The ethics of killer robots. Developments, characteristics and consequences of Artificial Warfare

On Wednesday 25 November 2020, I attended an online conference organised by Rome-based Scuola Critica del Digitale (Centro Riforma dello Stato) and Forum Disuguaglianze e Diversità.

I chaired a panel on “The ethics of killer robots. Developments, characteristics and consequences of Artificial Warfare” with illustrious speakers Professor Teresa Numerico (Roma Tre University), Dr Letizia Oddo (University of Rome Tor Vergata), Stefano Quintarelli (computer scientiest, former MP) and Professor Guglielmo Tamburrini (University of Naples “Federico II”).

In recent years, pressure is mounting to deploy lethal autonomous weapons AKA killer robots. AI and robotics experts, as well as NGOs around the world (e.g. Stop Killer Robots and Humanr Rights Watch) are campaigning for a ban on these systems but the United Nations have not taken a clear stance yet.

The COVID-19 pandemic risks exacerbating existing tensions between current and emergeing powers. The perfect storm is completed by the fact that as soon as robot killers are deployed in a war, the esclation of the conflict would become incontrollable.

Consequently, to reach a consensus on the illegality and immorality of lethal autonomous weapons has never been more important. And yet, there are still people who argue that it is possible to design killer robots that comply with international human rights law, the laws of war, and the principles of ethics. The growing trend of ‘ethical AI’ risks being a dangerous ideological device that can be exploited to appease civil society’s concerns and thus develop dangerous AI applications in a space that is purposefully represented as lawless.

My research on killer robots can be downloaded for free here.

The full video of the conference is here:

Private ordering of data control in remote learning

Today, Tuesday 3rd November 2020, I’ve had the pleasure to e-meet the students of the “Law and Data” Course of the MSc Data Science coordinated by Professors Paolo Guarda and Roberto Caso (University of Trento). The topic of the seminar was ‘Private ordering of data control in remote learning’, a research-led session based on the research on the privacy and copyright issues in remote teaching carried out with Dr Rossana Ducato (then UCLouvain, now Aberdeen), Dr Giulia Priora (Sant’Anna), Dr Chiara Angiolini (Unitn), Dr Alexandra Giannopoulou (IViR), Dr Bernd Justin Jütte (Nottingham), Léo Pascault (Sciences Po Paris), and Dr Giulia Schneider (Sant’Anna).

Due to the COVID emergency, Universities and teachers switched to online teaching without proper scrutiny. In particular, without a careful consideration of how the remote teaching provider (e.g. Zoom, Moodle, etc.) deal with user content and personal data. Nobody read the Terms & Conditions that they were signing up to, but we did. And here’s what we found.

Private ordering – buried in the T&C there are insidious terms: read before using an Emergency Remote Teaching service

ERT providers can do whatever they want with our educational content and data, including sharing it with third parties and commercialuses

Teachers risk becoming the new © cops: freedom of expression and right to education?

Chilling effects: remember that you have a right to use third parties’ © without their permission (© defences/exceptions)

Copyright overprotectionv open science (Caso & Guarda 2020)

Our data is processed, shared, and transferred in dubious ways

Learning from the GDPR -We risk having our educational materials removed: we need a right to a human appealagainst automated enforcement of ©

‘More sharing, cooperation and solidarity after Covid-19?’(cf. Caso) – There is a strong case for a EU public open RT infrastructure to ensure actual control over data and educational content

Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching

On Friday 23 October, Giulia Priora and I presented “Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching” at the 12th Worldwive Annual Conference of the European Intellectual Property Teachers’ Network (EIPTN). The program is available here. The core takeaway of our presentation is: the move to remote teaching – and the associated risk that teachers and students lose control over the contents they share and that they inadvertently infringe copyright – provides an unprecedented pedagogical opportunity. For the first time, teachers and students are directly and clearly affected by copyright and this will make studying copyright more relevant and exciting than ever! We, as IP teachers, should take advantage of the situation and re-design the IP syllabi around an analysis of the terms & conditions of remote teaching platforms. This may include interactive games such as uploading contents that we believe is lawful (e.g. relying on the parody exception) and see what happens to it: will it be taken down automatically? How does the appeal mechanism work? What’s the room left to public interest in the delicate balance with proprietary interests?

