AALL 2019 Recap: The Age of AI: Emerging Regulatory Landscape Around the World

By Taryn Marks

The Age of AI: Emerging Regulatory Landscape Around the World (E1)
Presenters: Laney Zhang, Jenny Gesley, Tariq Ahmad & Nicolas Boring
Coordinator: Tariq Ahmed
Moderator: Nicolas Boring
Monday, July 15, 11:00 AM–12:00 PM

In “The Age of AI: Emerging Regulatory Landscape Around the World,” speakers Laney Zhang, Jenny Gesley, Tariq Ahmad, and Nicolas Boring (all Foreign Law Specialists at the Law Library of Congress) discuss a variety of AI topics and the regulations, policies, and ethics that various governments around the world have started to implement and develop. The program is based on a report that the Library of Congress issued earlier in the year, Regulation of Artificial Intelligence in Selected Jurisdictions. After briefly reviewing the process that they used to research and compile the report, the presenters dove straight into an hour jam-packed with information about artificial intelligence regulation.

First, the panelists reviewed national strategies related to AI regulation in four countries: Canada, Germany, France, and China. Interestingly, Canada was the first country to develop an AI national strategy. For each country, the panelists provided a short overview of the strategy, then discussed some of the concerns and criticisms related to each country’s strategy.

Next came a discussion of data protection and transparency, with the obvious first candidate the European Union’s General Data Protection Regulation. The heavy focus was on automated decision-making within that context. The panelists then discussed two data protection and transparency regimes that had been heavily influenced by the EU’s GDPR, Canada and China. Laney pointed out that China presents an interesting case study in this context because it has simultaneously developed a recommended national standard of data protection while rather flagrantly violating its citizens’ data privacy.

Next, the presenters turned to the laws regarding autonomous vehicles in several countries (Germany, Belgium, France, Canada, and China). Most of these laws focus on either liability for accidents involving autonomous vehicles or regulation of autonomous vehicle tests. The speakers pointed out that most countries use the Society of Automotive Engineers’ five levels of automation, and that most countries’ regulations right now focus on vehicles that fall in levels three and four (conditional automation and high automation).

Last, the speakers reviewed several jurisdiction-specific hot topics. The EU recently developed ethical rules on AI that are currently in draft form and are being tested by the industry; Canada is conducting an algorithmic impact assessment after piloting programs that used AI to review various immigration applications. In France, the government has been using AI to conduct audits, for zoning issues, and in French courts. This latter policy caused a backlash that resulted in the French legislature banning the use of AI for predictive justice. Last, the EU has been reviewing the ethical and legal ramifications behind giving robots the status of legal personhood, creating a big debate within that system about those issues.

Overall, this was an excellent panel that provided detailed substantive information about a variety of laws related to AI, although I wish they had gone into a bit more detail about the process and research methodology used to prepare the report per their third learning objective. As far as reading the report versus watching the panel, I suspect that reading the full report would likely give you the same information as watching the panel; watching the panel would clearly demonstrate the depth of the speakers’ knowledge about these issues. Whichever you choose to do, you will learn a lot.

From the Reference Desk: Using Treaty Body Websites to Find Implementing Legislation

By Amy Flick

A student working as a research assistant for a professor came to me looking for help finding information on implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. He had a list of Caribbean and Latin American countries, and he wanted to find legislation and regulations of each country implementing the provisions on digital sequence information on genetic resources from the Nagoya Protocol. He had attended the library’s orientation for summer research assistants, so he had been using resources I mentioned at the orientation (Foreign Law Guide and the Law Library of Congress’ Guide to Law Online) to go country by country searching for legislation.

Major multilateral conventions usually have governing or supervisory bodies that track status and implementation of the treaty. The best known treaty bodies are for the core human rights instruments under the Office of the High Commissioner for Human Rights, but other important conventions have them as well. For example, Heidi Frostestad Kuehl and Megan O’Brien’s textbook International Legal Research in a Global Community uses the Kyoto Protocol as an example of treaty research at pages 47-49, recommending the official homepage of the UN Framework Convention as a starting point for research on developments related to the Kyoto Protocol.

