Richmond Journal of Law and Technology

The first exclusively online law review.

Month: April 2015

Blog: Ignoring the Legal Line: GoFundMe's Controversial Determinations

crowdsourcing-2By: John Danyluk

When most people think about the Internet crowd funding site, GoFundMe, images of commendable campaigns to raise money for worthy causes likely come to mind. However the site, which has quickly become a giant in the online fundraising industry, has recently been the subject of a firestorm of legal and political controversy.[1] The issue is over line that GoFundMe has drawn between which campaigns are acceptable and those which are precluded from using the site as their forum. That line has sparked outrage among many left-leaning critics, while even those whose beliefs align with the other side of the aisle should be scratching their heads over the legal implications of the site’s decisions.

According to GoFundMe’s legal terms and conditions page, over $900 million dollars have been raised on the site, of which GoFundMe takes a 5% flat fee.[2] The terms and conditions also provide a plethora of campaigns which are not allowed, including campaigns designed to raise funds for controlled substances, adult services, false statements, ponzi schemes, and organized violence.[3] Precluding campaigns of an illegal nature is an obvious step for the site to take. However, campaigns supporting perfectly legal, though perhaps taboo or immoral endeavors, have been deemed impermissible. These include campaigns which support “sorcery,” the purchase of guns, knives, or ammunition, and notably, funding an abortion.[4]

This last category, abortion, has sparked immense disagreement over which campaigns the site should legally be allowed to restrict.[5] Regardless of one’s personal beliefs, the simple fact is that an abortion (like a knife or gun) may be legally purchased in the United States since the Supreme Court decided Roe v. Wade in 1973.[6] The site was harshly criticized for cancelling a woman’s campaign which sought to raise money for her abortion on the basis that it was an objectionable campaign, while some of GoFundMe’s largest campaigns have been in support of other highly polarizing causes.[7] For example, two campaigns in support of Ferguson, Missouri police officer Darren Wilson raised over $430,000.[8] Even more impressive, an Indiana pizzeria which refused cater same-sex weddings under a new Indiana law has raised nearly a million dollars, the second largest campaign in GoFundMe’s history.[9] The site has also been a fundraising forum for drug users and even convicted murderes[10], although these campaigns were subsequently cancelled (in many cases after long time periods and significant financial support).[11]

GoFundMe is an open social media platform, like Facebook or Twitter, and as a company it has the First Amendment right to expression.[12] However while the company may support whichever causes it deems worthy, the campaigns posted on the site are the expressions of its users, not of the company (much like Facebook and Twitter posts).[13] Amidst all of this controversy one thing is certain: GoFundMe has taken a questionable approach by drawing the line at perceived immorality rather than legality.

[1] See, e.g., Ryan Mac & Ellen Huet, The Politics of Crowdfunding: How GoFundMe Profits off of Controversy, Forbes (April 7, 2015, 10:00 AM), http://www.forbes.com/sites/ryanmac/2015/04/07/the-politics-of-crowdfunding-how-gofundme-profits-off-of-controversy/; Caitlin Dewey, GoFundMe, the Site that Has Raised Money for Convicted Murderers, Will Draw the Line at Abortion and ‘Sorcery’, Washington Post (September 9, 2014), http://www.washingtonpost.com/news/the-intersect/wp/2014/09/09/gofundme-the-site-that-has-raised-money-for-convicted-murderers-will-draw-the-line-at-abortion-and-sorcery/.

[2] GoFundMe Terms & Conditions, https://www.gofundme.com/terms (last visited April 24, 2015).

[3] Id.

[4] Id.

[5] See Mac & Huet, supra note 1.

[6] Roe v. Wade, 410 U.S. 113 (1973).

[7] Mac & Huet, supra note 1.

[8] Id.

[9] Id.

[10] Dewey, supra note 1 (convicted murder and alleged accomplice of Amanda Knox, Raffaele Sollecito, raised over $44,000 on GoFundMe).

[11] Id.

[12] Id.

[13] Id.

