Three key trends in Defense and IT in the coming five years

On 28 February 2020, I made a presentation during a videoconference held in Malta. 

The conference was about security trends related to developments in ICTs (such as cloud computing, data mining, etc.) and the fundamental breakthroughs in Artificial Intelligence (Deep Learning). 

Many US Defense technologies of the past three decades spread throughout modern society (Internet, GPS, self-driving cars, etc.). We extrapolated these kinds of developments in the future. 

We have used open/free documentary resources (DARPA's programs, white papers on US military strategy, public initiatives concerning US defense, etc.).

This presentation can be seen  at https://www.researchgate.net/publication/340076687_Three_key_trends_in_Defense_and_IT_in_the_coming_five_years

It adds and updates the analysis in my paper of 2016 about  "Autonomy of Military Robots- Assessing the Technical and Legal ('Jus in Bello') thresholds."

The right to privacy and right to personal data and their connection to the Gonzales case

In a recent article (visible at https://ssrn.com/abstract=3235087), I explored the right to privacy and the right to personal data and their connection to the Gonzales case of the EU. 

Protection of the right to privacy concerning publications has a centenary history in Europe at both the national and supranational levels. 

However, protections of personal data about digital processing are different. Few national constitutions or international instruments recognize the right to protection of personal data, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, for example, the EU Data Protection Directive and Article 8 of the EU Charter of Fundamental Rights. 

In my article, I explored these two approaches of protection followed by an exam of their articulation in the reasoning of the European Union Court of Justice on the famous Gonzales case-a decision implementing a “right to be forgotten on Internet” as a right of de-listing a link from a search engine provider.

Revival of Rabel’s trans-national characterization for rules of conflict?

In discussion with an old friend, he mentioned Contracts as being (to Law) the equivalent of Newton Mechanics (to Physics). That made me wonder about the legal branch that would be the equivalent of Quantum Mechanics.
The best answer would be the International Private Law, and more exactly the part in relation to Conflict of Laws-one of the most complex and theoretical elaborated legal fields.

I became interested in it and noticed the problem of characterization. Later on, I discovered Ernst Rabel, a German scholar, who formulated, 80 years ago, a program to use comparison in trans-national (autonomous) characterization. Nothing was achieved from his ambitious approach in a world where national judges' practice was still dominated by characterization according to ‘lex fori’. 

However, concerning the Convention of Brussels I, about conflicts of jurisdiction in Europe, relatively recent evolution has reactivated Rabel's program, although within a different, international setting.

I dedicated a paper to this topic, which is visible at SSRN: https://ssrn.com/abstract=2880746.

My research explores the significance and articulations of Rabel's original program in the first historical part.

The second part focuses on the comparison used for trans-national/autonomous characterization of the Convention of Brussels 1 by the European Court of Justice. Based on significant decisions within a 40 years period, the analysis uncovers the reasons, the features, and the limits of such a powerful interpretative instrument.

Eventually, this instrument might be used outside of international settings to interpret more recent EU Regulations (such as Brussels1, Brussels 2, Brussels 3, or Rome 1, Rome 2, and Rome3).

Podcast of a presentation for "Autonomy of military robots..." made on the last September, in Seoul

The conference, International Symposium on Security and Military Law, with regular sessions during each year, was held in Seoul from September 16 to September 18, 2015.

The audio quality of the recording is far from perfect. However, this is my first try...

For a final version of the article which accompanies the presentation, please refer to http://ssrn.com/abstract=2602160.

Any remarks are more than welcome.

Autonomy of military robots: assessing the technical and legal ('Jus in Bello') thresholds...Hints of a recent article...

Two broad issues are becoming essential for our 'hyper-technological' societies.

The first relates to the cyber world, with its 'dark side' of menaces, like cyber hacking, cyber terrorism, or even cyber warfare. The second refers to robots. 

However, in the case of robots, the 'dark side' is still in the realm of nightmarish visions in blockbuster movies like Terminator 1, 2, 3...In fact, robots have failed to come into being, at least until now, in our daily life.

While everyone experienced, at least once in a while, cyber hazards like spamming, very few people, except proud owners of Roomba vacuum cleaner, had any close encounters with robots. And a 'dark side' concerning Roomba seems quite challenging to find...

Even though robots are spreading on battlefields, but only as remote-controlled platforms, with no real autonomy. Apparently, the 'missing' autonomy explains the absence of robots from our world. 