Treaty body websites are a great resource pulling together all kinds of information on the treaty, including the text, parties, status, and history. For treaties in force, they may include reports and other information on implementation and progress meeting the treaty’s objectives. They may include publications on the work of the treaty body and on projects related to the convention, and they usually include news and press releases for recent developments. If there is a dispute resolution or complaint procedure in the treaty, those cases or jurisprudence may be on the treaty’s website.

An easy Google search led to the webpage for the Nagoya Protocol on the treaty body website for the Convention on Biological Diversity. We found digital sequence information listed as a key issue on the navigation bar; digital sequence information on genetic resources was not mentioned in the protocol’s text, but was addressed at the Second Meeting of the Parties to the Nagoya Protocol in December 2016. We also found the list of parties to the protocol, where we found that some of the countries on the student’s list are not yet parties to the Nagoya Protocol. The country profiles on the site were a great resource. For parties to the Protocol, the Access and Benefit-Sharing Clearing-House listed and provided text for legislative, administrative or policy measures on access and benefit-sharing, even providing English translations for some. Reports on implementation of the Nagoya Protocol were available for many of the parties. For non-party signatories and some other non-parties, National Reports and the National Biodiversity Strategy and Action Plans on the country profile pages had some information on progress toward ratification of the Nagoya Protocol and towards meeting its targets. And many of the country profiles, including some for the non-parties, included an ABS National Focal Point, contact information for a government environment minister who might respond to questions about the country’s implementation of the Nagoya Protocol.

Although we didn’t find any mention of digital sequence information in the national reports, the CBD website did have pages on Digital Sequence Information on Genetic Resources in the Key Protocol Issues. These included submissions of views and information on Digital Sequence Information, listed by party or organization. And the “relevant decisions and documents” included a Survey on Domestic Measures Addressing Benefit-Sharing from Digital Sequence Information on Genetic Resources, sent out on June 19, 2019 with return requested by July 1, 2019, so the student will be watching for survey results to be reported.

Knowing that the professor the student is working for does a lot of research on issues of intellectual property and genetic resources, I also recommended a few other resources to the student for finding national laws more broadly on genetic resources. WIPO Lex collects national laws and regulations on intellectual property topics, and one of the topics listed is “genetic resources.” ECOLEX has legislation on environmental law, with keyword filters including “genetic resources” and “biodiversity.” And Foreign Law Guide, although not the student’s best source for this treaty question, does have “genetic engineering” as a subheading under the subject Intellectual Property for some countries, with citations to legislation.

Once the student left, I was left still wondering “What is digital sequence information?”  The Food and Agriculture Organization has a topic page on digital sequence information. It says that “the term “DSI” currently has no agreed definition.” But the page explains that DSI is a “critical tool in the conservation and sustainable use of genetic resources for food and agriculture,” and it noted that the implications of DSI are being discussed under instruments including the Convention on Biological Diversity.

Library of Congress and LLMC Announce Availability of the Indigenous Law Portal on LLMC Digital

Press Release July 2019  Library of Congress and LLMC are excited to announce that the Indigenous Law Portal (ILP) is now publicly available on LLMC Digital.      

The Indigenous Law Portal (ILP) was begun by the Law Library of Congress staff as a way to provide access to American and Canadian indigenous materials at the Law Library. It is based on the subject arrangements and structure of the Library of Congress Classification schedules for Law of Indigenous Peoples in the Western Hemisphere (Classes KI-KIZ) developed by Dr. Jolande Goldberg, Senior Law Classification Specialist. The Portal has grown to include 1,165 Tribes and links to 4,539 external websites, far beyond the original Law Library boundaries.  In 2018, the Law Library of Congress agreed that LLMC could assume ongoing development of the ILP going forward.

Jane Sánchez, Law Librarian of Congress, said, “We are proud to have developed this substantial resource providing enhanced access to information of Indigenous Peoples. The proof of its considerable value is the consistently high usage of ILP around the world.  It is now time to responsibly transition this service to LLMC, committed to expanding coverage while maintaining and growing its potential.”