The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).

The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).

Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.

We believe that critically reflecting on how remote learning service providers such as Zoom and Microsoft deal with the digital content that students and teachers share can greatly benefit IP students. First, it will help students understand the importance of private ordering in the context of copyright. While analysing legislation and case law remains important, nowadays it has become inescapable to look at how copyright is governed contractually. The remote learning scenario will help students understand how, in the field of copyright more so than in other fields, the legislative process is too slow and lobby-influenced to be able to regulate digital content adequately (Noto La Diega 2015).

Second, students are more likely to learn when the method or the subject matter affect them directly (Taylor and Parsons 2011). Affected by the pandemic in manifold ways, students are disengaged. Motivating them is of the utmost importance to achieve the learning outcomes and maximize student satisfaction. Motivation is regarded as the most important factor that educators should target in order to improve learning (Williams 2011). Reflecting on the copyright issues related to their own learning activities will foster motivation, resulting in more engaged and curious students.

Finally, copyright’s private ordering impinges on key copyright concepts: the legal notions of control, liability and content moderation. Buried in inaccessible terms of service, there are (i) licenses that effectively transfer the control over the learning contents from the teacher to the remote learning provider; (ii) terms that unfairly expose teachers and students to infringement actions; (iii) terms that allow remote learning providers to take down user content and disable accounts with little if any recourse.

This is part of a wider project with Rossana Ducato (Aberdeen), Alexandra Giannopoulou (Amsterdam), Chiara Angiolini (Trento), and Giulia Schneider (Sant’Anna). See e.g. here, here, and here.


Postdoctoral researcher, Institute of Law, Politics and Development (Dirpolis), Sant’Anna School of Advanced Studies, Pisa.

Intellectual Property and the Feminist Gaze

On Wednesday 30th September 2020, Stirling Law School hosted a guest lecture by Professor Ann Bartow (University of New Hampshire), former Director of the Franklin Pierce Center for Intellectual Property and a world-leading expert in Intellectual Property and feminst legal theory.

This was an exciting talk ranging from gender-fluid robots through to quilting. Professor Bartow convincingly argued that white cishet males have shaped Intellectual Property law, policy and practice and that much is still to be done to embed equality in Intellectual Property.

111th Annual Conference of the Society of Legal Scholars

At the 111th Annual Conference of the Society of Legal Scholars, I’ve presented two papers in the Intellectual Property and Cyber Law sessions. Respectively:

  1. On 1st September 2020 15-16:30 UK time – Panel “New Developments in IntellectualProperty Law” (IP session)

With Prof. Cristiana Sappa (IESEG), we’ll present “The Internet of Things at the intersection of dataprotection and trade secrets. Non-conventional paths tocounter data appropriation and empower consumers

The Internet of Things (IoT) has heralded a never-before-seen quantity of high-quality data. This includes both personal and non-personal data. Factual and legal control over IoT data gives companies unparalleled power to influence consumers, policy makers, and the other stakeholders of the IoT’s supply chain. The combination of analytics algorithms, the data goldmine structure and the output of data processes are regularly kept secret by businesses. Leveraging this portfolio of big data and trade secrets, IoT companies put in place practices that can negatively affect consumers, who are often unaware of them due to technical and legal secrecy. ‘Technical’ secrecy results from the opacity of the algorithms that underpin the IoT, especially when AI-enabled. ‘Legal’ secrecy, in turn, come from a combination of trade secrets and strategic contract management that keep IoT data practices secret. This begs the central research question of this article: how can consumers be empowered to counter IoT data appropriation?

Traditional consumer protection approaches, epitomised by the Consumer Rights Directive, are focused on pre-contractual duties to inform consumers. Their benefit to IoT consumers is limited by their reflecting a text-based paradigm, whereby information must be legible. This is not fit for the IoT, where displays tend to disappear and information is provided in audio or video formats. Consumer laws are drafted on the assumption of information asymmetries in business-to-consumer contracts, but they fail to account for the power imbalances that permeate IoT transactions. These power imbalances are exacerbated by control over a wealth of user data and corresponding granular knowledge of consumers’ vulnerabilities, behaviors, and biases. This knowledge can be used to impose opaque practices on consumers; among these, IoT data appropriation by means of trade secrets plays a key role.