Hence the reason for my article about the Autonomy of military robots: assessing the technical and legal ('Jus in Bello') thresholds,  visible at  http://ssrn.com/abstract=2602160.

It starts by examining the autonomy/ automation divide and the degrees of autonomy in robots on the pathway of metrics developed by the US Department of Defense.

These metrics are used to assess the autonomy in 'state of the art' robots, such as Google’s self-driving car or other DARPA projects. 

Based on public sources, one can get a picture of the functioning, the general architecture, and, most of all, the limits of today's robots. These systems are almost 'blind' because they lack a deep 'perceptive intelligence.' This situation allows reliable predictions of future performances for autonomous military robots during navigation, reconnaissance, or kinetic attacks (lethal missions). 

This analysis was pursued even further. If robots become truly autonomous for lethal missions on the battlefields, they must also 'obey' the rules of Humanitarian Law (Rules of ‘jus in Bello’/ Rules of engagement) and act as 'artificial moral agents.' 

The required moral or legal evaluations belong to higher cognitive/emotional processes (specifically human) than those needed for 'perceptive intelligence.' Given the technical limitations in implementing the relatively simple tasks of autonomous navigation, reconnaissance, or kinetic attacks, one can reasonably assess the much more severe difficulties in creating such 'artificial moral agents' on the future battlefields. 

For all other details, please refer to the article. Any observations or commentaries will be more than welcome.

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The orphan books; how is Google reshaping our (legal) world ...

I heard of Google, for the first time, in 2002. We were still living in that 'old age' when Mega Crawler (or AltaVista) was the only 'gate' to the Internet. In 2003 I tried Google's search engine, and I never abandoned it since. In October 2004, I discovered Google translation, and I started using it to read German legal doctrine. The readings have covered just two or three pages of the original language, but the accomplishment was impressive.

By the end of 2005, I found Google Books service. Google was putting books online (for free) after digitizing them. I was quite happy. As an insatiable reader, initiatives to make the books easily accessible had my full and enthusiastic support. I discovered the parallel digitizing enterprise of Microsoft, the Live Search Books, in late 2006. I also found the Internet Archive and the Open Library.

Last but not least, I discovered the digitized books (PDF image files) of Gallica, the National Library of France's online project. Gallica was remarkable, especially about ancient science books from XVIIIth or XIXth centuries:  treaties like "Almagest" of Ptolemy (the 1770 edition), the "Ancient Astronomy" of Delambre, the "Ancient Greek Geometry" of Paul Tannery, etc. It seemed ‘too good to be true’ since such a treasure cannot be on free access for long. Hence I started to print some of these books.

By 2008 Google Books’ repository became the richest among them all. I stopped printing books since I knew that they will be online forever. Google Books gave complete access (including downloads) to books published before 1880. The more recent texts, published mostly during the last 30 years, provided access only to specific pages. I started to use this limited access in my legal research, which saved me a lot of time and effort.  

The most frustrating were the snippet views for books published from 1890 to around 1920. It was obviously an issue about copyright. Since copyright duration includes, in general, the life span of the author, plus another 50 years, these books were in limbo. 

Let us consider a book published in 1900 by an author who was the copyright owner and died in 1922. The copyright would have ended by 1972. The book would be in the public domain by now, and Google may let online more than snippets. But to do that, Google must know, for sure, such details. In fact, the borderline between public domain books and in-copyright books is blurred. 

Other books might be in copyright, but there is no way to know who is actually owning it. 

This is the domain of 'orphan books,' in-copyright books for which it is difficult or impossible to contact the copyright holder. In fact, almost any work for which reasonable efforts to locate the present copyright owner fails can be considered orphaned. Since the cost of finding the owners is so high, other creators cannot build upon orphan works, even if they are willing to pay for it. And it seems that the vast majority of the world's books fall into this last category.

It becomes clear that snippet views in Google Books might be expanded to full page access if and only if the 'orphan books' realm becomes open. And Google tried to open it up...

In 2005 two lawsuits (Authors Guild v. Google, Sept. 20, 2005, and McGraw Hill v. Google, Oct. 19, 2005) charged that Google, with its digitizing project, has infringed copyright and failed to compensate authors and publishers. 