LLMC, a non-profit consortium serving hundreds of libraries and other institutions, has supported this initiative from the beginning by providing access to relevant content, especially Hawaiian Kingdom and Native American charters and constitutions.  In addition, LLMC’s Chairman of the Board, Dr. Richard Amelung, Emeritus Professor of Legal Research Vincent C. Immel Law Library Saint Louis University, has worked with Jolande Goldberg to verify thousands of Indigenous Peoples’ websites in North, Central and South America in order to establish the proper name authorities for tribes and indigenous organizations and to identify other informative ILP links.

The Indigenous Law Portal will continue to be accessible to the public at no charge on LLMC Digital.  Users of ILP on Library of Congress site will also note that LLMC designed its version to closely resemble features of the Library of Congress service, such as the popular tribe selection through maps, while offering greater sustainability and scalability as an updatable database.

LLMC’s Amelung, and Library of Congress’ Goldberg will lead a committee of experts to monitor existing ILP links as well as adding new content.

Dr. Amelung said, “On behalf of the LLMC organization, we are very excited to take on such a meaningful resource.  The original concept for the design of ILP was developed by the Library of Congress and both organizations appreciate its success as well as the opportunity to continually expand its coverage and outreach, and secure its relevancy.  With the assistance of Library of Congress and LLMC’s extensive network of libraries, we are uniquely qualified and honored to be ILP caretakers.”

For additional information, please send an email to llmc@llmcdigital.org.

AALL Annual Meeting Travel Offset Program

By Erin Gow

If you’ll be attending the AALL annual meeting in Washington D.C. this year, consider offsetting the carbon generated by your travel through the SR-SIS carbon offset project. The SR-SIS has selected a reputable and verified carbon offset program, so that you’ll know your money is going to make a difference. This year’s project supports the Southern Ute Tribe in the US, who are working to capture methane that is naturally released from shifting mountains on their land and converting it to a source of clean energy. Not only does this create energy for the reservation, it also stops methane gases that would otherwise escape directly into the atmosphere. You can support this project and offset the carbon generated by a 3 hour flight to the AALL conference for less than $15.

Carbonfootprint

The Native American Methane Capture program is the perfect way to support an indigenous community in our own country who are working to tackle a truly global issue. Climate change certainly isn’t limited by national or geographic boundaries, and supporting a local project like this also supports the international effort to mitigate climate change and achieve sustainable development So, whether you’re concerned about melting ice in the polar regions, rising sea levels in coastal areas, or increases in extreme weather around the world, make a difference by contributing to the SR-SIS travel offset program today.

Despatches on Brexit from BIALL 2019

By Alison Shea

BIAALL.jpgI’ve recently returned from the BIALL 2019 Annual Conference, held in the (usually sunny) seaside town of Bournemouth – although this picture from outside the conference venue may inspire envy, I assure you it was cold and rainy pretty much the entire time!

The good news is that while the weather may have been poor, the conference program was great!  I was very excited to attend the opening session, which was delivered by David Allen Green, a lawyer and contributing editor for the Financial Times.  Green was also the keynote speaker at the BIALL Conference in 2017 where he gave a great overview of what to expect from Brexit, which at that time we all thought would be over by now.

Of course we know that the UK did not leave the EU on March 29, 2019, so Green returned to provide an update on where we are now.  Green, who will be coming out with his own book Brexit: What Everyone Needs to Know in August 2019, started off by explaining there are three ways the Brexit issue could be resolved by the current October 31 deadline.

First, the UK could request another extension, but Green feels this is unlikely given that extensions must be agreed upon by the entire EU Council, and given that the previous two extensions were not agreed upon quickly or easily.  Further, every request for an extension requires further time, planning, and government representation to organize, and most EU member states are about at the end of their patience which such requests.

The second outcome would be if the UK political establishment finally agrees to the current deal that has been negotiated.  However, given that two of the greatest Parliamentary defeats in history have come from votes on this deal, it is unlikely that a new government will have any better luck pushing it through a third time.

