Richmond Journal of Law and Technology

The first exclusively online law review.

Month: November 2013

Recap of the 20th Volume Alumni Celebration

Thank you to all of those who joined us at JOLT‘s 20th Volume Alumni Celebration.  It was wonderful to see so many generations of alumni.

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Ben Fox, Editor-in-Chief, kicks off the evening by introducing Rick Klau.

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JOLT Co-Founder Rick Klau gives the keynote address, describing how an arbitrary deadline from the Dean’s Office was a blessing in disguise: it made JOLT the first journal to publish exclusively online.


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Volume XX Editorial Board and Senior Staff

Thank you to everyone who came out.  We had a great time celebrating JOLT’s success. To another twenty years!

 

Healthcare.gov "Obamacare" Website May Lead to Lawsuits

by Laura Bedson, Associate Staff

 

On October 1 of 2013 the much awaited online insurance exchanges launched under the Affordable Care Act.  With this launch millions of uninsured people were to be offered health insurance plans on Healthcare.gov.  Unfortunately the website did not run as smoothly as planned, leaving individuals with error messages and long waits to sign on to the site.  And to date, the website is still experiencing technological difficulties.  These technological errors, while embarrassing, and frustrating, have proven to be the least of the Obama administration’s worries.

Where this mess gets even messier is when you start to contemplate the lawsuits that will inevitably spring up as a result of the problems encountered on the website. Currently the extent of the legal issues seem like a good deal of finger pointing but in today’s lawsuit-happy society, it is likely that lawsuits are possible and imminent.  What we are waiting for at this point is for the tangled web of culprits to be unwoven. 

Health and Human Services Secretary KathleenSebelius is part of that web, and is one of the parties who has been the subject of much scrutiny as a result of the website’s failure.  Secretary Sebelius is convinced that by the end of November the majority of consumers will be able to successfully use the site to enroll in their insurance plans.  This does not mean however that Secretary Sebelius is off the hook.  She along with an additional 55 or so contractors reportedly involved in setting up the Obamacare federal exchanges stand to be implicated in lawsuits seeking refunds as a result of the site’s malfunctions.[1]  In fact, on Thursday, October 24, House Oversight Committee Chairman Darrell Issa threatened Secretary Sebelius with a subpoena saying that if she didn’t respond to questions about the problems with the website she could possibly face compulsory action.[2]

Action can come about in the form of the federal government suing for refunds or withholding payment to contractors.  In response to this, the contractors who feel they are entitled to payment could sue.  In addition, the contractors can sue one another.  This web of blame is undoubtedly tangled but with so many players involved it is likely that someone will be impacted.  Harv Lester, who spent 20 years litigating in the Justice Department’s Civil Division is quoted saying that “the government, to recover damages, will have to prove which contractor or contractors are responsible for any defects.”[3] 

Overall this ordeal is just beginning.  It is likely that we will have to wait until the end of November, as Secretary Sebelius has predicted to determine what the extent of the damage is.  Right now it is clear that these technological glitches carry more weight than anticipated.   We will just have to continue waiting and watching to see how the rest of the story unfolds.


[1] Id.

 

[2] Tom Cohen, Contractors Blame Government For Obamacare Website Woes, (Oct. 25, 2013, 6:41 AM), http://www.cnn.com/2013/10/24/politics/congress-obamacare-website/.

 

[3] Josh Gerstein, Next Up After Website Glitches: The Lawsuits, Politico (Oct. 23, 2013, 4:55 AM), http://www.politico.com/story/2013/10/obamacare-site-could-mean-legal-fight-affordable-care-act-enrollment-98717.html.

 

Blog: Is Your Fantasy League Technically Illegal in Virginia?

by Miles Jolley, Associate Staff

Your initial response to this question is probably, “No way bro!” But answering this question under Virginia law may not be as easy as it seems.  If your league requires an entry fee and then allocates the pot to your league’s best, you may be breaking Virginia law.

