Richmond Journal of Law and Technology

The first exclusively online law review.

Author: Courtney Gilmore (Page 1 of 5)

How Private Spaceflight May Collide with Space Law

By: Helen Vu,

On February 6, 2018, SpaceX launched its first Falcon Heavy rocket into outer space with a Tesla Roadster attached to it and a spacesuit-wearing mannequin named “Starman” strapped into the car’s driver’s seat.[1] The rocket and the Roadster launched out of Kennedy Space Center at Cape Canaveral, Florida, and are expected to eventually reach Mars after entering into orbit around the sun.[2] This feat was groundbreaking, not only because it involved a convertible hurtling through outer space, but also because it was a private spaceflight company rather than a national government agency that funded the development of the world’s most powerful rocket.[3]

When it comes to competition in the field of space exploration, most people think of the post-Cold War Space Race between the United States and the Soviet Union.[4] At the start of the 1950’s, people around the world watched carefully to see which country would beat the other to the final frontier of outer space.[5] After the United States effectively won the race by putting the first man on the moon in 1969, the public’s interest in space travel slowly waned.[6] However, at the beginning of the 21st century, a handful of private entities entered the realm of space exploration and began competing amongst themselves to be the company that revolutionizes space travel.[7]

This privatization of space exploration and increased competition will inevitably lead to faster development of technology at lower costs. However, such rapid growth also means that our current body of space law will quickly become outdated and fail to meet the regulatory needs of a newly privatized market. The Outer Space Treaty, an agreement established in 1967 by the United Nations, provides a framework for governance of the shared use of outer space.[8] It was modeled after other treaties dealing with maritime activities and the exploration of Antarctica, and sought to mitigate any risks that accompany the study of new frontiers.[9] Under the Treaty, a state is internationally liable for any damage caused by a space object launched from its territory, even if the space object was operated by a private entity.[10] While this policy leads to a clear demarcation of state liability, imposing liability upon a country merely because it allows a company to launch an object into space from within its borders does not seem like an equitable or feasible solution. Holding a country accountable for its own actions in outer space is drastically different from holding a country accountable for the actions of a private entity. Further questions arise when companies someday facilitate space travel for private individuals who might perform acts while in space that lead to damage. Must a country’s economy face the consequences of what would likely be the monstrously expensive actions of a single person? How could we reasonably expect an individual to pay for the high cost of damages done in outer space?

A possible solution lies in the combination of insurance and indemnification policies. Before Russia’s Federal Space Agency sent the world’s first space tourist, Dennis Tito, into outer space in 2001, the country took out a $100,000 insurance policy on Tito.[11] An additional step could be to contract with private spaceflight companies in advance to ensure that they reimburse the state for any damages that may arise out of the launch.[12] By taking out insurance policies on space flights in addition to entering into indemnification contracts with the countries they launch out of, private companies may be able to mitigate some of the risk that arises out of their space exploration.

Before the launch of the Falcon Heavy, Elon Musk, the CEO of SpaceX, stated that there was “an extremely tiny” chance that the rocket could hit Mars.[13] Although the possibility of that happening is almost zero, we will still cross our fingers and hope that Starman and his Roadster don’t cross paths with any litigation-happy extraterrestrial creatures on his journey.


[1] See Tariq Maliq, Success! SpaceX Launches Falcon Heavy Rocket on Historic Maiden Voyage, (Feb. 6, 2018),

[2] See id.

[3] See Nell Greenfieldboyce, SpaceX Set To Launch World’s Most Powerful Rocket, The Two-way (Feb. 5, 2018),

[4] See The Space Race, (2010),

[5] See id.

[6] See id.

[7] See Timeline: 50 Years of SpaceFlight, (Sept. 28, 2012),

[8] Monica Grady, Private companies are launching a space race – here’s what to expect,

[9] See id.

[10] Dr. Frans G. von der Dunk, Passing the Buck to Rogers: International Liability Issues in Private Spaceflight, 86 Neb. L. Rev. 400, 409 (2007).

[11] See id.

[12] See id.

[13] See Loren Grush, Elon Musk’s Tesla Overshot Mars’ Orbit, but it Won’t Reach the Asteroid Belt as Claimed, The Verge (Feb. 8, 2018),

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Has the RIAA Given Up on Combating End-User Internet Piracy?