Blog: Want to Track the Actions of your Local Police Officers? There's an App for that!

le-copwatching-sous-surveillanceM61056By: Eileen Waters

In South Carolina, a man named Walter Scott was recently killed by a police officer during a routine traffic stop for a broken taillight.[1] His family was informed that the officer felt that his life was threatened by Scott’s actions, and felt compelled to use his gun.[2] His family didn’t think that account fit in with Scott’s personality, but had no other proof of what happened that day until someone approached them after a vigil held for Scott.[3] The man had videotaped the entire interaction between Scott and the police officer, and the footage told an entirely different story of what occurred when Scott was killed.[4] The officer has since been fired and is being charged with murder because of this video, which has brought up questions about the use of excessive police force and the necessity for documentation of interactions between community members and certain members of law enforcement.[5]

Considering the importance of this video in the case against Scott’s killer, advocates of police reform are seeing the “power of technological weapons” in the fight against excessive police force.[6] The smartphone camera is obviously the best tool at a citizen’s disposal, and phone videos of police interactions have been popping up in the news quite often.[7] Activists are taking another step, however, by developing phone apps to “streamline the process of capturing and broadcasting videos of police interacting with citizens.”[8]

One such app is called “Cop Watch,” which is an iPhone app that automatically begins recording when you click on the icon and automatically uploads whatever is recorded to YouTube when the video is done.[9] This will make it much easier for citizens to video interactions, and if officers try to confiscate the phone, the video can be uploaded to the internet with very little effort. As the app developer said – “when photographing the police during intense situations, people often get flustered – they may forget to hit record, or may not know how, or where, to upload a video.”[10] The is probably the first of many efforts to hold law enforcement more accountable for their actions.

[1] See Francis Robles & Alan Blinder, Seeing Path to Justice of Shooting on Bystander’s Phone, N.Y. Times (Apr. 8, 2015) available at http://www.nytimes.com/2015/04/09/us/cellphone-video-of-michael-slager-shooting-walter-scott-is-seen-as-a-path-to-justice.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news&_r=0.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] Farhad Manjoo & Mike Isaac, Phone Cameras and Apps Help Speed Calls for Police Reform, N.Y. Times (Apr. 8, 2015) available at http://www.nytimes.com/2015/04/09/technology/phone-cameras-and-apps-help-speed-calls-for-police-reform.html?ref=technology&_r=1&gwh=A2438B783C187F32E0BB0E7777BC2F6A&gwt=pay.

[7] See id.

[8] Id.

[9] See id.

[10] Id.

Blog: Demand Response: The Consumer's Role in Energy Use

demand_response2-500x333  By: Ashley Davoli

Energy law is a hot topic these days. With the constant hubbub regarding global warming, gas prices, and solar power, these buzzwords that were originally heard only in small circles have gained notice and popularity. Another term we might be adding to our collective vocabularies in the near future? Demand response.

Demand response is an “opportunity for consumers to play a significant role in the operation of the electric grid by reducing or shifting their electricity usage during peak periods in response to time-based rates or other forms of financial incentives.”[1] There are various ways for consumers to engage in demand response, including varying prices based on the time of day or market variables.[2] There are also options that allow users to have the power company control their appliances during certain periods, turning them on and off as the overall power grid needs in order to avoid spikes in energy demand and high prices.[3] These consumers are compensated by financial incentives and overall lower energy costs for their homes or businesses.[4]

While this is beneficial to both the consumers and the environment, the question remains as to who controls and regulates the demand response field. In Section 201 of the Federal Power Act (FPA), Congress gave the Federal Energy Regulatory Commission (FERC) the power to regulate interstate transmission of wholesale electricity sales.[5] States retain the ability to regulate any sales that include retail sales and directly involve the end-user consumers.[6] FERC claims to have jurisdiction over the regulation of demand response under Section 206 of the FPA, which states when FERC finds “any rule, regulation, practice . . . affecting such [interstate wholesale] rate . . . is unjust, unreasonable, unduly discriminatory or preferential, [FERC] shall determine the just and reasonable . . . rule, regulation, practice . . . .”[7] FERC says demand response programs affect interstate wholesale energy prices, and therefore FERC has jurisdiction over setting the regulations and practices surrounding demand response programs. Some state regulators and demand response providers say that the energy sales occur at a retail level, not the wholesale level, and therefore FERC does not have jurisdiction according to the FPA.

