Richmond Journal of Law and Technology

The first exclusively online law review.

Month: November 2016 (Page 2 of 2)

Chemicals in Personal Care Products: Are Your Cosmetics Safe Enough?

toxic-cosmetics

By: Hsiao-Han Wang

“Personal care products” is the term usually used by people to refer to variety items found in health and beauty sections of stores.[1] These include but not limited to items like shampoo, body lotion, toothpaste, shaving cream, as well as other cosmetics such as lipsticks and eye-makeups. There are estimated eight billion personal care products sold annually and the industry creates more than 200 billion dollars of gross domestic product (GDP) value in the United States.[2] Personal care products expose people to multiple chemical ingredients everyday simply via using them: in America, that means an average of twelve personal care products that contain 168 different chemicals for women, and six personal care products that contain 85 different chemicals for men.[3]

Personal care products play a very intimate role in our daily life and most of them will come to contact directly with our skin, hair, and other body organs eventually. However, in despite of the high volume of use and the safety concerns, many chemicals in personal care products are not subject to either statutory or regulatory restrictions. According to Food and Drug Administration (FDA), products “intended to cleanse or beautify are generally regulated as cosmetics,” therefore, are not subject to premarket-approval from the agency.[4] Moreover, the laws governing the safety of personal care products have not been substantially updated since 1938.[5] Due to the outdated statutory requirement, FDA has prohibited or restricted only eleven ingredients from use in personal care products[6] which is far less than the number of chemicals that have been actually put into the industry.[7]

The FDA’s lack of power over these personal care products also reflects in the case which a nine-year-old child lost most of her hairs after using one celebrity-endorsed hair product for only three times.[8] After receiving 127 complaints from the consumers, FDA issued a safety alert on this line of hair cleaning products and pointed out that thousands of complaints were received by the hair products company. [9] However, while about twenty-one thousand consumers claimed to encounter health problems including hair loss and allergy reaction like itching and rashes, FDA does not have the authority to recall these products.[10]

It is true that most chemicals contained in personal care products are relatively harmless and may only post little or no risk to our health compared to products subject to rigorous restrictions (such as drugs). Nonetheless, it is also true that some chemicals used in cosmetics and other personal care products may result in serious health problems, including cancer and reproductive harm.[11] Chemicals that have been linked to health problems can be divided into five major groups: “frank carcinogens (cancer causing); precursors of or []hidden[] carcinogens; endocrine or hormonally disruptive; penetration enhancers; and allergens.”[12] Endocrine disruptors, for example, may be especially harmful for pregnant women and infants since they may impose “greatest risk during prenatal and early postnatal development when organ and neural systems are forming.”[13] Another example, formaldehyde-based hair straightening products, “have been linked to hair loss, rashes, blisters, nosebleeds, bleeding gums, and loss of taste and smell.”[14]

The health risks of personal care products are well acknowledged by many other countries. For example, the European Union has banned more than 1,300 chemicals from personal care products and restricted an additional 256.[15] This number is far higher than the eleven restrictions and prohibitions mentioned above in the United States. In addition to health risks, environmental concerns should also be taken into consideration.[16] Furthermore, the needs to have a uniform standard for the cosmetics industry to follow are too addressed by a lot of small business owners.[17]

In light of the risks imposed to the society, personal care products should be subject to stricter and updated statutory and regulatory requirements. Particularly, granting more authority to FDA would enable the agency not only to stop products with potential risks at the frontend but also to respond efficiently and effectively once any harm or risk is realized. From the aspect of protecting consumers, American people deserve to have a safe and reliable market environment that is at least equally regulated as those in other countries. From the other aspect of the personal care products industry, it would also promote American businesses’ long-term competitiveness wherever they are selling their products domestically, exporting, or operating in the international markets all over the world.

 

 

[1] See U.S. Food and Drug Administration (FDA), http://www.fda.gov/ForIndustry/FDABasicsforIndustry/ucm238796.htm (last visited Oct. 19, 2016).