By: James DeSantis,

The battle against Internet piracy has been raging for almost two decades. The release of Napster in June 1999 marked the beginning of a Golden Age of peer-to-peer file sharing where billions and billions of dollars of copyrighted materials were plundered with near impunity. Blindsided by a precipitous drop in album sales, the Recording Industry Association of America (RIAA), a trade organization representing the recording industry, has consistently tried to stop the hemorrhaging of industry revenue by any means necessary.

Initially spending years focusing their legal efforts at shutting down P2P file-sharing services, legal action against individuals, or end-users, engaging in the illegal sharing of copyrighted material began en masse in 2003 when the RIAA filed hundreds of lawsuits against individuals identified to have committed Internet piracy.[1] Over the next five years, the RIAA would go on to file more than 30,000 lawsuits targeting alleged copyright infringers comprising a significant percentage of all intellectual property litigation in the country.[2] Aimed at striking fear into the heart of would-be downloaders, the RIAA lawsuits relied on filling mass “John Doe” copyright infringement lawsuits listing hundreds of defendants at a time.[3]

Mass John Doe lawsuits are an ingenious legal strategy utilized almost exclusively to prosecute copyright infringement. First the plaintiff identifies the unauthorized downloader’s Internet protocol address (IP address) and then files hundreds, sometimes thousands, of lawsuits against John Doe, or an otherwise unknown defendant. The plaintiff is able to file a single lawsuit against multiple defendants by invoking Rule 20 of the Federal Rules of Civil Procedure for the permissive joinder of parties.[4] After the lawsuits has been filed, the plaintiff asks for a court ordered subpoena compelling the Internet service provider (ISPs) to provide individual account holder information matching the IP address.[5] Once the ISPs turn over the individual user’s relevant identifying information (i.e. their name and address), the RIAA uses the threat of litigation to extract a settlement from the user.[6] The RIAA’s end user lawsuits were usually settled for $2500; the intrepid individuals who tried fight the RIAA lawsuits were highly publicized for subjecting low level offenders to lengthy court battles and excessive damages.[7]

Although it is impossible to determine the long term net effect of RIAA’s mass fillings of lawsuits against individual music fans had in tackling the issue of music piracy, one indication that the policy was of limited success is the RIAA’s decision to abandon the strategy in 2008 for other approaches.[8]

One of the RIAA’s more recent concerted efforts to tackle piracy, known as the “six strikes initiative” or Copyright Alert System, involved a cooperation between the five biggest ISPs and copyright owners that entailed sending warning notices to individual customers caught violating copyrights. The more strikes a customer receives the more threatening the letters become with the fifth and sixth letters alerting the copyright offender that his internet speed will be temporarily reduced to 256kpbs for two to three days as punishment.[9] In total, the “six strikes policy” sent out 13 million copyright notices with offenders becoming less and less likely to offend with every subsequent notice. Despite the promising data, the Copyright Alert System lasted four years before being shelved in early 2017.[10]

As of 2018, the RIAA is does not have any plans to go after individual copyright infringers instead focusing their efforts on prosecuting torrent sites and their administrators. It seems that the RIAA has learned that just because a battle should be fought does not mean that it can be won.


[1] David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation, Wired, Sept. 4, 2008,

[2] Matthew Sag, IP Litigation in United States District Courts: 1994 to 2014 (January 14, 2016), 101 Iowa L. R. 1065 (2016).

[3] Id. at 113.

[4] Fed. R. Civ. P. 20(a)(2).

[5] Felicia Boyd, The End of John Doe Copyright Suits in the US?, Intellectual Property Magazine (Sept. 2012),

[6] Sean B. Karunaratne, e-Case against Combating BitTorrent Piracy through Mass John Doe Copyright In infringement Lawsuits, 111 Mich. L. Rev. 283 (2012).

[7] Jemima Kiss, BitTorrent: Copyright Lawyers Favorite Target Reaches 200,000 Lawsuits, The Guardian (Aug. 9, 2011).

[8] Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits; The Wall Street Journal (Dec. 19, 2008).

[9] Adrianne Jeffries, Internet Providers Launch Controversial Copyright Alert System, Promise ‘Education’ Over Lawsuits, The Verge (Feb. 25, 2013) (256kbps is a little bit faster then typical dialup speed).