Therefore, an emergent concern is whether the law provides tools that effectively safeguard consumers’ interests, in particular by ensuring substantial transparency as to the actual use of their personal data. How can this can be guaranteed, and the consumer empowered in a post-interface world of profoundly imbalanced relationships? The answer cannot be found solely within the trade secrets’ regime: data protection needs to be considered.

This article focuses on the trade secrets exceptions of legitimate interest and freedom of information, and on the General Data Protection Regulation (GDPR)’s rights to access, data portability, information, and not to be subject to solely automated decisions. We put forward that trade secrets’ exceptions and GDPR rights re-balance the interests of consumers vis-à-vis big IoT players such as Amazon. We propose a holistic approach that empowers consumers by countering data appropriation, thus redistributing data control.

2. On Thursday 3rd September 2020 at 15:15-16:45 UK time, Panel “Privacy at the Edges” (Cyber Law session)

I’ll present “The Internet of Personalised Things. IoT-Powered Consumer Manipulation as an Unfair Commercial Practice has been accepted for presentation at the 111th Annual Conference of the Society of Legal Scholars (you can still register!). The conference is organised by the University of Exeter under the leadership of Professor Rebecca Probert. It will take place on 1-4 September 2020 and, for the first time in the SLS‘s herstory, it will be entirely virtual (which brings the registration fee down!)

Personalisation is one of the key befits of the Internet of Things (IoT). IoT traders can combine data from multiple sources and access consumers’ most private spaces. At the same time, these traders retain control over their smart devices (‘Things’) throughout their lifecycles.

Thanks to this combination of deep knowledge of the consumer and control over the Thing, IoT traders can personalise products, services, prices, and even the terms of service that regulation the business-to-consumer relationship. The problem is that personalisation can lead to consumer manipulation and even discrimination – such detrimental effects can be referred to as the ‘Internet of Personalised Things’.

Situational data and information about consumers’ biases and vulnerabilities allow IoT traders to influence consumers’ decision-making in surreptitious ways. This can go from instilling the desire to purchase useless or even dangerous Things, to the exclusion of BAME people from certain job ads, through to electoral manipulation.

My paper will critically assess whether unfair trading laws – and in particular the Unfair Commercial Practices Directive as amended in 2020 – are fit for purpose and can provide a successful strategy to re-empower consumers, thus re-building trust in the IoT.

It is suggested that, despite some shortcomings, this regime can be invoked by consumer to counter IoT-powered manipulation, especially as the Directive provides special protections for vulnerable consumers and against traders’ undue influence impairing consumer freedom of choice.

The Directive does have some limitations but this should not come as a surprise. Being a neoliberal instrument aimed at pursuing a perfectly competitive single market, it cannot provide an entirely satisfactory response to an issue that capitalism itself created, namely the problem of manipulated needs as discovered by Marx.

You can still register here

Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching

On Friday 23 October, with Bernd Justin Jütte (Ireland)**, Giulia Priora (Italy), and Léo Pascault (France) we will present “Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching” at the 12th Worldwive Annual Conference of the European Intellectual Property Teachers’ Network (EIPTN). The program is available here.

The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).

The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).

Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.

We believe that critically reflecting on how remote learning service providers such as Zoom and Microsoft deal with the digital content that students and teachers share can greatly benefit IP students. First, it will help students understand the importance of private ordering in the context of copyright. While analysing legislation and case law remains important, nowadays it has become inescapable to look at how copyright is governed contractually. The remote learning scenario will help students understand how, in the field of copyright more so than in other fields, the legislative process is too slow and lobby-influenced to be able to regulate digital content adequately (Noto La Diega 2015).

Second, students are more likely to learn when the method or the subject matter affect them directly (Taylor and Parsons 2011). Affected by the pandemic in manifold ways, students are disengaged. Motivating them is of the utmost importance to achieve the learning outcomes and maximize student satisfaction. Motivation is regarded as the most important factor that educators should target in order to improve learning (Williams 2011). Reflecting on the copyright issues related to their own learning activities will foster motivation, resulting in more engaged and curious students.

