Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining both the historical grounding of rights and duties of physical presence and recent empirical evidence about the effects of virtual participation. The right to be present has deep common-law roots and has long been regarded as a fundamental element of due process. It allows defendants to observe and comprehend proceedings, participate in their own defense, and be treated with dignity. In early American history, the defendant's presence was considered so fundamental to a fair process that defendants were not allowed to waive it. Courts could not proceed with trial in the defendant's absence. Presence was also regarded as an obligation, justified on the grounds that it promoted the search for truth, public confidence in the process, and respect for the court's authority. Gradually, however, courts and policymakers have reconsidered these ideas as a result of efficiency concerns and technological advancements. Today a key question is whether remote appearances can satisfy the same constitutional values traditionally advanced by physical presence. Drawing on historical doctrine and empirical evidence from recent virtual hearings, this Article offers a systematic analysis of the purposes served by both kinds of participation. It demonstrates that remote appearances can enhance efficiency and access to justice in some contexts while threatening important due process interests in others. It then presents a framework for determining when virtual appearance satisfies foundational constitutional purposes. This analysis aims to assist judges and policymakers in integrating useful technology even as they seek to protect constitutional values.
As AI becomes increasingly embedded in our daily lives, this Article explores one of its critical, yet overlooked, societal implications: the propensity of large language Taking a close look at the technological underpinnings of LLMs, the analysis suggests that-due to the combination of human judgments, training datasets, and likely to be geared toward the popular and to project to their users concentrated, mainstream worldviews, sidelining a broader spectrum of perspectives. This Article explores the asymmetrical power relations between LLMs and humans, further suggesting that the constricted worldview projected through LLMs is likely to affect users' perceptions and may yield a variety of systemic harms, from diminishing cultural diversity to undermining democratic discourse and burdening the formation of collective memory. To address these challenges, this Article advocates a novel legal-policy response: exposing users, or at least alerting them, to the existence of multiple options, content, and narratives and encouraging them to seek additional information. This Article governance principles in the field, such as explainability or transparency, are insufficient for adequately addressing the "narrowing world" concerns and how embedding multiplicity into AI ethical and regulatory schemes could directly address by-design, namely embedding multiplicity-promoting features in the architecture of in our daily lives while preserving the richness and intricacies of the human
The increasing use ofAI rather than human surveillance puts pressure on two long-used cultural and (sometimes) legal distinctions: as between human and machine observers and as between content and metadata. Machines do more and more watching through advancing technology, rendering AI a plausible replacement for humans in surveillance tasks. Further, machines can commit to surveil only certain forms of information in a way that humans cannot, rendering the distinction between content and metadata increasingly relevant too for crafting privacy law and policy. Yet despite the increasing importance of these distinctions, their legal importance remains in four key domains of privacy law: Fourth Amendment law, wiretap law, consumer privacy law, and the privacy torts. Given the failure ofprivacy law to settle conclusively the import of the human/AI and content/metadata distinctions, this Article proposes looking to empirical measures of the judgments of ordinary people to better understand whether and how such distinctions should be made if law is to be responsive to reasonable expectations ofprivacy. There is incomplete empirical evidence as to whether the AI/human surveillance and content/metadata distinctions hold weight for ordinary people, and if so, how. To address this empirical gap, this Article presents the results of a vignette study carried out on a large (N = 1000), demographically representative sample of Americans to elicit their judgments of a state surveillance program that collected either content or metadata and in which potential surveillants could be either human or AI. Unsurprisingly, AI surveillance was judged to be more privacy preserving than human surveillance, empirically buttressing the importance of a human/AI distinction. However, the perceived privacy advantage for an AI surveillant was not a dispositive factor in stated preferences regarding technology use. Accuracy-a factor rarely discussed in defenses of state surveillance -was more influential than privacy in determining participants' preferences for a human or AI surveillant. Further, the scope of information surveilled (content or metadata) strongly influenced accuracy judgments in comparing human and AI systems and shifted surveillance policy preferences as between human andAI surveillants. The empirical data therefore show that the distinction between content and metadata is important to ordinary people, and that this distinction can lead to unexpected outcomes, such as a preference for human rather than AI surveillance when contents of communications are collected. These empirical results provide strong evidence for judges and legislators alike to contemplate how various domains of privacy law could be more responsive (and more consistently responsive) to the expectations of ordinary people. Ordinary people have reasonable expectations not only of privacy but also of accuracy, and the tension between these preferences can lead to surprising outcomes. Long held assumptions in state surveillance policy that automated surveillance is not privacy invasive or is otherwise minimally privacy invasive are unresponsive to the nuanced judgments of ordinary people. While law and policy need not always reflect the intuitions or preferences of the citizenry, empirical data such as offered in this Article could prove helpful where judges and lawmakers have otherwise failed to establish a clear and convincing consensus.
In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall ofRome to consider how rage and misinformation traveling through today's technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: "We have built networks for the delivery of information-- the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage."1 This Article carries the metaphor into a new context and considers what should be done when the poison being transported through the digital pipes is directed at members of the U.S. military. While extremism in the U.S. military is not a new threat, the events of January 6, 2021, brought the threat into much sharper focus. It exposed three preexisting trends, each sitting in plain sight but not yet woven together. These trends include a growing acceptance of extremist views and ideologies in U.S. military and veteran communities, an increase in violent extremist acts committed by individuals with military backgrounds, and the enhanced use of digital platforms by extremist groups to target their messaging to and strengthen their recruitment of individuals with military experience. To return to the metaphor, the extremist poison is teeming through the pipes at an alarming rate, and the number of pipes has increased to include social media platforms, encrypted chat tools, gaming platforms, podcasts, and music streaming apps, including YouTube, Discord, Gab, Telegram, and WhatsApp, among many others. In offering these observations, the author is mindful of not overstating the threat and takes seriously warnings as to the adverse consequences that follow from hyperbole and exaggeration. Indeed, a fundamental difficulty is the lack of understanding as to scope and scale of the extremism threat in the U.S. military. This Article attempts to draw the contours of that threat, exposes the structural and legal obstacles that make countering extremism in the military such a fraught exercise, and identifies actors, tools, and mechanisms-beyond the conventional options--able to overcome these long-standing structural and institutional obstacles.
U.S. design patent law protects the visual characteristics of articles of manufacture. For many years, major manufacturers of athletic footwear have protected their visually iconic designs with design patents, fueling a global market valued at nearly $100 billion. Today, however, shoe design has arrived in the digital universe. Digital sneakers such as Gucci's Virtual 25 and Nike's "Our Force Ones" can be "worn" only in virtual worlds but have substantial real world economic value. Yet U.S. design patent law makes it difficult-some would say impossible-to protect those designs, on the ground that they do not satisfy the statutory requirementfor a design for an "article of manufacture." On that reasoning, a visually innovative athletic shoe would be eligible for design patent protection, while its visually identical digital counterpart would be ineligible, and the same would be true ofa vast array of other valuable digital designs. This Essay examines critically the role of the article of manufacture requirement in contemporary and future design patent law, challenging whether the prevailing approach to that requirement in current Federal Circuit law and PTO practice is suitable for emergent areas of design endeavors such as designs for elements of digital environments, designs rendered for virtual and augmented reality, and designs for holographic projections.