This is a complex issue of preemption and statutory interpretation. So complex, in fact, that a petition for certiorari is pending for the Supreme Court to hear whether or not FERC can regulate demand response programs.[8] If certiorari is granted, this will not be the first energy related case the Supreme Court decides in recent days.

On April 21, 2015, in Oneok, Inc. v. Learjet, Inc., the Court decided federal natural gas laws do not preempt state laws regarding sales at any the beginning of the chain of natural gas movement, from wellhead to pipeline.[9] This decision helps those in favor of state regulation of demand response, but at the same time, there is almost no state regulation to be had. The programs are incredibly new and challenging to figure out. If the Court follows its decision in Learjet, it would seem that it would favor state regulation, as demand response, although technically connected to the interstate power system, most directly includes retail consumers, not wholesale buyers. In the decision being appealed, the D.C. Circuit found that demand response affects wholesale rates, but the actual demand response activity is done at the state and consumer level – so FERC does not have jurisdiction.[10] FERC disagrees, and is now petitioning for certiorari to gain jurisdiction.[11]

This is an important decision, as the Court would have to balance states’ rights with the importance of federally regulating a practice that is so new, but so important. This decision will impact how the nation handles this new energy technology, and it will be landmark in energy efficiency in years to come.

[1] U.S. Dep’t of Energy, Demand Response, ENERGY.GOV, http://energy.gov/oe/technology-development/smart-grid/demand-response (last visited Apr. 22, 2015).

[2] See id.

[3] See id.

[4] See id.

[5] See Federal Power Act, 16 U.S.C. § 824(b)(1) (2012).

[6] See id.

[7] 16 U.S.C. § 824e(a) (2012).

[8] See Jeff St. John, The Future of Demand Response: How a Legal Challenge Could Dramatically Change the Industry, greentechgrid, http://www.greentechmedia.com/articles/featured/ferc-order-745-the-supreme-court-and-the-future-of-demand-response (last visited Apr. 22, 2015).

[9] See generally Oneok, Inc. v. Learjet, Inc., 575 U.S. ____ (2015) (holding that Section Five of the Natural Gas Act did not preempt state law).

[10] See generally Electric Power Supply Ass’n v. FERC, 753 F.3d 216 (2014) (holding Section 201 of the Federal Power act prohibits FERC from intruding on state jurisdiction regarding demand response).

[11] See St. John, supra note 8.

Commercial Drones and Privacy: Can We Trust States With “Drone Federalism”?

Conducting U.S. Discovery in Asia: An Overview of E-Discovery and Asian Data Privacy Laws

Ending Drunk Driving with a Flash of Light

WELCOME TO THE MACHINE: PRIVACY AND WORKPLACE IMPLICATIONS OF PREDICTIVE ANALYTICS

Blog: Technology Tools at Law School

technology-todays-tech-300x208By:Walton Milam

Richmond Law School boasts a progressive and largely successful history of implementing technological innovation into the law school curriculum. Richmond Law was the first law school to require all students to have their own laptop and the first law school to host an exclusively online law review. Law schools have long received criticism for not adequately preparing students to practice law upon graduation. Though law schools generally provide students with the intellectual tools to identify, analyze, and argue legal issues, some young lawyers in particular lament their lack of preparation for the nuts and bolts of practice.   Law schools have a strong counter, however, in that law school graduates enter a diverse number of legal and non-legal jobs. Teaching students to how to lead profitable careers applying their law school skillset in diverse careers is assuredly not a one-size-fits-all formula. Firms and other employers maintain a better position and incentive to teach such specialized and career specific skills to young employees. Still, many schools including the University of Richmond have successful clinical programs that allow students to gain practical students. Further, many students gain valuable experience and insight through summer experiences.

