WASHINGTON, D.C. — Should technological innovations drive law and policy or should regulators more specifically define the parameters of new technologies? At the recent 6th Annual ChIPs Women in Tech, Law and Policy Global Summit, panelists took up the issue and provided some compelling insight. (ChIPs, which stands for Chiefs in Intellectual Property, is 3,000-member non-profit that works to advance women at the convergence of technology, law and policy.)
At the Global Summit’s session titled, Technological Innovations Rapidly Developing in Robotics & Artificial Intelligence — Is The Legal And Policy Landscape Keeping Up?, Celine Jimenez Crowson, a partner and chair of the IP practice in the Americas at Hogan Lovells, focused on that issue with Carol W. Carroll, Deputy Center Director for NASA’s Ames Research Center, and Stephanie Burns, vice president and associate general counsel of Worldwide Operations at Amazon.com.
Much of the discussion centered on unmanned aircraft systems and how best to regulate both the space in which they will maneuver and the information about them provided to consumers. Burns explained that because piloted aircraft generally don’t fly under 500 feet, Amazon has focused upon piloting drones between 200 and 400 feet. Amazon’s vision is a “high-speed transit freeway in the sky” in which their drones will fly in, slow down and carefully deliver packages, said Burns. That reality is not a far-off Jetsons cartoon fantasy but actually happening now in two pilot locations in England.
Airspace from the ground level up to 400 feet is considered Class G airspace by NASA and the Federal Aviation Administration (FAA), which is regulated but uncontrolled, and historically used only model aircraft and hot air balloons. This airspace stands in contrast to the well-defined and well-controlled commercial airspace. Carroll said NASA is currently working with other agencies and industry leaders to develop prototype systems and field test them in rural areas, before working up to the ability to land and deliver packages in highly populated urban areas. During testing, all parties are carefully looking at various factors, such as drone operators’ necessary lines of sight, communication needs, weather effects, and such so that NASA can inform industry leaders and the FAA what drone inventors need to build into their systems for safe and efficient flying.
For instance, while currently there is no requirement for registration or identification of drones, because of shared airspace, all entities moving in that airspace will need to communicate with each other and the drone, so identification may be necessary. In addition, currently there are no uniform standards around altitude reference points — some use ground level as the starting point, while others use sea level. “To have a safe and efficient airspace, we all need the same starting point,” Carroll said.
Beyond that, drone battery life can be greatly affected by weather conditions, especially with smaller and more lightweight drones. Manufacturers may need to test for that and communicate any potential issues to purchasers so operators can understand what particular conditions may cause their unmanned drones to act erratically. Carroll noted that testing by NASA and industry leaders (such as Amazon) can help determine which of these issues should be regulated and required.
In terms of the main question of whether technology is driving law and policy, Amazon’s Burns said technology is evolving so quickly these days that regulations are naturally lagging behind. But she suggests that both technology and law/policy should drive the path forward. With drones, for example, companies like Amazon are looking to regulators and standard-setting agencies to define communication, performance and interoperability standards, she said, adding that Amazon is engaging NASA and other potential regulators to conduct risk assessments in order to highlight risks and mitigate them.
Burns stressed, however, that while regulators need to identify required performance standards, the industry needs to be left to decide for itself how best to meet those standards. “Don’t tell us how to do it,” she explained. “Just leave it to industry to figure out how to meet it.”
Hogan Lovells’ Crowson noted the fantastical hype that exists around artificial intelligence (AI), explaining that it really just refers to computer systems that are able to perform tasks that normally require human intelligence. AI is evident today in such basic technologies as image recognition, facial recognition, diagnosis and analysis of x-rays and CT scans, and contextual analysis in researching, she said.
As machine learning and neural networks become more popular and integrated into new devices, there are some specific legal questions that lawyers must consider, such as:
- If AI discovers a new approach or innovation, who should be considered the creator or inventor of that technology?
- If AI copies the technology of another, who is liable for that infringement?
- In commercial litigation, who will be held responsible or liable for decision-making committed by AI?