A third outcome would be to revoke Article 50 and work on “starting over”, but there does not seem to be the political will to move forward with this option.  However, leaving with no deal would be – in Green’s words – “like Armageddon”, so it is entirely unclear what the next move for the UK will be at this stage especially given the current uncertainty surrounding who the next Prime Minister will be (consider following the BBC coverage on this development).

I found Green’s most interesting comments to be on the logical outcomes of all the effort that has gone into planning (or maybe not planning) for Brexit.  Due to all of the special apparatuses that had been set up in the EU and the UK to handle negotiations and transitions, Green believes the UK was never in a better position to leave the EU than it was in March.  Now due to political leadership changes in both the EU and UK, these teams are being disbanded and much of the institutional knowledge and experience will be lost.  Therefore, Green believes that the UK is now in a worse position than it was in March.

In closing, Green spoke very highly of the work that various information professionals have been doing in support of disseminating information, specifically that of the House of Commons and House of Lords libraries’ research briefings on Brexit.  He also recommended Parliament’s Select Committee reports which can be browsed either by most recent reports or by Committee, with the Exiting the EU Committee being especially relevant to Brexit issues.  Green also singled out two monographs worth consulting on the topic of Brexit: 9 Lessons on Brexit by Ivan Rogers and A Short History of Brexit by Kevin O’Rourke (slightly less relevant, this was my personal favorite Brexit book purchase of the trip).

In addition to Green’s opening plenary session, the closing plenary session by Matthew Bell of the National Archives on meeting the domestic legislative publishing challenges of Brexit offered some interesting insights as well.  Although I could only stay for a few minutes of this talk before leaving to catch my flight home, I did find that Bell gave a presentation at the 2018 Law via the Internet conference and the slides posted from that presentation are very similar to what I saw at the BIALL conference.

The most interesting takeaway I had from Bell’s presentation was that the National Archives is well placed to begin its work to create a fully functioning domestic statute book as soon as the UK leaves the EU – the key part being “when”, which was covered extensively in Green’s comments above.  The slides do an excellent job of spelling out what is required of “the Queen’s printer” by European Union (Withdrawal) Act 2018, c.16, Sch. 5 para.1 and how legislaton.gov.uk will be working to capture the “moment in time” of EU legislation via Eur-Lex when (if?) then official exit occurs.

Finally, I’d like to put in a small plug for those of you who might have an interest or school focus on UK/Irish law to consider joining BIALL (you may be as shocked as I was to see a familiar face welcoming you to their membership page) and/or attending their conference.

The next BIALL Annual Conference will be held June 11-13, 2020 in Harrogate, which is a lovely Victorian spa town in Yorkshire definitely worth visiting.    I personally find BIALL to be more accessible than AALL, especially when it comes to speaking with vendors.  Although the products in the UK are not always the same as we have in the US, many of us in the FCIL community are responsible for recommending the purchase of foreign materials and BIALL is an excellent place to learn more about these resources.  I’ve attended a number of BIALL conferences over the years and would be glad to answer any questions you might have!

ASIL Recap: International Law & Interstellar Events: Who Speaks for Earth?

SpaceLawPanel

The panelists for International Law and Interstellar Events: Who Speaks for Earth at the 113th annual meeting of the American Society of International Law.

By Charles Bjork

For those who attended the 113th annual meeting of the American Society of International Law in Washington, D.C. at the end of March, the session entitled International Law and Interstellar Events:  Who Speaks for Earth? offered a welcome respite from sessions devoted to climate change, trade wars, and Brexit.  Instead of dwelling on an actual, real-life crisis, the panel was asked to speculate on how international law might guide or constrain nation states in responding to threats to global security that are merely theoretical in nature, namely those that might arise from outer space.  In addressing this issue, members of the panel were asked to analyze two hypothetical scenarios.  The first scenario was defensive in nature:  If scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage, what individual or collective responsibilities do states have to try to prevent this from happening?  The second scenario was more affirmative in nature:  Does international law provide any guidance as to whether individual states, groups of states, or private actors, may broadcast Earth-identifying signals into outer space or respond to signals that are detected from an alien source?