Though students graduating law school today face an improving market that continues to rebound from the period of prolonged law school graduate unhappiness afflicting graduates from around 2008 to 2013, the job market remains cutthroat and law students must fight for any advantage to compete for desirable employment. Though fresh law school graduates necessarily lack the experience and savvy of older lawyers, younger law students likely command a far better grasp of technological innovation and tools than their older colleagues. Proficiency with iPhones, word processors, e-mail, electronic calendars, online legal research tools, and technology generally gives young lawyers a comparative advantage that might partially make up for deficiencies in experience. Such technological advantages for example allow for better communication with clients, increased efficiency with legal research, and mitigation of time and money costs generally. While many young graduates will maintain advantages in technological ability merely by virtue of their date of birth, law schools might serve their students well by implementing technological education into the curriculum. A number of new tools that allows lawyers to have legal tools at their finger tips at all times. Ever-evolving document search document databases for example can give older lawyers fits but likely provides young lawyers an opportunity to more effectively tackle assignments. University of Richmond for example has a weekend dedicated to trial practice and requires a number of law skills classes. Perhaps a similar weekend of law skills class dedicated electronic legal skills is worth considering.

Blog: Logging FitBit Activity in the Courtroom

fitbit002

By Peyton Stroud, Associate Notes and Comments Editor

Just when you thought your Fitbit was logging your amounts of steps, now it’s logging some hours in the courtroom. Simon Mueller, a lawyer in Canada, is attempting for the first time to introduce data information stored on a wearable device as evidence in a personal injury case.[1] In that case, a woman was in an accident and claims that the accident resulted in a loss of activity.[2] Mueller hopes to use the data from her Fitbit to support his client’s assertion of decreased activity levels.[3] However, due to reliability issues, many experts are wary of the value it brings to the courtroom.[4]

Many lawyers and experts have concerns over the reliability of the data from the wearable technology.[5] For example, some wearable devices log activity just by a wave of the hand, while others may not.[6] Additionally, there is no standardization in terms of activity data.[7] According to analytics expert Rick Hu, “one of the shortcomings right now is that each of the device manufacturers collects their own information . . . so it’s hard to compare that data with other people’s data who are not using that particular device.”[8] Similarly, people often don’t even charge, sync, or wear their devices.[9] Although experts in the field do not think this data will stand on its own, many think it might be helpful in corroborating testimony from an expert witness.[10] Additionally, device wearable companies are continuing to make their tracking sensors more reliable.[11]

Similarly, data from these wearable devices raises other legal implications including privacy and ownerships concerns. In terms of privacy, privacy issues can be avoided because these device companies that collect data in the wireless cloud can be subpoenaed.[12] Although this might come as a shock to users, these device companies explicitly state in its service provider agreements that data may be released for valid legal requests.[13] Another obstacle lawyers will have to overcome to introduce data in the courtroom is HIPPA regulations.[14] According to Shakoori, an e-discovery lawyer, “there are currently no HIPPA regulations connected to these devices, but as they are linked to specialized health data, it could be a slippery slope.”[15] However, an exception in HIPPA might solve this problem because it allows for release of information for law enforcement queries and other legal requests.[16]

Technology being used as evidence is not new to courts. Several years ago, the court began requisitioning Facebook for information.[17] Legal experts opine that it is just a matter of time for data from these devices to be commonplace in the courtroom becoming a “black box” for the human body.[18]

[1] Margaret Littman, Data from wearable devices is being eyed as evidence in the courtroom, ABA J. (Apr. 1, 2015), available at http://www.abajournal.com/magazine/article/data_from_wearable_devices_is_being_eyed_as_evidence_in_the_courtroom.

[2] Id.

[3] Lucas Mearian, Data from wearable devices could soon land you in jail, Computerworld (Dec. 8, 2014, 3:00AM), http://www.computerworld.com/article/2855567/data-from-wearable-devices-could-soon-land-you-in-jail.html.

[4] See id.

[5] See id.; Littman, supra note 1.

[6] See Littman, at 1.

[7] See Mearian, supra note 3.

[8] Mearian, supra note 3.

[9] Littman, supra note 1.

[10] See id.

[11] See Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM), http://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-injury-claim/.

[12] See Mearian, supra note 3.

[13] See id.

[14] Littman, supra note 1.

[15] Id.

[16] Olson, supra note 11.

[17] See id.

[18] See id.

