Intellectual Property Law

NEW HAVEN, Connecticut -- What happens when Google's AdSense reads an email from your boyfriend telling you it's just not working out, and AdSense is smart enough o display ads suggesting a good therapist or a dating site? Is it possible to say then that AdSense is actually reading your email?

And if so, could AdSense at that point be considered a legal agent, capable of breaking wiretapping laws?

Given the current banality and occasional unintentional hilarity of ads in Gmail, this is still a situation firmly in the future -- though perhaps more near-future, than future-future.

And, that intelligence raises other liability questions for companies like Google or ISPs that begin trying to examine and filter the traffic that flows through their pipes, according to CUNY - Brooklyn computer science and philosophy Samir Chopra, who was speaking Wednesday at the Computers, Freedom and Privacy conference in New Haven, CT.

"Suppose Google was subject to a law which required all persons to report knowledge of a crime to the authorities," Chopra posited. "Could Google be sued for breach of statutory duty if AdSense knew about people using drugs?"

While that's still hypothetical, other panelists emphasized that computer systems are already acting as agents in our world, making decisions about whether someone is a known terrorist, a likely threat at the border or a deadbeat parent late on child support.

Or put another way, software is already policy.

Or as panelist Danielle Citron, a University of Maryland law professor put it: "Where agencies used to use computers to store data to help agencies make decisions, now computers make decisions."

Citron cited Colorado's public benefits computer system that judged whether people were eligible for Medicaid and food stamps.

For more than three years, the system asked applicants questions and spit out decisions. Only the system had more than 900 incorrect policy decisions built into its code.

For instance, the system denied food stamps to people with prior drug convictions -- in direct violation of federal and state laws.

Why didn't government employees who should have known better sign off on the decisions?

"Humans trust computers," Citron said. "And the programmers didn't check for legal compliance; they checked for bugs."

The problem will only get worse as more decisions are delegated to computer systems, which don't belong to unions or ask for time off. And those systems often make those decisions secretly.

The answer -- according to Citron -- lies at least in part with open source software.

"Systems should be built with code that is open to public," Citron said. "Outsiders can check that the policy in the code is right."