Author: Ryan Calo


“Brain Spyware”

As if we don’t have enough to worry about, now there’s spyware for your brain.  Or, there could be.  Researchers at Oxford, Geneva, and Berkeley have created a proof of concept for using commercially available brain-computer interfaces to discover private facts about today’s gamers. Read More


FOIA For Firms?

Lay people do not always appreciate the state action doctrine. We lawyers are quick to point out that the Bill of Rights, at least, is not there to limit the conduct of private parties. This feels like gospel. Marsh v. Alabama has little by way of progeny, whereas United States v. Miller has proven rather feracious. Even those who are generally sympathetic to the claim that “code is law” tend to balk at Lawrence Lessig’s corollary that we subject the activities of Internet companies to First Amendment scrutiny.

It may not feel right applying public constraints to private entities, but the reverse is not true: we are plenty comfortable bringing market forces to bear on perceived government shortcomings. Outsourcing government functions to for-profit organizations—privatization—is commonplace. Many efforts to reform government search for analogs for profit and seek to foster forms of competition to increase efficiency. Read More


Snapshot Of The Legal Market

Like a blog barnacle, I continue to hang on to the good ship Concurring Opinions.  At least for another month.  Thank you for inviting me to stay on.

Today, an observation about the legal market (and a plug for a friend’s start up). Len Gray is a former Latham & Watkins associate who, prior to law school, worked as a headhunter in Atlanta.  Even so, Len was turned off by legal headhunters, whom he regarded as too aggressive and often insensitive to finding the right fit. Read More


Some Thoughts On Florida v. Jardines

Amidst all of the discussion of gay marriage at One First Street NW today, you may have missed that the Supreme Court decided Florida v. Jardines.  In a five-four opinion by Justice Scalia, the Court held that bringing a police dog within the curtilage (in this case, the front porch) of the home to sniff for drugs constitutes a search for purposes of the Fourth Amendment.  As Orin Kerr predicted, the opinion turned on the lack of implied consent to approach with a dog, which converted the detectives’ action into a trespass.  Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s opinion.  Justice Alito wrote for the dissent, joined by Justices Kennedy, Breyer, and the Chief Justice.  Justice Kagan, joined by Justices Ginsburg and Sotomayor, wrote separately to note that they “could just as happily have decided [the case] by looking to Jardines’ privacy interests.” Read More


Robotics And The Law Conference At Stanford Law School

In a few weeks (April 8 and 9), the Stanford Center for Internet and Society and Rock Center for Corporate Governance will be holding a robotics and the law conference at Stanford Law School.  The conference follows up on the inaugural We Robot 2012 at the University of Miami School of Law.  This year’s conference focuses more specifically on the immediate commercial prospects of robotics.  Participants include Mark Lemley, Michael Froomkin, Ian Kerr, Kenneth Anderson, Leila Takayama (Willow Garage), Elizabeth Grossman (Microsoft), Dan Siciliano, and many other established and emerging scholars and practitioners.  We will discuss product liability, privacy, and much more.  The event is free and open to the public.  Details— including the draft agenda and how to RSVP—can be found on the conference website.  Outside sponsors include Microsoft, Ropes & Gray LLP, and AUVSI.  Hope to see you there!


“The Future of Drones in America” Hearing

I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response.  It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party.  I feel they had fair notice that this might be on the exam.


Driverless Cars May Avoid Accidents, But Not Headlines

As Deven Desai points out yesterday, driverless cars could bring a variety of benefits.  For instance: driverless cars may be much safer than human drivers.  Human error accounts for an enormous percentage of driving fatalities, which number in the tens of thousands. In a “perfect,” post-driver world, the circle of fatalities caused by vehicles would simply shrink.  The resulting diagram would look something like this:


How To Regulate Drones

I started to think about the intersection of robotics and the law in earnest a few years ago when I left private practice.  In 2011, I came to the conclusion that drones had the potential to create a new Warren and Brandeis moment.  Some combination of our visceral reaction to robotic technology, our fascination with flight, and our association of drones with the theater of war could, I thought, trigger a reexamination of privacy law. Drones have indeed captured the public imagination. And we are entering something of a policy window, to borrow a concept from Priscilla Regan. But just how citizens and lawmakers ultimately come down on the domestic use of drones remains to be seen. In this post, I will talk about what I think are the worst and best ways to regulate drones with respect to privacy. Read More


Senator Rand Paul Drones On

Concurring Opinions readers might get a kick out of the fact that, at one point in his twelve hour, old school filibuster of John Brennan’s nomination as CIA director this evening, Senator Rand Paul reads aloud from my 2011 online essay in Stanford Law Review on the domestic use of drones.  Video of the clip here.  I suppose it beats a phone book!


Is Forensics Law?

I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.”  During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation.  “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens.  Speed bumps are a classic example.  “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement. Read More