Richmond Journal of Law and Technology

The first exclusively online law review.

Month: October 2015

Overbearing or Common Sense? Drone Registry.

travel-channel-drone-australia

By: Curtis Hazelton,

In our society, it makes perfect sense for one to be accountable for his or her actions, so why should unmanned aircrafts be any different? The Department of Transportation and the Federal Aviation Administration have recently proposed a possible fix to this accountability issue.

Traditionally, unregistered aircrafts (manned or unmanned) could fly up to 600 feet above ground level, a rather empty section of the skies, where they were unlikely to fly into anything.[1] Although600 feet above ground level seems spacious fordrone users, not every drone user flies their drone within the 600 feet fly-zone nor do they follow the guidelines of drone-free locations. According to Department of Transportation Secretary, Anthony Foxx, “Registration will help us enforce the rules against those who operate unsafely, by allowing the FAA to identify the operators of unmanned aircraft.”[2] Regulation of the traditionally unregistered aircraft may make it easier to address the important issues of insurance and liability.

The increase of personal drone purchase and operation in the United States has caused many problems.The FAA stated that so far in 2015, pilots reported unsafe activity by unmanned aerial vehicles about 100 times a month.[3] In July, 5 “unmanned aircraft systems” prevented California firefighters from dispatching helicopters with water buckets for up to 20 minutes over a wildfire that roared onto a Los Angeles-area freeway, burning out cars.[4] During the second round match of the U.S. open between FlaviaPennetta and Monica Niculescua drone flew over the stadium and crashed into the stands. Subsequently, the match was stopped for a period while officers examined the drone and the operator arrested for reckless endangerment and operating a drone in a New York City public park outside of prescribed area.[5] The aforementioned situations highlight the need to impose liability on drone operators for accidents caused by drones.

Although some people are wary about government regulation, the registration proposal by the FAA and DoT could be the best way to ensure that drones and other unmanned aircraft are used safely. Though the Department of Transportation is still working to finalize their efforts to require drone registration before the holiday season, drone users, new and old, should be on the lookout for a change in legislation.

Photo Source: http://skift.com/wp-content/uploads/2015/10/travel-channel-drone-australia.jpg

 

 

 

[1] Jordan Golson, The Feds Want a National Drone Registry by Christmas,

Wired (Oct. 19, 2015, 2:28 PM) www.wired.com/2015/10/the-feds-want-a-national-drone-registry-by-christmas/.

[2]Id.

[3] Renee Marsh and Ben Brumfield, U.S. announces task force aimed at mandatory drone registration, CNN (Oct. 19, 2015 6:11 PM)www.cnn.com/2015/10/19/politics/drone-registration-task-force-announced/index.html

[4]Id.

[5] Laura Wagnor, Drone Crash At U.S. Open; New York City Teacher Arrested, National Public Radio (Sep. 4, 2015, 2:24 PM) www.npr.org/sections/thetwo-way/2015/09/04/437539727/drone-crash-at-u-s-open-new-york-city-teacher-arrested.

The End of DraftKings and FanDuel?

fanduel-draftkings-100615-getty-ftrjpg_1p54pimj33xpv1ul6hwkremi6f

By: Jenni Lyman,

On Sundays, each NFL play seems to be sandwiched in between a series of incessant testimonials touting the ease of winning thousands of dollars from onlinedaily fantasy football. Both DraftKings and FanDuel are on target to spend $150 million in Q3. [1] It is reasonable to believe these two companies will remain a staple of sportsprogramming considering the amount of cash in their quiver devoted to marketing. However, there appear to be a slew of legal principles tailored to prevent unfairness to consumers that may put an end to the two companies. [2] Recent promo codes such as ‘Win’, ‘Success’, or ‘Fun’ could change to ‘Fraud’.

