73 Am. U. L. Rev. 1467 (2024).

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Abstract

Policymakers often play a critical role in regulating the use and advancement of technology. Their decisions can have significant positive impacts on the development, adoption, and use of various technologies, but also negative ones if they decide to limit or even block a certain technology. Italy’s temporary banning of the Generative Artificial Intelligence (GenAI) platform ChatGPT, much like New York City’s Department of Education, demonstrates administrations’ and policymakers’ reliance on blacklisting and banning.

Blacklisting and banning are often used interchangeably. Nevertheless, in the context of regulation, the terms are different and used for different purposes, and it is key to understand why, how, and what consequences are associated with each term, particularly when used in connection with innovative and disruptive technologies, such as GenAI.

This Article explores the use of blacklisting as a regulatory tool while differentiating it from the practice of banning. In doing so, this Article examines the impact of any related explicit and implicit sanctions, especially as such sanctions include reputational damage, increased hardship in getting credit, and the potential costs of “doing business.” Additionally, the Article makes the important distinction between two rationales for blacklisting: (1) Blacklisting for participating in or advancing an illegal activity or failing to comply with binding legal requirements; and (2) blacklisting for moral or ethical reasons. It also describes why sanctions do not always work. Finally, this Article makes policy recommendations that would help increase the effectiveness of blacklisting as a regulatory tool, while acknowledging the problematic nature of regulation by enforcement.

* Professor of Law, Baruch College, City University of New York. Senior Lecturer, Haifa University Faculty of Law. Affiliated Faculty, Indiana University Bloomington’s Program on Governance of the Internet & Cybersecurity.

** Founder and Senior Research Fellow, Hadar Jabotinsky Center for Interdisciplinary Research of Financial Markets, Crises and Technology. Research Fellow, Zefat Academic College School of Law. We thank the participants at the LawFin Research Seminar at Goethe University for their feedback, and Roee Sarel for helpful comments. Special thanks are due to the editorial team of the American University Law Review: Cameron Azimi, Manuel Alcantar-Robles, Krista Zamurs, Elizabeth Clinch, Adam Markhoff, Will Rogers, Krista Trefren, and Shaina Varghese for great dedication, remarkable feedback, comments, suggestions, and outstanding editorial work that profoundly improved the quality of this Article. The Authors used ChatGPT, OpenAI’s large-scale language-generation model, to assist in checking the spelling and grammar of parts of this text. Upon generating draft language, the Authors reviewed, edited, and revised the language to their liking and take ultimate responsibility for the content of this publication.