Richmond Journal of Law and Technology

The first exclusively online law review.

Month: April 2017

Vaping: Not Just Tobacco

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By: Daniel Eggleston

 

E-cigarettes, also called vape pens, were once heralded as a much safer alternative to traditional cigarettes, and a way for smokers to either kick the habit or decrease cancer risks.[1] Because e-cigs are available in a wide array of flavors and devices (some look like pipes, others like cigarettes, and many look like futuristic gadgets), many members of the public grew concerned of the e-cig’s potential appeal to youngsters.[2] The FDA released statistics corroborating this fear: in “2013-2014, 81% of current youth e-cigarette users cited the availability of appealing flavors as the primary reasons for use.”[3], and that “e-cigarettes . . . [w]ere the most commonly used tobacco product among youth” in both 2014 and 2015.[4]

While these statistics might raise eyebrows by themselves, a new use for vape pens is becoming increasingly more widespread.[5] CNN published a story on vape pens being used to as a vehicle to consume illegal drugs like flakka, methamphetamines, heroin, and marijuana.[6] “Water-soluble synthetics are easily converted into liquid concentrate that can go into the device cartridges and be vaped just like nicotine and other legal substances.”[7] This makes it difficult for law enforcement officers to detect if illicit drug use is occurring or whether an e-cig simply contains flavored tobacco oil.[8] Police have a harder time establishing probable cause because of the uncertainty of an e-cig contains nicotine, or something worse.[9] Furthermore, this masked consumption has also resulted in people unknowingly consuming, and in some cases overdosing, on illegal drugs the user unknowingly consumed.[10]

Researchers at Virginia Commonwealth University received a grant from the Department of Justice to explore “how drug users are increasingly using e-cigarette devices to vape illicit drugs.”[11] Users pass on this knowledge via online drug forums and YouTube tutorials, explaining how meth can be consumed in the workplace, with no one the wiser.[12] What’s more, social media users and celebrity culture are endorsing vape pens as a discreet way to get high in public, in school, or in the workplace.[13]

The research team is testing the efficacy of vape pens in delivering drugs like meth, heroin, marijuana, and others to the user.[14] That vape pens are effective is indisputable given the wide-spread consumption of drugs through the devices – what the researchers are measuring is the dosage levels transmitted in the vapor clouds and analysis of the “commercially available e-liquids to see if the purported contents matched the labels.”[15] The researchers found wide discrepancies between ingredients listed on the labels and what the e-liquids actually contained.[16] Some e-liquids contained drugs that labels specifically claimed they did not contain, prompting the researchers to cite major concern over the lack of regulatory labeling oversight.[17]

The Food and Drug Administration has responded to some of these concerns with increased regulation over the e-cigarette industry.[18] One of these regulations requires “federal approval for most flavored nicotine juices and e-cig devices sold in vape shops.”[19] What remains to be seen, however, is how the FDA responds to the use of e-cigs for their as a vehicle for consuming illicit drugs.

 

 

 

[1] See Sara Ganim & Scott Zamost, Vaping: The latest scourge in drug abuse, CNN, (last visited Sept. 5, 2015) http://www.cnn.com/2015/09/04/us/vaping-abuse/.

[2] See id.

[3] Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), Food and Drug Admin. (last visited Feb. 13, 2017) https://www.fda.gov/TobaccoProducts/Labeling/ProductsIngredientsComponents/ucm456610.htm#regulation.

[4] See id.

[5] See supra note 1.

[6] See id.

[7] Id.

[8] See id.

[9] See supra note 5.

[10] See id.

[11] Brian McNeill, Shedding light on a vaping trend: Researchers study the use of e-cigarettes for illicit drugs, Va. Commonwealth Univ. News (last visited Feb. 22, 2017) https://news.vcu.edu/article/Shedding_light_on_a_vaping_trend_Researchers_study_the_use_of.

[12] See id.

[13] See id.

