Published in The Journal of Robotics, Artificial Intelligence & Law March-April 2020
Samuel Slater opened the first cotton mill in the United States in Pawtucket, Rhode Island, on December 20, 1790, essentially beginning the Industrial Revolution in America.1 In doing so, he inadvertently created one of the primary health hazards of modern America: hazardous waste that is the byproduct of manufacturing. That waste was never the primary concern of American industry. Mills in Pittsburgh created steel; mills in Lowell created cloth. They also created waste, but that was not the point, and for decades the general public in America largely associated factories with their intended production, not their unintended production. The problem, of course, was that the unintended production created unintended consequences, including health problems and dam¬aged ecosystems.
Personal information has become the industrial byproduct of the 21st century. Most of the general public does not think criti¬cally of the personal data generated when they use their phones, communicate via social media, or browse websites. The utility they obtain from their phones, social media platforms, and websites is the intended production; the data collected during that use is unintended. To the extent that American consumers consider the data they generate, they frequently think of it as a mostly harm¬less commodity to trade for the access they get to applications and services: Facebook, Google searches, web content, etc.
But as the Cambridge Analytica scandal demonstrated, the col¬lection and use of personal information generated as the byproduct of other uses is not harmless. And in the same way that members of the public came to realize the extent of the dangers posed by hazardous waste created as a byproduct of manufacturing,2 Ameri¬cans are slowly realizing that technology use byproducts—personal data and information—can be dangerous, too, particularly when analyzed and manipulated by artificial intelligence ("AI").
Hazardous Waste as a Byproduct of Manufacturing
There is ample evidence in the historic record of the hazard¬ous waste and toxic materials that were produced and discarded as part of making manufactured goods in 19th and early 20th cen¬tury America. I do not see the need to recreate that here, but one particularly colorful quote about the pollution of the Industrial Revolution is worth repeating:
There were myriads of dirty things given it [a river] to wash, and whole wagonloads of poisons from dye houses and bleach yards thrown into it to carry away; steam boilers dis¬charge into it their seething contents, and drains and sewers their fetid impurities; till at length it rolls on—here between tall dingy walls, there under precipices of red sand-stone—considerably less a river than a flood of liquid manure.3
It is not fair to say that the effects of toxic materials on the pub¬lic health, water quality, and surrounding properties was entirely unknown. As early as the mid-19th century, plaintiffs began bringing litigation against industrial defendants, arguing that the discharge from their factories polluted and damaged their properties,4 and numerous activists began publicly identifying the connection between industrial waste and public health crises.5 In 1878, Massa¬chusetts became the first state to attempt to govern stream pollution, when legislation gave the State Board of Health the power to control the river pollution caused by manufacturing wastes.6
But it is also true that these conclusions were not as widely known or publicized as they would later become. Although most cities in the United States with a population over 30,000 had a board of health, a health commission, or a health officer, most were only concerned with human or livestock waste. The majority did not have specific regulations addressing the disposal of manufacturing waste.7
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* John Frank Weaver, a member of McLane Middleton's privacy and data security practice group, is a member of the Board of Editors of The Journal of Robotics, Artificial Intelligence & Law and writes its "Everything Is Not Terminator" column. Mr. Weaver, who may be contacted at email@example.com, has a diverse technology practice that focuses on information security, data privacy, and emerging technologies, including artificial intel¬ligence, self-driving vehicles, and drones.
1. Dec 20, 1790 CE: First American Cotton Mill Opens, National Geo¬graphic, https://www.nationalgeographic.org/thisday/dec20/first-american-cotton-mill-opens/. I recognize that academics have long discussed the Industrial Revolution in three or more distinct parts, generally with the first spanning from about 1760 to 1840 (introducing railroads, the steam engine, and mechanical production), the second spanning from the late 19th century to the early 20th century (introducing electricity and the assembly line), and the third spanning from the 1960s to the 1990s (introducing semiconduc¬tors, personal computers, and the internet). See Klaus Schwab, The Fourth Industrial Revolution (World Economic Forum, 2016), 11-13. The lay public typically refers to the first industrial revolution as the "Industrial Revolution," and this article does as well.
2. See, e.g., Nathaniel Rich, "The Lawyer Who Became DuPont's Worst Nightmare," New York Times (January 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html; Gary Ruskin, Seedy Business: What Big Food is hiding with its slick PR campaign on GMOs (USTRK, 2015), 11-15.
3. Lewis Mumford, The City in History (New York: Harcourt Brace Jovanovich, 1961); 459-60.
4. See Jouni Paavola, "Water Quality as Property: Industrial Water Pol¬lution and Common Law in the Nineteenth Century United States," Environ¬ment and History 8, no. 3 (August 2002), 303-310.
5. See John T. Cumbler, Reasonable Use: The People, the Environment, and the States, New England 1790-1930 (Oxford University Press: 2001), 49-102.
6. Joel A. Tarr, "Historical Perspectives on Hazardous Wastes in the United States," Waste Management & Research, vol. 3 (1985), 96.
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