Secret Algorithms, IP Rights, and the Public Interest

46 Pages Posted: 22 Sep 2020 Last revised: 8 Jul 2021

See all articles by Meghan J. Ryan

Meghan J. Ryan

Southern Methodist University - Dedman School of Law

Date Written: September 13, 2020

Abstract

The secrecy surrounding the algorithms that play a central role in American life today is proving to have alarming effects. Judges and juries are convicting defendants based on secret evidence. Major advertisers like Facebook are discriminating against minorities seeking housing. And Russians may very well be hacking our voting machines to change election outcomes. The algorithm secrecy underlying these results obscures whether such legal outcomes are actually accurate and fair or whether they were based on faulty evidence, affected by bias, or manipulated by outside influences. These are just a handful of the public-interest perils of algorithm secrecy. This Article explains that the pervasive secrecy surrounding algorithms is not entirely by accident. The Supreme Court’s recent overhaul of intellectual property (IP) law has driven algorithm developers toward secrecy. By limiting patent protection for software, the Court’s new IP regime pushes developers away from the required disclosure of patent law and toward the obscurity of trade secret law. In doing so, the new regime neglects to take into account the many negative effects that this heightened secrecy has on the public interest. Accuracy, fairness, and good policy require a more careful consideration of the tradeoffs between secrecy and transparency. This includes not only exploring how to minimize these swelling public-interest concerns but also reexamining the Court’s new IP rules with these negative effects in mind.

Keywords: algorithm, software, computer, intellectual property, IP, trade secret, patent, voting, hacking, election, criminal justice, wrongful conviction, breathalyzer, racism, housing, discrimination, public interest

Suggested Citation

Ryan, Meghan J., Secret Algorithms, IP Rights, and the Public Interest (September 13, 2020). Nevada Law Journal, Vol. 21, No. 1, pp. 61-116, 2020, SMU Dedman School of Law Legal Studies Research Paper No. 484, Available at SSRN: https://ssrn.com/abstract=3691765

Meghan J. Ryan (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: https://www.smu.edu/Law/Faculty/Profiles/Ryan-Meghan-J

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
85
Abstract Views
468
rank
356,426
PlumX Metrics