[10] Corinne Reichert, Copyright Infringement Alert System Abandoned in US, The Verge (Jan. 30, 2017).

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Alexa’s Constitutional Rights: Does the 1st Amendment Extend to Artificially Intelligent Machines?

By: Kaley Duncan,

“Alexa tell me a joke.”

“I wondered why the baseball was getting bigger…and then it hit me.”[1]

From dad jokes, to making a playlist on Spotify, and even dimming the lights in your home, Amazon’s Alexa can assist you with pretty much anything.[2]

Personal assistant devices like Alexa, Siri, and Google Home are the new consumer fad. While many competitors such as Google Home have hit the market, Alexa seems to be the preferred device.[3] As of May 2016, less than one year after its release, close to 2,000,000 Alexas had been sold.[4] According to Amazon, Alexa has 10,000 skills available and “the more customers use Alexa, the more she adapts to speech patterns, vocabulary, and personal preference.”[5] With Alexa’s pairing device, Echo Dot, you can now have a voice controlled personal assistant in every room of your house.[6]

Because these devices are such an integral part of consumers’ lives, privacy is a growing concern. Much like Apple’s feud with the F.B.I. over access to the San Bernadino shooter’s iPhone, many tech companies have been standing up to the government and refusing to hand over consumer data.[7] In May 2015, big companies including Facebook, Dropbox, Google, Apple, Twitter, and Yahoo signed a letter addressed to former President Obama urging him to back their privacy stances.[8] This concern was soon shared by Amazon’s legal team when Benton County prosecutor, Nathan Smith, demanded information from Alexa in regards to a murder investigation.[9] In a memorandum to the Circuit Court of Arkansas, Amazon stated that “[Alexa’s] interactions may constitute expressive content that implicates privacy concerns and First Amendment Protections.”[10] Amazon has since given up its legal battle as the murder suspect voluntarily gave up information regarding his Echo devices.[11] However, this suit brings up an interesting issue: Is Amazon’s novel approach just a legal hail marry used to ensure consumer privacy, or should artificially intelligent (“AI”) machines such as Alexa be entitled to First Amendment protections?

Toni Massaro and Helen Norton’s study suggests that they might be.[12] Some AI machines are so removed from human interference, that arguments for granting them first amendment rights may not be as absurd as they sound.[13]

“Modern computers can gather create, synthesize, and transmit vast seas of information as they become more ‘human-like’…Such computer speakers are increasingly self-directed or ‘autonomous’…[S]peech they produce is theirs, not ours, with no human creator or director in sight.”[14]

According to Massaro and Norton, current free speech ideology does not limit freedom of speech protection to only humans.[15] This may be true of even the least advanced artificially intelligent machines. Free speech theories tend to focus more on the expression of the speech rather than the speaker.[16] Therefore enabling extension of the right to not only humans, but anything that can produce a relevant expression via speech.[17]

Not surprisingly, many are opposed to extending constitutional rights to machines.[18] Conjuring images of a machine world gone mad, reminiscent of the movie The Terminator, might lead some to be resistant. However, Massaro and Norton suggests a compromise; Rather than give AI machines primary rights, leave the primary rights to humans and give some sort of secondary rights to machines.[19] That way, if information distributed by machines is not beneficial to humans, it may be judicially restricted.[20]

As AI machines are quickly advancing, this debate cannot be pushed aside much longer. It may not be long until your Alexa is granted constitutional rights too.


[1] TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016)

[2] Grant Clauser, What is Alexa? What is the Amazon Echo, and Should You Get One? NY TIMES: The Wirecutter (Feb. 10, 2017),; see also TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016)

[3] Andrew Gebhart, Google Home vs. Amazon Echo: Alexa Takes Round 1, CNET (Feb. 2, 2017),

[4] BI Intelligence, How Many Amazon Echo Smart Home Devices have been Installed?, Business Insider (Jun. 7, 2016, 8:00PM),

[5] Amazon Developer, (last visited Mar. 12, 2017).

[6] Amazon Prime, (last visited Mar. 12, 2017).