[2] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Lamar Alexander, Chairman, S. Comm. on Health, Educ., Labor, & Pensions); see also Personal Care Products Council, Economic & Social Contributions Report 3 (2016), http://www.personalcarecouncil.org/sites/default/files/PCPC%20FINAL%20Economic%20&%20Social%20Contributions%20Report%20-%20Web.pdf (“in 2013, the personal care products industry added $236.9 billion to U.S. GDP”).

[3] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Scott Faber, Senior Vice President for Government Affairs, Environmental Working Group).

[4] See FDA, Supra note 1.

[5] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Dianne Feinstein, S. Comm. on Health, Educ., Labor, & Pensions); See also, e.g., 21 U.S.C. § 361 (LEXIS through Pub. L. 114-244).

[6] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Dianne Feinstein, S. Comm. on Health, Educ., Labor, & Pensions).

[7] See Breast Cancer Fund, http://www.breastcancerfund.org/clear-science/environmental-breast-cancer-links/cosmetics/ (last visited Oct. 20, 2016) (“[i]n the U.S., major loopholes in federal law allow the cosmetics industry to put thousands of synthetic chemicals into personal care products”).

[8] See Daily Hornet, Colorado Mom Says WEN Shampoo Caused Daughter to Go Bald (Oct. 19, 2016), https://dailyhornet.com/2016/colorado-mom-says-wen-shampoo-caused-daughter-to-go-bald/.

[9] See FDA, WEN by Chaz Dean Cleansing Conditioners: FDA Statement – Investigation of Adverse Event Reports (July 19, 2016), http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm511890.htm; see also Tina Sigurdson, FDA Investigating Hair Care Products Linked to Balding But Can’t Stop Sales, Enviroblog (July 26, 2016), http://www.ewg.org/enviroblog/2016/07/fda-investigating-hair-care-products-linked-balding-cant-stop-sales.

[10] See Tina Sigurdson, FDA Investigating Hair Care Products Linked to Balding But Can’t Stop Sales, Enviroblog (July 26, 2016), http://www.ewg.org/enviroblog/2016/07/fda-investigating-hair-care-products-linked-balding-cant-stop-sales.

[11] See Scott Faber, supra note 3.

[12] Dr. Frank Lipman, Major Risks From Cosmetics & Personal Care Products, http://www.drfranklipman.com/risks-from-toxic-ingredients-in-cosmetics-personal-care-products/ (last visited Oct. 20, 2016).

[13] National Institute of Environmental Health Sciences, http://www.niehs.nih.gov/health/topics/agents/endocrine/ (last visited October 20, 2016).

[14] Scott Faber, supra note 3.

[15] See Sen. Dianne Feinstein, supra note 6.

[16] See, e.g., Alistair B.A. Boxall, et al., Pharmaceuticals and Personal Care Products in the Environment: What Are the Big Questions, 120 Env’t Health Persps. 1221–29 (2012).

[17] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Curran Dandurand, CEO & Co-founder, Jack Black, LLC) (“the science establishing ingredient safety should not change from state to state, therefore it does not make sense to allow varying state regulations regarding cosmetics”).

Photo Source:

http://lifestyleorganic.org/wp-content/uploads/2013/02/toxic-cosmetics.jpg

The Deep, the Dark, the Illegal Web

deepweb1

By: Genevieve deGuzman

The World Wide Web, or simply Web as we know it, actually only covers the surface of an ocean of information. The search engines we use, like Google and Bing, only float on the surface and cast a short net that follow links or static pages between sites.[1] The apps, merchants, social media, news, etc. we access on a daily basis barely make up less than one percent of the actual Web content.[2] These comprise what is more aptly called the Surface Web: anything accessible through search engines.