Online daily fantasy sports are not regulated under the Unlawful Internet Gambling Enforcement Act of 2006 because they are considered games of skill as opposed to raw gambling. Slate. See also. Act. [3]

Last Thursday, Draft Kings player, Adam Johnson filed a class action lawsuit in federal court in Manhattan. [4] The complaint alleges the two companies violated the laws of three states—New York, FanDuel’s corporate headquarters, Massachusetts, where DraftKings maintains its principal place of business, and Kentucky, where Johnson resides. [5]

First, the complaint alleges the two companies acted in concert. [6] Moreover, they follow the same rules regarding employee participation and issue numerous joint statements on their website. [7] The linchpin of the suit is the fact that employees of both companies had access to data and information that is not public. [8] The suit alleges that analytics are run to determine how lineups on FanDuel would fare if they were entered into DraftKings contests. [9] Finally, Johnson alleges the “companies failed to take reasonable steps to prevent insiders from competing against members of the proposed class of plaintiffs.”[10] Shockingly, DraftKings employees have won around $6 million in winnings from the $2 billion awarded by FanDuel so far. [11]

So, if Johnson can prove the two companies had knowledge of the insider trading, he has a successful claim for fraud and could recover his money by proving he would not have paid $100 to play a rigged game. [12]

To add to the legal fire, even if Johnson is unable to prove insider trading exists, there is also a possible claim of negligence. The claim alleges the companies failed to take reasonable steps to prevent competition from insiders against the proposed class of plaintiffs. [13] The suggested class is only those who dished out money in a DraftKings account prior to October 6, 2015. [14] Lastly, violations of the Kentucky consumer protection statute and the New York false advertising law are included in the suit. [15]

As we settle in for another weekend of FanDuel and DraftKings commercials spattered with football, could Johnson v. FanDuel be a season ender?

 

 

 

[1] Anthony Crupi, Fantasy Sports Sites DraftKings, FanDuel September Spend Tops $100 Million, Advertising Age, Sept. 30, 2015, http://adage.com/article/media/draftkings-fanduel-spe/300658/.

[2]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[3]Id.

[4] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[5]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[6]Id.

[7]Id.

[8]Id.

[9] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[10]Culhane, supra note 4.

[11]Rovell, supra note 8.

[12]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[13]Id.

[14] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[15]Culhane, supra note 11.
Photo Source: http://images.performgroup.com/di/library/sporting_news/3f/f1/fanduel-draftkings-100615-getty-ftrjpg_1p54pimj33xpv1ul6hwkremi6f.jpg?t=1051596368

The Legality of Self-Driving Cars: Whose fault is it?

volvo_road_train-10

By: Manny Olojede,

Welcome to the future, Marty. Self-driving or autonomous cars will actually become a “thing” soon. But whose fault is it if the self-driving car runs a red light? The driver or the car? The manufacturer or some other third party? The chicken or the egg? Are robot cars even legal? With Tesla Motors’ recent announcement regarding its new “Auto-Pilot” software, there are numerous questions of legality and liability brought to the forefront of lawmakers’ agendas.

On October 14, 2015, Tesla Motors became the first automotive company to roll out advanced auto-pilot technology into its vehicles.[1] The Tesla Version 7.0auto-pilot software update will allow its Model S car to steer within lanes, change lanes, manage speed by using active, traffic-aware cruise control and scan for a parking space, alert [the driver] when one is available, and parallel park on command.[2] Though these features are an advancement in autonomous car technology, Tesla emphasizes that this update does not mean the car is fully autonomous and hands free.[3] In order for this software to function, your hands must be touching the wheel; otherwise the car will revert to manual mode after a few seconds.[4] Tesla is cautiously rolling out this technology, as it is aware of the few regulations surrounding autonomous vehicles.[5] However, Tesla does seek to allow its cars to be hands free in the future as new regulations are implemented and the technology improves.

Currently, the law surrounding self-driving cars in the United States has been ambiguous at best. In the majority of states, autonomous cars are not illegal, though New York is the only state that requires a “driver” to have his hands on the wheel at all times.[6] Only fourteen states have considered legislation regulating self-driving cars and nine of those have failed to pass bills specifically legalizing the cars, leaving the area of self-driving cars relatively grey.[7] Consequently, Tesla’s announcement has put on pressure on lawmakers to clarify these grey areas.