In October 2008, after two years of negotiations, was reached a settlement between the publishing industry and Google. Google agreed to compensate in exchange for the right to make millions of books available for the public. According to the agreement, Google might scan orphan works without being held liable for breach of copyright if the right owners subsequently came forward. This ‘opt-out’ regime for copyright was an unprecedented advance.

Very interested in the issue I published in May 2012, a paper about Transatlantic answers for the challenge of orphan books: Google’s Books settlement and its European counterpart: http://dx.doi.org/10.2139/ssrn.1935306.

Based on materials retrieved before February 2012,  I evaluated Google's agreement (ASA) with copyright owners after its unexpected rejection by a US federal judge. My research also assessed the advancement made in Europe about orphan books.

Where are we today, almost two years (after that publication)?

In the US, the only initiative that still tries to deal with the issue is the Orphan Works Project (OWP) set up by HathiTrust and Michigan's Library. The project strives to identify orphan works from the years 1923-1963 and to sort out their copyright status. 
But it came under attack for not doing an adequate job in finding copyrights holders. The Authors Guild, along with other professional groups and individual authors,  filed a lawsuit in September 2011, seeking to shut down what they called "the systematic, concerted, widespread, and unauthorized reproduction" of the copyrighted material. 
Concerning the 'orphan books' pledge, the judge said he did not have enough information to rule on the OPW project. Therefore this project is still active on this issue.

On the other side of the Atlantic, there were certain advancements concerning orphan works at the European Union or national level.

On October 25, 2012, the European Union adopted the Directive 2012/28/EU about specific permitted uses for orphan works. The directive sets out standard rules for digitization and online display of orphan works and elaborates rules for identifying these works. It also establishes that if a diligent search does not identify or locate copyright holder(s), the work shall be recognized as orphaned. Then, by mutual recognition, this status shall become valid all across the European Union.

At the national level, the most advanced initiative came from France.

A bill  (analyzed as a legal project in my paper) was finally adopted (Bill No. 2012-287 of March 1, 2012, which amends the Code of Intellectual Property). All books published before December 31, 2000, which are ‘out-of-print’ (around 500,000 books) and those in publishers' catalogs, are concerned. 
The bill created an institution for collective management of digital rights (SOFIA). The National Library of France is responsible for maintaining a database, the public online Registry of Unavailable Books. This Registry is enriched once a year with a new list of titles (for example, in March 2012, there were added 60.000 more titles). At this pace, less than ten years from now, the Register will include all French books of the XXth century.

Within six months after registration of a book, right holders may object to the collective management system (SOFIA). Without that opposition, the rights are not sold but transferred to SOFIA, ensuring the system's proper functioning.

One can identify an ‘opt-out’ mechanism, similar to the one envisioned by Google with his agreement (ASA). Even the institutional aspects are alike. However, if ASA was concerned just Google and was finally unsuccessful, France produced a legal instrument with general effects that seems to work.

However, one must agree that the push came from Google pursuing its dream of a universal digital library. We, the readers, should be very pleased…

Legal vs. linguistical puralism : a misunderstood duality?

We live in a world with many legal systems and languages that interact continuously,  either in space or time.
Regarding the latter, many chronological interactions can be described as ‘legal transplant’ in between national laws. 
In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant relates to the Civil Code of Ethiopia, which has been designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparison between his own system and the origin of each specific disposition.

But such ‘legal transplant’ may also occur between legal systems of a different kind. 
For example International Law may borrow concepts and rules from national law. 
The international legal scholars have played a role in this transposition since they were fed of their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws.

In the case of conventional International Law it was the language of treaties which seemed to provide the solution. Given the absence of a specific language of International Law, different from States' languages, the international rules were necessarily written ​​in one national language. Through these vehicular languages, the legal concepts and institutions of national laws passed to International Law.

In the last 70 years, the emergence of multilingual treaties has added complexity to the whole process. 

If only one language version of the Treaty's text is authentic (the other versions being just its official translations), the interpreter may use only that official version. Therefore the interpretation of multilingual legal texts was similar to the interpretation of a monolingual text.

More interesting was the second case, where all linguistic versions of a Treaty was equally authentic. In this case, the interpreter might have to use the multilingual systems of interpretation codified in article 33 of The 1969 Vienna Convention on the Law of Treaties.

The European Union had both situations.

If this brief presentation catches the attention of the reader, he may find a still evolving draft of Multijuralism and interpretative comparison by Judge of International Organizations: European Union case at http://ssrn.com/abstract=2342090.