Blog Post

Innocent Until a Robot Says You’re Guilty: ChatGPT’s First Defamation Suit (Maybe)

By Emily D’Agostino

ChatGPT is a highly sophisticated language model that generates human-like text responses to user inputs. From inception, large language models like ChatGPT have faced widespread criticism over the concern that they may exacerbate the already rampant misinformation crisis. Particularly, some critics have expressed fear that these models could have the capability to defame individuals, causing irreparable harm.


This fear recently materialized when Australian mayor, Brian Hood, began receiving reports that ChatGPT had labeled him a criminal. Specifically, the AI chatbot identified Hood as one of the many guilty parties involved in a major bribery conspiracy that took place in the early 2000s. Between 1999 and 2004, several Australian business executives utilized Note Printing Australia, a subsidiary of the Reserve Bank of Australia, to bribe foreign officials. While Hood was employed by the subsidiary at the time, he was actually the whistleblower that reported the illicit payments to the authorities. Hood was never convicted, or even charged with any crimes in connection with the scandal.


Hood fears that the AI allegations could cause serious damage to his reputation as he is an elected official. His lawyers have given OpenAI, the company responsible for creating ChatGPT, a 28-day period to correct the error before they proceed with what would be the first ever defamation suit against Artificial Intelligence. This incident may only the beginning and governments should consider establishing new frameworks to regulate these large language models.


The obvious existing legal framework to apply in situations where AI disseminates harmful false information about an individual or entity is tort law. This is the route Hood and his attorneys plan to take in alleging defamation. Although tort law varies by jurisdiction, a person has been defamed, generally, where a false statement about them is published or communicated, and the statement causes reputational harm. The difficulty with relying on tort law in seeking recourse against AI is that the accused AI may have been created by a combination of people and companies, making it difficult to identify the responsible party. Further, as AI becomes more independent, human influence might become too far removed altogether to impose liability.


Some organizations and governing bodies have issued guidance for the development and implementation of large language models. The Partnership on AI developed ethical guidelines requiring transparency, fairness, and accountability. The EU initially envisioned a risk-based regulatory framework that would impose varying market approval requirements on AI developers correspondent with the risk of harm posed by their AI. In September of 2022, the Commission formally proposed the AI Liability Directive (AILD) which contains a set of uniform rules covering certain aspects of civil liability for damage caused by AI systems.


Overall, the emergence of advanced language models raises major ethical and legal concerns. Many of the theoretical fears surrounding AI are beginning to come to fruition. Consequently, legislators should take action and attempt to ascertain the most effective means of regulating this complex space in order to minimize the impending societal harms.

Section 230: The Battle for Content Moderation

By Brad Balach

For nearly 30 years, Section 230 of the Communications Decency Act has shielded internet platforms from the liabilities that third party content can create.[1] Initially, the authors of Section 230 intended it to clarify the liability of online services for content posted by others on their platforms.[2] However, as social media companies emerged and benefitted from favorable judicial interpretations over the decades, Section 230 has become a source of total immunity despite some of the harmful and tragic events that have been contributed by platform use.[3]

With little regulation, internet platforms have had the latitude to moderate content as little or as much as they see fit. That may change soon, as the Supreme Court is expected to rule on a pair of cases addressing Section 230 and the content moderation practices of social media platforms.[4]

In Gonzalez v. Google, the family of a victim of the November 2015 ISIS attack in Paris alleges that the Google-owned service YouTube was used by ISIS to recruit and radicalize combatants, and that the platform provided material support to terrorists by sharing advertising revenue.[5] The Ninth Circuit Court of Appeals dismissed the case, citing Section 230 protection for YouTube and the revenue sharing being part of normal business.[6]

In Twitter v. Taamneh, family members of a victim of a 2017 ISIS attack in Istanbul alleged that Twitter, Google, and Facebook aided and abetted ISIS by allowing the distribution of its material without editorial supervision.[7] The Ninth Circuit found that the companies could face claims for playing an assistive role.[8] Both cases were granted certiorari and completed oral arguments in the first quarter of 2023. [9]

The plaintiffs in the Gonzalez and Taamneh cases have argued that the assumption made in Section 230 that online platforms are simply transporting the work of third parties does not accurately reflect how companies utilize digital technology today.[10] They contend that algorithmic recommendation, which is a standard feature on most platforms, transforms them from an interactive computer service protected under Section 230 to an unprotected information content provider.[11]

Several co-authors of Section 230 have argued in an amicus brief that the law anticipated recommendation algorithms and content curation efforts.[12] The Department of Justice also submitted amicus brief arguing that algorithmic promotion is a distinct form of conduct and differs from the idealized public square as social media platforms are closed businesses designed to maximize revenue.[13] The impact of these factors on Section 230’s liability protections is likely to be a major issue before the Supreme Court.

Justice Thomas has hinted in the past at two possible approaches that the Court could take in guiding their decision in a Section 230 case.[14] In 2020, Justice Thomas noted that many courts have interpreted Section 230 too broadly, and thus platforms have been given total immunity for distributed content.[15] He suggested that scaling back this immunity would not necessarily make these companies liable for online misconduct, but it would give plaintiffs a chance to bring claims against them.[16]

The Second proposed approach suggested that some platforms may be regulated as common carriers or places of accommodation.[17] This concept traditionally applies to telephone companies, and the plaintiffs in Gonzalez and Taamneh argue that online platforms are part of the communications infrastructure, providing a potential opening to make this argument.[18]

The Court’s decision on the content moderation issue is expected to spark public debate and prompt calls for Congress to take the lead in making decisions rather than leaving it to the courts. It remains uncertain how the Court will address the Section 230 issue, as there are several possible directions it could take regarding content moderation, but what is certain is that we await a decision that will likely change the landscape of the internet for decades to come.

[1] Nina Totenberg, Supreme Court showdown for Google, Twitter and the social media world, NPR (Feb. 21, 2023) https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230.

[2] Id.

[3] Id.

[4] Id.

[5] Gonzalez v. Google LLC, 2 F.4th 871, 880 (9th Cir. 2021).

[6] Id.

[7] Twitter, Inc. v. Taamneh, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022)

[8] Id.

[9] Supra note 1.

