of Law Julie E. Cohen Cite: 18 Duke L. & Tech. Rev. 85 Revisiting Barlow’s Misplaced Optimism Benjamin Edelman Cite: 18 Duke L. & Tech. Rev. 97 The Enigma of Digitized Property: A Tribute to John Perry Barlow Pamela Samuelson & Kathryn Hashimoto Cite: 18 Duke L. & Tech. Rev. 103 Imaginary Bottles Jessica Litman Cite: 18 Duke L. & Tech. Rev. 127 John