[7] Arash Khamooshi, Breaking Down Apple’s iPhone Fight with the U.S. Government, NY Times (Mar. 16, 2016)

[8] Hope King, Tech Companies Standing up to Government Data Requests, CNN Tech (June 18, 2015, 6:06PM),

[9] Eric Ortiz, Prosecutors Get Warrant for Amazon Echo Data in Arkansas Murder Case, NBC News (Dec. 28, 2016, 2:13PM),

[10] Mem. ex rel Amazon’s Mot. to Quash Search Warrant at 1–2, Ark. v. Bates, No. CR-2016-370-2 (Benton Co. Cir. Ct. Ark. 2017), available at

[11] Rich McCormick, Amazon Gives up Fight for Alexa’s First Amendment Rights after Defendant Hands Over Data, The Verge (Mar. 7, 2017, 1:20AM)

[12] Toni Massaro & Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence 110 Nw. Law Rev. 1169, 1173 (2016) (explaining that artificially intelligent machines might be entitled rights to freedom of speech)

[13] Id. at 1169.

[14] Id. at 1172.

[15] Id. at 1177.

[16] Toni Massaro & Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence 110 Nw. Law Rev. 1169, 1175–78 (2016) (explaining that artificially intelligent machines might be entitled rights to freedom of speech)

[17] Id.

[18] Id. at 1774.

[19] Id.

[20] Id.

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Why Cell Phones Mean Nothing Is Private

By: Lilias Gordon,

You are walking out the door in a rush so you do a quick self pat-down search — phone, wallet, keys — good to go. Most of us take our phones everywhere. Phones keep our calendars, emails, photos, text messages, and just about everything else. We download applications that collect even more information. How much of that massive amount of information is private? Not much. First, there are multiple ways your phone can be tracked by both your service provider and the government. Second, there is a limited expectation of privacy over the content of a cell phone if a person is stopped by police officers. Third, we self-disclose massive amounts of information about ourselves over social media that can go to third parties or the government. So, when you pat down your pockets to make sure you don’t go anywhere without your phone, perhaps you are searching yourself so that nobody else has to.

Cell phones can be tracked by the government pulling information from your service provider. A person places or receives a call on their cell phone, which connects to the nearest cellular tower transmitting information through the strongest signal.[1] Service providers keep records about how long the call lasted, between whom, and most importantly the location of the call based on the tower that was being used.[2] This is how the government can get a hold of cell-site location information (CSLI) for both past calls and in real time.[3]

People generally do not have a reasonable expectation of privacy in the location data given from their cell phone GPS or by CSLI.[4] In fact, no search occurs when a person voluntarily uses their cell phone in public, that information goes to the service provider, then the government accesses that information, possibly to place a suspect at the scene of a crime.[5] This analysis is under the Katz test for reasonable expectation of privacy; Supreme Court has observed that there is never a physical intrusion because the GPS is just a part of the phone.[6]

This issue is being addressed by state legislatures — but much like T-Mobile, the coverage it is patchy.[7] Courts are divided on whether the Stored Communications Act makes it illegal for the government to track your location in real time without probable cause and a warrant.[8] Neither Congress nor the Supreme Court has settled the debate as to whether warrants should be required for the government to access location information through a person’s cell phone.[9] The majority of the South, minus Florida, has decided that no warrant is required to track a cell phone. Few states, California being one of them, require a warrant for all cell phone location information.[10] How the government can track a cell phone greatly depends on where a person is in the country.

Unfortunately, this is not the only way a person can be tracked using a cellphone. Cell site simulators (CSS) are a tool used by the FBI that act like a nearby cell phone tower, tricking a phone into sending all the data intended to be transmitted to the cell phone carrier.[11] This tool can be used by the government to find out a person’s cell phone number based on knowing only the person’s general location.[12] The opposite is also true; if an officer knows identifying information about a person’s phone, they can use a CSS to locate its exact location.[13] The government can use either a person’s general location or general identifying information about a phone to find out that phone’s exact location in real time using a CSS.