[10] Mark McCarthy, Congress Should Reform Section 230 in Light of the Oral Argument in Gonzalez, Lawfare (Mar. 22, 2023) https://www.lawfareblog.com/congress-should-reform-section-230-light-oral-argument-gonzalez.

[11] Id.

[12] Tom Wheeler, The Supreme Court takes up Section 230, Brookings (Jan. 31, 2023) https://www.brookings.edu/blog/techtank/2023/01/31/the-supreme-court-takes-up-section-230/.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Wheeler, supra note 12.

[18] Wheeler, supra note 12.

Could Proposed Bills to Lower Pharmaceutical Drug Pricing Influence Trade Secrecy over Patent Intellectual Property Protection?

By Renee Sanchez

At the beginning of 2023, Americans saw price hikes from big pharmaceutical companies (collective known as “big pharma”), around the same time new legislation was also proposed in the Senate seeking to lower pharmaceutical drug prices by targeting anticompetitive patent strategies and antitrust abuses.[1] Two out of five of these bills could possibly influence big pharma patent strategy. First, S.79, the Interagency Patent Coordination and Improvement Act of 2023, which aims at improving communication and coordination between the U.S. Patent and Trademark Office (USPTO) and the U.S. Food and Drug Administration (FDA). Second, S.150, The Affordable Prescriptions for Patients Actwhich aims at restricting anticompetitive “product hopping.”[2]

Basics of “Product Hopping”

“Product hopping” is when a company makes minimal changes to their product without any substantial benefits compared the original. They may take the original product of the market completely, known as “hard switches,” or make a “soft switch,” keeping the drug on the market until a generic is released and physicians and patients can decide whether or not the benefits of the new formulation is significant enough to switch prescriptions.[3] Often, companies will make a hard switch just as their patent is about to expire preventing others from creating generics or biosimilar products.[4]

Courts have historically enforced some cases of hard switches but have failed to recognize antitrust or anticompetitive behaviors in soft switches.[5] It has been suggested that the best way to address product hopping is through legislation – S.150 proposes how to identify and address both hard switches and soft switches nearly identical to legislation was also proposed in 2021, S.1435, Affordable Prescriptions for Patients Act of 2021.[6]

Patents Traditionally Used for Pharmaceuticals

Patents are traditionally used in the biomedical industry to encourage innovation and disclosure. Pharmaceuticals are commonly protected best by patents due to the possibility of reverse engineering pharmaceutical compounds.[7] Additionally, the disclosures required throughout the commercialization process often reveal protected information.[8] Trade secrets can, however, be used safely for other information such as ‘know-how’ and manufacturing information not revealed in the patent.[9]

Patents offer a sort of “quid pro quo” where the company specifies and discloses their technology and if all requirements of a patent are met, they are awarded a monopoly on that patent for about 20 years.[10] After that point in time, the patent is dedicated to the public and can be used by anyone.[11] To get around the loss of monopoly over a company’s pharmaceutical invention, they may perform anticompetitive behavior such as “product hopping.”

Consequences of Using Trade Secret Strategy

A company seeking to abuse antitrust laws and ‘product hop’ may also find other ways to monopolize their inventions, such as through trade secrecy. Although trade secrecy has an appropriate place to benefit the biomedical industry, critics suggest that their use can limit access to quality and affordable medications.[12] Conversely, maintaining trade secrets has allowed scientists from research universities and industry corporations to collaborate.[13]

Although there may be some benefits to using trade secrecy for a pharmaceutical compound, the risks may far outweigh those benefits. The following are a few examples weighing these benefits and risks:

  • If an original medication or ‘reference product’ is protected by a trade secret rather than a patent, a company developing a generic may be able to reverse engineer the product and provide a less expensive medication to the public. On the other hand, this puts original company’s trade secret at risk of independent invention.
  • If the pharmaceutical product is difficult to reverse engineer, the original pharmaceutical company may be able to maintain their trade secret for an indeterminate amount of time, thus stifling innovation and monopolizing the market for that drug.
  • However, the original inventor could license the chemical formula protected by trade secret to a company manufacturing a generic, earning royalties or some other type of financial compensation, while providing the market with a low-cost alternative. This option would promote competition meanwhile earning the original inventor or manufacturer additional financial incentives and protecting their trade secret from misappropriation.

There is a fine balance that pharmaceutical companies as well as legislators need to consider between the bottom-line financial benefits, reducing monopolies, benefiting the public, and protecting intellectual property. It is likely, that despite the implications on patents that the current proposed legislation may entail, pharmaceutical companies will likely continue to utilize patents over trade secrets to protect their pharmaceutical compounds.

[1] Id.; S. 79, 118th Cong. (2023); S. 150, 118th Cong. (2023); S. 113, 118th Cong. (2023); S. 142 118th Cong. (2023); S. 148, 118th Cong. (2023); Jeff Overley, HHS Memos, 5 Senate Bills Target Drug Prices And Tactics, Law360 (Feb. 9, 2023, 10:53 PM EST), https://www.law360.com/articles/1573737.

[2] Overley, supra note 2.

[3] Michael A. Carrier, A Simple Solution to the Problem of “Product Hopping,” Harv. Health Pol’y Rev. (Dec. 23, 2021) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4000867.

[4] Id.

[5] Id. at 1-2.

[6] Id.; S. 150, 118th Cong. (2023).

[7] William Dean, Can you keep a trade secret? Understanding pharmaceutical IP, Barker Brettell Intellectual Property (May 19, 2022). Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm’n, 320 P.3d 222, 227 (Wyo. 2014) (referring to deformulation of chemical compounds).

[8] Dean, supra note 8.

[9] Id.

[10] Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F3d 1336, 1345 (Fed. Cir. 2010).

[11] Choosing Between Trade Secret and Patent Protection: A Primer for Businesses, Law.com (May 12, 2022) https://plus.lexis.com/api/permalink/78c7f494-3b24-43d0-acba-1dc59d4a6592/?context=1530671.

[12] Allison Durkin, et al., Addressing the Risks That Trade Secret Protections Post for Health and Rights, Health Hum. Rts. (Jun. 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8233014/ .

[13] Mark F. Schultz, Trade Secrecy and COVID-19, Geneva Network (October 5, 2022), https://geneva-network.com/research/trade-secrecy-and-covid-19/.

