Scholars have associated artificial intelligence (“AI”) with many words over the years: overhyped, underdeveloped, and even science fiction. But COVID-19 demonstrates that despite the skepticism and hysteria there is a place for AI in society, even if that space is still legally undefined. Since AI inventorship is not suitably addressed in U.S. patent law, the advancement of AI presents practical and conceptual challenges for the aging patent system.

AI refers to the simulation of human intelligence performed on machines that can imitate cognition and evaluate autonomously. Expertise in pattern recognition has rendered AI incredibly useful, proving to be a more‐​than‐​competent companion in the study of COVID-19 diagnosis, treatment, and projections. Last month, the startup BenevolentAI made headlines when its AI system identified the rheumatoid arthritis medication, baricitinib, as a potential COVID-19 treatment. Baricitinib is currently in COVID-19 clinical testing.

The application of burgeoning AI technology in unprecedented times shows us how valuable it is. Yet as we reap greater benefits from AI during the COVID-19 pandemic, the persistent quandary over definitions, rights, and protections remains. Upon reaching the other side of this health crisis, we will know that AI had a role in getting us there— but lawmakers and regulators will still not know how to effectively protect and incentivize AI innovations.

The Intelligence Community’s annual Statistical Transparency Report was released earlier this month, and there’s a significant piece of news buried in a footnote: On at least six occasions in 2018 and once in 2019, the government unlawfully reviewed wiretapped communications from a foreign intelligence database while pursuing ordinary criminal investigations unrelated to national security—something the previous year’s report claimed had never happened. The disclosure validates civil libertarian concerns about so‐​called “backdoor searches”: The use of broad foreign intelligence authorities nominally aimed at non‐​Americans outside the country to monitor Americans’ communications, circumventing the normal constitutional warrant process.

First, some context. Section 702 of the Foreign Intelligence Surveillance Act, which Congress created in 2008, permits the National Security Agency to obtain sweeping general warrants from the secretive FISA Court, under which they may intercept the communications of non-U.S. persons who are outside the country without individualized authorization. This effectively codified an extralegal wiretapping program secretly approved by President George W. Bush shortly after the 9/11 terror attacks in 2001. Traditionally, when intelligence agencies conducted wiretaps inside the United States, they needed a particularized warrant naming a specific target as long as one end of the communication was American. But §702 loosened the rules: Now instead of individualized warrants, the government asks the FISA Court to sign off on general “targeting procedures” used to select foreign targets located abroad. The communications of those targets can then be intercepted as they pass through American networks, including their communications with American citizens protected by the Fourth Amendment.

From the outset, civil libertarians have been worried that such an authority would inevitably vacuum up enormous quantities of Americans’ communications, even if wiretap “targets” were foreign. The incredible scale of collection virtually guarantees that’s the case: Last year the number of foreign §702 targets rose to an astonishing 204,968 (up from 164,770 in 2018). This massive cache of intercepts creates a tempting means of bypassing the ordinary warrant process for criminal investigations: Simply search for a U.S. person’s e‐​mail address, phone number, or other identifier in the §702 database.

Backdoor searches are quite common. We know that agencies other than FBI (which in effect means NSA and CIA) searched the database for U.S. person identifiers and reviewed intercepted contents as a result 9,126 times last year. FBI doesn’t count how frequently they query the database, but they’re now required to obtain a court order before actually reviewing U.S. person communications for criminal investigative purposes unrelated to national security. Until this most recent report, the government claimed that this had never happened. But the 2020 report discloses a number of recently discovered instances in which they did just that: One in 2016 (before the warrant requirement was added), six in 2018, and one in 2019—that we know of, at least. 

While it’s good these instances were belatedly detected, this disclosure underscores the problem of giving FBI, which has dual law enforcement and intelligence responsibilities, such poorly monitored access to the fruits of §702’s general warrants. Unlike other agencies, FBI is not required to report how often they query the §702 database for U.S. person identifiers—though by their own admission, they do so far more often than their peers. 

Congress should conduct vigorous oversight over how these unlawful searches occurred—and remove the exemption that spares FBI from having to tally their searches for Americans in this enormous database. The loophole exists because FBI says their systems aren’t designed to track the necessary information… a design choice that makes compliance problems like the ones newly disclosed more likely, and harder to catch when they occur. 