[14] See id.

[15] Supra note 10.

[16] See id.

[17] See id.

[18] See Laurie Tarkan, How new rules could kill the vaping boom, Fortune (last visited Sept. 29, 2015) http://fortune.com/2015/09/29/vaping-fda-rules/.

[19] Id.

Image Source: http://assets.hightimes.com/styles/large/s3/title_ny_4thave_0.jpg.

The Future of Self-Driving Cars

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By: Genevieve deGuzman,

The race to develop autonomous technology has led to the fast-growing rise of autonomous or self-driving cars. Automakers, technology companies, startups, and even governments are getting involved.[1] So how do these self-driving cars actually work? Each automaker uses different technology for their cars, but these cars use either computer vision-based detection or laser beams to generate a 360-degree image of the car’s surrounding area, multiple cameras and radar sensors measure the distance from the car to various objects and obstacles, and a main computer analyzes data, such as size and rate of speed of nearby objects, from the sensors and cameras and compares its stored maps to assess current conditions and predict likely behavior.[2] The cameras also detect traffic lights and signs and help recognize moving objects.[3]

Automakers such as Tesla, General Motors, Toyota, Lexus, Ford, Fiat Chrysler, Honda, Volvo, Volkswagen, and technology companies such as Google, Apple, nuTonomy, and Intel have all joined in the race to develop self-driving cars.[4] This push may be caused by Uber, which is a “digital hybrid of private and public transport” and has made “ride-hailing” so comparatively convenient and cheap that it threatens the car ownership industry.[5] Further, with technology becoming increasingly integrated in and almost detachable from consumer life, self-driving cars are efficient and convenient, allowing the “driver” to interact with their phones and other technology while safely getting to their destination.

In 2016, Uber’s self-driving truck made its first delivery, driving 120 miles with 50,000 cans of beer, changing the future of truck driving and deliveries.[6] Later that year, Uber also tested its autonomous driving technology in San Francisco until California’s Department of Motor Vehicles revoked the registrations for sixteen Uber cars for not marking the cars as test cars.[7] However, Uber contended that their cars do not need self-driving car permits because they were operated with a “safety driver” behind the wheel as the cars’ programming still requires a person behind the wheel to monitor the car and works more like advanced driver assist technologies, like that of Tesla’s autopilot.[8] The revocation of the registrations may have been made in light of the deadly crash of a Tesla’s Model S, which is not a self-driving car but contains self-driving features to assist drivers. Tesla ultimately attributed this accident and two other accidents to “human error, saying the drivers 1) were inattentive, 2) disabled the automation and 3) misused the Summon feature and didn’t heed the vehicle’s warnings.”[9] Unlike Tesla’s autopilot, which focuses on driver assistance, Google’s Waymo is focusing on creating a fully autonomous car but has not put them on the market.

Some self-driving cars have already hit the market, and expectedly, there is a push for national self-driving vehicle regulation standardization. The United States Department of Transportation (DOT) released its Federal Automated Vehicles Policy in September 2016, setting guidelines for highly automated vehicles (HAVs) and lower levels of automation, such as some of the driver-assistance systems already deployed by automakers.[10] The policy guideline includes a 15-point safety assignment to “set clear expectations for manufacturers developing and deploying automated vehicle technologies,” a section that presents a clear distinction between Federal and State responsibilities for regulating automated vehicles, and current and modern regulatory rules.[11] Combined with the recent guidelines, the DOT also issued proposed rules for cars to talk to each other to prevent accidents to “illustrate the government’s embrace of car-safety technology after years of hesitation, even as distractions in vehicles contributed to the biggest annual percentage increase of road fatalities in 50 years” and attempt to fix vehicle deaths and reduce crashes.[12] The cars would use radio communications to send alerts to devices in the cars to warn drivers of risks of collisions, presence of a car in a driver’s blind spot, presence of oncoming traffic, and traffic slowing or stopping.[13]