The Digital Age: Lawmaking and Keeping up with Constant Innovation

By Elliot Malin

Technology, science, biomedicine. This is how our society advances towards the future. Is it always necessary to regulate this developing technology before understanding the potential impact on our communities?  

As new technologies develop, we see an increasing effort to attempt to regulate this space with varying results.[1] From cryptocurrency to medical development. Our states and federal government struggle to find the answers in this new digital and advanced era.[2]

This requires us to adapt. That adaption does not always come easy, and is often met with skepticism and frustration. An example of this is with the Universal Law Commissions (“ULC”) attempt to create a new area of universal law surrounding cryptocurrency and blockchain technology.[3]


Various states have attempted this with limited success.[4] The question eventually becomes: are we trying to regulate before we are ready? When these new developing technologies come to fruition how can we be effective in our lawmaking capabilities if we do not know what that looks like just yet.

These are the questions that lawmakers struggle with in this area. To help with this issue the ULC is supposed to be the experts on the technology and what they are trying to accomplish. Unfortunately, that is not always the case. As we saw in 2019 the ULC brought forth legislation in various states with no state taking a bite at the apple. Their fears were the potential for a competitive disadvantage and being the first to take the leap.[5]

What the ULC failed to see was that the states were not clamoring for this regulation. What they were trying to do is feel out how this would impact their economies before making a big regulatory change. Wyoming, for example, has been at the forefront of blockchain and cryptocurrency regulation without the need to adopt a uniform law.[6]

When we jump to regulate, we often forget the purpose of why we regulate. That purpose is theoretically for protections for the public. If we fail to materialize any potential harm, then the regulation is all too often a means to stop innovation.

Innovation breeds a stronger economy and these advancements help us move forward to a healthier environment.

It is perfectly acceptable to not write a law without a need for that law. What we are doing is creating a solution for a problem that may not exist. And we are better off using our valuable and finite time to actually regulate where necessary.

[1] Elizabeth Penava, New Technology Will Raise New Legal Questions, The Regulatory Review Jan. 31, 2023), https://www.theregreview.org/2023/01/31/penava-new-technology-will-raise-new-legal-questions/.

[2] Daniel Malan, The law can’t keep up with new tech. Here’s how to close the gap, World Economic Forum (Jun. 21, 2018), https://www.weforum.org/agenda/2018/06/law-too-slow-for-new-tech-how-keep-up/.

[3] Regulation of Virtual-Currency Business Act, Uniform Law Commission (2017), https://www.uniformlaws.org/committees/community-home?CommunityKey=e104aaa8-c10f-45a7-a34a-0423c2106778.

[4] Pamela Michaels Fay, Cryptocurrency Regulation: The Evolving Landscape, The Lumin Lab, https://lumindigital.com/lumin-lab/cryptocurrency-regulation-the-evolving-landscape/.

[5] Letter in Opposition to SB 195 – Enacts the Uniform Regulation of Virtual-Currency Businesses Act and the Uniform Supplemental Commercial Law: Hearing Before the Sen. Comm. on the Judiciary, 2019 Leg., 80th Sess. (Nv. 2019) (statement of Elliot Malin, Nevada Technology Association) (https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=37874&fileDownloadName=SB%20195_Letter%20of%20Opposition_Elliot%20Malin.pdf).

[6] Elena Botella, Wyoming Wants to Be the Crypto Capital of the U.S., Slate (Jun. 28, 2021, 8:30 AM), https://slate.com/technology/2021/06/wyoming-cryptocurrency-laws.html.

New York Finds Robocalls Targeting Black Voters Fraudulent

By Victoria Collison

Jacob Wohl and Jack Burkman, through their business Burkman Associates, organized a targeted robocall campaign to spread false information to black voters during the 2020 presidential election.[1] Now, U.S. district Judge Victor Marrero held that the defendants committed fraud and violated several federal and state laws: the Voting Rights Act (VRA), the Ku Klux Klan (KKK) Act, the Civil Rights Act, and Sections 9 and 40-c of the NYCRL.[2]

New York is not the only state where these defendants’ faced charges. In October 2022, both defendants pled guilty to telecommunications fraud in Ohio.[3] The robocall reached voters in the following cities: Cleveland, Ohio; Minneapolis, Minnesota; Chicago, Illinois; Pittsburgh and Philadelphia, Pennsylvania; Detroit, Michigan; New York, New York; and Arlington, Virginia.[4]

When describing the call, plaintiffs used words such as distressing, traumatizing, and intimidating.[5] The robocall placed unfounded fear on voters who relied on the mail-in ballots. The robocall shared the following message:

Hi, this is Tamika Taylor from Project 1599, the civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records for mail-in voting to track people for mandatory vaccines. Don’t be finessed into giving your private information to the man, stay safe and beware of vote by mail.[6]

The allegations in the robocall were completely unfounded, even characterized as “making sh** up” by the defendants.[7] The state election law in New York prohibits using voter information for non-election purposes.[8] The defendants made it clear that their intention was to discourage black, democratic voters from participating in the election.

The 15th Amendment in the US Constitution grants Americans the right to vote, a quintessential piece of our system of democracy. Because of the COVID-19 pandemic, many Americans feared in-person voting in 2020. Mail-in voting was a reasonable alternative to safely exercise their voting rights. For the targeted victims of the robocall, the decision to utilize mail-in ballots was altered.

While technology makes it easier to reach a vast number of people, it poses a greater risk when dealing with fraudulent actors. This fraud was found to be repeated approximately 5,494 times as the robocall reached an equivalent number of voters in New York.[9] This case represents a victory for voting rights and our system of democracy. Now, the Court waits to hear the relief sought against defendants.

[1] Nat’l Coal. on Black Civic Participation v. Wohl, No. 20 Civ. 8668, 2023 U.S. Dist. LEXIS 39098, at 3-4 (N.Y. Dist. Ct. for the S.D. of N.Y. Mar. 8, 2023).

[2] Id. at 104.

[3] Id. at 15.

[4] Id. at 8.

[5] Id. at 11-12.

[6] Wohl, No. 20 Civ. 8668, 2023 U.S. Dist. LEXIS 39098, at 7-8.

[7] Id. at 5.

[8] Id. at 13.

[9] Id. at 88.

ChatGPT: Will lawyers be replaced by Artificial Intelligence?

