Predator Drones: Computations and Casualties

Almost 150 years ago, Herman Melville’s “A Utilitarian View of the Monitor’s Fight” recognized and lamented the dehumanizing efficiency of mechanized warfare, but even after the unprecedented rate of technological development since the Civil War, his description of the Monitor, the Union’s first iron-clad warship, seems hauntingly prescient of the Predator Drones used today in Iraq, Afghanistan and Pakistan:

Deadlier, closer, calm ‘mid storm;
No passion; all went on by crank.
Pivot, and screw,
And calculations…

While much has been said about the ambiguous morality of unmanned drone warfare and its potential for desensitizing violence, a surprisingly low-profile case (now settled) regarding the drones’ allegedly pirated and faulty positioning software exposes a new swathe of legal issues, namely the allocation of liability in the event of system error and/or failure when the machine or software used potentially contributes as much if not more to the decision-making process than the individual using the mechanism. As Melville later describes the “sailors”:

War yet shall be, but the warriors
Are now but operatives…

While the details of the case are hazy (and will remain so since the two parties have recently settled, upon which Netezza was acquired by IBM for $1.7 billion), ISSI alleged that Netezza illegally “hacked”  ISSIs’ Geospatial Toolkit and Extended SQL Toolkit and then packaged them with Netezza’s own data analysis programs, which Netezza sold to the CIA for use in unmanned Predator Drones.

Particularly unsettling is evidence that both companies, and perhaps the CIA itself, knew that the software was faulty and not ready for production, potentially causing the Drones to miss their targets by up to 40 feet. The question then, is, when civilians die because of faulty targeting software, who should be held responsible? The CTO of ISSI expressed concern that his company could be held liable, and this concern at least in part motivated ISSI’s lawsuit to enjoin the use of its software in the drones.

ALADDIN: Letting the Robots Decide

ALADDIN (Autonomous Learning for Decentralized Data and Information Networks), a joint project between the British defense contractor BAE systems and several of the top universities in England (including Oxford), reimagines the decision making process during warfare, disaster relief and other volatile high-risk situations. Essentially, by allowing the various robots or units (fire alarms, etc.) to bargain amongst themselves for resources and to determine various courses of action by comparing each units own data and assessment of the situation, the developers are optimistic that the decision-making process will be more effective than if a group of human beings, with all their notorious inefficiencies and inconsistencies, were to make such decisions.

However, ALADDIN seems to take “responsibility” even further out of human hands, and during war or disaster, decisions may result in the loss of life or other severe harms. If an ALADDIN-like program were to respond automatically, who should be held liable when the program decides on a disagreeable or morally reprehensible course of action? The Royal Academy of Engineering published a report exploring culpability in an automated world, even going so far as considering the idea of blaming a machine. The report ultimately concludes that most importantly, such problems need to be brought into the public forum so that as fully autonomous systems are introduced, society is prepared to handle the ramifications of utilizing such systems.

Google Autonomous Cars: Automatic for the People

Google recently announced that it has successfully developed automated cars. Like the ALADDIN Developers, Google is optimistic that its technology will result in fewer accidents and more efficient transportation overall. Using a wide array of sensors and high-speed data processors, Google claims to have driven 140,000 miles sans driver, with only one accident in which another driver apparently rear-ended Google’s automated vehicle.

While actual wide-scale use of automated driving systems is still a long way off, liability allocation will almost certainly be put in place before driverless vehicles are given the green light, and some practitioners are already exploring who would be held liable in the event of a crash. While product liability will play a large part when the navigation devices or systems fail, the human “driver” may still be held responsible, as any such system will likely contain a human override function in case of emergency or system failure.

• The Copyright Office released its latest group of exceptions to the Digital Millenium Copyright Act’s anti-circumvention provision. Wired and cnet news report on the exception for jailbreaking mobile phones.

• Also in DMCA news, Ars Technica discusses the Fifth Circuit decision that bypassing technological protections to access software for a fair use does not violate the DMCA anti-circumvention provision.

• The Supreme Court ruled on patentable subject matter in Bilski v. Kappos. Cnet, The MTTLR Blog, and IP Watchdog give their takes on the decision.

• Patent Docs reports on the memo issued by the USPTO to its examiners in the wake of Bilski. In a similar vein, Patently-O takes a look at the first post-Bilski test cases.

• The case between Joel Tenenbaum and the RIAA has taken another turn as U.S. District Judge Nancy Gertner slashed the jury verdict by 90%, calling it “unconstitutionally excessive.” See the coverage from Wired and Eric Goldman.

• Holman’s Biotech IP Blog looked at the recent limits that the EU Court of Justice has placed on patent protection for gene sequences.

• IP Watchdog has some thoughts on the early stages of a multi-billion dollar lawsuit filed against PayPal by XPRT Ventures, Inc.