Finally, copyright’s private ordering impinges on key copyright concepts: the legal notions of control, liability and content moderation. Buried in inaccessible terms of service, there are (i) licenses that effectively transfer the control over the learning contents from the teacher to the remote learning provider; (ii) terms that unfairly expose teachers and students to infringement actions; (iii) terms that allow remote learning providers to take down user content and disable accounts with little if any recourse.

This is part of a wider project with Rossana Ducato (Aberdeen), Alexandra Giannopoulou (Amsterdam), Chiara Angiolini (Trento), and Giulia Schneider (Sant’Anna). See e.g. here, here, and here.


** Assistant Professor in Intellectual Property Law, University College Dublin, Sutherland School of Law and Senior Researcher, Faculty of Law, Vytautas Magnus University, Kaunas

Postdoctoral researcher, Institute of Law, Politics and Development (Dirpolis), Sant’Anna School of Advanced Studies, Pisa.

PhD candidate at Sciences Po Law School.

The privatization of universities in Italy

Italian governments have tried for many years to privatise the higher education sector, either directly or indirectly. In the book La privatizzazione dellUniversità. Il modello delle fondazioni, I deal with the attempt to privatize universities by transforming them into foundations.

After tracing a history of the regulation of higher education institutions in Italy, I then deal with two types of private foundations: the foundations that are set up to support public universities under legge (statute) 388/2000 and those that are designed to replace public universities under legge 133/2008 (so-called Gelmini reform).

In this book, I claim that such an attempt to privatise Italian universities is in violation of the Constitution and I point at private-public partnerships as a possibility to explore. Since publishing it, I’ve partly changed my mind and I am now convinced the whole of the HE architecture must remain private and private entities can play the limited role to support research in a transparent way.

You can donwload the book here: Guido Noto La Diega, La privatizzazione dellUniversità. Il modello delle fondazioni: Un caso di perniciosa penetrazione del diritto privato nel diritto pubblico (EAI 2014)

You may also buy it on Amazon

Copyright and Remote Teaching in the Time of Coronavirus: A Study of Contractual Terms and Conditions of Selected Online Services

Pleased to share that ‘Copyright and Remote Teaching in the Time of Coronavirus: A Study of Contractual Terms and Conditions of Selected Online Services‘ has been accepted for publication on the European Intellectual Property Review! This is a collaborative research with Léo Pascault (Sciences Po, Paris), Bernd Justin Jütte (University of Nottingham), and Giulia Priora (Sant’Anna, Pisa).

When COVID-19 started spreading globally and throughout Europe, most aspects of day-to-day life were severely disrupted. As governments scrambled to contain the spread of the virus, higher education institutions (HEIs) reacted by suspending face-to-face teaching and by sending millions of students to the safety of their home. In order to keep delivering quality education, teachers had to embrace Emergency Remote Teaching (ERT). ERT refers to the “temporary shift of instructional delivery to an alternate delivery mode due to crisis circumstances”.[1] In this instance, teaching had to be moved online.

HEIs and teachers were thus faced with the critical choice of which service or mix of services to use in order to best carry out their mission remotely. The urgency of the situation left little time to exercise proper scrutiny in the identification of the services best suited to online teaching. In many instances, the transition was not accompanied by adequate institutional support. While some teachers were provided with relevant guidelines and training by their institutions, others were left to implement remote teaching by themselves. This created uncertainty and led to a high degree of heterogeneity in the choice of online teaching tools used.

The swift move to ERT has given rise to significant copyright-related concerns: [2] what was to happen to materials prepared by teachers once shared with their students through a particular online service? What were the risks teachers incurred when using third-parties’ materials without permission? Could their students be exposed to similar risks? Those concerns are not radically new. The risks and uncertainty surrounding the use of materials for online teaching is well-known to copyright scholars and they have been addressed, albeit only partly, by the Copyright in the Digital Single Market Directive (C-DSM Directive).[3] The transition to ERT has exposed these problems to a wider audience and illustrated the necessity to address them promptly and effectively. There are perhaps two new elements. First, practically, infringements taking place in physical classrooms were unlikely to be discovered and actioned by rightsholders. Second, rightsholders can increasingly rely on automated systems to enforce their rights (“code is law”)[4], leading to overprotection, especially when end-users cannot appeal the automated decision. The relevance of our analysis is underlined by the fact that ERT, initially intended as a temporary solution, is likely to become the “new normal”: remote teaching and the tools used to deliver it are expected to be integrated into HEIs and teachers’ instructional methods, resulting in a “blended learning” experience, well after face-to-face teaching resumes.[5]