We’ve long complained about E-Verify’s failures. It fails miserably as a system designed to exclude illegal immigrant workers from employment. It is also error‐​prone, affecting some native‐​born Americans but mostly flagging legal immigrant workers as illegal immigrants. Correcting those errors can take weeks if all of the bureaucratic steps are followed. It’s no surprise, then, that E‐​Verify especially excludes workers on Temporary Protected Status (TPS) from working. Despite being authorized to work legally in the United States, TPS migrants are disproportionately flagged as ineligible to work by E‐​Verify. This is further evidence that E‐​Verify is a dangerously flawed system that should be repealed.

Background

E‐​Verify is an electronic government system that is supposed to stop employers from hiring illegal immigrant workers and thus reduce the main benefit of coming to the United States in the first place: high wages. E‐​Verify is supposed to work this way: Employers enroll in E‐​Verify and when they hire somebody, the employer is supposed to run that person’s identity information through E‐​Verify to confirm that he or she is legally eligible to work in the United States.

Most legal workers are instantly approved to work while some workers, mostly those who are illegal workers, are flagged with a tentative non‐​confirmation (TNC). The worker and the employer then have a certain amount of time in which to resolve the TNC by fixing errors entered into the E‐​Verify portal, providing other forms of identification, or pointing out errors in government databases that produce a mismatch. If they can resolve the TNCs, the worker can remain employed. If they can’t, E‐​Verify issues a final non‐​confirmation (FNC) and the worker must be fired.

How E‐​Verify Affects Workers on Temporary Protected Status (TPS)

E‐​Verify interacts with migrants on Temporary Protected Status (TPS) in a particularly pernicious way. TPS is a status for migrants in the United States who can’t return to their home countries due to an ongoing armed conflict, an environmental disaster, or other extraordinary and temporary problem. TPS migrants are not removable from the United States, are granted employment authorization documents, and may be granted travel authorization. There are approximately 411,000 migrants on TPS from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. TPS status will expire for many migrants in the coming years due to decisions by the Trump administration.

According to a recent USCIS data release in response to a FOIA, E‐​Verify was run 17,909 times against TPS migrants by employers in the 4^th quarter of fiscal year 2019. Of those 17,909 E‐​Verify queries run against TPS migrants, E‐​Verify approved 16,299 of them to work and issued 1,610 with a TNC. In other words, about 9 percent of the E‐​Verify cases run against those on TPS in the 4^th quarter of 2019 were mistakenly labeled at TNCs.

E‐​Verify later rescinded the TNCs in 323 (20 percent) of the E‐​Verify cases against TPS migrants, thus allowing them to work. About 9 percent of the legal TPS migrant workers were initially flagged by E‐​Verify as illegal and only 20 percent of those initially flagged were eventually allowed to legally work. About 71 percent were not resolved because the worker didn’t challenge the TNC or, more likely, the employer didn’t inform the worker of a problem. E‐​Verify incentivizes employers to pre‐​screen applicants by running them through E‐​Verify before hiring them, in contravention of the law, so many TPS workers hit with TNCs will never have a chance to resolve them.

During the 4^th quarter of fiscal year 2019, there were 9,824,265 E‐​Verify cases with only 176,837 flagged as TNCs. That 1.8 percent TNC rate for all E‐​Verify queries is about one‐​fifth as high as the rate of E‐​Verify queries coming back as TNCs for TPS migrants run through E‐​Verify. Of all E‐​Verify queries in the 4^th quarter of fiscal year 2019, 13.5 percent of erroneous TNCs were later approved for work. E‐​Verify queries run on TPS migrant workers resulted in an erroneous TNC rate 48 percent higher than the nationwide erroneous TNC rate. TPS migrants are about 0.13 percent of the U.S. population but they accounted for 0.9 percent of all TNCs and about 14 percent of all resolved TNCs – far in excess of their share of the population.