Additionally, the contents of a person’s phone may be subject to search. Consider, there is a reason most people have pass-codes protecting their phones. A typical smart phone can store anything from a detailed calendar, a person’s internet search history, pictures from a vacation, or every text message sent from that phone. The Supreme Court articulated in Riley that police may not search digital information on a cell phone seized from an individual who has been arrested legally unless they obtain a warrant. [14] But one of the major takeaways of this case was that the reasonable expectation of privacy does not extend to include all the data on an arrestee’s cell phone.[15]

The applications we install is at least one more way we use our phones to disclose a massive amount of information to private companies and potentially the government. For example, Snapchat has built a brand on pictures and videos that are self-deleting. Pitching Snapchat as secure is a thin vainer of privacy considering all the ways a picture sent over Snapchat can be recovered. First, a recipient can easily screenshot a picture, saving it to their phone.[16] Other companies have invented apps that automatically save Snapchat photos and videos to the recipient’s phone (without notifying the sender).[17] Sent Snapchats can also be dug out of a phone by forensics firms who work with law enforcement and lawyers.[18]

Snapchat’s Privacy Policy list all the information Snapchat collects from people who use their product and how this information is used.[19] Snapchat collects “whatever information you send through the service, such as Snaps and Chats to your friends,” “information about your location,” “images and other information from your device’s camera and photos,” “information that other users provide about you when they use [Snapchat] services.”[20] Snapchat’s Privacy Policy also answers the question of what they do with all the information they collect. For example, user’s information is shared with third-party targeting advertisers or in order to comply with any legal or governmental request.[21]

Cell phones are incredibly convenient and serve just about any purpose people can think of. It is no surprise we use them as much as we do. However, cell phones are also incredibly convenient for law enforcement.


[1] United States v. Jones, 908 F. Supp. 2d 203, 206 (D.D.C. 2012).

[2] Id. at 207.

[3] Id. at 210.

[4] United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012).

[5] Id. at 779.

[6] Id. at 778.

[7] Cell Phone Location Tracking Laws By State, ACLU (accessed 10:43AM, Feb. 6, 2019).

[8] 1-2 Criminal Constitutional Law § 2.03 (2017).

[9] Id.

[10] Id.

[11] Coleman Torrans, How Did They Know That? Cell Site Simulators and the Secret Invasion of Privacy, 92 Tul. L. Rev. 519, 521 (2017).

[12] Id.

[13] Id.

[14] Riley v. California, 134 S. Ct. 2473, 2493 (2014).

[15] Id.

[16] Danielle Young, Now You See It, Now You Don’t… Or Do You?: Snapchat’s Deceptive Promotion of Vanishing Messages Violates Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014).

[17] Drew Guarini, ‘Snap Save,’ New iPhoneApp, Lets You Save Snapchats–Without Letting The Sender Know, Huff. Post (Aug. 9, 2013),

[18] DL Clade, Forensics Firm Discovers that Snapchat Photos Don’t Disappear After All, PETA PIXEL (May 10, 2013),

[19] Privacy Policy, Snapchat, (last visited Feb. 6, 2018).

[20] Id.

[21] Id.

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Spotify & the Music Modernization Act

By: Ilya Mirov,

Lawsuit Filed Against Spotify

Spotify, the world’s largest streaming service, has recently been sued by Wixen Music Publishing for allegedly using several thousand songs without a license and without compensation to the publisher.[1] According to Wixen, over 20% of the 30 million songs hosted on Spotify are unlicensed, and the plaintiff is asking for damages of at least $1.6 billion as well as injunctive relief.[2]

Wixen was founded by Randall Wixen in 1978 and licenses the catalog of more than 2,000 artists, including such notable artists as Tom Petty, Jefferson Airplane, the Beach Boys, and Rage Against the Machine.[3] Wixen’s artist songs make up five percent of all the music streamed on Spotify. [4]

Wixen’s lawsuit is just the latest of several legal actions that Spotify has been involved with in the past year.[5] These lawsuits against Spotify have been seeking compensation for songwriters and the copyright holders, who have struggled financially as the music industry has shifted away from physical album sales towards a streaming business model.[6]

Wixen’s legal action against Spotify may have been spurred by a recent proposed settlement involving rights holders and Spotify in Ferrick v. Spotify SUA Inc, No: 1:16-cv-8412 (S.D.N.Y.).[7] On May 26th, Spotify reached a settlement in a class action lawsuit which was consolidated out of two lawsuits brought by Melissa Ferrick and David Lowery involving compositions that Spotify streamed without paying for a license.[8] The settlement calls for Spotify to pay $43.45 million in compensation to the rightsholders for past infringement.[9] A resolution of all copyright disputes would allow Spotify to move forward trouble-free in its initial public offering expected later this year.[10] However, Wixen opted out of the proposed settlement in favor of pursuing its own legal action.[11]