Although the DOT invoked some standardization, they say nothing about “how it is tested (or even defined), how cars using it will operate, or even who should settle these questions.”[14] On February 14, 2017, the House Subcommittee on Digital Commerce and Consumer Protection held a hearing regarding the deployment of autonomous cars where representatives of General Motors, Toyota, Volvo, and Lyft provided testimony about how the parties think the federal government should regulate the new technology.[15] Automakers and technology companies developing autonomous technology want federal intervention to provide a “broad, consistent framework for testing and deploying their robots,” fearing states creating a “patchwork of regulations.”[16] Federal regulators would allow greater flexibility and wide latitude in how to prove the safety of the autonomous driving technology.[17] Congress will have to decide how to measure the safety of these autonomous cars and dictate the standards of safety they must have as the age of the robocar and its transition into consumer lives seems to be an inevitability.

 

 

 

[1] Matt McFarland, 2016: A tipping point for excitement in self-driving cars, CNN Tech (Dec. 21, 2016), http://money.cnn.com/2016/12/21/technology/2016-year-of-autonomous-car/ (last visited Feb. 18, 2017).

[2] See Guilbert Gates et al., When Cars Drive Themselves, NY Times (Dec. 14, 2016), https://www.nytimes.com/interactive/2016/12/14/technology/how-self-driving-cars-work.html?_r=0 (last visited Feb. 18, 2017).

[3] See id.

[4] See id.

[5] See John Gapper, Why would you want to buy a self-driving car?, Financial Times (Dec. 7, 2016), https://www.ft.com/content/7fad3a62-bb06-11e6-8b45-b8b81dd5d080 (last visited Feb. 18, 2017).

[6] See Alex Davies, Uber’s Self-Driving Truck Makes its First Delivery: 50,000 Beers, Wired (Oct. 25, 2016), https://www.wired.com/2016/10/ubers-self-driving-truck-makes-first-delivery-50000-beers/ (last visited Feb. 18, 2017).

[7] See Avie Schneider, Uber Stops Self-Driving Test In California After DMV Pulls Registrations, NPR (Dec. 21, 2016), http://www.npr.org/sections/thetwo-way/2016/12/21/506525679/uber-stops-self-driving-test-in-california-after-dmv-pulls-registrations (last visited Feb. 18, 2017).

[8] See id.

[9] See id.

[10] See U.S. Dep’t of Transp., Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety (2006), available at https://www.transportation.gov/sites/dot.gov/files/docs/AV%20policy%20guidance%20PDF.pdf.

[11] See id.

[12] See Cecilia Kang, Cats Talking to One Another? They Could Under Proposed Safety Rules, NY Times (Dec. 13, 2016), https://www.nytimes.com/2016/12/13/technology/cars-talking-to-one-another-they-could-under-proposed-safety-rules.html (last visited Feb. 18, 2017).

[13] See id.

[14] See Alex Davies, Congress Could Make Self-Driving Cars Happen—or Ruin Everything, Wired (Feb. 15, 2017), https://www.wired.com/2017/02/congress-give-self-driving-cars-happen-ruin-everything/ (last visited Feb. 18, 2017).

[15] See id.

[16] See id.

[17] See id.

Image Source: https://www.nissanusa.com/content/dam/nissan/blog/articles/autonomous-drive-car/nissan-self-driving-car.jpg.