TPS migrants were about 7.3 times as likely to be hit with a TNC than we’d expect if E‐​Verify errors were distributed randomly. TPS migrants were about 10.8 times as likely to have their erroneous TNC corrected as the rest of the population run through E‐​Verify. If 100 percent of the TPS migrants had their erroneous TNCs corrected, they would account for 6.7 percent of all corrected TNCs that resulted in the worker being hired, which is a rate of correction that would be 54 times greater than what we’d expect if E-Verify’s errors were distributed randomly.

TPS migrants were more likely to be run through E‐​Verify than their share of the U.S. population would suggest. They account for about 0.13 percent of the population but 0.18 percent of all E‐​Verify queries in the 4^th quarter of fiscal year 2019. Even taking that into account, TPS migrants are still more likely to be granted false TNCs. No matter how you slice the numbers, even correcting for their elevated share of E‐​Verify queries, TPS holders disproportionately bear the costs of the error‐​prone E‐​Verify system.

The results for the 4^th quarter of 2019 are not an anomaly. During the entire time covered by the USCIS data from January 2016 through January 21, 2020, there were 191,990 E‐​Verify queries run against TPS migrants. Of those, 11,610 or 6 percent, came back as TNCs. Of the 11,610 TNCs, 17.1 percent were later approved for work. About 83 percent of TNCs against legal worker authorized TPS holders were not corrected during that time.

During the Obama administration, from January 2016 through December of that year, 1.95 percent of E‐​Verify queries against TPS workers resulted in a TNC and 15.8 percent of them were erroneous. During the Trump administration, from January 2017 through late January 2020, 7 percent of E‐​Verify queries against TPS workers resulted in a TNC and 17.1 percent of them were erroneous. Although the rate of confirmed erroneous TNCs was similar under both administrations, the initial TNC rate was more than three times higher under the Trump administration than under the last year of the Obama administration. Furthermore, the average monthly number of TNCs issued to TPS migrants increased from 59 during the last year of the Obama administration to 301 during the Trump administration.

E‐​Verify has been updated at least twice in ways that may have affected the issuance of TNCs for TPS workers. The first was in May 2018, right after a spike in the number of TNCs delivered against TPS migrants, and it guaranteed that E‐​Verify queries were run simultaneously against the Department of Homeland Security and the Social Security Administration databases. A second update in December 2019 automated the resolution of more TPS cases at the initial step, thus reducing the need to perform additional verification for cases involving TPS beneficiaries. It’s too soon to see if this later update has had any effect.

Conclusion

We’ve long known that E‐​Verify is an error‐​prone program that unintentionally denies legal immigrants the ability to work legally, but now we know that TPS workers are at even greater risk of being erroneously targeted by this program. At a very minimum, E‐​Verify errors like these should be minimized before the system is adopted by other states and localities. This is another reason to oppose E‐​Verify.

If you are a Baltimore resident there is a chance that over the next few months you will notice a small airplane circling above. Once you learn that it is a surveillance plane used to aid Baltimore police you might wonder how such persistent and warrantless surveillance is constitutional. After all, the Fourth Amendment of the Bill of Rights protects us from “unreasonable” searches and seizures. What could be more unreasonable that the warrantless use of an eye in the sky to snoop on hundreds of thousands of law abiding residents? The recent ruling from a Maryland district court allowing such surveillance helps highlight the sorry state of Fourth Amendment jurisprudence, which is of especially pronounced concern at a time when aerial surveillance – both manned and unmanned – is becoming increasingly intrusive.

Persistent aerial surveillance over Baltimore is not new. A few years ago, the unambiguously named company Persistent Surveillance Systems (PSS) began flying its technology over Baltimore. It has also conducted flights over Dayton, Ohio; Compton, California; and Philadelphia, Pennsylvania. PSS uses technology originally used in Iraq, part of a regrettable trend of military gear making its way from foreign war zones to American police departments. The cameras used by PSS allow analysts to access what PSS founder Ross McNutt describes as “Google Earth with TiVo” over an area of about 32 square miles. Analysts can track people and cars, identifying where suspects travelled before and after alleged crimes.

News that Baltimore police had been using PSS technology without key Baltimore officials (including the mayor and city council members) being informed caused uproar. Nonetheless, police in Baltimore are keen on using the technology, which is being bankrolled by non‐​profit run by the billionaire couple Laura and John Arnold. During the pilot PSS technology will be integrated with Baltimore police ground‐​level cameras and gun shot detection tools.