By Nicole Cooper

Could artificial intelligence systems replace lawyers in the future? The short answer is no. However, the capabilities of these artificial intelligence (AI) systems are concerning. The most popular AI system in the world’s view right now is ChatGPT. ChatGPT is an AI chatbot system that OpenAI, a company in San Francisco, released in November 2022.[1] ChatGPT is a generative AI that allows users to enter written prompts and receive human-like text or images and videos generated by the AI.[2]  This system can produce human-like responses to just about any request or prompt from a user.[3]

One reason people are concerned ChatGPT could replace jobs is that it has passed a range of tests and exams, including law exams and portions of the bar exam.[4] Daniel Katz, a professor at Chicago Kent College of Law and Michael Bommarito, a professor at Michigan State University College of Law, tested OpenAI’s GPT3.5 model on the multistate multiple choice (MBE) section of the Bar exam.[5] Overall, it was correct 50.3% of the time as compared to regular test-takers, who get 68% of the questions right.

Recently, professors at the University of Minnesota Law School graded tests blindly. After completing 95 multiple-choice questions and 12 essay questions, the bot performed on average at the level of a C+ student, achieving a passing score.[6] Although this system is smart enough to pass complicated exams, its scores aren’t particularly high enough to show that it can perform better than a law student. It would be more concerning if the exam produced perfect scores.  

ChatGPT also has severe limitations. It cannot perform the complex tasks that lawyers do daily such as applying facts to the law, providing advice that is in the best interests of clients, interviewing witnesses, negotiating settlements, and much more. It also struggles to know what the user really wants from it as its answers to questions vary widely to how the prompts are phrased.[7] Its inability to perform interpersonal tasks will keep its potential advancements into the legal field limited to a research tool similar to Westlaw and LexisNexis.[8]

Lastly, I actually tested out ChatGPT myself and asked the AI a wide range of requests/questions. These prompts included a recipe for chocolate chip cookies, a poem about dogs, and lastly a question: can lawyers be replaced by ChatGPT? After typing out a great chocolate chip cookie recipe, and a heart-warming poem about dogs, the response to my last question was interesting as it came to the same conclusion that I did. ChatGPT states that “No, lawyers cannot be replaced by ChatGPT or any other AI language model. While AI technology has made significant strides in recent years, there are still many areas where human lawyers have critical advantage.”[9] I included the rest of the response in a screenshot below.

It is much appreciated that this AI does not think it will take over the legal field, however, lawyers should be careful if they choose to use this technology in practice. While it may be able to draft legal documents and conduct legal research faster than humanly possible, it can still make mistakes and provide misinformation. Even OpenAI stated on their website, “ChatGPT sometimes writes plausible-sounding but incorrect or nonsensical answers.”[10] If lawyers rely on AI to do the work for them, it will likely create a host of liabilities and malpractice concerns. 

[1] Ryan Browne, All you need to know about ChatGPT, the A.I. chatbot that’s got the world talking and tech giants clashing, cnbc (Feb. 98, 2023, 7:37 AM EST), https://www.cnbc.com/2023/02/08/what-is-chatgpt-viral-ai-chatbot-at-heart-of-microsoft-google-fight.html#:~:text=In%20its%20own%20description%2C%20ChatGPT,talk%20of%20the%20business%20world.

[2] Id.

[3] Id.

[4] Samantha Murphy Kelly, ChatGPT passes exams from law and business schools, cnn business (Jan. 26, 2023, 1:35 PM EST), https://www.cnn.com/2023/01/26/tech/chatgpt-passes-exams/index.html.

[5] Michael Bommarito & Daniel Katz, GPT Takes the Bar Exam, ssrn (Jan. 03, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4314839.

[6] Kelly, supra note 4.

[7] Jason Hennessey, How Law Firms Can Leverage ChatGPT To Get More Cases, the national law review (Jan. 17, 2023), https://www.natlawreview.com/article/how-law-firms-can-leverage-chatgpt-to-get-more-cases#:~:text=Recent%20adopters%20have%20been%20impressed,would%20typically%20be%20manual%20tasks.

[8] Eran Kahana, ChatGPT Is a Cool Trick, But AI Won’t Replace Lawyers, lexis+ (Feb. 07, 2023, 3:39 PM EST), https://plus.lexis.com/newsstand#/law360-pulse/article/1573178.

[9] ChatGPT, openai, https://chat.openai.com/chat (last visited Feb 23, 2023).

[10] ChatGPT: Optimizing Language Models for Dialogue, openai, https://openai.com/blog/chatgpt/ (last visited Feb. 23, 2023).

An Unbalanced Diet: Have Government Nutrition Guidelines Created a Health Crisis?

By Daniel Bonsangue

The US government has propagated nutritional guidelines since 1916.[1]  Only since 1980, however, have the Dietary Guidelines for Americans been the cornerstone of nutritional policies and programs in the United States.[2] These guidelines are taught to children in public schools, and to future doctors, nutritionists, and dieticians in professional schools.[3] Yet, according to the Nutrition Coalition, the health of Americans has declined sharply in that time.[4] 74% of adults are overweight or obese[5], including 18.5% of all U.S. kids.[6] 18.2 million adults have coronary artery disease, 45% of American adults (4% of adolescents) have hypertension, 11% of Americans have diabetes, 35% have prediabetes, and 17% of women have osteoporosis.[7]

There is no question that, by almost every metric, the health of Americans has declined, and that decline is correlated almost exactly with the USDA’s release of the first food pyramid and subsequent guides. Whether there is a causal link between the government guidance and the health crisis is another question. The USDA maintains that the nutritional guidelines are based on sound science, and the problem is that Americans simply do not follow them well enough for them to work. Other groups, notably the Nutrition Coalition, contend that Americans do follow them, and that the guidance is faulty.

Public Law 101-445, 7 United States Code 5341 requires the Secretary of Agriculture to publish a report entitled “Dietary Guidelines for Americans” every five years, containing nutritional and dietary information and guidelines for the general public.[8] The information and guidelines in the report must be based on the “preponderance of scientific and medical knowledge which is current at the time the report is prepared”.[9] In other words, the dietary guidance is, at least in theory, based off of what the majority of experts are saying at the time.