Diving further down, we would find the databases and academic journals hidden behind private networks or standalone pages that connect to nothing at all and do not surface to the Web. These are still reasonably known. The Deep Web is anything inaccessible through search engines, and a study conducted in 2001 revealed that the Deep Web was approximately 400-500 times the size of the Surface Web.[3]

Within the Deep Web lies the Dark Web, which refers to a collection of secret websites “concealed to hide in plain sight or reside within a separate, but public layer of the standard internet.”[4] They can only be accessed using certain special software, like The Onion Router, more commonly known as Tor.[5] Tor not only allows its users to access these concealed sites but also allows websites to operate on “hidden services” by replacing it with a Tor-based web address; the only way to access a hidden service is to know the hidden service’s Tor-based address.[6] It thwarts traditional IP identification and investigative techniques by masking a user’s IP address and its administrator’s identity.[7] Using Tor would render a user’s web activity as practically untraceable by bouncing signals around a “distributed network of relay computers” run by Tor-enabled volunteer computers around the world.[8]

Tor not only allows anonymous communication online for sensitive information, but more recently, Tor has become a “hub for black markets that sell or distribute drugs, [weapons, and people,] stolen credit cards, illegal pornography, pirated media,” assassins for hire, political dissidents, and more.[9] Tor is accessible and available to the public for free by downloading the Tor browser bundle.[10]

Tor effectively renders users anonymous to websites and to law enforcement officers who may be monitoring websites. However, Tor administrators claim that they are not aware of anyone being sued or prosecuted in the United States for using Tor.[11] Further, they believe it is legal under United States law.[12] Although it may be used for illegal purposes, Tor asserts that it was developed as a “tool for free expression, privacy, and human rights.”[13] Still, these Tor relays may still be subject to U.S. laws such as the Electronic Communications Privacy Act of 1986[14] which extends government restrictions on wire taps on telephone calls to include transmissions of electronic data via computers. Using Tor may not be illegal nor is merely masking one’s IP address and browsing history and activity, but as its anonymity tools are increasingly used for illegal activity, it may become more of an issue. Tor and other Dark Web tools are almost certain to gain more exposure and popularity, and with its increase in usage will come an increase in legal concerns and action. That said, you can expect the Dark Web to be an increasingly relevant factor for U.S. lawmakers to consider.

 

[1] See Jose Pagliery, The Deep Web you don’t know about, CNN, Mar. 10, 2013, available at http://money.cnn.com/2014/03/10/technology/deep-web/index.html.

[2] Id.

[3] Bright Planet, Understanding the Deep Web in 10 Minutes (2013), available at http://cdn2.hubspot.net/hub/179268/file-377288418-pdf/docs/understandingthedeepweb_20130311.pdf?t=1476906418725.

[4] Id.

[5] Id.

[6] See id; see also United States v. Werdene, No. 15-434, 2016 U.S. Dist. LEXIS 66311 (E.D. Pa. May 18, 2016)

[7] Id. See also United States v. Johnson, No. 15-00340-01-CR-W-GAF, 2016 U.S. Dist. LEXIS 145180 (W.D. Mo. Oct. 20, 2016).

[8] Id.

[9] Supra note 3.

[10] Id. See also Tor, https://www.torproject.org/ (last visited Oct. 20, 2016).

[11] Tor, https://www.torproject.org/ (last visited Oct. 20, 2016).

[12] Id.

[13] Id.

[14] Electronic Communication Privacy Act of 1986, 100 Stat. 1848.

Photo Source:

http://www.pandasecurity.com/mediacenter/src/uploads/2016/06/deepweb1.jpg

Google Android’s Potential Antitrust Violations in Europe

gettyimages-482411460

By: Nicole Desbois,

When everyone first unwraps their new smart phones and turns them on, they expect to see certain pre-installed apps. With the iPhone there is iMaps, iTunes, News, iBooks and plenty more. The same goes for Android software smart phones. Google maps, Google search, and nine other Google apps are pre-downloaded. Unfortunately, for Google the European Union is particularly troubled by the pre-installment of their products across various smart phone manufactures such as HTC and Samsung.