In a bid to halt the surveillance, the grassroots organization Leaders of a Beautiful Struggle and a couple of activists argued that the use of warrantless aerial surveillance technology violated the First and Fourth Amendments of the U.S. Constitution. U.S. District Judge Richard Bennett denial of their motion outlines a number of issues with current Fourth Amendment jurisprudence while also showing that the most recent prominent Fourth Amendment case decided by the Supreme Court is not as helpful as many civil libertarians had hoped.

Judges base their decisions on what constitutes a Fourth Amendment search by considering whether government action violated a “reasonable expectation of privacy.” The two‐​pronged reasonable expectation of privacy test, which Justice Harlan codified in his solo concurrence in the 1967 case Katz. v. United States, requires judges to consider whether government action 1) violated a subjective expectation of privacy, and if so 2) whether such a expectation is one society as a whole is prepared to accept as reasonable. If government action satisfies the reasonable expectation of privacy test it is a Fourth Amendment “search.”

Judge Bennett correctly notes in his opinion that the Supreme Court held in three cases in the 1980s (Dow Chemical Co. v. United States, California v. Ciraolo, and Florida v. Riley) that the warrantless surveillance of property from the air does not constitute a Fourth Amendment search. According to the Supreme Court, you do not have a reasonable expectation of privacy in the content of your private property observed from the air.

Indeed, the Baltimore Police Department’s memorandum on the constitutionality of PSS surveillance correctly noted Supreme Court precedent:

“Here, like in Ciraolo, Dow Chemical, and Riley, the photographs taken from a manned aircraft flying within publicly navigable airspace do not constitute a search, and do not run afoul of the Constitution.”

Judge Bennett goes on to discuss Carpenter v. United States (2018), the most significant Fourth Amendment Supreme Court decision in recent years. In Carpenter, the Supreme Court held that the warrantless use of cell‐​site location information (CSLI) to track a suspect for seven days violated the Fourth Amendment. The holding in Carpenter is a narrow one, with the majority written by Chief Justice Roberts noting: “This decision is narrow. It does not express a view on matters not before the Court; does not disturb [the Third Party Doctrine] or call into question conventional surveillance techniques and tools, such as security cameras.”

Although a major case, it’s clear that Carpenter is not a case that privacy activists should rely on when it comes to challenging all persistent surveillance tools. Judge Bennett correctly writes in his opinion that the Supreme Court’s narrow holding in Carpenter does not implicate PSS surveillance.

That the Supreme Court has not reassessed its 1980s aerial surveillance cases does not mean that warrantless and persistent aerial surveillance cannot be stopped. A number of states have taken steps to implement warrant requirements for drone surveillance, and there is no reason why Maryland lawmakers could not take steps to impose limits on manned and unmanned persistent aerial surveillance.

Flights paths like those below, which show recent PSS surveillance flights, should send chills down the spine of anyone who values civil liberties. It is not good enough for PSS defenders to argue that only wrongdoers need be worried. This kind of surveillance risks stifling valuable and legal activities such as protests and religious gatherings. It would not be unreasonable for many Baltimore residents to second‐​guess attending a protest if they know a PSS plane may be flying overhead. Members of some religious communities could also be forgiven for similar hesitance.

Aerial surveillance tools are becoming increasingly powerful. PSS cameras may not be able to identify individuals, who show up as blurs in PSS images, but we know that more powerful aerial surveillance cameras exist. It is true that the most intrusive of these cameras have been used by the military abroad, but we should be prepared for local police to deploy such technology as it becomes cheaper. Customs and Border Protection already uses drones originally designed for military missions, and we know that police departments across the country have demonstrated an unrestrained enthusiasm for using military equipment at home.

Until the Supreme Court reconsiders aerial surveillance it’s up to lawmakers to consider restrictions on persistent aerial surveillance. Unfortunately, too many lawmakers seem content with police using technology originally deployed in foreign wars.

