Flash Digest – News in Brief

Digest Reports First Amendment Flash Digest

European Union Moves to Impose Stricter Online Privacy Regulations

The European Parliament has approved the latest draft of the proposed e-Privacy Regulation. According to a briefing by the European Parliamentary Research Service, the objectives of the proposed Regulation are “enhancing security and communications confidentiality; defining clearer rules on tracking technologies such as cookies; and achieving greater harmonisation among Member States.” The proposed Regulation will replace the current 2002 e-Privacy Directive, as amended by the 2009 “cookies directive.” The reform was designed to complement the EU’s General Data Protection Regulation (“GDPR”), which went into force in 2016.

 The proposed Regulation will govern the collection, storage, gathering, and sharing of personal data, for example, through the use of cookies. Under the proposed Regulation, users must freely give their unambiguous consent to the use of tracking services. The use of cookie banners to obtain such consent, which became commonplace following the 2009 Directive, will no longer be sufficient. In addition, the proposed Regulation would promote, and, where necessary, mandate end-to-end encryption and block any Member State action that would lead to network “backdoors.”

The proposed Regulation was prompted by advances in communications technologies, particularly the rise of “over the top” services, such as Skype and Whatsapp, over “traditional telecommunications services.” Whereas the current e-Privacy Directive applies only to traditional telecommunications operators, the proposed Regulation will apply to all electronic communications services, including those provided to end-users in the EU, no matter where the provider is based.

There has been significant industry opposition to the proposed Regulation. The Computer and Communications Industry Association claims that the proposed Regulation would render “advertising online . . . impractical due to the rise of consent banners and pop ups.” The Interactive Advertising Bureau commented that the proposed Regulation would “expropriate advertising-funded businesses by banning them from restricting or refusing access to users who do not agree to the data collection underpinning data-driven advertising.”

The proposed Regulation still has a way to go before becoming law. It now enters the Trilogue phase, where the European Parliament, the European Council, and the European Commission will discuss the text of the final draft. The final draft will then be submitted to plenary sittings of the European Parliament and voted on before it is adopted into law. Adoption is targeted for May 2018, to coincide with the GDPR application timeline.

Moving Closer to a Regulatory Framework for Self-Driving Cars

According to the U.S. Department of Transportation’s October Report on DOT Significant Rulemakings, the National Highway Traffic Safety Administration (“NHTSA”) is beginning the process of amending the Federal Motor Vehicle Safety Standards to “safely lay a path for innovative automated vehicle designs and technology.” To that end, the NHTSA is now seeking public comment to identify potentially unnecessary regulatory obstacles to the testing and compliance of autonomous motor vehicles with “unconventional” designs, such as those without steering wheels, breaks, accelerator pedals, or other controls that are required by human drivers. The NHTSA is also seeking comments on any “research that would be required to remove such barriers.”

The October Report follows the September 2017 release of updated NHTSA guidance on automated vehicle technology, which, according to a government press release, is intended to “pave[] the way for the safe deployment of advanced driver assistance technologies by providing voluntary guidance that encourages best practices and prioritizes safety.”

The House and Senate have also passed separate bills on the regulation of automated vehicles. In September 2017, the U.S. House of Representatives passed the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act (“SELF DRIVE Act”), currently before the Senate Commerce, Science, and Transportation Committee. In October 2017, the Senate Committee on Commerce, Science, and Transportation also passed the American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act (“AV START Act”), supporting the development of automated vehicle safety technologies.

Commentators for Lexology note that the two bills are “similar,” with “comparable objectives and structures” that would “preserve the existing regulatory approach to vehicle safety while making modest changes to accommodate the new technologies.” For example, both bills would allow automakers to test self-driving cars (up to 100,000 cars per automaker under the House bill and up to 80,000 under the Senate bill) even if they did not meet existing safety standards.

Robo-Lawyer Beats Human Lawyers

CaseCrunch, a legal AI start-up led by former University of Cambridge students, hosted a “Man vs Machine” challenge in late October. Spoiler: the machine won.

Over 100 lawyers competed in the challenge, hailing from firms such as Allen & Overy, DLA Piper, and Norton Rose Fulbright. They were given a week to predict the outcome of hundreds of real Payment Protection Insurance(“PPI”) mis-selling claims, which had previously been decided by the UK’s Financial Ombudsman Service and published following a Freedom of Information request.

The same set of complaints was given to robo-lawyer, CaseCruncher Alpha. CaseCruncher Alpha correctly predicted the outcome in 88.6% of the cases. The lawyers’ predictions were correct 62.3% of the time.

CaseCrunch comments on their website that “[t]he main reason for the large winning margin seems to be that the network had a better grasp of the importance of non-legal factors than lawyers.” CaseCrunch notes that machines can out-compete lawyers where, as in this instance, “the question is defined precisely.” CaseCrunch intends to publish a research paper describing their methodology and its significance for legal theory in the near future.

According to Legal IT Insider, legal professionals attending the event noted that CaseCruncher Alpha may have had an “unfair advantage” over its human competitors, as the computer was given all database materials; in contrast, none of the lawyers had any real experience with PPI claims and had to do their own research. However, Legal IT Insider also reported that CaseCrunch believed it had already accounted for the “unfair advantage” problem by selecting a subject (PPI) for which neither the human competitors nor the machine would have had significant prior experience; CaseCrunch representatives told the publication that any real advantage the machine may have had were “inherent advantages that the machine will always have” over human lawyers.


Johanna McDavitt is an LLM student at Harvard Law School.