The Music Modernization Act

All of this comes on the heels of what could be the most substantial update to copyright law since 1998.[12] If passed, the Music Modernization Act (MMA) promises to bring copyright laws into the 21st century.[13] The bill has been introduced to the House, and a mirrored bill was introduced in the Senate on January 24, 2018, with co-sponsors from both parties.[14]

The bill addresses key difficulties in music licensing that currently lead to digital music companies, like Spotify, regularly failing to pay songwriters and copyright owners for distribution of their songs. [15] Companies like Spotify often file bulk Notice of Intentions (NOIs) with the Copyright Office that allow them to obtain a license for music for which ownership information cannot be found. [16] Since this process was first instantiated in 2016, there have been an estimated 45 million NOIs filed with the Copyright Office.[17] This NOI process has taken millions in income away from songwriters who must rely on streaming services to link artists to their songs and issue fair payment.[18] The MMA will update the NOI process so that music creators can more often get payment for their work, thereby also reducing liability for digital companies who play the music.[19]

Second, the bill would establish a Mechanical Licensing Collective (MLC), an agency that would have streaming services compensate songwriters for the mechanical royalties earned through the streaming of licensed music content.[20] In exchange, the collective would allow digital providers, such as Spotify, to have blanket usage licenses for songs.[21] The MLC’s function would be to provide streaming services with efficient access to the information they need in order to know which songwriters to pay for songs.[22]

Third, the legislation would give both publishers and songwriters representation on the board of the MLC to ensure that its operations remain transparent and fair to both the streaming services and the creators.[23] The MMA would also provide songwriters with a chance to obtain fair-market mechanical royalty rates in the Copyright Royalty Board (CRB) proceedings that set royalty rates every five years.[24] Currently, CRB judges determine royalty rates based on an outdated standard, which will be replaced by the “willing buyer/willing seller” standard. This new standard will set rates based on open market negotiation between buyers and sellers.[25]

Fourth, the bill proposes an overhaul for the rate court system. Currently the American Society of Composers, Authors, and Publishers (ASCAP) and the Broadcast Music Inc. (BMI)– the two largest performance rights organizations in the country– are assigned a single judge who handles all rate court cases. The MMA would randomly assign a district judge in New York’s Southern District to each case going forward, and would allow those judges to consider relevant market-based evidence in determining the performance rate given to songwriters.[26]

Perhaps the most critical of the four changes promised by the MMA would be the creation of the Mechanical Licensing Collective, the new agency which would be responsible for creating a public database containing song ownership information, helping songwriters identify which songs haven’t been attributed to them and streaming services avoid lawsuits for not properly attributing rights to the holders of songs on their services.[27]


[1] Amanda G. Ciccatelli, Spotify Sued by Music Publishing Company for Unauthorized Use of Thousands of Songs, IPWatchdog (January 31, 2018),

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] See Ciccatelli, supra note 1.

[7] Id.

[8] Robert Levine, What Will Spotify’s $43 Million Class Action Settlement Mean For Songwriters and Publishers?, Billboard (May, 30, 2017),

[9] Id.

[10] Id.

[11] Amanda G. Ciccatelli, Spotify Sued by Music Publishing Company for Unauthorized Use of Thousands of Songs, IPWatchdog (January 31, 2018),

[12] Rep. Doug Collins (R-GA.), The Music Modernization Act Will Provide a Needed Update to Copyright Laws, The Hill (January 10, 2018),

[13] Id.

[14] Ed Christman, Senate Moves Forward on Music Modernization Act, Billboard (January 24, 2018),

[15] Rep. Doug Collins (R-GA.), The Music Modernization Act Will Provide a Needed Update to Copyright Laws, The Hill (January 10, 2018),

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] See Collins, supra note 15.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Ed Christman, Senate Moves Forward on Music Modernization Act, Billboard (January 24, 2018),

[26] Id.