In the 2020-2025 Dietary Guidelines, the USDA outlines the ways in which Americans have failed to follow the guidelines that they have put out. Citing the National Health and Nutrition Examination Survey data from 2005/6 to 2015/16, the USDA found that adherence to the Dietary Guidelines only reached 56-60 out of 100 on the Average Total Healthy Eating Index in any given year.[10]

The government recommends that half of daily grain intake should be from whole grain, that only 15% of daily calorie intake should come from added sugars and saturated fats, and more specifically that a healthy diet should consist only 10% of added sugars.[11] However, while most American meet recommendations for total grain intakes, 98% fall below recommendations for whole grains, and 74% of Americans exceed limits for refined grains.[12] 20% of Americans’ intake of refined grains comes from snacks and sweets, such as crackers, pretzels, cakes, cookies, and other grain desserts.[13] 13% of Americans’ diet consists of added sugars.[14]

While the USDA points to evidence that their guidelines would be effective if only the American people followed them, groups like the Nutrition Coalition point to evidence that the guidelines are flawed. A study in a journal of the National Academy of Sciences found that U.S. guidelines cannot be guaranteed to reflect trustworthy advice for combating obesity, diabetes, or any other chronic disease.[15] The National Academy of Sciences issued seven recommendations for the USDA to implement in order to remedy some of the issues in their guidelines, among those being the lack of public disclosure of conflicts of interest on the dietary guidelines committee, but the USDA did not implement six of them.[16] A Cambridge University Press publication reported that 95% of the members on the dietary guidelines committee did in fact have conflicts of interest with the food or pharmaceutical industry, notably Kellogg, Abbott, Kraft, Mead Johnson, General Mills, Dannon, and the International Life Sciences.[17]

Of course, conflicts of interest on the guidelines committee don’t necessarily translate to faulty guidelines. However, among the problems found in the guidelines process, the National Academy of Sciences publication found that guidelines on dietary fat, saturated fat, and cholesterol were either no longer supported by science or were simply in error.[18] Various studies would tend to support this conclusion. A 2020 study found that people who reduced their saturated fat intake were just as likely to die from heart disease and other causes as those who ate more saturated fat.[19] Another study in 2021 found that total saturated fat intake has no effect on the risk of heart disease, however certain foods high in saturated fat may impact heart health differently than others.[20]

The dietary guidelines about fats are not insignificant, mainly because of the implications that they have on other food groups. Meat, dairy, and eggs provide much of the total fat and saturated fat in the US food supply.[21] Encouraging the public to eat less of these things means that they will necessarily replace them with something else in their diets and, while the guidelines might recommend more vegetables, it is not farfetched to conclude that people have instead replaced the fats in their diets with carbohydrates. If the newer studies about fats are true, then they have replaced something that wasn’t all that harmful to begin with something that might be.

It is important not to take the approach of simply finding studies that contradict what the guidelines say and using them to support the argument that the guidelines got it wrong. Nevertheless, certain trends would tend to suggest that it is the guidelines themselves, not the fact that people aren’t following them, that are the root cause of the rising rates of chronic diseases. While the USDA points to data suggesting that Americans are eating too many refined grains and saturated fats and not enough whole grains, other data suggests that, since 1980, consumption of fresh vegetables is up 20%, fresh fruits up 35%, grains are up 28% and vegetable oils (the recommended fats) are up 87%.[22] At the same time, consumption of whole milk is down 79%, eggs down 13%, animal fats down 28%, and Americans are consuming 9% less butter, all in accordance with the guidelines.[23]

Particular issue is taken with the USDA’s treatment of carbohydrates. Critics point out that the guidelines committee did not consider low-carbohydrate diets, despite growing evidence that curtailing the consumption of grains and sugars in favor of meat, dairy, and eggs could improve and eliminate some metabolic diseases, and despite the fact that 80% of comments during the comment period while the rules were being considered talked about low-carbohydrate diets.[24] In addition, carbohydrate restriction is currently the only whole-foods approach that can reverse a diagnosis of Type 2 Diabetes.[25] So, given that grain is still the largest food category recommended in the most updated graphic, and given that people have followed that recommendation, these critics suggest that the guidelines have contributed to the onset of many of the chronic conditions plaguing Americans, and that reluctance to change these guidelines is hindering potential solutions.

It’s not clear which came first, the chicken or the egg. It is possible that the USDA has been disseminating faulty nutritional guidelines which, when followed by Americans, have contributed to burgeoning levels of obesity and chronic diseases. It is also possible, however, that with the increasing availability of sugary and processed foods, Americans’ dietary habits worsened, and the dietary guidelines have attempted to reverse that trend with limited success.

It is also possible that both of those things are true. The guidelines advise limiting added sugars, which are also recommendations that critics of the guidelines point to. The battleground appears to be the role of fats, particular animal and saturated ones, and carbohydrates that aren’t added sugars. It probably wouldn’t hurt for the USDA to at least consider diets that reflect emerging research on those food groups.

For the time being, however, it’s important for Americans to both follow the advice of experts while also maintaining a healthy level of skepticism and keeping their eye out for promising new information about how to eat.  

[1] Food and Nutrition through the 21st Century, https://guides.lib.unc.edu/nutrition-history/government (last visited Jan. 31, 2023).

[2] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[3] Id.

[4] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[5] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[6] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[7] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[8] Establishment of Dietary Guidelines, 7 U.S.C. §5341 (2023).

[9] Id.

[10] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. https://www.dietaryguidelines.gov/.

[11] Id. at 37.

[12] Id. at 37.

[13] Id.

[14] Id.  

[15] Cheryl Achterberg, et al., An Analysis of the Recent US Dietary Guidelines Process in Light of its Federal Mandate and a National Academics Report, PNAS Nexus, 1, 1- 12 (2022).

[16] Id.

[17] Mélissa Mialon et al., Conflicts of Interest for Members of the U.S. 2020 Dietary Guidelines Advisory Committee, Public Health Nutrition, (2022).

[18] Cheryl Achterberg, et al., An Analysis of the Recent US Dietary Guidelines Process in Light of its Federal Mandate and a National Academics Report, PNAS Nexus, 1, 1- 12, (2022).

[19]  Lee Hooper, et al., Reduction in Saturated Fat Intake for Cardiovascular Disease, Cochrane Databased Systematic, National Institutes of Health, (2020).

[20] Marinka Steur, et al., Dietary fatty acids, Macronutrient Substitutions, Food Sources and Incidence of Coronary Heart Disease: Findings from the EPIC-CVD Case-Cohort Study Across Nine European countries. Trusted Source Journal of the American Heart Association, (2021).