Illegal betting in Virginia is prohibited by statute.  The statute reads, in pertinent part: “‘Illegal gambling” means the making, placing or receipt of any bet or wager . . . made in exchange for a chance to win a prize . . . dependent upon the result of any game, contest or any other event the outcome of which is uncertain or a matter of chance.”[1]  Broken down, this means that if you put down money in order to win a prize (more money), and winning is dependent upon events out of your control, you are an illegal gambler in Virginia.  However, there are exceptions in the code as well.  The relevant exception to Virginia’s gambling law reads: “Nothing in this article shall be construed to prevent any contest of speed or skill between men . . . where participants may receive prizes or different percentages of a purse . . . dependent upon their position or score at the end of such contest.”[2]  This exception carves out immunity for people who involve themselves in games of skill for gain.  The big difference between these two statutes is whether the contest involves a game of chance or skill.  So the title question boils down to another question: what are fantasy sports, games of chance or games of skill? 

There are certainly elements of both involved.  On the skill side, fantasy sports require fantasy owners to evaluate hundreds of real-world players’ potentials before the draft to determine when to, if at all, draft certain players.  Additionally, players are constantly assessed during the season for trade value, starting spots, and free-agent acquisitions.  All of this seems to include some sort of skill.  Owners need to interpret a player’s past performance, future matchups, etc.  Any first-time owner will tell you this is not easy, and requires loads of skill and experience. 

On the chance side, all of that assessment hinges on the performance of a real-world player.  Everything about this aspect of fantasy sports is out of the owners’ hands.  A player’s performance depends on coaching decisions, injuries, the other team’s performance, etc.  Again, any fantasy owner can tell you how unpredictable fantasy sports can be.  This chance is the reason gambling is illegal in most states; as wagering money on unknown outcomes is seen as morally defect.  The distinction between skill and chance is what this issue hinges on, but federal law may provide a guiding light for future Virginia statutes.

Betting on fantasy sports is not illegal under federal law.  In fact, there is a special carve out for this activity.  In 2006, the Unlawful Internet Gambling Enforcement Act established widespread provisions limiting online gambling.  However, members of Congress (I wonder how contentious that fantasy league must be) made a specific exception for fantasy sports.  Betting is allowed on fantasy sports so long as rosters aren’t based entirely on the rosters of real sports teams, prizes are established at the outset of the league, outcomes are based on the skill of fantasy owners and the collective statistical performance of several individuals, and so long as outcomes aren’t based entirely on one team’s or one individual’s performance.[3]  Virginia, if it so chooses, can use this statute as an example to exempt fantasy leagues from its illegal gambling law.

 While nobody in Virginia has ever heard of fantasy sports leagues being prosecuted, it still could very well be illegal.

 


[1] 18.2 Va. Code § 325 (2011).

[2] 18.2 Va. Code § 333 (2010).

[3] 31 U.S.C. § 5362(1)(E)(ix) (2006).

Blog: Online Shopping is at a Legal Crossroads

by Spencer Mead, Associate Staff

Shopping today looks very different than it did 20 years ago. Online retailers like Amazon have forever changed the way consumers shop. A person can hop on the internet, travel to a website such as Amazon.com, and order a wide variety of items in a matter of minutes. This method saves time traveling to the store, walking around to find what you want, and in most states shopping online is cheaper. The reason for this is because most states have not enacted any form of taxation on online retail sales. Thus, making the total cost cheaper to shop online than in a local store.

In this day and age of budget cuts and deficits, should online retailers be taxed by states? The taxation would help generate revenue for states desperate for income, and remove the incentive for people to buy online instead of going to their local retail store. But it would come at a cost to the average consumer having to pay slightly more for all online purchases. Now this probably would not have a significant impact on consumers overnight, but the few dollars of tax on each purchase would add up over time. Eventually, these dollars could add up to having a significant impact on families already stretched thin from the recession.

 18 states have determined that they are allowed to tax online retailers, and these states have enacted some form of law taxing sales that take place on the internet. However, the Illinois Supreme Court invalidated a state law allowing taxation of online retailers.[1] The Court determined that the state tax was superseded by Federal Law, and therefore not valid.[2] You might be thinking to yourself, “So what? I don’t live in Illinois so this can’t possible impact me.” However, that would be looking at this issue very narrowly.