Google is currently being charge by the European Union with “unfairly using Android to promote its own services – like mobile search over those of its rivals”[1]

The issue here is Google has signed contracts with popular phone manufactures like HTC and Samsung which provide financial incentives to exclusively pre-install Google applications, such as Google Maps, Google Search, and “links to the company’s app store, from which Google takes a cut of each application sold.” In these licensing agreements with Android, Google requires smartphone makers to load 11 core Google apps onto the phone before a customer buys it. The apps need to be at least one swipe away from the home screen, and customers cannot delete those apps.”[2]

On top of this stringent licensing agreement, Google is also making money off the advertising revenue from the use of its search engine. Although manufactures are free to include their own applications as part of the mobile software, the chances of consumers choosing relatively unknown brands in favor of Google is slim.[3]

Not only does Google have the financial incentives to strong arm smart phone manufacturers into these deals, but device makers are continually struggling against one competitor in particular, Apple. Which raises questions over Apple’s own software system. When a consumer purchases an iPhone certain apps are packaged with the phone. Additionally, consumers again are not given the option to delete those pre-downloaded applications. The main different in Apple’s case is their software works exclusively with the iPhone as opposed to be utilized across brands like Android with manufactures like HTC and Samsung.

In response to these accusations, “Google says its relationships with cellphone manufacturers are voluntary and that rival mobile services, including those from the likes of Amazon and Facebook, are readily available on its Android software, which does not restrict people from downloading competitors’ applications.”[4]

However, no one is going to delete Google apps, like Maps, in exchange for a download of an unknown operating company. Additionally, consumers with pre-downloaded apps are more likely to be subconsciously persuaded that perhaps googles apps run better with a google software system. Advertising for alternative software systems is unlikely fruitful when the search engine pulling up these advertisers is the competition itself. Again, even if competitors are allowed to include their own applications, users are still more likely to gravitate towards the familiar.

Margrethe Vestager, Europe’s antitrust chief, has voiced her concern “that, by requiring phone makers and operators to preload a set of Google apps, rather than letting them decide for themselves which apps to load, Google might have cut off one of the main ways that new apps can reach customers.”[5]

Right now Google’s version of Android powers more than “98 percent of the Android-based smartphones in Europe and the United States.” [6] Additionally, Android based smartphones accounted for 76.5% of the smartphones sold from March to May of this year in the European Union.[7]

Google continually makes the argument that the deals they make with phone manufactures, and consumer choice over app preference, is all voluntarily. However, is any of it actually voluntary or is it necessary? There are no large scale competitors, and further funding to build a platform to compete with Google seems fruitless. Who would invest in a product that does the same thing as Google, when Google is already trusted, and has a software system that currently powers over 75% of the smartphones sold in Europe? The funding isn’t there, nor is the incentive.

The EU executive body has given the Silicon Valley-based company an October 31st deadline to provide evidence whether it may or may not have been abusing its power to block out competitors.[8] Google could face a fine of around 10% of the company’s annual revenue worldwide, which is about 7 billion dollars.[9]

 

 

[1] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[2] David Goldman, Google Charged by EU in Android Monopoly Lawsuit, C.N.N. (Apr. 20, 2016), http://money.cnn.com/2016/04/20/technology/google-android-lawsuit-europe/.

[3] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[4] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[5] Mark Scott, Google’s Antitrust Woes in Europe Are Likely to Grow, New York Times (Apr. 19, 2016), http://www.nytimes.com/2016/04/20/technology/google-android-eu-antitrust.html?_r=0.

[6] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[7] Android Share Tops 75% in Europe’s Largest Markets, Market Wired (Jul. 13, 2016), http://www.marketwired.com/press-release/android-share-tops-75-in-europes-largest-markets-2142004.htm.

[8] C. See, Google-Parent, Alphabet Inc. Forced to Respond to Changes Suggested by the EU or Get Fined for Violating Antitrust Rules, News Everyday (Oct. 16, 2016), http://www.newseveryday.com/articles/48623/20161006/google-parent-alphabet-inc-forced-to-respond-to-changes-suggested-by-the-eu-or-get-fined-for-violating-antitrust-rules.htm.

[9] Marty Baes, How the EU Plans to End Google’s Dominance in Europe, Tech Times (Oct. 5, 2016), http://www.techtimes.com/articles/180668/20161005/google-anti-trust-cases-european-union-punishing-google-google-anti-trust-issues.htm.