[21] Marion Nestle, USDA’s Dietary Guidelines: Health Goals Meet Politics, (1992), https://www.foodpolitics.com/wp-content/uploads/DietaryGuidelines_CNI_92.pdf.

[22] Amanda Radke, Dietary Guidelines for Americans are a Failed Human Experiment: Radke Report, Farm Forum (August 3, 2022, 5:23 a.m.), https://www.farmforum.net/story/news/columnists/2022/08/03/federal-government-dietary-guidelines-failure/10212068002/.

[23] Id.

[24] Id.

[25] Id.

Copyright Confrontation: Rick Astley Will Not Give Up His Voice

By Harrison Gregoire

Rick Astley is a seminal British figure and a cultural icon. Through his music, Astley has provided an antidote to quotidian drudgery, has served as a bulwark against musical deprivation, and has protected against degradation in modern music. “Never Gonna Give You Up,” Astley’s signature song, is an eternal global anthem, enthralling and captivating audiences since the close of the 1980s. As described in the London periodical Time Out: “Those synthesized strings, that thumping boots-and-pants beat, Astley’s weirdly robust croon and his romantic-wooing-as-used-car-salesman pitch (‘You wouldn’t get this from any other guy’) … It all adds up to three-and-a-half of the most effervescent minutes in the ’80s canon.”[1] Doubtless, Mr. Astley’s significant contribution to the cultural zeitgeist has exposed him and his creative output to plenty of imitators. Now, Mr. Astley and the entire musical industry must confront a difficult copyright question.

In the song’s refrain, Astley unequivocally professes his loyalty and affection to the unnamed subject: “Never gonna give you up, never gonna let you down.”[2] Those words were especially prescient: in his newly filed copyright suit, he implores the court to “never give up” copyright protection of his golden pipes and family-oriented reputation.

The offending song “Betty (Get Money)” was released June 10, 2022, as the lead single of Minnesota rapper Yung Gravy’s third studio album, Marvelous. “Betty”,unfortunately, is a vacuous, ham-fisted, and insipid counterfeit of the brilliant “Never Gonna Give You Up”. Gravy’s “Betty”fails not for a lack of swagger, but for a lack of creativity. The writing team relied on the “immense popularity and goodwill of Mr. Astley,” such that itspredecessor and template would propel it to commercial success.[3]

Yung Gravy fugues between his own voice and his producer’s, Popnick, who recreated Astley’s original voice “from the ground up” to ensure nearly perfect imitation. Modern music production, through track editing and other vocal effects, empowered the Defendants to create a virtually indistinguishable copy of Mr. Astley’s “Never Gonna Give You Up.”  

One of Mr. Astley’s primary arguments is that the public was widely misled to believe that Mr. Astley sang or was directly sampled on “Betty (Get Money)”. Mr. Astley’s complaint cites prominent culture sites which wrote that it was Mr. Astley himself on the track, evidence that a substantial portion of the public was under the impression that Mr. Astley and Mr. Gravy had collaborated on the song.

The complaint concedes that Mr. Gravy obtained a license to use the “underlying musical composition” of “Never Gonna Give You Up”. Conversely, however, Mr. Gravy’s attempts to secure Mr. Astley’s voice on the track were fruitless. A license to interpolate the original underlying musical composition does not authorize use of the original artist’s voice. Mr. Astley’s permission would be the ultimate prize. Ever since the release of “Never Gonna Give You Up”, its stunning composition and unsurpassed feel-good factor have been the subject of global admiration. Why else would the producers need to imitate Mr. Astley indistinguishably, if not to co-opt that same nostalgia and comfort of the original? They had the rights to the underlying musical composition; this simply was not enough.

The main issue of the case will be the extent of copyright protection for an artist’s voice. Does Mr. Astley’s right to publicity extend to his voice? The court must decide whether Gravy’s vocal imitation rises to the level of commercial exploitation.[4]

Doubtless, an artist with Mr. Astley’s statute and reputation understands the influence of his music and the need to preserve his image. Mr. Astley made a lasting impact on the world of music. With influence come solicitations for collaboration, sampling, and featuring. It is the prerogative of Mr. Astley to protect his voice, image, and likeness. As an influential artist, he and his songs have garnered significant popularity and goodwill around the world. All this to say: Mr. Astley’s voice and reputation are tremendously valuable.

Likewise, Mr. Gravy has captured a global audience. His work often samples older songs: on his 2018 hit “Mr. Clean”, Mr. Gravy included The Chordettes’ “Mr. Sandman” as the primary melody of the song. His formula works: “Betty (Get Money)” has amassed over 181 million Spotify streams. “Mr. Clean” has 229 million streams.

Sampling is often beneficial for new artists and copyright holders alike: the sampling artist integrates the sample into a new song, repackaging the product for an unfamiliar audience. The work is exposed to a new audience, while a licensing agreement or a lump sum compensates the original artist or owner. The rights holder may or may not agree to the request.

Here, however, Mr. Gravy may have gone too far. Instead of respect for the song and the artist, lyrics like “Yeah, Rocking Rick, clapping Astleys like the 80s”[5] and a vocal imitation of Mr. Astley sounding like he sings “get money” are antithetical to the family values of the Brit-pop icon. Imitation, apparently, is not the sincerest form of flattery.

Both parties in this lawsuit have the individual notoriety and influence to create good precedent moving forward. The court should not “let us down” by allowing a counterfeit to appropriate a timeless singer’s voice and reputation.   

[1] Andrzej Lukowski, The 60 best ‘80s songs, Time Out (Aug. 9, 2022), https://www.timeout.com/music/the-50-best-80s-songs.

[2] Rick Astley, Never Gonna Give You Up (RCA 1987).

[3] Rob Arcand, Rick Astley Enlists “Blurred Lines” Lawyer to Sue Yung Gravy Over Vocal Impersonation, Pitchfork (Jan. 27, 2023), https://pitchfork.com/news/rick-astley-enlists-blurred-lines-lawyer-to-sue-yung-gravy-over-vocal-impersonation.

[4] Id.

[5] Yung Gravy, Betty (Get Money), YouTube (June 10, 2022), https://www.youtube.com/watch?v=8oE5Z2GLhNc.