The National Highway Transportation Safety Administration has declined to comment on Tesla’s announcement but lauded the potential safety benefits of autonomous technology in statements made by Transportation Secretary Anthony Foxx earlier this year.[8] “The Department wants to speed the nation toward an era when vehicle safety isn’t just about surviving crashes; it’s about avoiding them,” Foxx said. “Connected, automated vehicles that can sense the environment around them and communicate with other vehicles and with infrastructure have the potential to revolutionize road safety and save thousands of lives.”[9] Based on these statements, autonomous technology seems to align with the future goals of the NHTSA and this may give a clue to as how regulations will be shaped surrounding them. However, it remains to be seen how the law will evolve.

Though the legal landscape surrounding self-driving cars in the United States has not been fully carved out, carmakers such as Volvo, Mercedes-Benz, and Google have indicated that they will likely accept the legal liabilities for their cars in the United States when they are put on sale to the general public. Volvo, in particular, has promised to accept full liability whenever one of its cars is in autonomous mode.[10] Though this promise may indicate car makers’ current confidence in the technology and hold carmakers strictly liable, Volvo, along with Mercedes and Google, have expressed that as the technology improves, they will expect fewer and fewer accidents.[11]

Ultimately, as the development of self-driving car technology quickly improves, it will be important for lawmakers to tackle these tough questions in a timely fashion. Carmakers have set the pace, and if the law does not catch up soon, there will be many more questions and problems for the government to answer about self-driving cars.

 

 

[1] Grayson Ullman, Tesla’s Self-driving Software: Is It Legal?, Fed scoop (October 16, 2015, 5:43 PM), http://fedscoop.com/teslas-self-driving-update-how-is-it-legal.

[2]Id. (citing Tesla Motors Team, Your Autopilot Has Arrived, Tesla Motors Blog (October 14, 2015), http://www.teslamotors.com/blog/your-autopilot-has-arrived)

[3] Molly McHugh, Tesla Cars Now Drive Themselves, Kinda, WIRED.com (October 14, 2015 6:19 PM), http://www.wired.com/2015/10/tesla-self-driving-over-air-update-live.

[4]Id.

[5]Id.

[6]Ullman, supra note 1.

[7]Id.

[8]Id. (citing Catherine Howden, Transportation Secretary Foxx Announces Plan to Add Two Automatic Emergency Braking Systems to Recommended Vehicle Advanced Technology Features, National Highway Transportation Safety Administration (January 22, 2015), http://www.nhtsa.gov/About+NHTSA/Press+Releases/NHTSA-sets-AEB-plans,-highlights-lives-saved-repoot)

[9]Id.

[10]Mark Harris, Why You Shouldn’t Worry About Liability for Self-Driving Car Accidents, IEEE Spectrum (October 12, 2015, 8:00PM), http://spectrum.ieee.org/cars-that-think/transportation/self-driving/why-you-shouldnt-worry-about-liability-for-selfdriving-car-accidents (citing Press Release, Volvo Car Group, US Urged to Establish Nationwide Federal Guidelines for Autonomous Driving (October 7, 2015), available athttps://www.media.volvocars.com/global/en-gb/media/pressreleases/167975/us-urged-to-establish-nationwide-federal-guidelines-for-autonomous-driving).

[11] Neil Briscoe, Car Makers to Accept Liability for Self-driving Cars, The Irish Times (October 12, 2015, 2:16 PM), http://www.irishtimes.com/life-and-style/motors/car-makers-to-accept-liability-for-self-driving-cars-1.2388608.

 

Photo Source: http://www.forcegt.com/wp-content/uploads/2012/09/volvo_road_train-10.jpg

Blog: European Internet Governance

google-vs-eu

 

By: Curtis Hazelton,

Is there a common place between security and privacy, and between data protection and freedom of expression; two schools of thought circling around the same idea of consumer protection.

As the Internet battles starring Taylor Swift and Nicki Minaj, and Drake and Meek Mill simmer down, a larger battle over internet control has been spotlighted. In recent months, there has been a standoff between the U.S. and the EU over internet governance. Since 1988 internet domain oversight power has rested in the hands of the U.S. Commerce Department.[1] This oversight has allowed the American government and businesses to enjoy the free penetration into multinational markets. While this may seem as a positive to Americans, the EU has voiced many concerns.