Photo Source:

https://fortunedotcom.files.wordpress.com/2015/08/gettyimages-482411460.jpg?w=840&h=485&crop=1

Facial Recognition Technology Is Bringing an End to Anonymity

5197facefind

By: Ellie Faust,

When a random person approaches you on the street or at a bar, you are able to decide if you want to talk to them and maybe give them your number, right? Well, not according to a couple of Russian app developers who founded FindFace, an app that can provide you with a passerby’s identity within seconds.[1] The app works by comparing uploaded photos to profile pictures on Vkontakte, a popular social network in Russia with over 200 million user accounts.[2] After the photo is uploaded, the app searches through a billion photos in seconds and provides the user with the identity of the person in the photo as well as ten similar looking people.[3] This app currently boasts a 70% reliability rate and the founders, Artem Kukharenko and Alexander Kabakov have marketed the app as a way for men to meet women.[4] One of the apps creators, Kabakov stated, “If you see someone you like, you can photograph them, find their identity, and then send them a friend request.”[5] Within the first two months of the app’s launch, FindFace gathered upwards of 500,000 users and have processed over three million searches.[6]

So how exactly does this technology work? In the same way that a person’s fingerprint may be collected for future reference, identifying a person’s face requires building a faceprint to compare it to.[7] Since our faceprints are left everywhere that we go, our movements can be tracked and stored on a larger scale than ever before.[8] Such facial recognition is effectuated without your permission and you do not have the ability to opt out.[9]

While Canada and many other countries in Europe have placed restrictions on how facial recognition technology may be used, the United States has left the field largely unregulated.[10] Currently, only Texas and Illinois have implemented state level laws to protect biometric information.[11] One such law is the Biometric Information Privacy Act, which regulates how a person’s biometric identifiers, including “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” may be collected, stored, and used.[12] Under the Act, a person must provide written permission before a private entity may obtain any biometric identifiers.[13] The Illinois law has generated a number of lawsuits in which it is alleged that companies have failed to obtain consent before images of people’s faces are scanned and stored.[14]

The same technology that allows users to automatically tag friends in photos and that lets us filter ourselves into dogs has landed tech companies in hot water.

Facebook, Google, and Snapchat are all facing lawsuits for allegedly violating the Illinois law by producing biometric face prints without first notifying the citizens of Illinois.[15] According to plaintiffs in the current lawsuits, the companies’ actions amount to collecting biometric information. Collecting such information requires more notice and consent that what the companies are currently providing.[16] Recently, Senator Terry Link proposed a revision to the Act which would limit the bill to “data resulting from an in person process whereby a part of the body is traversed by a detector or an electronic beam”.[17] This would rule out scans from preexisting photography and, if the revisions become law, the lawsuits would come to an end.[18] However, when fingerprints and iris prints can be obtained from simply a high-resolution photograph, the proposed separation between photographs and biometric scans does not fit with modern technology.[19] While we cannot stop the advancement of facial recognition technology, we do need more regulation in the area to ensure that our privacy is being properly protected.

 

 

[1] See Shaun Walker, Face recognition app taking Russia by storm may bring end to public anonymity, Guardian (May 17, 2016, 4:39 PM), https://www.theguardian.com/technology/2016/may/17/findface-face-recognition-app-end-public-anonymity-vkontakte.

[2] See id.

[3] See id.

[4] See Jeff John Roberts, Facebook and Google Really Want to Kill This Face-Scanning Law, Fortune (Jun. 30, 2016, 10:17 AM), http://fortune.com/2016/06/30/facebook-google-facial-recognition-lawsuits/.

[5] See Walker, supra note 1.

[6] See Tarun Wadhwa, Facial Recognition Will Soon End Your Anonymity in Public, Huffington Post (Jun. 6, 2016, 1:26 PM), http://www.huffingtonpost.com/tarun-wadhwa/facial-recognition-will-s_b_10321972.html?.