It’s A Bird! It’s A Plane! It’s A…Spy Balloon? Are We Prepared For The Advancements In Aerial Surveillance Technology?

By Omnia Shedid

In January 2023, the U.S. Congress received a classified report detailing a country’s efforts to conduct aerial surveillance with “unknown cutting edge technology.”[1]  The technology included quadcopter drones, spy balloons, and other “aerial phenomena” designed to fly at high altitudes and gather sensitive information.[2] On February 2, 2023, U.S. government officials shared that a Chinese spy balloon was flying over the United States.[3] Flights were grounded, the meme-iverse went ablaze, and “balloongate” was trending on Twitter. Made of metal plates and containing gas and other chemicals, the Chinese spy balloon was spotted flying over Montana all the way to the Carolinas.[4] Although military officials said that the spy balloon was not capable of gathering more intelligence than was already being gathered by Chinese satellites, the balloon was shot down by U.S. fighter jets over the Atlantic Ocean.[5] The incident has fractured an already fragile diplomatic relationship between the United States and China, prompting Secretary of State Antony Blinken to cancel his visit to Beijing.[6] The visit would have been the first visit of a top U.S. diplomat since 2018.[7] In addition to the diplomatic ramifications caused by this incident, it has started many other conversations relating to the U.S.’s ability to anticipate and respond to other aerial surveillance threats. Are we prepared for the advancements in aerial surveillance technology?  

While a spy balloon undoubtedly poses a serious threat, the most significant aerial surveillance threat comes from unmanned aerial vehicles (UAVs). UAVs, also known as drones, have evolved into being faster, smarter, and much cheaper to make, positioning them to be the safest option for continued aerial surveillance. According to the U.S. Department of Homeland Security Cybersecurity and Infrastructure Security Agency Interagency Security Committee, the threat risks from UAVs can come from recreational users, intentional operators, or terrorist and paramilitary users.[8] Their wide availability to the average citizen as well as government entities makes their threat notable, as they are much more accessible to people or entities who intentionally want to gather information or cause harm. These aircrafts can also be used for electronic, cyber, and physical attacks. While the exact number of foreign aerial surveillance objects is unclear, more than three-dozen countries have armed drones capable of surveilling and attacking.[9] Some countries, including Russia, Turkey, and China, have increasingly begun to develop drones domestically, which makes it harder for other countries to anticipate one another’s advancements in drone technology.[10] More reliant and stealthy than a spy balloon turned weather machine, drones have adapted to transport chemical and explosive contraband, perform cyberattacks, and surveil much larger areas than ever before.[11] Their range, flight method, and ability to limit its detection are all areas of advancements that could make aerial surveillance much more accessible to foreign governments.[12]

In addition to threats associated with foreign aerial surveillance of the U.S. and its citizens, there has been tension among U.S. federal, state, local, and tribal governments on how to regulate aerial surveillance within the U.S. by government and non-government operators. The Federal Aviation Administration (FAA) predicted that more than 4.3 million unmanned aircraft systems were sold annually as of 2020.[13] The FAA also predicts that there will be 1.4 million drones being operated for recreational use and more than 800,000 commercial drones operated by businesses by 2024.[14] While the FAA attempts to integrate drones into national airspace, it will have to ensure that they are not used to infringe on the privacy of U.S. citizens and that the U.S. government has the capacity and equipment to detect and track threatening activity.[15] For example, in the aftermath of George Floyd’s murder and the protests against police brutality, law enforcement entities increased police reliance on artificial intelligence, facial recognition, and aerial surveillance.[16] In New York alone, a Freedom of Information Act request to the FAA revealed that there are 530 active drone registrations from 85 government entities.[17] This sparked conversations about regulations, or the lack thereof, surrounding aerial surveillance by U.S. and non-U.S. government entities. Among those debates, the FAA has continued to integrate procedures and protocols that curb surveillance drones, both within the U.S. and by foreign entities.

However, the legal and policy considerations around aerial surveillance, from jurisdiction questions to organizational capacity to fight security risks of such surveillance, are complex. In response, the FAA developed the UAV Integration Pilot Program (IPP) to help state, local, and tribal governments work with private-sector entities, such as drone operators and manufacturers, to develop safety guidelines and integration methods.[18] Because there is minimal legislative clarity and competing jurisdiction issues surrounding UAVs and private organizations, the National Telecommunications and Information Administration has developed a best practices document that could support private and commercial users.[19] Additionally, the Department of Homeland Security develops awareness and mitigation resources to be used by security personnel and federal government employees involved in non-military activities.[20] Policy researchers also recommend that Congress develop and pass legislation that limits the aggregate amount of time government drones may surveil as well as increase procedural protections surrounding data retention by drones, and transparency and accountability, among other measures.[21]

Whether it is operated by a foreign actor or a recreational user, it is clear that aerial surveillance technology will continue to advance, and so will its threat. In response, U.S. laws and policies should be modified to prepare for those threats.

[1] Julian E. Barnes and Edward Wong, Classified U.S. Report Highlights Foreign Power Aerial Spying With Advanced Tech, The New York Times (Feb. 4, 2023), https://www.nytimes.com/2023/02/04/us/politics/balloon-congress-surveillance-report.html.

[2] Id.

[3] Idrees Ali and Phil Stewart, Chinese spy balloon flies over the United States: Pentagon, Reuters (Feb. 1, 2023), https://www.reuters.com/world/suspected-chinese-spy-balloon-flying-over-united-states-us-officials-2023-02-02/.

[4] Juliette Kayyem, Why the U.S. Isn’t Shooting Down the Chinese Spy Balloon, The Atlantic (Feb. 3, 2023), https://www.theatlantic.com/ideas/archive/2023/02/why-the-us-isnt-shooting-down-the-chinese-spy-balloon/672945/.

[5] Zachary Cohen, Kevin Liptak, Oren Liebermann and Phil Mattingly, US fighter jets shoot down Chinese spy balloon off East Coast, CNN (Feb. 4, 2023), https://www.cnn.com/2023/02/04/politics/china-spy-balloon-us-latest/index.html.

[6] Barnes and Wong, supra note 1.

[7] Id.