[27] Micah Singleton, Congress May Actually Fix Music Royalties, The Verge (January 26, 2018),

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Technology and Criminal Law

By: Brooke Throckmorton,

It is hard to think of a time when technology was not an integral, driving force in the world. Technology has permeated many crevices of the average American’s daily life. Technology can change how crimes happen, types of evidence available after a crime is committed, how the police investigate a crime, and much more. This article touches on new and potential technologies and how those technologies can affect the criminal justice system, for good, bad, or complicated reasons. It should be noted that each new technology will have both good and bad aspects. “Good” simply means I believe the technology has the ability to be helpful. “Bad” means the technology has a stronger probability (in my opinion) of being manipulated and abused.

I will start with the “good.” There is a new technological system that can detect gun shots and pinpoint their exact location.[1] The gunfire pinpointing system, “ShotSpotter”, uses sensors to detect gunfire in a certain location and “triangulate the location of the incident.”[2] The location can be pinned down to the exact latitude and longitude of where the gun was fired.[3] It is then communicated to police.[4] Since not all criminal activity is reported, these gunfire sensors can insure police arrive on the scene of a crime before someone even dials 911.[5] More potentially helpful technology includes a national registry that can recognize mug shots (by facial recognition technology) in a matter of seconds[6], and computer-generated risk scores that can be used to decide when to detain arrestees.[7]

Next, the “bad” or potentially dangerous technologies are out there as well. First, there is talk of possible home incarceration technology as opposed to traditional imprisonment in prisons and jails.[8] While home incarceration would involve high technology surveillance equipment like cameras, microphones, and sensors[9], there is clear potential for abuse of the system. This technology raises many questions such as: How much can technology limit a person’s freedom? Would home incarceration be used for low level offenders (speeding tickets, failure to pay child support, etc.) or all offenses? Two main goals of the criminal justice system are to separate the guilty from the innocent[10] and to deter criminal behaviors with punishment. With that in mind, is being forced to watch Netflix on your couch for ten months truly a punishment? Will home incarceration have the same deterrence effect as prison incarceration?[11] I believe it depends on how the technology is implemented.  Another potential issue with technology when it comes to the criminal justice system is probably sitting next to you right now, or maybe you are using it to read this article: your iPhone. Apple released the latest version of the iPhone (iPhone X) in November 2017.[12] The iPhone X uses facial recognition to unlock your phone as opposed to a fingerprint or passcode. The iPhone X facial access raises serious Fifth Amendment issues when it comes to police forcing you to open your phone to obtain incriminating evidence.[13] Basically the Fifth Amendment protects you from being forced (by the police) to unlock your iPhone by using a passcode or pin ID because this is information you know; however, the Fifth Amendment does not  (conceivably) protect against being forced to use your face or thumbprint to open your phone because your face and thumbprint are things you are, not things you know.[14] There will need to be litigation (yet to come) to determine the courts’ stance on these issues.

Third, we have the complicated. While there are many complicated technologies, self-driving cars have to be close to the top of the list. Many liability questions pop up when there is a self-driving car involved such as: Who is liable when/if the car crashes? How does the car know to pull over when a police officer requests you to? The good news is self-driving cars are not fully functional on their own (yet).[15] This means self-driving cars still require driver input.[16] Some states are starting to implement laws to regulate self-driving cars. For example, North Carolina has a law mandating that no one under age twelve can ride in a self-driving car without adult supervision.[17] Further, owning a self-driving car does not require a driver’s license.[18] In addition, if the car receives a speeding ticket while in “auto-pilot” mode, the “driver” is responsible for paying the ticket.[19] These self-driving cars are not perfect. This is demonstrated by the fact that there have been many accidents, and a few fatalities, to date.[20] If a self-driving car does not remind you of Black Mirror[21] already, this next bit of information should do the trick. Ford recently filed a patent for an autonomous police car that could potentially decide on its own (via a learning algorithm) whether to issue a citation or a warning for a traffic infraction.[22] While patents do not always come to fruition, it is still a bit “unnerving” to think of an automated police car making decisions that a human being usually exercises judgment over.[23]

Some states have recognized technological advancements by making laws to deal with new technologies. For example, North Carolina recently implemented a law criminalizing flying drones within a certain proximity of a prison.[24] Merely flying a drone near a prison could land you with a misdemeanor; however, if you are trying to smuggle in contraband or weapons, you will be bumped up to felony status.[25]

New technology can be extremely helpful but at some point, we need to question the motives behind it, especially when it comes to the criminal justice system. Just because we CAN create something, does it mean we necessarily SHOULD create it?