[7] See Russell Brandom, Apple’s new facial recognition feature could spur legal issues, Verge (Jun. 16, 2016, 8:11 AM), http://www.theverge.com/2016/6/16/11934456/apple-google-facial-recognition-photos-privacy-faceprint.

[8] See Wadhwa, supra note 6.

[9] See id.

[10] See Roberts, supra note 4.

[11] See Stephanie Grimoldby, Illinois Facial Recognition Law Leads To Wave Of Class Actions Against Facebook, Others, Forbes (Jul. 5, 2016, 6:00 AM), http://www.forbes.com/sites/legalnewsline/2016/07/05/il-facial-recognition-law-leads-to-wave-of-class-actions-against-facebook-others/#75375ced4e56.

[12] See id.

[13] See id.

[14] See Roberts, supra note 4.

[15] See Russell Brandom, Someone’s trying to gut America’s strongest biometric privacy law, Verge (May 27, 2016, 8:27 AM), http://www.theverge.com/2016/5/27/11794512/facial-recognition-law-illinois-facebook-google-snapchat.

[16] See Brandom, supra note 7.

[17] See Brandom, supra note 15.

[18] See id.

[19] See id.

Photo Source:

https://i.guim.co.uk/img/media/e403681186619d30c6b5bcd213196cd39fedd20d/0_173_5197_3119/master/5197.jpg?w=620&q=55&auto=format&usm=12&fit=max&s=2bc9cd481f1f9ca8423200856082859f

To Thine Own Selfie, Be True (Where Permitted)

jt-ballot

By: Brad Stringfellow,

Superstar Justin Timberlake caused a bit of a stir this week when sharing a selfie at a Tennessee polling station to encourage his thirty-seven million Instagram followers to vote. His actions bring to light the vast array of differences between states in regards to ballot selfies. Under Tennessee law, it is illegal to take photos or video at a polling location.1 If prosecuted, it is a Class C misdemeanor, which can lead to up to thirty days in jail and/or a fine up to fifty dollars.2

Fortunately, the Shelby County District Attorney General Amy Weirich responded to questions of prosecution of Mr. Timberlake by saying, “No one in our office is currently investigating this matter nor will we be using our limited resources to do so.”3

Mr. Timberlake flew from California to Memphis, Tennessee, in order to vote early and help promote this civic opportunity before the American people. His now-deleted Instagram message read,

“Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote !!! No excuses, my good people! There could be early voting in your town too. If not, November 8th! Choose to have a voice! If you don’t, then we can’t HEAR YOU! Get out and VOTE! #excerciseyourrighttovote.”4

His non-partisan encouragement and enthusiasm for voting was endorsed with a slight rebuke in a statement by Secretary of State spokesman Adam Ghassemi, “We’re thrilled Justin can’t stop the feeling when it comes to voting … We hope this encourages more people than ever to vote, but Tennesseans should only use their phones inside polling locations for informational purposes to assist while voting.”5

Mr. Timberlake’s small gaffe brings a timely reminder of the difference between states in regulating voter behavior at the polls. Had his selfie taken place in Illinois, consequences could have been much worse with a punishment ranging between one and three years in prison.6 The policy reasons to discourage pictures at voting sites include privacy of other voters, influencing others, and a fear that photographic proof of voted ballots could lead to bought votes.7

Eighteen states currently have bright-line rules banning photos or public display of a vote at polling stations and/or of ballots, including absentee ballots.8 Punishments range from no enforcement action to felony prosecution for violating the respective statute.9

Thirteen states are currently unclear or sending a mixed message as to the right to photograph a personal ballot.10 Ohio and Missouri state officials, for example, have left ballot selfies to local election boards to deal with.11 Iowa, Maryland, Texas, and West Virginia do not allow photos at polling stations, but do allow photos of absentee ballots.12 Arizona does not allow photos within seventy-five feet of polling stations, but paradoxically, allows photos of completed ballots.13