Blog: #Wanted on #WarrantWednesday

Patty_Hearst_FBI_posterBy: Milena Radovic, Associate Manuscripts Editor

In March 2015, Butler County Sheriff’s Office in Ohio posted a series of pictures and brief criminal history of Andrew Marcum on its Facebook page.[1]  The Sheriff’s Office requested that the public help in locating Mr. Marcum[2] because he was wanted for “burglary, kidnapping, domestic violence and criminal endangering.”[3]  Surprisingly, Mr. Marcum commented on the post and stated, “I ain’t tripping half of them don’t even know me.”[4]  Subsequently, the Sheriff’s Office responded with “If you could stop by the Sheriff’s Office, that’d be great,”[5] and then stated, “Hey, it doesn’t hurt to ask.”[6]  On Twitter, the Sheriff Richard K. Jones posted a picture of a jail cell with the caption “Hey Andrew Marcum we’ve got your room ready…”[7]  The following day the Sheriff’s Office arrested Mr. Marcum.[8]

Posts like the one by Butler County Sheriff’s Office are not uncommon. More and more police stations are utilizing social media websites, like Facebook and Twitter to catch criminals and request tips.[9]  These social media posts are essentially “electronic versions of traditional wanted posters,” and often include “a photo, description of the individual and crime, and a contact number for tips.”[10]  In order to protect the anonymity of tipsters and informants, law enforcement departments encourage the community to provide information through phone calls or emails and not directly through comments.[11]

In New York, Illinois, Colorado, and even Canada, police departments use “#warrantwednesday” on social media to catch criminals, while Florida and Indiana utilize “Turn ’em in Tuesday.”[12]  In 2014, New York State Police arrested fifteen as a result of #warrantwednesday posts and in total, arrested twenty-nine people as a result of tips received through social media.  According to Darcy Wells of the New York State Police, there is a spike in Facebook page activity on Warrant Wednesdays, and “Twitter town halls have increased the agency’s Twitter followers—which, ultimately, can help solve crimes and promote public safety.[13]

According to a study by LexisNexis, law enforcement “increasingly [rely] on social media tools to prevent crime, accelerate case closures and develop a dialogue with the public.”[14]  Although it is not rare for police to use social media to catch criminals, this method seems to be far less controversial.  In the past, police departments have faced criticism for using Facebook to catch criminals by creating fake profiles and gaining access to private information through a user’s Facebook friends.[15]  Ultimately, this method may be more effective in creating goodwill and promoting cooperation between citizens and the police.

 

[1]Tracy Bloom, Wanted Man Arrested in Ohio After Responding to Sheriff’s Facebook Post About Him, KTLA5 (Mar. 4, 2015, 8:55 AM), http://ktla.com/2015/03/04/wanted-man-arrested-in-ohio-after-responding-to-sheriffs-facebook-post-about-him/

[2] Bloom, supra note 1.

[3] Faith, Karimi, Ohio fugitive nabbed after taunting authorities on Facebook, CNN, http://www.cnn.com/2015/03/05/us/ohio-facebook-post-arrest/ (last updated Mar. 5, 2015, 9:46 AM).

[4] Bloom, supra note 1; see also Karimi, supra note 3.

[5] Bloom, supra note 1; see also Karimi, supra note 3.

[6] Bloom, supra note 1.

[7] Bloom, supra note 1; see also Karimi, supra note 3.

[8] Bloom, supra note 1; see also Karimi, supra note 3.

[9] See Judy Sutton Taylor, #WarrantWednesdays: Law enforcement jumps on a social media trend to help find criminals, ABA Journal, Mar. 2015, at 9, available at http://www.abajournal.com/magazine/article/law_enforcement_jumps_on_warrantwednesdays_trend_to_help_find_criminals/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly (the title of the online version is Law enforcement jumps on #WarrantWednesdays trend to help find criminals).

[10] Taylor, supra note 9, at 9.

[11] See Taylor, supra note 9, at 9–10.

[12] See Taylor, supra note 9, at 10.

[13] Taylor, supra note 9, at 9–10.

[14] Lexis Nexis, Social Media Use in Law Enforcement:Crime prevention and investigative activities continue to drive usage 3 (2014), available at http://www.lexisnexis.com/risk/downloads/whitepaper/2014-social-media-use-in-law-enforcement.pdf.

[15] See Heather Kelly, Police embrace social media as crime-fighting tool, Facebook, CNN, http://www.cnn.com/2012/08/30/tech/social-media/fighting-crime-social-media/ (last updated Aug. 30, 2012, 5:23 PM).

 

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