A pandemic is no time for bad governance. As the COVID-19 crisis intensified, bureaucrats and elected officials slumbered. Government regulations prevented many in the private sector from helping with response efforts. The result was a sudden surge of evasive entrepreneurialism and technological civil disobedience. With institutions and policies collapsing around them, many people took advantage of cutting‐​edge technological capabilities to evade public policies that were preventing practical solutions from emerging.

Evasive Entrepreneurs and the Future of Governance: How Innovation Improves Economies and Governments

This book makes the case for embracing “evasive entrepreneurs” and the freedom to be innovative because of the many benefits that individuals, society, and even governments derive from acts of technological creativity.

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Examples were everywhere. Distilleries started producing hand sanitizers to address shortages while average folks began sharing do‐​it‐​yourself sanitizer recipes online. The Food and Drug Administration (FDA) looked to modify hand sanitizer guidelines quickly to allow for it, but few really cared because those rules weren’t going to stop them. Gray markets in face masks, medical face shields, and respirators developed. Some people and organizations worked together to make medical devices using off‐​the‐​shelf hardware and open source software. More simply, others just fired up sewing machines to make masks—and then, faced with an emerging public health consensus, the guidance from the federal government shifted dramatically: where formerly ordinary people were instructed not to buy or use masks, within a matter of days, the policy reversed, and all were encouraged to make and use cloth protective masks.

Meanwhile, doctors and nurses started “writing the playbook for treating coronavirus patients on the fly” by improvising treatments and then sharing them on social media. A few doctors even converted breathing machines to ventilators themselves using 3-D printed parts to address shortages for their patients even though the FDA had not yet authorized it.

Social media sites were also suddenly filled with discussions about how average people might come together to build tools or share information to assist with virus testing or treatments. A 17‐​year‐​old used his coding skills to build one of the most popular coronavirus‐​tracking websites in the world (ncov2019.live) after noticing how hard it was to use government sites. And two high school science teachers in Tennessee set up testing operations in their school lab to help reduce testing time in their area.

National crises often illuminate bad government policy. The COVID-19 outbreak has done so for all sorts of policies, from strict regulations on new medical tests, to restrictive medical licensing, to trade barriers, to limits on freight transport.

But crises also demonstrate good policy, and such is the case for the 2017 Federal Communications Commission decision to do away with “net neutrality” regulation of the internet. Under net neutrality, which had been imposed by the FCC two years earlier, internet service providers were required to give equal treatment to all data traveling across their network, even if some data were especially burdensome. Economists argued that this dampened the financial incentive for ISPs to invest in their networks and contract with third‐​party internet firms to provide additional resources. The FCC, under then‐​new chairman Ajit Pai, accepted that reasoning and changed course.

The FCC took a lot of heat for that (and Pai’s children were even accosted). The decision took away people’s privacy rights. The telecom industry was the big winner and everyone else was the loser. The internet and innovation itself were being killed. Or so the critics said.

But then the new FCC decision went into effect in 2018 and … nothing bad happened.

Now, two years later, we’re benefiting from that policy change. In today’s Wall Street Journal, Penn law professor and telecom expert Christopher Yoo contrasts the effects of European internet regulation, which is akin to net neutrality, to U.S. regulation:

The U.S. and EU have seen dramatically different investment and utilization. Between 2010 and 2016, American providers invested on average annually 2.35 times as much per household as their European counterparts. This allowed the average U.S. household to consume more than three times as much data as the average European household in 2017, according to Cisco. This is a significant jump over the 44% difference between U.S. and Europe that existed a decade ago. Emphasizing investments in infrastructure allows consumers to realize more of the benefits that the internet can provide.

That investment is paying dividends now that Americans are sheltered‐​in‐​place because of the COVID-19 pandemic. People are finding ways to socialize over the internet, using such tools as FaceTime and Zoom. They are ordering groceries and other deliveries. They are keeping entertained with e‐​books and video streaming services, while artists provide at‐​home concerts and other entertainment. And many people are still earning a living and contributing to the economy by telecommuting.

Yoo concludes:

Network investment has allowed the U.S. to enjoy greater usage levels and higher capital spending than Europe over the past decade. This was a strong endorsement of U.S. policy even before the novel coronavirus rearranged patterns of bandwidth consumption around the world. That U.S. producers have responded to the recent surge in demand without having to throttle high‐​quality applications provides the most eloquent demonstration of the wisdom of that approach.