The aim of this article is to disentangle the most prominent copyright issues involved in remote teaching. To this end, we reviewed the terms of use, service agreements, community guidelines, etc. (together “terms”) of a selection of services. We examined and compared these terms to identify and highlight problematic issues and best practices. The study encompasses standard terms of nine online services (referred to hereafter as “online services”), as last accessed on 27 April 2020. The selected services (Discord, Facebook, G-Suite for Education,[6] Jitsi, Microsoft Teams, MoodleCloud, Skype, Zoom and YouTube) include dedicated software for managing groups of users, content-sharing platforms, social networks, and video conferencing services. To varying degrees, they afford teachers to emulate in-person teaching through live discussions and asynchronous interactions with students, the provision of digitized learning materials and the submission of assignments. Some were specifically designed with distance education in mind, while others have been repurposed or retrofitted to accommodate ERT.[7] Some are operated by institutional actors and rely on proprietary software, others on open-source software and only a few are accompanied by contractual terms individually negotiated by HEIs. The selection of services represents an initial sample, informed by our own experience, informal conversations with colleagues and preliminary observations of teachers’ behaviors in the transition to ERT. Alongside its academic purpose, our analysis aims to assist HEIs and teachers in assessing the suitability of the services available to them to deliver remote teaching.

The study considers the currently harmonized EU copyright rules, and in particular the Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive).[8] It also takes into account the yet-to-be-transposed[9] C-DSM Directive, which introduces, among others, an exception for digital, cross-border teaching activities[10], as well as critical changes to the safe harbor provisions for online content sharing service providers (OCSSPs).[11] The analysis is structured along three axes. First, we will focus on teachers’ control over their own materials once they have shared them through online services, thus critically assessing which rights teachers retain in their works and which they surrender to the providers of the service and for what purposes. Second, we will examine the liability incurred by teachers for sharing third-party materials without prior authorization. Lastly, we will deal with copyright infringements with a focus on content moderation. In particular, we will explore contractual regulation of content removal, user accounts’ termination, and complaint mechanisms available to teachers to make sure that essential teaching materials for instruction and illustration are permanently available to students.

The full text of the article can be downloaded in the ‘Research Projects‘ section of this website.


[1] Charles Hodges et al, ‘The Difference Between Emergency Remote Teaching and Online Learning’ (Educause Review, 27 March 2020) <https://er.educause.edu/articles/2020/3/the-difference-between-emergency-remote-teaching-and-online-learning&gt; accessed 1 June 2020.

[2] Other significant concerns relate to data protection, see for a brief analysis Rossana Ducato et al, ‘Emergency Remote Teaching: a study of copyright and data protection policies of popular online services (Part II)’ (Kluwer Copyright Blog, 4 June 2020) <http://copyrightblog.kluweriplaw.com/2020/06/04/emergency-remote-teaching-a-study-of-copyright-and-data-protection-policies-of-popular-online-services-part-ii/?doing_wp_cron=1591780006.9291720390319824218750&gt; accessed 9 June 2020.

[3] See Article 5 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC DSM Directive, OJ L 130, 17.5.2019, p. 92-125 (C-DSM Directive).

[4] See e.g. Lawrence Lessig, ‘Intellectual Property and Code’ (1996) 11(3) Journal of Civil Rights and Economic Development 6.

[5] Debbie Andalo, ‘Could the lockdown change the way we teach forever?’ (The Guardian, 14 May 2020) <https://www.theguardian.com/online-learning-revolution/2020/may/14/could-the-lockdown-change-the-way-we-teach-forever&gt; accessed 11 June 2020.

[6] Note that our study encompasses both the G-Suite for Education (Online) Agreement for non-profit educational institutions and other non-profit entities, and the G-Suite (Free) Agreement applicable to individual teachers.

