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Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete control over corporate information, shielding their activities from oversight and scrutiny by regulators and the public. Secrecy, however, begets leaks, and leaks have become the de facto source of crucial information for lawmakers, regulators, and the public. Today, whistleblowing is an important part of broader efforts to bring accountability and transparency to the tech industry.Yet existing frameworks for protecting whistleblowers are partial and haphazard. The law often permits firms to retaliate against internal critics, leakers, and organizers. The result is an informational environment shaped by selective disclosures on the part of tech whistleblowers, and enormous discretion for tech firms that can choose whether and how to respond. Whistleblowing is therefore an incomplete, but still significant, source of information in the absence of meaningful, rigorous, and systematic transparency rules. I make the case that broader protections for whistleblowing are a necessary component of systemic regulation of the tech sector.

A key feature of the material infrastructure of hate speech online on Facebook is virality – the rapid transmission of content over large distances through key nodes and actors on the platform. Virality is enabled by the bringing together of collectivities (crowds and publics) and connectivity provided by Facebook, which is accessed widely through Internet-enabled mobile phones. In contemporary India, increased connectivity provided by the material infrastructure of Facebook has reconfigured the relationship between crowds, publics and media, facilitated virality, and led to deadly illocutionary and perlocutionary effects such as inter-group violence and the subordination of minority groups. This thesis investigates how Facebook, through its content moderation policies and related institutional mechanisms and infrastructures, regulates the virality of hate speech online on the platform. Drawing on contemporary developments in India and the historical development of Indian hate speech doctrine, this thesis identifies emerging tensions between the global scale of hate speech regulation on Facebook and local context. These emerging tensions are visible in Facebook’s framing of its community standards on hate speech, and in the relationship between Facebook and national and subnational actors in India. These tensions are also visible in differences and contradictions in how actors who are part of Facebook’s governance model, including the Oversight Board, have approached the question of the regulation of hate speech online. This thesis employs mixed methods including a law-in-context reading of doctrine, documentary analysis and semi-structured interviews conducted with members of the Facebook Oversight Board, employees of Facebook and lawyers, academics and policy experts in the field. This thesis is part of a growing body of scholarship that examines the regulation of hate speech online and virality on Facebook through a non-United States and non-European lens.

The proliferation of artificial intelligence in our daily lives has spawned a burgeoning literature on the dawn of dehumanized, algorithmic governance. Remarkably, the scholarly discourse overwhelmingly fails to acknowledge that automated, non-human governance has long been a reality. For more than a century, policymakers have relied on regulations that automatically adjust to changing circumstances, without the need for human intervention. This article surveys the track record of self-adjusting governance mechanisms to propose a normative theory of automated regulation.Effective policymaking frequently requires anticipation of future developments, from technology innovation to geopolitical change. Self-adjusting regulation offers an insurance policy against the well-documented inaccuracies of even the most expert forecasts, reducing the need for costly and time-consuming administrative proceedings. Careful analysis of empirical evidence, existing literature, and precedent reveals that the benefits of regulatory automation extend well beyond mitigating regulatory inertia. From a political economy perspective, automated regulation can accommodate a wide range of competing beliefs and assumptions about the future to serve as a catalyst for more consensual policymaking. Public choice theory suggests that the same innate diversity of potential outcomes makes regulatory automation a natural antidote to the domination of special interests in the policymaking process.Today’s automated regulations rely on relatively simplistic algebra, a far cry from the multivariate calculus behind smart algorithms. Harnessing the advanced math and greater predictive powers of artificial intelligence could provide a significant upgrade for the next generation of automated regulation. Any gains in mathematical sophistication, however, will likely come at a cost if the widespread scholarly skepticism toward algorithmic governance is any indication of future backlash and litigation. Policymakers should consider carefully whether their objectives may not be served as well, if not better, through more simplistic, but well-established methods of regulatory automation.

Joel Reidenberg in his 1998 Article Lex Informatica observed that technology can be a distinct regulatory force in its own right and claimed that law would arise in response to human needs. Today, law and technology scholarship continues to ask: does technology ever disrupt the law? This Article articulates one particular kind of “legal disruption”: how technology (or really, the social use of technology) can alter the imagined setting around which policy conversations take place—what Jack Balkin and Reva Siegal call the “imagined regulatory scene.” Sociotechnical change can alter the imagined regulatory scene’s architecture, upsetting a policy balance and undermining a particular regulation or regime’s goals. That is, sociotechnical change sometimes disturbs the imagined paradigmatic scenario not by departing from it entirely but by constraining, enabling, or mediating actors’ behavior that we want the law to constrain or protect. This Article identifies and traces this now common move in recent law and technology literature, drawing on Reidenberg’s influential and prescient work.

In the medical profession, triage refers to sorting medical resources in emergency situations based on the greatest need for immediate attention. Similarly, legal service providers talk about “triaging” cases to prioritize individuals with the most serious problems. But in the immigration field, the concept of triage is turned on its head. Noncitizens with the riskiest cases—those facing deportation—have the least access to legal assistance, especially if they are detained. Technology has the potential to help with triage but is not yet being used effectively to assist with deportation defense. This Article argues that utilizing technology to facilitate access to representation for noncitizens in detention is the best way to address that gap. It examines not only how legal services providers can use technology to triage immigration cases, but also how technology in detention centers and immigration courts can facilitate access to representation. The Article further contends that the Department of Homeland Security, which prosecutes deportation cases, and the Executive Office for Immigration Review, within the Department of Justice, which adjudicates them, have every incentive to adopt this technology in detention centers and immigration courts, because increased representation helps them triage their own enormous caseloads.