[8] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), US Dep’t of Homeland Sec. Cybersec. And Infrastructure Sec. Agency Interagency Sec. Comm. (Nov. 2020), https://www.cisa.gov/sites/default/files/publications/Protecting%20Against%20the%20Threat%20of%20Unmanned%20Aircraft%20Systems%20November%202020_508c.pdf.

[9] Who Has What: Countries with Armed Drones, New America, https://www.newamerica.org/international-security/reports/world-drones/who-has-what-countries-developing-armed-drones.

[10] Id.

[11] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[12] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[13] FAA predicts small drone purchases to reach 4.3 million by 2020, Aerospace Tech. (Mar. 28, 2023), https://www.aerospace-technology.com/news/newsfaa-predicts-small-drone-purchase-to-reach-43-million-by-2020-4848780/.

[14] Drone Operations, US Gov’t Accountability Off., https://www.gao.gov/drone-operations (last visited Feb. 5, 2023).

[15] Richard M. Thompson II, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, Cong. Rep. Serv. (Apr. 3, 2013), https://sgp.fas.org/crs/natsec/R42701.pdf.  

[16] Steven Feldstein and David Wong, New Technologies, New Problems – Troubling Surveillance Trends in America, Just Sec. (Aug. 6, 2020), https://www.justsecurity.org/71837/new-technologies-new-problems-troubling-surveillance-trends-in-america/.

[17] PRYING EYES: GOVERNMENT DRONE DATA ACROSS NEW YORK STATE, NYACLU, https://www.nyclu.org/en/campaigns/prying-eyes-government-drone-data-across-new-york-state (last visited Feb. 5, 2023)

[18] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[19] Voluntary Best Practices for UAS Privacy, Transparency, and Accountability, Nat’l Telecomm. And Info. Admin., https://www.ntia.doc.gov/files/ntia/publications/voluntary_best_practices_for_uas_privacy_transparency_and_accountability_0.pdf. (last visited Feb. 5, 2023).

[20] PROTECTING AGAINST THE THREAT OF UNMANNED AIRCRAFT SYSTEMS (UAS), supra note 8.

[21] Gregory McNeal, Drones and aerial surveillance: Considerations for legislatures, Brookings (Nov. 2014), https://www.brookings.edu/research/drones-and-aerial-surveillance-considerations-for-legislatures/.

Are We in Good Hands: The Fight Against Techno-Racism

By Naamu Harvey

Wait, technology can perpetuate racism? Unfortunately, the answer is yes. The technology we use every day often perpetuates racism and this occurrence can go unnoticed by most. Most technology is designed, created, and tested in systems and institutions that have been marked by entrenched discrimination.[1] This new fight for racial equality in the tech world is called techno-racism[2] While this may be a new phenomenon, it has already snuck itself into some of the technology we encounter every day.[3]

Techno-racism describes a phenomenon in which the racism experienced by people of color is encoded in the technical systems used in our everyday lives.[4] The term developed in 2019, when a member of a Detroit civilian police commission used it to describe flawed facial recognition systems that confuse African American faces.[5] These new digital technologies can implicitly or explicitly exacerbate existing biases about race, ethnicity, and national origin.[6] In fact, even when developers and users do not intend for technology to discriminate, it often does so despite one’s intention.[7] Technology is not neutral or objective, it is fundamentally shaped by the racial, ethnic, gender and other inequalities prevalent in society, and typically makes these inequalities worse.[8]

So, you might be wondering where do we see techno-racism? Well, facial recognition systems, algorithms, photography and photo retouching apps, and targeted ads are all examples. Facial recognition is more than just the latest cool update on your new iPhone. It’s commonly used by law enforcement to identify and locate potential suspects.[9] However, this technology frequently misidentifies people of color—10 to 100 times more frequently than White Americans. [10] For example, a false facial recognition match sent a New Jersey man to jail for crimes he did not commit. Nijeer Parks, an African American, spent 11 days behind bars in 2019 after a facial recognition system mistakenly matched him with a fake ID left at a crime scene. The match was enough for prosecutors and a judge to sign off on a warrant for Parks’ arrest.[11] There are several other stories just like this one, these new technological devices are causing adverse effects in innocent people’s lives.

Another such tool is the mortgage algorithms used by online lenders to determine rates for loan applicants.[12] These algorithms continue to use flawed historical data from a period when African Americans could not own property.[13] In 2019, a study by UC Berkeley researchers found that mortgage algorithms show the same bias to African American and Hispanic borrowers as human loan officers.[14] These biases cost minority groups roughly half a billion dollars more in interest every year, compared to others.[15] African American content creators on the popular social media app, TikTok, too have complained about the racial bias they encounter with the app’s algorithm. Could this phenomenon be affecting other social media apps too?

New technology continues to be developed and enhanced as our society progresses. But how can we combat techno-racism before it takes over? Well, one way is to hire and train more diverse tech professionals. Welcoming more diverse voices in tech, will aid in the process of uncovering discrete biases.[16] That means thinking critically about the ways racial bias can affect our content, committing to anti-racism work, asking hard questions, and dedicating ourselves to amplifying the voices of minority creators and designers.[17] In 2019, federal lawmakers introduced the Algorithmic Accountability Act, which requires companies to review and fix computer algorithms that lead to inaccurate, unfair or discriminatory decisions.[18] The act is still in the works and has yet to be passed. With the growing age of technology, the legal ramifications of techno-racism may become a bigger issue sooner rather than later. But, if we combat the problem now, we can protect people from this new form of inequality.

[1] Olga Akselrod, How Artificial Intelligence Can Deepen Racial and Economic Inequalities, Aclu (July 13, 2021), https://www.aclu.org/news/privacy-technology/how-artificial-intelligence-can-deepen-racial-and-economic-inequities.

[2] Faith Karimi, People of color have a new enemy: techno-racism, Cnn (May 9, 2021, 8:21 AM), https://www.cnn.com/2021/05/09/us/techno-racism-explainer-trnd/index.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Karimi, supra note 2.

[8] Id.

[9] 4 Examples of Racism in Technology and What We Can Do About It, Tgw Studio (Aug 5, 2021), https://tgwstudio.com/4-examples-of-racism-in-technology-and-what-we-can-do-about-it/.

[10] Id.

[11] Karimi, supra note 2.

[12] Id.

[13] Id.  

[14] Id.  

[15] Id.

[16] See Tgw Studio, supra note 9.

[17] Id.

[18] Id.