Inspection or Detention

 

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By: Eleanor Faust,

 

Reports have surfaced that in the days preceding President Trump’s executive order effectuating an immigration ban, the Center for American-Islamic Relations (CAIR) filed legal complaints concerning hostile interrogations by Customs and Border Patrol agents.[1] The complaints allege that the agents demanded the travelers unlock their phones and provide them with social media account names and passwords.[2] Courts have held that customs agents have the authority to manually search devices at the border as long as the searches are not made solely on the basis of race or national origin.[3] This does not mean that travelers are required to unlock their phones but if they refuse, they run the risk of being detained for hours for not complying with the agent’s request.[4]

When returning home from a trip abroad, you expect to feel welcomed upon arrival but that has not been the case for many recently. When Sidd Bikkannavar got off the plane in Houston from a personal trip to South America, he was detained by the U.S. Customs and Border Patrol.[5] Bikkannavar is not a foreign traveler visiting the United States. He is a natural born U.S. citizen who works at NASA’s Jet Propulsion Laboratory. He has also undergone a background check and is enrolled in Global Entry to allow expedited entry into the United States.[6] While he was detained the customs agents demanded his phone and access PIN without giving him any information as to why he was being questioned.[7] A major concern is that Bikkannavar had a NASA issued phone that very well could have contained sensitive information that should not have been shared.[8] For a number of different professionals, these types of border searches compromise the confidentiality of information.[9] For example, searching the phone of a doctor or lawyer can reveal private doctor-patient or attorney-client information.[10]

Although there is no legal mechanism to make individuals unlock their phone, the customs agent’s have broad authority to detain travelers which can often be intimidating enough to make a person unlock their phone to avoid being in trouble.[11] Homeland Security Secretary John Kelly is looking to expand customs agent’s authority and is pushing to be able to obtain all international visitor’s social media passwords and financial records upon their arrival into the country.[12] At a meeting with Congress, Kelly told the House Homeland Security Committee, “We want to get on their social media, with passwords: What do you do, what do you say? If they don’t want to cooperate then you don’t come in.”[13] In the meantime, Hassan Shibly, the director of CAIR’s FL branch, advises American citizens to remember that, “you must be allowed entrance to the country. Absolutely don’t unlock the phone, don’t provide social media accounts, and don’t answer questions about your political or religious beliefs. It’s not helpful and it’s not legal.”[14]

 

 

 

[1] See Russell Brandom, Trump’s executive order spurs Facebook and Twitter checks at the border, Verge (Jan. 30, 2017, 9:55 AM), http://www.theverge.com/2017/1/30/14438280/trump-border-agents-search-social-media-instagram.

[2] See id.

[3] See Loren Grush, A US-born NASA scientist was detained at the border until he unlocked his phone, Verge (Feb. 12, 2017, 12:37 PM), http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban.

[4] See id.

[5] See id.

[6] See id.

[7] See Seth Schoen, Marcia Hofmann, and Rowan Reynolds, Defending Privacy at the US Border: A Guide for Travelers Carrying Digital Devices, Electronic Frontier Foundation (Dec. 2011), https://www.eff.org/wp/defending-privacy-us-border-guide-travelers-carrying-digital-devices.

[8] Id.

[9] See id.

[10] See id.

[11] See Brandom, supra note 1.

[12] See Alexander Smith, US Visitors May Have to Hand Over Social Media Passwords: DHS, NBC News (Feb. 8, 2017, 7:51 AM), http://www.nbcnews.com/news/us-news/us-visitors-may-have-hand-over-social-media-passwords-kelly-n718216.

[13] See id.

[14] See Grush, supra note 3.

Image Source: https://www.thestar.com/content/dam/thestar/news/canada/2017/02/18/are-us-border-agents-allowed-to-search-phones-and-other-devices/border-searches.jpg.size.custom.crop.1086×724.jpg.