The panel consisted of Chris Borgen, Professor of Law and Co-Director of the Center for International and Comparative Law at St. John’s University; Robin Frank, who recently retired after serving as an Associate General Counsel at NASA; Andrea Harrington, an Associate Professor at the U.S. Air Force Command and Staff College; and Lindley Johnson, NASA’s Planetary Defense Officer.  (Yes, that really is his job title!)  Shane Harris, a staff writer at The Washington Post covering intelligence and national security matters, served as the moderator.

Harris initiated the discussion by asking Johnson how we would know that an asteroid large enough to cause significant damage is on course to collide with the Earth, and how much time we might have to respond.  As Johnson explained, Congress enacted legislation in 2005 mandating that NASA develop a program for identifying and tracking Near-Earth Objects (NEOs) in order to assess their threat potential.  NEOs are defined as asteroids and comets at least 100 meters in diameter whose orbits bring them within relatively close proximity to the Earth.  In 2013, at the recommendation of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the International Asteroid Warning Network (IAWN) was established to enable government and private sector entities operating at the national and regional levels to cooperate in tracking NEOs, share information about them, and develop responsive measures.  As a result of these initiatives, researchers using ground-based telescopes already have identified and catalogued more than 25,000 NEOs.  This figure includes more than 90 percent of NEOs with diameters in excess of 1,000 meters, which are large enough to cause catastrophic damage, approaching the level of disruption unleashed by the asteroid strike that led to the extinction of the dinosaurs.[1]

How much time would we have to respond to a potentially devastating asteroid strike?  According to Johnson, there should be ample warning time to prepare for a strike by a known NEO whose trajectory is being actively tracked.  Most likely, the window for developing a response would be measured in years, if not decades.  Of greater concern are newly discovered NEOs, whose trajectories may not be known until less than a year before impact.  As in the past, some asteroids will continue strike the earth without being detected in advance.  The good news is that the vast majority of undiscovered asteroids will be small enough to disintegrate upon contact with the Earth’s atmosphere and cause minimal, if any, damage upon impact.  That is why NASA and other members of the IAWN prioritize identifying NEOs that are large enough to cause more significant damage.

If scientists determine that an asteroid is going to collide with the Earth, how might we respond?  Much will depend on its size and trajectory.  If the asteroid is relatively small and is projected to land in a rural, sparsely populated area, the best option may be simply to evacuate the impact zone.  What if the asteroid is projected to land in a more densely populated area and cause significant damage and loss of life?   According to Johnson, there are at least two plausible options available.  One option would be to deflect the asteroid from its current path to prevent it from striking the Earth.  This could be accomplished by launching a spacecraft to fly alongside the asteroid in close proximity for an extended period of time – a year or more, if there is sufficient warning.  Eventually, the gravitational pull of the spacecraft would alter the trajectory of the asteroid and cause it to veer away from the Earth.  Alternatively, if the response time were more limited, the spacecraft could be launched to collide with the asteroid and knock it off its current path.  The other, more drastic option would be to launch a nuclear device into space and detonate it in close proximity to the asteroid, causing it to disintegrate before it can reach the Earth.  The viability of these options would depend, in large part, on the amount of time available, but also on the composition of the asteroid.  An asteroid comprised of loosely held-together rocks and space debris would be relatively easy to break apart, whereas an asteroid comprised of solid metal or rock might be a better candidate for deflection.

After Johnson had sketched out the technological challenges and time frame for responding to anticipated asteroid strike, Harris asked the other panel members to discuss the legal aspects.  Professor Borgen addressed the question of whether individual states should respond unilaterally to the threat or whether multilateral action is preferable.  Under international law, a state has the inherent right to defend itself.  As a practical matter, of course, only a handful of states currently have the technological capacity to attempt to deflect or destroy an asteroid.  The case for unilateral action would be stronger if the threat posed by the asteroid is not worldwide, but limited to a particular country or region.  Unilateral action also might be justified if the threat is not discovered in time to reach a consensus on a multilateral response.  In such a scenario, only an individual state could act quickly and decisively enough to respond to threat in a timely manner.