This split created by the states could lead to the Supreme Court stepping in to determine if states are allowed to tax transactions taking place on the internet. This has the potential to have an impact on online shoppers across the United States, not just Illinois. This would also have an impact on how states can or cannot generate extra income from taxes on the internet as a whole. A Supreme Court ruling could also greatly affect how retail chains approach online shopping. Even if you are not an online shopper, this can impact you in the future. Large retailers like Wal-Mart and Amazon believe the future of retail lies somewhere between in-store shopping and online shopping.[3]

Regardless of how you shop, you need to be aware of the taxation of online goods. In the future, all goods might be bought and sold online. That is not the case today, but the current decisions of the courts and lawmakers will have a significant impact on the future of retail shopping.


[1] John O’Connor, Ill. High Court Invalidates ‘Amazon tax’ for sales, Yahoo! News (Oct. 18, 2013, 6:27 PM), http://news.yahoo.com/ill-high-court-invalidates-amazon-tax-sales-214307802–finance.html.

[2] Id.

[3] Claire Cain Miller & Stephanie Clifford, To Catch Up, Walmart Moves to Amazon Turf, N.Y. Times, Oct. 19, 2013 available at http://www.nytimes.com/2013/10/20/technology/to-catch-up-walmart-moves-to-amazon-turf.html?ref=technology&_r=0.

Blog: More On Apple's Touch ID – Getting Under Our Skin and Around the Law

by Laura Bedson, Associate Staff

Consumers will stop at nothing to get their hands on the newest Apple products.  But, it appears that with the launch of the iPhone 5s those same hands will be used for something more than just coveting Apple’s newest creation.  The introduction of the 5s also meant the introduction of “Touch ID”,  Apple’s latest technological toy, which has replaced the old passcode system as the means of unlocking one’s phone.  As always, Apple has outdone itself with the release of its newest device, however lawmakers have voiced concerns over Touch ID, specifically it’s Fifth Amendment implications.

 Touch ID has been touted by many as the fingerprint scanning device on the new iPhone.  But this is not what it does.  Instead, it goes deeper to get at information under your skin.  Put (very) simply, the technology in the home button of the phone scans information from the sub-epidermal layers of the skin and uses it as one variable in a larger mathematical representation of your fingerprint to identify you as the owner of the phone and unlock it.[1]  What this means is that the biometric system is more concerned with the capacitive properties of the user’s finger than with its print.[2]

 This procedure is markedly different from the alphanumeric password that iPhone users have been used to, in that it would no longer require users to remember such passwords.  While this may seem like a great idea for those of us whose brains are already at capacity, lawmakers and scholars have approached this new advancement skeptically.

 This skepticism grows out of the possible Fifth Amendment implications of using the Touch ID, specifically the right against self incrimination.  Under this privilege, a witness in a criminal or civil proceeding is protected from revealing information that has the potential to incriminate herself.[3]  The privilege however only extends to testimonial statements, which is a statement that reveals the contents of one’s mind.  A password is something that is (ideally) stored in one’s mind, and as such, qualifies as a testimonial statement.  Based on this logic, law enforcement cannot compel a phone’s owner to incriminate herself by requiring her to enter her password and provide access to the contents of her phone.

 Where the privilege fails is when we enter the realm of biometric data, data which includes but is not limited to fingerprints, blood work, and DNA.  Courts have determined that because this evidence does not speak to what someone “knows”, it is not testimonial and therefore is not privileged. Therefore, the use of the new Touch ID technology, which focuses solely on this biometric data, may make it easier for the government to compel information without implicating the Fifth Amendment privilege against self incrimination.  Without this privilege, a phone user would be forced to use her finger to unlock her phone and reveal its contents law enforcement. 

 Over the years our phones have become an extension of our brains, storing all types of what we may consider personal, classified information.  As our reliance on our phones and the information they store increases, it is now, more than ever, crucial to be aware of how these newest advances, while exciting, can impact the right to privately store and access that information.  It will take time to know whether these advancements have constitutional implications, but until then knowledge is power and consumers need to be alerted to the possibility of infringement on their rights.