[7] Discord, a service originally intended for the gaming community, modified some of its features in the midst of the coronavirus pandemic to accommodate ERT. See ‘How to use Discord for your classroom’ (17 March 2020, Discord) <https://blog.discord.com/how-to-use-discord-for-your-classroom-8587bf78e6c4?gi=8adc6dedf0be> accessed 9 June 2020.

[8] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10-19 (InfoSoc Directive).

[9] So far, France is the only country that hastransposed part of the Directive: Loi n° 2019-775 of 24 July 2019 “tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse” (implementing Article 15 of the C-DSM Directive on the new publishers’ right). While national implementations are under way in some Member States (the deadline is set for June 7 2021), a useful tool to track the national implementations of the Directive has recently been released by Communia and is available at <https://www.notion.so/DSM-Directive-Implementation-Tracker-361cfae48e814440b353b32692bba879&gt; accessed 1 June 2020.

[10] C-DSM Directive, art. 5.

[11] C-DSM Directive, art. 17.

An introduction to Intellectual Property Law: Understanding IP through everyday objects

In this video, I introduce the audience to the key areas of intellectual property: copyright, trade marks, trade secrets, patents, and design rights.

To do so, I show / reflect on some everyday objects, namely:

  • Alexander Graham Bell’s telephone
  • An IRN Bru wee bottle
  • The iconic Alessi juicer designed by Philippe Stark in 1990
  • A Harris tweed jacket (she fancy!)

Enjoy!

Introduction to Intellectual Property Law by Assoc Prof Guido Noto La Diega (University of Stirling)

The Internet of Things at the intersection of data protection and trade secrets. Non-conventional paths to counter data appropriation and empower consumers

The Internet of Things (IoT) has heralded a never-before-seen quantity of high-quality data. This includes both personal and non-personal data. Factual and legal control over IoT data gives companies unparalleled power to influence consumers, policy makers, and the other stakeholders of the IoT’s supply chain. The combination of analytics algorithms, the data goldmine structure and the output of data processes are regularly kept secret by businesses. Leveraging this portfolio of big data and trade secrets, IoT companies put in place practices that can negatively affect consumers, who are often unaware of them due to technical and legal secrecy. ‘Technical’ secrecy results from the opacity of the algorithms that underpin the IoT, especially when AI-enabled. ‘Legal’ secrecy, in turn, come from a combination of trade secrets and strategic contract management that keep IoT data practices secret. This begs the central research question of this article: how can consumers be empowered to counter IoT data appropriation?

Traditional consumer protection approaches, epitomised by the Consumer Rights Directive, are focused on pre-contractual duties to inform consumers. Their benefit to IoT consumers is limited by their reflecting a text-based paradigm, whereby information must be legible. This is not fit for the IoT, where displays tend to disappear and information is provided in audio or video formats. Consumer laws are drafted on the assumption of information asymmetries in business-to-consumer contracts, but they fail to account for the power imbalances that permeate IoT transactions. These power imbalances are exacerbated by control over a wealth of user data and corresponding granular knowledge of consumers’ vulnerabilities, behaviors, and biases. This knowledge can be used to impose opaque practices on consumers; among these, IoT data appropriation by means of trade secrets plays a key role.

Therefore, an emergent concern is whether the law provides tools that effectively safeguard consumers’ interests, in particular by ensuring substantial transparency as to the actual use of their personal data. How can this can be guaranteed, and the consumer empowered in a post-interface world of profoundly imbalanced relationships? The answer cannot be found solely within the trade secrets’ regime: data protection needs to be considered.

This article focuses on the trade secrets exceptions of legitimate interest and freedom of information, and on the General Data Protection Regulation (GDPR)’s rights to access, data portability, information, and not to be subject to solely automated decisions. We put forward that trade secrets’ exceptions and GDPR rights re-balance the interests of consumers vis-à-vis big IoT players such as Amazon. We propose a holistic approach that empowers consumers by countering data appropriation, thus redistributing data control.

This article will be presented by my co-author Prof. Cristiana Sappa (IESEG) at the Society of Legal Scholars Conference (1-4 September 2020), in the Intellectual Property session. You can still register here!

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