Nevertheless, there are serious drawbacks associated with unilateral action.  Foremost among them is the issue of liability in the event that the unilateral action fails to remove the threat or unintentionally exacerbates it.  What if, for example, the unilateral action does not deflect the asteroid away from the Earth, but instead redirects the impact to another country or region?  Or what if the unilateral action doesn’t destroy the asteroid, but instead causes it to break up into smaller pieces that are still large enough to cause significant damage over a much wider area?  Article VI of the Outer Space Treaty[2] provides that state parties to the treaty shall bear responsibility for national activities in outer space, whether they are carried out by governmental agencies or by non-governmental entities.  Article VII of the Outer Space Treaty further provides that each state party to the treaty that launches an object into outer space, and each state party from whose territory such an object is launched, shall be internationally liable for damages caused by the object to any other state party or to any natural or juridical persons of any other state party.

Given the wide scope of liability imposed by the Outer Space Treaty, Professor Borgen believes that a multilateral approach is essential to properly assess the level of risk posed by the asteroid and to formulate an appropriate response that takes into account the interests of all states that may be adversely affected.  Only if there were insufficient time to reach a multilateral consensus would unilateral action be warranted.  The other members of the panel concurred with this analysis.  The most plausible institution for forging such a multilateral consensus is the U.N. Security Council.  A response authorized by the Security Council under Chapter VII of the U.N. Charter, which is implemented by multiple states acting cooperatively, wouldn’t necessarily absolve those states of liability if something went wrong, but it would at least prevent a single state from shouldering all of the blame and perhaps provide the legal basis for establishing an international indemnity fund.

Professor Harrington then addressed the question of what constraints international law might place on the nuclear option for preventing a potentially catastrophic asteroid strike.  She acknowledged that Article IV of the Outer Space Treaty expressly prohibits state parties to the treaty from placing nuclear weapons and other weapons of mass destruction in orbit around the Earth, from installing such weapons on the Moon or on other celestial bodies, and from stationing such weapons in outer space in any other manner.  Nevertheless, she believes that detonating a nuclear device in outer space for the purpose of preventing an asteroid from colliding with the Earth would not constitute a violation of Article IV because the device would not be used as a weapon.  Frank disputed Harrington’s interpretation of Article IV and insisted that it does pose a significant obstacle to pursuing the nuclear option.  Professor Borgen noted that the drafters of the Outer Space Treaty never anticipated the use of a nuclear device to prevent a potentially catastrophic asteroid strike.  Their intent, which is apparent from the drafting history, was to ensure that outer space would be used exclusively for peaceful, non-aggressive purposes.  It would be a stretch to interpret the language of Article IV loosely enough to justify the detonation of a nuclear device in outer space for the purpose of destroying a threatening asteroid.  Johnson agreed with this assessment.

Another potential constraint on using a nuclear device to prevent a potentially devastating asteroid strike is the Limited Nuclear Test Ban Treaty.[3]  Article I of the treaty expressly prohibits state parties from carrying out “any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control” or “in the atmosphere, beyond its limits, including outer space.”  While this might seem like an iron-clad prohibition, Professor Harrington noted that the doctrine of necessity, a longstanding principle of customary international law, offers a potential escape clause.  Under the necessity doctrine, a state facing a grave and imminent peril may justifiably breach its obligations under international law in order to safeguard its essential interests, provided that two conditions are met.  First, the state’s response to the grave and imminent peril must not seriously impair the interests of other states.  Second, the state must not have caused or contributed to the situation that gave rise to the grave and imminent peril.  If confronted with the prospect of an asteroid causing immense damage to its territory, the political leadership of a state party to the Limited Test Ban Treaty that has the capacity to launch a nuclear device into space likely would come under immense public pressure to deploy such a device in the hope of deflecting or destroying the asteroid.  Panel members agreed that the state party’s political leaders almost certainly would invoke the necessity doctrine if they were to conclude that the nuclear option is the best or the only method of addressing the threat posed by the asteroid.