This battle, in the eyes of the EU, is not about internet control, but rather about creating a network of protection for all involved in international trade. The EU’s introduction of the Digital Single Market plan has been framed as an extension of the EU’s project to unite a patchwork of national economies, consolidating the regulatory maze of 28 member states into a simplified market.[2] Similarly in the field of taxation, this plan seeks to address any possible abuses by multinational companies, of tax minimization practices or of the European Union’s State Aid rules, regardless of where they are headquartered.[3]

In efforts to combat the negativity over the US’ control over the internet, the US and Europe have proposed a data transfer agreement that would allow companies to move digital information like people’s web search histories and social media updates between the European Union and the United States.[4] That agreement was ruled invalid by the European Court of Justice.[5] The agreement between these world leaders was flawed, according the European Court of Justice.[6] The Court explained its resistance to the agreement by stating that the agreement would allow American government authorities to gain routine access to Europeans’ online information. [7] By way of Edward Snowden, it was clear to the European Court that American intelligence agencies had almost unfettered access to the data, infringing on Europeans’ right to privacy.[8]

In the times of data leaks and aggressive ad tracking, is anyone safe anymore? Looking through the lenses of consumer protection laws and the right to privacy, it seems we should be.

 

 

 

[1] Hamza Shaban, U.S. Maintains Control Over Internet Governance For A Bit Longer, Buzz Feed News (Aug. 19, 2015, 8:03 PM), http://www.buzzfeed.com/hamzashaban/us-maintains-control-over-internet-governance-for-a-bit-long#.elePLm0Q.

[2] Hamza Shaban, Digital Single Market Isn’t Anti-American, Says EU Commissioner, Buzz Feed News (May 28, 2015, 5:23 PM), http://www.buzzfeed.com/hamzashaban/digital-single-market-isnt-anti-american-says-eu-commissione#.laaDkr1X

[3] David O’Sullivan, Stop the Hysteria. Of Course Europe Wants an Open Internet, Wired (Apr. 30, 2015, 11:00 AM) http://www.wired.com/2015/04/eu-ambassador-on-open-internet/.

[4] Mark Scott, U.S.-Europe Data Transfer Agreement Is Ruled Invalid, N.Y. Times, OCT. 7, 2015, AT B1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

 

Photo Source: http://www.searchgi.com/admin/assets-13//February-2014/google-vs-eu.jpg

Blog: The Uber Class Action Lawsuit

Uber drivers protest against working conditions outside the company's office in Santa Monica

By: Quinn Novak

“Uber is evolving the way the world moves. By seamlessly connecting riders to drivers through apps, we make cities more accessible, opening up more possibilities for riders and more business for drivers.”

– UBER[1]

We’ve all been there. You’re out on a Friday night, drinking and having fun with friends. Then, all of a sudden, it’s 2am and you realize you’re exhausted. All you want to do is go home, get under your covers with a family-size box of Cheez-Its, and crash. Lucky for you, there’s an app for that. You pull out your smart phone, carefully type in your home address, and request an Uber driver. Within minutes, you’re picked up in someone’s personal car, with a discreet “U” taped on the window, and driven to your apartment. At the end of the trip, you don’t have to worry about tipping the driver or paying with cash. In fact, you probably checked how much the trip would cost before you requested your Uber, and the fair is automatically transferred when your trip ends.

Simply put, Uber is inexpensive, convenient, fast, and user-friendly. The company is fundamentally changing the way people get around. And, with the service based in sixty countries, with more than eight million users, many people can attest.[2]

However, Uber’s business model has recently been challenged and there is currently a class action lawsuit pending against the service in California.[3] Originally, the action was brought on behalf of three Uber drivers, alleging violations of the California Labor Law and seeking monetary damages.[4] However, a California federal judge extended the class to apply to all Uber drivers in the state.[5] Fortunately for Uber, most of their 160,000 drivers in California cannot participate in the class action lawsuit because they waived their right to class action arbitration through Uber’s updated, 2014 contract.[6]

