Author: devin.b.forbush

Generative AI Algorithms: The Fine Line Between Speech and Section 230 Immunity

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Generative AI Algorithms: The Fine Line Between Speech and Section 230 Immunity

 By Hannah G. Babinski

ABSTRACT

Russian-American writer and philosopher Ayn Rand once observed, “No speech is ever considered, but only the speaker. It’s so much easier to pass judgment on a man than on an idea.”[1] But what if the speaker is not a man, woman, or a human at all? Concepts of speech and identities of speakers have been the focal points of various court cases and debates in recent years. The Supreme Court and various district courts have faced complex and first-of-their-kind questions concerning emerging technologies, namely algorithms and recommendations, and contemplated whether their outputs constitute speech on behalf of an Internet service provider (“Internet platform”) that would not be covered by Section 230 of the Communications Decency Act (“Section 230”).  In this piece, I will examine some of the issues arising from the questions posed by Justice Gorsuch in Gonzalez v. Google, LLC, namely whether generative AI algorithms and their relative outputs constitute speech that is not immunized under Section 230. I will provide an overview of the technology behind generative AI algorithms and then examine the statutory language and interpretation of Section 230, applying that language and interpretive case law to generative AI. Finally, I will provide demonstrative comparisons between generative AI technology and human content creation and foundational Copyright Law concepts to illustrate how generative AI technologies and algorithmic outputs are akin to unique, standalone products that extend beyond the protections of Section 230.

 

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Adding Insult to Injury: How Article III Standing Minimizes Privacy Harms to Victims and Undermines Legislative Authority

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Adding Insult to Injury: How Article III Standing Minimizes Privacy Harms to Victims and Undermines Legislative Authority

By Kristin Hebert, Nicole Onderdonk, Mark A. Sayre, and Deirdre Sullivan

ABSTRACT

            Victims of data breaches and other privacy harms have frequently encountered significant challenges when attempting to pursue relief in the federal courts. Under Article III standing doctrine, plaintiffs must be able to show a concrete and imminent risk of injury. This standard has proved especially challenging to victims of privacy harms, for whom the harm may be more difficult to define or may not yet have occurred (for example, in the case of a data breach where the stolen data has not yet been used). The Supreme Court’s recent decision in TransUnion appears on its fact to erect an even higher barrier for victims of privacy harms to seek relief. In this article, the authors provide a background on Article III standing doctrine and its applicability to cases involving privacy harms. Next, the recent TransUnion decision is discussed in detail, along with an overview of the evidence that TransUnion has failed to resolve the ongoing circuit splits in this area. Finally, the authors propose a test from the Second Circuit as a standard that may be able to resolve the ongoing split and support increased access to the courts for the victims of privacy harms.

 

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