• Authorities in San Mateo, California, contemplate filing criminal charges in connection with the sale of an Apple prototype (of a new iPhone), lost by and possibly stolen from an Apple software engineer and bought for $5,000 by the website Gizmodo.com, the New York Times reports.

• From the San Francisco Chronicle: citing a desire to help fight censorship, Google has launched a tool that discloses requests the company receives from governments for content removal and user data.

• India’s new copyright proposals, which include both fines and jail time for offenders, are still not strict enough for the RIAA, MPAA, and other organizations that lobby for greater intellectual property enforcement, Ars Technica explains.

• From CNET, a summary of the recent Supreme Court decision declaring unconstitutional a law banning Internet videos of animal cruelty, while leaving open the possibility that a narrower law would be permissible.

• A new study funded by net neutrality opponents claims that the FCC’s proposed net neutrality rules would cost the telecommunications industry over 340,000 jobs in the next ten years, PC World reports.

• PatentlyO notes that the Supreme Court has decided to hear a case on international copyright exhaustion, and gives a summary of the case.

• Also from PatentlyO, links to videos of patent attorney Kevin Noonan defending genetic patents on 60 Minutes and the Colbert Report.

• Ephemeral Law takes a look at the court documents in Microsoft’s challenge to the Waledac botnet, which it describes as on the “cutting edge of legal efforts to shut down hacking operations.”

• The Wall Street Journal reports that the US Department of Justice is stepping up its antitrust investigation into technology firms’ “no-poach” policy and salary fixing.

• Eric Goldman reports on a decision of the California Court of Appeals rejecting an argument that a California statute prohibiting eavesdropping precluded admitting Yahoo! chat logs in evidence.

• Why the anti-commons aren’t so tragic, from Patent Docs.

• The MTTLR Blog writes about falsely-convicted victims of DNA forensics errors.

• Wired: a new malware scam threatens BitTorrent with copyright infringement suits.

• Spicy-IP blogs about BioPiracy – the practice of mining the traditional knowledge of indigenous communities for biological and medicinal patents – in Africa.

• Feature from The Register: the Russian Association of Electronic Communications promises to crack down on spam and cybercrime.

• British Election special: the mother of British hacker Gary McKinnon, who was at the heart of a recent UK-US extradition battle, has announced that she will run against Chancellor Jack Straw in the upcoming parliamentary elections, from bbc.co.uk.

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• The British Parliament has approved a law authorizing temporary suspension of internet access for those accused of repeated copyright infringement, reports the New York Times. Opponents of the law, such as the Open Rights Group, promise to turn this into an election issue in Great Britain.

• Canadian company Wi-Lan has filed suit in the Eastern District of Texas against 19 high-tech companies—including heavyweights Apple, Dell, Motorola, Acer, and others—for allegedly violating its Bluetooth patents, reports Business Week.

• From Wired: a U.S District Court judge has given a lawyer a 30-day sentence for contempt of court for encouraging people to flood the judge’s e-mail account, to persuade him to side with the lawyer’s client in a civil suit. The 7th Circuit Court of Appeals is now reviewing whether the judge had the authority to impose a contempt sentence for conduct outside the physical courtroom.

• The U.S. Court of Appeals for the District of Columbia overturned a 30 year computer ban for a sex offender, saying that the ban is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” reports Wired’s Threat Level.

• The Electronic Frontier Foundation applauds the 2nd Circuit’s decision in Tiffany vs. eBay, finding the online auction company not liable for contributory trademark infringement on the basis of users selling items in Tiffany’s signature blue boxes, but the digital rights organization worries about the lack of a statutory “put back” procedure in trademark law.

• The New York Times has a detailed article explaining China’s internet censorship methods.

• After a federal court held that the FCC cannot impose network neutrality on ISPs (as PC World discusses), the FCC declared its intention to pursue its National Broadband Plan nevertheless. CNET reports that the FCC considers the court’s ruling to have forbidden one technical mechanism for achieving the FCC’s goals, but not the goals themselves.

• From eWeek: an Arkansas woman faces misdemeanor charges for posting slanderous messages on her teenage son’s Facebook account.

• The US Court of Appeals for the Federal Circuit has found that Google’s AdWords program does not infringe the patent for a bidding system determining pricing for ads on search results, Ars Technica reports.

• Mexico may disconnect millions of people’s cell phones for failure to register their identities with the government via text message. This is part of an attempt to fight crime by regulating cell phone use, Reuters reports.

• The Southern District of New York‘s decision in Association for Molecular Pathology and ACLU v. USPTO and Myriad (the “gene patents case”) handed down last Monday, has generated a lot of commentary this week. Here’s a selection: reports from Wired and On the Edges of Science and Law; IP Watchdog describes the ruling as “inane”; Patent Docs gives more detail on the patents at issue; Patently O thinks the Federal Circuit is likely to reverse the decision; and Holman’s Biotech IP Blog takes the investor’s perspective.