The remaining drivers who can participate in the suit are upset because they claim that they were misclassified as contractors but are actually employees of the company, entitled to requisite benefits, health insurance, and expense reimbursements.[7] If the appellate court finds that Uber drivers are classified as employees, rather than independent contractors, Uber must reimburse their employees for expenses that are required to do their job, such as gas reimbursements and expenses accrued from general wear and tear of their vehicles, all of which Uber drivers are currently required to pay themselves.[8] Other costs may include Social Security, workers’ compensation, and unemployment insurance.[9]

If Uber is forced to compensate its’ driver as employees, the company’s costs will increase and, more than likely, Uber’s comparatively low cost of transportation will increase.[10] In addition, categorizing drivers as employees could affect the company’s valuation, which is currently above $40 billion, and could affect other similar companies that rely on large networks of individuals to provide rides.[11]

The issue of whether Uber drivers are contractors or employees is not a new topic of interest. In May 2015, “Uber lost a bid to force arbitration in a federal lawsuit brought in San Francisco by its’ drivers” and, earlier in 2015, a San Francisco federal court rejected Uber’s classification of its drivers as independent contractors.[12] Similarly, a Florida state agency recently ruled that Uber drivers are employees, not contractors.[13]

Now the question is left to the California federal court of appeals, after Uber appealed the lower courts’ decision that the case does not have to go through arbitration and may be brought as a class action suit.[14] Uber is insisting that the all disputes be taken to an arbiter and cannot be brought in a class action lawsuit.[15] Uber claims that their drivers go to work for their service for different reasons, are free to turn on or off the application as they choose, and, therefore, do not have enough in common to sue as a class.[16]

The appellate court must decide whether or not the lower court was correct in allowing a class action lawsuit against Uber. In addition, a future question the court must address is whether or not Uber drivers are employees or contractors.

For now, Uber-users can rest easy that no decision has been made and the price of transportation won’t dramatically increase anytime soon due to Uber redesigning its’ business model to reimburse its’ “employees.” So, feel free to continue using the app when you’re out late at night and all you want to do is go home and climb into bed. Uber is still cost efficient… for now.

 

uber-safe-hed-2015

 

 

[1] Home, UBER, https://www.uber.com/about (last visited Sept. 1, 2015).

[2] Our Cities, UBER, https://www.uber.com/cities (last visited Sept. 1, 2015); Craig Smith, By the Numbers 24 Amazing Uber Statistics, DMR: Digital Marketing/Stats/Strategy/Gadgets (Sept. 30, 2015), http://expandedramblings.com/index.php/uber-statistics/.

[3] Laura Sydell, A Suit Against Uber Could Redefine The Sharing Economy, NPR (Sept. 2, 2015, 5:20 AM), http://www.npr.org/2015/09/02/436820824/california-court-grants-uber-drivers-class-action-status.

[4] A.J. Kritkos, A Lawsuit to Break the Gig Economy: Uber drivers claim they are legally employees, but that doesn’t reflect reality, Wall St. J (Sept. 20, 2015, 6:30 PM), http://www.wsj.com/articles/a-lawsuit-to-break-the-gig-economy-1442788712.

[5] Laura Lorenzetti, Everything to Know About the Uber Class Action Lawsuit, Fort. (Sept. 2, 2015, 1:53 PM), http://fortune.com/2015/09/02/uber-lawsuit/.

[6] Id.

[7] Id.

[8] Sydell, supra note 3.

[9] Sarah McBride & Dan Levine, Uber Drivers are Employees, Not Contractors California Labor Commission Rules, Huffington Post: TECH (May 17, 2015, 10:40 AM), http://www.huffingtonpost.com/2015/06/17/uber-drivers-lawsuit_n_7603630.html.

[10] Lorenzetti, supra note 5.

[11] McBride, supra note 9.

[12] Id.

[13] Id.

[14] Laura Northrup, Judge: Uber Contract Forcing Drivers Into Arbitration Contradicts Itself, Consumerist (Sept. 21, 2015), http://consumerist.com/2015/09/21/judge-uber-contract-forcing-drivers-into-arbitration-contradicts-itself/.

[15] Id.

[16] Id.

 

 

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Photo Source:  http://www.adweek.com/files/imagecache/node-blog/blogs/uber-safe-hed-2015.png

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