[1] Chris Davies, iPhone 5s Touch ID Prompts US Senator Security Concerns, Slash Gear (Sept. 12, 2013), http://www.slashgear.com/iphone-5s-touch-id-prompts-us-senator-security-concerns-20298620/

[2] Id.

[3] Marcia Hofmann, Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, Wired (Sept. 12, 2009, 9:29 AM), http://www.wired.com/opinion/2013/09/the-unexpected-result-of-fingerprint-authentication-that-you-cant-take-the-fifth/.

Blog: Email Scanning by Gmail and Other ISPs: Should We Lose Our Privacy Rights When We Send Emails?

by Jasmine McKinney, Associate Staff

In late September, a federal judge allowed a lawsuit against Google to move forward, when ruling that Google may indeed be violating wiretap law when it scans the e-mails of users not using a Gmail account.[1]  Google utilizes automatic scanning of all e-mail that comes through its servers to work its spam filter, build user profiles, and target advertisements.[2]  The main concern is that when one reads Google’s privacy policy, there is no mention of the fact that the content of e-mails — either between Gmail users or Gmail users and users of other email service providers — are being collected.  This suit against Google has made it possible for similar lawsuits to surface against other e-mail service providers.  In early October, a class action arose claiming that Yahoo violates the Wiretap Act as well as other California laws that forbid intercepting private communications.[3]

The Electronic Communications Privacy Act serves to regulate the collection of content through wire and electronic communications.[4]  This Act was an extension to what is commonly called the “Wiretap Statute” and forbids the “intentional interception, use, or disclosure of wire and electronic communications unless a statutory exception applies.”[5]  There were two primary exceptions under the Wiretap Statute.  The provider exception grants providers the right to intercept and monitor communications in an effort to combat theft or fraud.  Additionally, there is also the exception that when information is readily accessible to public any person is permitted to intercept that electronic communication.  In 2005, the Second Circuit interpreted another exception to the Wiretap Act when it ruled in Hall v. Earthlink Network, Inc. that Earthlink’s continued reception of emails sent to plaintiff Hall’s account did not constitute an “interception” under the Wiretap Act because it was part of Earthlink’s “ordinary course of business.” [6]

Lawsuits such as the ones against Yahoo and Google have raised the question of whether e-mail users should have a reasonable expectation of privacy concerning the messages they send via a third party service providers.  The third party doctrine that was articulated in Smith v. Maryland where the Supreme Court held that once a person involves a third party in communication any legally enforceable privacy rights are lost.[7]  This is precisely the argument that e-mail service providers have attempted to make.  Regardless of which provider an individual chooses to use for their own personal e-mail, once a message is sent to a user who uses some other provider, one’s right to privacy is lost.  However, the question remains whether this doctrine should apply to email service providers like Google and Yahoo.

Aside from an expectation of privacy, there are a number of concerns raised by the use of automatic e-mail scanning.  For example, does Google use automatic scanning solely for the purposes it states or should users be concerned about something more?  Further, should users be concerned with whether the information that is scanned from the e-mails they send is stored by email service providers?  Overall, where should the line be drawn?  The fact remains that we live in a highly technology driven world.  If individuals cannot expect their communications via the Internet to be private, by what means can that expectation be met? Perhaps as this recent litigation continues to unfold, a clear answer will be given as to whether email scanning by service providers is indeed permissible under the Wiretap Act.      


[1] Judge Allows Lawsuit Against Google’s Gmail Scans to Move Forward, http://articles.washingtonpost.com/2013-09-26/business/42421388_1_gmail-users-google-s-marc-rotenberg (last visited Oct. 6, 2013).

[2] Id.

[3] Yahoo Hit with New Lawsuit over Email Scanning in Wake of Gmail Ruling http://gigaom.com/2013/10/03/yahoo-hit-with-new-lawsuit-over-email-scanning-in-wake-of-gmail-ruling/ (last visited Oct. 6, 2013).

[4] 18 U.S.C. §§ 2510-2522 (1986).

[5] Internet Law Treatise, https://ilt.eff.org/index.php/Privacy:_Wiretap_Act (last visited Oct. 6, 2013).

[6] Hall v. Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005).

[7] Smith v. Maryland, 442 U.S. 735 (1979).

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