• British science writer Simon Singh (of Fermat’s Last Theorem, The Code Book and Big Bang fame) wins libel case brought against him by the British Chiropractic Association, from The Guardian.

• Jonathan Zittrain’s The Future of the Internet and How to Stop It comments on the iPhone developer license agreement, disclosed through a Freedom of Information Act request.

• From OutLaw, Google, Microsoft, eBay et al call for U.S. privacy law update.

• Salt Lake City jury rejects “copyright troll’s” claim to Unix - Wired reports.

• The European and FCC antitrust complaints against Google are not about Microsoft, opines The Register.

• US criticizes Australian internet filtering plan, from E-Commerce Times.

• The working text of the Anti-Counterfeiting Trade Agreement has been released. See Wired and The Register coverage of the story, and our post on the draft treaty here.

• The Federal Circuit rules on patent dispute Applera Corp v. Illumina, Inc. on the basis of Californian employment law, writes Patent Docs.

• Holman’s Biotech IP Blog discusses the patent law implications of the Federal Circuit’s ruling in Ariad v. Eli Lilly.

• Less than two months after hacker Max Vision was sentenced to thirteen years, the sentencing record is broken again as TJX hacker gets twenty years, from Wired.

• Ephemerallaw asks whether it is worth chasing cybercrooks (see our recent post on cybercrime here).

• The European Court of Justice rules in favor of Google in a challenge to its practice of selling trademarked keywords for its adwords paid results service to competitors. The Stanford Center for Internet and Society and the E-Commerce Times report.

• The Register reports that a twenty-five-year-old Frenchman has been arrested on suspicion of hacking President Obama’s Twitter account.

• Early in 2009, a settlement between Ireland’s leading internet service provider and four record companies looked set to put in place the world’s first three-strikes-you’re-out copyright violation rule. Tech law blogger TJ McIntyre reports on the latest.

• Spicy IP discusses proposed amendments to the Copyright Act and digital rights managements in India.

• The Department of State’s annual Human Rights Report turns the spotlight on internet freedom in China and Iran, from ZDNet Government.

• The US District Court in Delaware stays the patent litigations between Apple and Nokia, pending decisions by the International Trade Commission, says The Register.

• A California appeals court rules that cyberbullying threats are not protected free speech, reports Wired.

• Also from Wired, the Supreme Court agrees to review a Ninth Circuit decision on privacy rights in the context of background checks on government workers.

• The FCC announces that it will recommend the sale of 500 megahertz of spectrum to meet the needs of mobile broadband users, from the Washington Post.

• Programmers in trouble over financial misdeeds: two programmers who developed code for Madoff are charged with fraud (The New York Times, The Register) and the Securities Exchange Commission files a complaint against a one-man Russian investment company for hacking into online portfolios to “pump and dump” stocks (Switched, Wired).

• From E-Commerce Times: TiVo wins its long running patent infringement case against digital video recorder rivals.

• Spicy IP reports that Brazil seems set to invoke WTO intellectual property cross-retaliation provisions for the first time, against the US.

• The European Parliament threatens to bring a legal challenge against the European Commission if it fails to disclose details of the Anti-Counterfeiting Trade Agreement (ACTA), writes Outlaw (see our post on the controversial treaty here).

• Also from Outlaw: Net Neutrality in the UK: Ofcom to probe broadband providers’ management of web traffic.

• The New York Times explains that television providers, including TimeWarner and Verizon, are petitioning the Federal Communications Commission (FCC) to change TV retransmission rules so that stations (like ABC or CBS) have less leverage over TV providers.

• The FCC is also asking people to test their broadband speeds at its website, Wired reports, to evaluate whether American telecommunications companies are keeping their promises about broadband speed and accessibility.

• Business Week reports that the Business Software Alliance (representing Microsoft and Symantec, among others) is getting increasingly angry over China’s piracy policies.

• From the E-Commerce Times: The Federal Trade Commission is concerned about the potential unfair competitive advantage
• Google would gain by its proposed acquisition of the mobile ad network AdMob, and may ultimately refuse to allow the acquisition to go forward.

• The Chinese Minister of Industry and Information Technology Li Yizhong warned Google to comply with China’s censorship laws, CNET reports.

• From Out-Law: the USTPO has affirmed the validity of Amazon’s amended version of its “one-click” patent, a patent for the technology for buying products online with one click of a web page button, which many sharply criticized as being too obvious to patent.

• Also from Out-Law: there is push-back from companies and activists against the proposed UK amendment to the Digital Economy Bill that would allow courts to order ISPs to block websites accused of hosting copyright-infringing content.