Readers of Cato’s policy journal Regulation will recognize Yoo’s name: he has written a couple of articles on net neutrality for us in recent years. Several other authors have done so as well. For a summary of those articles, click here. For other Cato work on net neutrality, click here.

Deadly misinformation spread across social media long before COVID-19 emerged, but amid the ongoing pandemic attempts to tackle such content are once again in the limelight. These efforts provide an opportunity for classical liberals to emphasize the importance of freedom of association and to prepare for discussions about how private institutions handle misinformation amid a crisis.

Too often we think of the freedom of speech to be a freedom that protects speakers from government censorship. And while the freedom to speak is a necessary condition for a functioning liberal society it’s not the only freedom implicated in what people refer to as “the freedom of speech.” The freedom of speech also entails a freedom for publishers and platforms to associate with whomever they want. That The Wall Street Journal is free to reject an op‐​ed submission written by the leader of the American Nazi Party is as important a freedom as the freedom of the leader of the American Nazi Party to write the op‐​ed in the first place.

The Internet has prompted a revolution unlike anything seen since the invention of the moveable type printing press. Billions of people are able to not only express themselves but form communities of like‐​minded people across national boundaries. Fortunately, the widespread availability of venues for online speech has not been accompanied by obligations on the part of Internet companies to host speech they find repellent or dangerous. The online site Medium, for example, removed a controversial essay by Aaron Ginn apparently because they did not wish to be associated with it. In the U.S., Internet companies are shielded from liability for actions associated with removing content.

The freedom of private companies to disassociate from speech that they consider harmful is especially important during the current crisis. Social media companies have implemented a variety of policies aimed at dealing with COVID-19 misinformation. Twitter has expanded its definition of “harm” to include content that is contrary to health information provided by global and local authorities. Facebook established its COVID-19 Information Center and committed to removing content that could “contribute to imminent physical harm.” Twitter and Facebook joined Google, Youtube, Reddit, Microsoft, and LinkedIn to issue a statement on COVID-19 misinformation, stating that they are “combating fraud and misinformation about the virus, elevating authoritative content on our platforms, and sharing critical updates in coordination with government healthcare agencies around the world.”

These policies have affected heads of states, publications, and individuals. Facebook and Twitter removed videos of Brazilian President Jair Bolsonaro falsely claiming that the anti‐​malaria drug hydroxychloroquine was an effective remedy. Twitter also removed a tweet posted by Venezuelan President Nicolas Maduro that claimed a homemade brew could be effective against the coronavirus.

In the U.S publications and pundits have seen their content removed. The Federalist published an article calling for intentional infection gatherings akin to “chickenpox parties.” Twitter locked The Federalist’s account in response. President Trump’s personal attorney Rudy Giuliani, like President Bolsonaro, supported the hydroxychloroquine remedy in a tweet quoting a young conservative activist. Twitter removed the tweet. Conservative pundit Laura Ingraham had to remove a similar tweet in order to avoid her Twitter account being suspended.

Social media companies are not the only Internet‐​based firms attempting to stop the spread of dangerous information hurting customers. Amazon is attempting to remove scams associated with the ongoing pandemic, removing more than one million products so far.

Social media companies are often relying on other organizations such as government agencies or the World Health Organization as proxies for content moderation and fact‐​checking. While there are certainly advantages to such an approach, it is not without risks, as my colleague Will Duffield has explained.

Popular Internet companies ought to be free to take steps to tackle COVID-19 misinformation. The spread of bogus claims about cures can result in death. But at a time when official organizations have reversed recommendations on the wearing of face masks we should prepare for a breakdown of these organizations’ reputations to affect the perceived legitimacy of Internet companies’ content moderation decisions. Amid misguided calls to breakup so‐​called “Big Tech” and to amend the law that allows for social media companies to moderate content without fear of liability we should be especially wary of such an outcome.

Special thanks to Cato Institute intern Stephanie Reed and Cato Institute Research Associate Rachel Chiu for their research for this post.