Federal, state, and local governments increasingly depend on automated systems — often procured from the private sector — to make key decisions about civil rights and civil liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed.Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision making: the law of access to government records and proceedings. This Article fills this gap in the literature, recognizing that the Freedom of Information Act, its state equivalents, and the First Amendment provide unappreciated legal support for algorithmic transparency.The law of access performs three critical functions in promoting algorithmic accountability and transparency. First, by enabling any individual to challenge algorithmic opacity in government records and proceedings, the law of access can relieve some of the burden otherwise borne by parties who are often poor and under-resourced. Second, access law calls into question government’s procurement of algorithmic decision making technologies from private vendors, subject to contracts that include sweeping protections for trade secrets and intellectual property rights. Finally, the law of access can promote an urgently needed public debate on algorithmic governance in the public sector.

This thesis examines the intersection of law and technology in the context of cyber attacks and international law on the use of force. It is argued that the law embodies an ontologically constrained view of violence which limits its capacity to regulate cyber attacks. As a means of overcoming these constraints, this thesis draws on Luciano Floridi’s information ethics to develop an informational approach. This involves depicting the state as an information entity and reconceptualising violence through the concept of entropy. Therefore, by updating the law with an informational ontology, it is argued that the law is better equipped to recognising the novel forms of informational violence that are capable of harming states. As such, this thesis explores the conceptual challenges brought about by technological change for international law on the use of force. As a central provision of international law, Article 2(4) of the United Nations Charter prohibits states from using force in their international relations. The law arose within a particular technological context and was originally intended to limit the outbreak of violent warfare between states. It is argued however, that the law is premised on an anthropocentric and materialist view of what constitutes violence and the state as an entity. It subscribes to a worldview in which the state is a territorial entity and violence that is deemed to threaten the state requires some form of destruction or damage to physical objects or injury or death to human beings.

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman's framework of "boundary management" as a jumping-off point, I conceptualize privacy harm as interference in an individual's ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts. Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies--from automated license plate readers (ALPRs) to robots to drones.

This dissertation explores the ways in which egg donor agencies make decisions in the absence of law, and what normative regulations and meanings, moral and otherwise, those decisions create. I analyze what resources and beliefs agency decision-makers employ in the day-to-day running of their organizations, and whether decision-makers consider the myriad ethical implications of their business. Based on semi-structured interviews with agency decision-makers, primarily in California, as well as other infertility field professionals, I find that, rather than modeling their organizations on other egg donor agencies or analogous institutions as might be predicted by new institutionalism, egg donor agency decision-makers fall back on their personal moral beliefs when making on-the-ground decisions in the course of running their agencies. I examine agency decision-makers' responses to uncertainty in their (new) field and to pressures from outside their field to explore how decision-makers incorporate their moral beliefs into their organizations. The following chapters demonstrate how this particular group of agency decision-makers think about the complex questions that arise in the course of bringing together infertile people and egg donors for the purpose of creating a baby. I find that agency decision-makers are often ambivalent about the ethically questionable aspects of egg donation, such as the commodification of human eggs and the potential exploitation of egg donors, and they overcome their ambivalence using a variety of strategies aimed at minimizing any damage to egg donors and intended parents while simultaneously enabling the ultimate goal of helping people to build their families.This dissertation also shows how agency decision-makers navigate in an unregulated legal environment. They criticize those members of the field they deem to be unethical in order to show themselves in a positive light by contrast, and they affiliate themselves and their agencies with established professionals, such as physicians and infertility clinics, in order to share in those professionals' legitimacy. Finally, in the absence of regulation, a small number of agency decision-makers have conceived a nonprofit organization, in some respects similar to a professional body, intended to create a set of ethical standards specific to egg donor and surrogacy agencies.Ultimately, this dissertation demonstrates that although agency decision-makers reference their own moral beliefs when making day-to-day decisions for their agencies, those individual beliefs are translated to the organizational level, as predicted by an inhabited institutions theoretical approach. And as predicted by an institutional logics perspective, each individual agency decision-maker does not exist in a vacuum, but instead is subject to multiple institutional logics (such as societal ethics, family, medical professional, mental health professional, and egg donor agency). Counterintuitively, however, all of this diversity--diversity of personal beliefs and diversity of institutional logics--results in a convergence of egg donor agency practices into an emerging set of ethical norms and a shared moral meaning: the value of taking good care of agency clients and donors, and the joy of helping people have babies.

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed "private copyright reform," presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can lead to industrial and statutory adoption of inaccurate "market" valuations. Finally, private copyright reform can exacerbate market inequalities by leaving smaller, less powerful parties with a weaker, less effective statutory regime. These concerns could be addressed by comprehensive copyright reform, an ambitious and lengthy process at best. The concerns might also be eliminated by making compliance with the statutory license mandatory, thereby eliminating private copyright reform as an option. Recognizing the efficiency-enhancing value of private copyright reform, however, this Article leaves the option to circumvent in place, and instead suggests two modest statutory amendments to alleviate the adverse selection and distributive justice concerns presented. Private copyright reform also challenges traditional intellectual property doctrine; specifically, it questions the efficiency of statutory licenses and collective rights organizations, while also raising questions of fairness around the ability of private parties to make law. While resolution of these doctrinal questions is outside the scope of this Article, the recent proliferation of private copyright reform suggests they are ripe for reconsideration.