Nineteen states and the District of Columbia accept ballot selfies ranging from begrudging acceptance to solid endorsement.14 Utah, Rhode Island, North Dakota, Nebraska, Minnesota, Louisiana, and Hawaii all have passed laws expressly allowing ballot selfies; like Justin Timberlake, some of these states see it as a means of encouraging more voter participation .15 The majority of other states allowing photos have done so either because they have no rule forbidding it, or have had a law forbidding photos repealed (Indiana and New Hampshire).16

More states may soon be allowing ballot selfies as the First Circuit Court of Appeals has found ballot selfies to be a valid form of free speech under the First Amendment.17 The court found New Hampshire’s purpose in preventing the ballot selfies as too broad to serve a specific governmental purpose worthy of infringing on first Amendment rights. 18

While Mr. Timberlake was able to share a photo of his ballot with no consequence, it would be wise to check state rules before following likewise. Perhaps in the future, all ballot selfies will be seen as a form of free speech. In the meantime, don’t cry a river if you can’t share a selfie.

 

Photo Source: http://media.phillyvoice.com/media/images/tmp4Qyhzc.width-800.jpg

  1. See Code Ann. § 2-7-142(b) (2016).
  2. See Code Ann. § 40-35-11(e)(3) (2016).
  3. Lisa R. France, Justin Timberlake Not in Trouble for Voting Selfie, CNN (Oct. 26, 2016, 2:07 PM), http://www.cnn.com/2016/10/26/entertainment/justin-timberlake-selfie/.
  4. Kenzie Bryant, A Gentle Reminder Not to Make Justin Timberlake’s Voting Mistake, Vanity fair (O 26, 2016, 12:44 PM), http://www.vanityfair.com/style/2016/10/justin-timberlake-voting-selfie.
  5. Katie Fretland & Linda A. Moore, Timberlake’s Voting Selfie Not Under Review by D.A., The Tennessean (Oct. 25, 2016, 8:14 PM), http://www.tennessean.com/story/news/local/2016/10/25/justin-timberlake-selfie-under-review/92730796/
  6. See Ballot Selfies: A Look at Where They Are Allowed or Not, The Associated Press (Oct. 23, 2016, 10:03 PM), http://bigstory.ap.org/article/04c313da0672422ba28bb57c4e4a7ca0/ballot-selfies-look-where-they-are-allowed-or-not.
  7. See France, supra note 3; id.
  8. See The Associated Press, supra note 6.
  9. See id.
  10. See id.
  11. See id.
  12. See id.
  13. See The Associated Press, supra note 6.
  14. See id.
  15. See id.
  16. See id.
  17. Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, 12-14, 21 (1st Cir. Sep. 28, 2016).
  18. See id. 

Photo Source:

http://ichef.bbci.co.uk/news/660/cpsprodpb/784E/production/_92089703_capfture.jpg

But First, Let Me Take a Selfie

160422144121-ballot-selfie-voting-polls-780x439

By: Victoria Linney,

As the election on November 8th draws near, there is something aside from the candidates that you might consider when casting your vote – whether or not you are risking a fine when taking a ballot selfie. A ballot selfie is a photo of a completed ballot, and it is particularly popular among millennials.[1] Ballot selfies became especially prominent with the introduction of smartphones into our daily lives, as well as the ability to post photos on social media in seconds. These selfies are more likely than ever to occur this election cycle because in 2015, sixty-eight percent of American adults owned a smartphone, while eighty-six percent of people ages 18 to 29 owned a smartphone.[2]

However, many states have laws prohibiting sharing ballot images and information, hoping to protect voter privacy and prevent vote buying schemes.[3] In fact, some state legislatures chose to extend their existing bans on voting booth photography to ballot selfies,[4] but, these laws have clashed with the emergence of social media.[5]

Social media has provided Americans, especially millennials, with a method of showing election enthusiasm and, in essence, a way to provide positive peer pressure to get out and vote.[6] As such, some states have begun to hold such restrictions on ballot selfies unconstitutional. For example, recently the First Circuit found New Hampshire’s ban on ballot selfies to be unconstitutional.[7] The Court found that New Hampshire’s statute failed to meet the test for intermediate scrutiny, and that the purposes of the statute could not justify the restrictions it placed on speech.[8]