Turning to the second hypothetical, Harris asked Prof. Borgen what guidance, if any, international law would provide in the event that scientists detect a signal or message sent by intelligent beings from another solar system.  In particular, what entity would be authorized to acknowledge receipt of the message on behalf of humankind and issue a response?  According to Borgen, international law is silent on this question and does not impose any specific obligations or prohibitions on states or non-state actors.  Prof. Harrington agreed with Borgen’s analysis, adding that the only tangentially relevant legal norm in this context is the obligation imposed on the member states of the International Telecommunications Union, a specialized agency of the United Nations, not to interfere with radio signals or the use of the radio spectrum.  Apart from that general obligation, international law offers no guidance.

In the absence of any governing law, whichever entity or organization first detected the alien signal likely would turn to soft law principles and best practices within the scientific community for direction.  Johnson emphasized the need to timely disclose and share information about the discovery with other scientists, with national and regional space agencies, and with relevant inter-governmental organizations.   Information sharing is vital, not only for purposes of verification, but also for assessing risks and reaching a consensus on the appropriate response.  Thanks to the ongoing work of the United Nations Office for Outer Space Affairs (UNOOSA) and its affiliated entities, well-established networks already are in place to facilitate information exchange and collaboration within the relevant scientific, legal, and policy-making communities.

If scientists interpret the alien signal as being potentially hostile or threatening, rather than benign, it would be imperative to seek input from an even wider range of actors, both public sector and private sector.  As in the case of a potentially deadly asteroid strike, the U.N. Security Council would be the most likely forum in which to attempt to forge a unified, multilateral response.  Panel members agreed that while input from private institutions and individuals with specialized knowledge and expertise should be solicited and taken into account, the question of how to respond to an alien signal, whether friendly or hostile, ultimately is a matter of public policy that should be determined by institutions that are publicly accountable.  Prof. Borgen also emphasized the time factor.  Whatever its origins, the alien signal most likely would have taken many years to have reached the Earth.  It would be foolish to respond too quickly without taking adequate time to deliberate and think through all of the possible implications, unless there were extenuating circumstances that justified a more rapid response.

Before opening the floor to question from the audience, Harris added a final twist to the second hypothetical.  What if, instead of an alien signal from outer space, an alien spacecraft were to land in international waters off the coast of California?  Should the United States, the jurisdiction most immediately impacted by the landing, take the initiative in responding, or should it wait for the international community to act?  If the aliens operating the spacecraft were behaving in a threatening manner, the United States would be justified, under international law, in taking measures to defend itself from the aliens.  If the circumstances warranted, the U.S. almost certainly would invoke the necessity doctrine in order to take extraordinary measures that might otherwise violate its international legal obligations.

Even if the United States were disproportionately impacted by the landing of an alien spacecraft, panel members stressed that it would still be advisable for the U.S. to pursue multilateral consultation and cooperation in order to ensure that risks are properly assessed and that the interests of other states are taken into account.  Prof. Harrington noted the inherent tension between law (what is legally permissible under the circumstances) and policy (what should be done to optimally address the threat at hand).  She emphasized that when the law is largely silent as to what actions are permissible, policy-makers must look beyond the panic generated by sensationalist media coverage of an alien spacecraft, likely to be magnified by social media echo chambers, and do their best to avoid taking actions that will have unintended consequences.  Several panelists raised the danger of inter-planetary cross-contamination – the transfer of micro-organisms from the alien spacecraft to the Earth, and Earth-based micro-organisms to the alien spacecraft – as one of the most likely unintended consequences.  The panelists agreed that a multilateral approach, one that seeks input from a wide range of state parties and non-state actors, is more likely to avoid such unintended consequences than a unilateral response.

Moderator Shane Harris Panelists Robin Frank Lindley Johnson

Robin Frank, recently retired after serving as an Associate General Counsel at NASA, stole the show with her rocket-shaped earrings.