FAA Regulation Delays Rollout of Amazon Prime Air

 

Amazon-Prime-Air

By: Sophie Brasseux,

 

Along with Super Bowl LI came typical array of Super Bowl ads. One ad that got a lot of attention this year belonged to Amazon. Amazon’s ad featured a woman ordering Doritos using her Amazon Echo.[i] As a Prime Air drone shows up with her delivery, a disclaimer airs stating “Prime Air is not available in some states. Yet.” [ii]

After announcing the development of their drone delivery system this past July, Amazon completed their first test of the drones in December in the UK. [iii]

Amazon advertises Prime Air as a system in which drones would be able to get you your package in thirty minutes or less. [iv] Prime Air would be able to deliver packages up to five pounds and would include “sense and avoid” technology for improved safety and reliability.[v] These drones will have vertical take off and landing skills with the ability of reach altitudes of 100 meters and speeds of 100 kph.[vi] Given the costs required to use these drones, they are designed as a “last resort” in Amazon’s “delivery hierarchy.” [vii] So far, Amazon’s website includes videos of these drones as well as a FAQ section mostly about their testing in the UK. [viii]

One might wonder why this U.S. company is testing in the UK. Back in June 2016, The Federal Aviation Administration published new rules, which took effect in late August. [ix] The new FAA rules replaced the temporary restrictions on drone use by companies, which had previously required companies to apply for a special permit in order to use a drone for their business.[x] The rules allow companies to use drones, but include the requirement that the drone be kept within the line of sight of the operator during use. [xi] Another major restriction is that drones are prohibited from being over individuals not involved with the drone operation. [xii] These restrictions directly effect the way in which Amazon had intended to use their Prime Air service, thus they have moved their testing to the UK where there are currently no such restrictions. [xiii]

Regulations also restrict the times of day commercial drones can be used, flight patterns, and height restrictions. [xiv] Additionally, in order to operate a commercial drone, the FAA requires a remote pilot certificate or a student private pilot’s license, neither of which are required to use a drone for personal use. [xv] One notable benefit of the new FAA rules is that commercial operators do not have to go through a legal procedure to obtain FAA permission to operate anymore. [xvi] The Consumer Technology Association has stated the FAA has struck “an appropriate balance of innovation and safety” with their new rules, but “additional steps are needed such as addressing ‘beyond-line-of-sight’ operations, which will be a true game changer.”[xvii]

At this time, it is unclear what next steps Amazon or the FAA plan to take in order to get Air Prime and other commercial drones to be permitted in the United States. Given the current regulations, it is doubtful we will be seeing these drones in the near future, however, given that the technology has already been developed, it simply does seem to be a matter of time until your packages will be delivered via drone.

 

 

 

[i] See Michelle Castillo, One of Amazon’s delivery drones showed up in a Super Bowl ad, CNBC (Feb. 6, 2017), available at http://www.cnbc.com/2017/02/06/amazon-prime-delivery-drone-gets-super-bowl-li-spotlight.html

[ii] See id.

[iii] See id; see also Luke Johnson, 9 things you need to know about the Amazon Prime Air delivery service, Digital Spy (Feb. 7, 2017), available at http://www.digitalspy.com/tech/feature/a820748/amazon-prime-air-drone-delivery-service/.

[iv] Amazon.com, Prime Air, available at https://www.amazon.com/Amazon-Prime-Air/b?ie=UTF8&node=8037720011.

[v] See id.

[vi] See supra note 3.

[vii] See id.

[viii] See supra note 4.

[ix] See Martyn Williams, New FAA rules means you won’t get Amazon drone delivery anytime soon, PCWord, (Jun 21, 2016), available at http://www.pcworld.com/article/3086790/legal/new-faa-rules-mean-you-wont-get-amazon-drone-delivery-anytime-soon.html.

[x] See id.

[xi] See id.

[xii] See id.

[xiii] See id; see supra note 3.

[xiv] See supra note 9.

[xv] See id.

[xvi] See id.

[xvii] See Nat Levy & Todd Bishop, FAA issues final commercial drone rules, restricting flights in setback for Amazon’s delivery ambitions, GeekWire (Jun 21, 2016), available at http://www.geekwire.com/2016/faa-issues-final-commercial-drone-rules-restricting-flights-setback-amazons-delivery-ambitions/.

Image Source: http://www.droneflit.com/wp-content/uploads/2016/07/Amazon-Prime-Air.jpg.

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