New Hampshire’s statute had been amended in 2014 to prohibit voters from displaying their ballots to others in order to show how they have voted through “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.”[9] Violation of this statute carried a fine of up to $1,000.[10]

In order for the statute to survive intermediate scrutiny, it must be “narrowly tailored to serve a significant governmental interest.”[11] The Court found that even if the premise that ballot selfies make voter coercion and vote buying easier was accepted that the statute would still fail for lack of narrow tailoring.[12] This failure is for two reasons: first, because the prohibition on ballot selfies impedes the speech rights of all voters, not just those who are casting a vote illegally, and second, because New Hampshire did not demonstrate that other laws aimed at prohibiting vote corruption were inadequate.[13] Therefore, the Court held that New Hampshire’s restriction on ballot selfies was unconstitutional.[14]

Nevertheless, some states are lifting their restrictions on ballot selfies. The Governor of California signed into law a new exemption that allows voters to disclose how they have voted if doing so does not violate any other law.[15] But, it is important to note that even though the law was signed this past September, it does not go into effect until January of 2017, and therefore Californians will not be able to take ballot selfies on this upcoming Election Day.[16]

However, if you live in Virginia, you are free to take ballot selfies this Election Day.[17] Previously the rules surrounding the use of electronic devices at polls in Virginia were unclear.[18] Then, in June, the State Board of Elections approved new regulatory language that loosened restrictions on electronic devices.[19] This led Virginia Attorney General Mark Herring to issue an opinion stating that Virginia voters were allowed to take ballot selfies as long as it does not disrupt other voters or the election.[20] So, Virginians, do not forget to vote on November 8th, and feel free to take a selfie with your ballot!

 

 

[1] See Mark Joseph Stern, Bring on the Ballot Selfies!, Slate (Sept. 23, 2016, 11:45 AM), http://www.slate.com/articles/technology/future_tense/2016/09/voting_booth_ballot_selfie_bans_violate_the_first_amendment.html.

[2] See Monica Anderson, Technology Device Ownership: 2015, Pew Res. Ctr. (Oct. 29, 2015), http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/.

[3] See Joseph Weber, States, Courts Wrestle With Allowing “Ballot Selfies,” Fox News (Aug. 15, 2016), http://www.foxnews.com/politics/2016/08/15/states-courts-wrestle-with-allowing-ballot-selfies.html.

[4] See Stern, supra note 1.

[5] See Weber, supra note 3.

[6] See Stern, supra note 1.

[7] See Katie Rogers, Court Overturns New Hampshire Ban on Selfies (and Snapchat) in Voting Booths, N.Y. Times (Sept. 28, 2016), http://www.nytimes.com/2016/09/29/us/politics/voting-booth-selfie-snapchat.html?_r=0.

[8] See Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, at note 2 (1st Cir. Sept. 28, 2016).

[9] Id. at note 4.

[10] See id.

[11] See id. at note 14.

[12] See id. at note 18.

[13] See Rideout, 2016 U.S. App. LEXIS 17622, at note 19.

[14] See id. at note 21.

[15] See John Myers, Sorry, Californians, You Still Can’t Take Ballot Selfies on Nov. 8, L.A. Times (Oct. 13, 2016), http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-updates-state-elections-officials-are-still-1476379986-htmlstory.html.

[16] See id.

[17] See Virginia AG: “Ballot Selfies” Not Illegal in Virginia, Wash. Post (Oct. 6, 2016), https://www.washingtonpost.com/local/virginia-ag-ballot-selfies-not-illegal-in-virginia/2016/10/06/2a89c9ba-8b86-11e6-8cdc-4fbb1973b506_story.html.

[18] See Graham Moomaw, Ballot Selfies Are Legal in Virginia, Attorney General Says, Rich. Times Dispatch (Oct. 5, 2016, 9:30 AM), http://www.richmond.com/news/virginia/government-politics/article_54c016c3-71d5-51e9-9745-974e63d68137.html.

[19] See id.

[20] See id.

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