[1] See Douglas Preston, The Day the Dinosaurs Died, The New Yorker, March 29, 2019, for a fascinating (and nightmare-inducing) overview of the latest research into the massive asteroid, estimated to have been six miles wide, that struck what is now the Yucatán Peninsula sixty-six million years ago, causing a severe disruption to the Earth’s climate that led to the extinction of most forms of life.

[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.

[3] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43.

FCIL-SIS Book Discussion Group to Meet Again During Washington, D.C. Conference

nofriendbutthemountainsOver the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s company.

This year, the group will meet on Monday, July 15, at 12:15, during the Attendee Lunch in the Exhibit Hall.  We will meet in the Registration Area, find a table, and take advantage of the complimentary lunch.

This year’s book selection is No Friend But the Mountains: Writing from Manus Prison, by Behrouz Boochani.  Mr. Boochani is an Iranian-Kurdish journalist, human rights defender, poet and film producer. He was born in western Iran and has been held in the Australian-run Manus Island detention center since 2013.  The following book description appears on the Pan Macmillan Australia website:

 

WINNER OF THE VICTORIAN PREMIER’S LITERARY PRIZE FOR LITERATURE AND FOR NON-FICTION 2019

Where have I come from? From the land of rivers, the land of waterfalls, the land of ancient chants, the land of mountains…

In 2013, Kurdish journalist Behrouz Boochani was illegally detained on Manus Island. He has been there ever since.

People would run to the mountains to escape the warplanes and found asylum within their chestnut forests…

This book is the result. Laboriously tapped out on a mobile phone and translated from the Farsi. It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.

Do Kurds have any friends other than the mountains? 

WINNER OF THE NSW PREMIER’S AWARD 2019 

WINNER OF THE ABIA GENERAL FICTION BOOK OF THE YEAR 2019

PRAISE FOR NO FRIEND BUT THE MOUNTAINS

“Boochani has produced a literary, journalistic and philosophical tour de force. It may well stand as one of the most important books published in Australia in two decades…” The Saturday Paper

“A chant, a cry from the heart, a lament, fuelled by a fierce urgency, written with the lyricism of a poet, the literary skills of a novelist, and the profound insights of an astute observer of human behaviour and the ruthless politics of a cruel and unjust imprisonment.” Arnold Zable, author of the award-winning Jewels and Ashes and Cafe Scheherazade

a shattering book every Australian should read” Benjamin Law (@mrbenjaminlaw 01/02/2019)

“In the absence of images, turn to this book to fathom what we have done, what we continue to do. It is, put simply, the most extraordinary and important book I have ever read.” Good Reading Magazine(starred review)

“Brilliant writing. Brilliant thinking. Brilliant courage.” Professor Marcia Langton AM (@marcialangton 01/02/2019)

“Not for the faint-hearted, it’s a powerful, devastating insight into a situation that’s so often seen through a political – not personal – lens.” GQ Australia

“It is an unforgettable account of man’s inhumanity to man that reads like something out of Orwell or Kafka, and is aptly described by Tofighian as ‘horrific surrealism’. It is clear from Boochani’s writing that he is a highly educated and philosophical man; he segues effortlessly between prose and poetry, both equally powerful.” –The Australian Financial Review Magazine

“Behrouz Boochani has written a book which is as powerful as it is poetic and moving. He describes his experience of living in a refugee prison with profound insight and intelligence.” Queensland Reviewers Collective

“In his book Boochani introduces us to different dimensions of his experience and thinking. Both a profound creative writing project and a strategic act of resistance, the book is part of a coherent theoretical project and critical approach.” Omid Tofighian, translator of No Friend But the Mountains

It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.” Readings

Boochani has woven his own experiences in to a tale which is at once beautiful and harrowing, creating a valuable contribution to Australia’s literary canon.” Writing NSW

it is a voice of witness and an act of survival” Law Society of NSW Journal

 

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Washington, D.C. for another great book discussion!