[1] Quora, contributor, How Technology Is Impacting Our Criminal Justice System, Forbes (May 11, 2018),

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Doug Irving, How Will Technology Change Criminal Justice?, RAND (Jan. 7, 2016),

[7] Quora, supra note 1.

[8] Id.

[9] Id.

[10] Corinna Lain, S.D. Roberts & Sandra Moore Professor of Law, University of Richmond School of Law, Criminal Procedure: Investigation Lecture (Feb. 1, 2018).

[11] See Quora, supra note 1.  

[12] Matt Swider, The iPhone X Release Date This Friday, Thank to ‘Hard Work’, techradar (Nov. 2, 2017),

[13] Kaveh Waddell, Can Cops Force You to Unlock Your Phone With Your Face?, The Atlantic (Sept. 13, 2017),

[14] Id.

[15] Jordan Cook, Ford Files a Patent for an Autonomous Police Car, TechCrunch (Jan. 26, 2018),

[16] Id.

[17] Gary D. Robinson, New North Carolina Laws Address Longtime Crimes, New Technology, Citizen Times (Dec. 1, 2017),

[18] Id.

[19] Id.

[20] See Bill Vlasic, Neal E. Boudette, Self-Driving Tesla Was Involved in Fatal Crash, U.S. Says, N.Y. Times, June 30, 2016,

[21] Black Mirror (Netflix 2017) (An original Netflix series that depicts what a technological future might look like and implications technology can have on human kind.).

[22] Cook, supra note 16.

[23] Id.

[24] Robinson, supra note 18.

[25] Id.

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FISA and EO 12333: Technology Allows Collection of Information of U.S. Citizens via Loopholes in the Law

By: Nicole Allaband,

“Technological developments are arriving so rapidly and are changing the nature of our society so fundamentally that we are in danger of losing the capacity to shape our own destiny. This danger is particularly ominous when the new technology is designed for surveillance purposes[.]”[1] Senator John Tunney (D-CA) said this in a hearing about the precursor to the bill that became the Foreign Intelligence Surveillance Act (“FISA”) in 1978.[2] Technology has continued to develop at a fast rate and yet the law is still trailing behind, leaving U.S. citizens open to privacy violations.

FISA established the Foreign Intelligence Surveillance Court (“FISC”) to review applications for authorization of electronic surveillance.[3] FISA governs the collection of “foreign intelligence.”[4] The probable cause required for authorization to collect information under FISA is very different from the probable cause required in domestic investigations. In domestic investigations, a court may issue a search or arrest warrant if probable cause is shown that a crime has been, or is being, committed.[5] However, under FISA, collection of information can occur, without a warrant, on finding probable cause that the target is a foreign power or agent, regardless of whether that foreign power or agent is suspected of criminal activity.[6] Only if the target of the FISA warrant is a U.S. citizen must there be probable cause that the person is involved in criminal activity.[7]

FISA has been amended several times since 1978. The 1994 and 1998 amendments allowed covert physical entries and pen/trap orders.[8] The USA-PATRIOT Act, passed shortly after 9/11, expanded the reach of FISA to circumstances in which foreign intelligence gathering is only a “significant” purpose of an investigation.[9] However, the amendments have not kept pace with new technologies.[10]

In addition to FISA, foreign intelligence is collected under Executive Order (“EO”) 12333.[11] The order was issued in 1981 by President Reagan and it governs surveillance the National Security Agency (“NSA”) conducts overseas.[12] Although U.S. citizens cannot be targeted under EO 12333, the NSA can conduct bulk collection which leads to incidental collection of large quantities of U.S. citizens’ communications.[13] Under EO 12333, when the NSA collects information abroad, it can presume the information collected belongs to non-U.S. citizens.[14]

EO 12333 and FISA were written before the Internet became what it is today but neither has been updated to match current technology. The Internet was not designed to conform to national borders; rather the Internet was built on efficiency, reliability, and minimizing costs.[15] Network traffic between two points in the United States may be naturally routed to a server abroad before reaching the endpoint in the United States.[16] Traffic between two domestic points that is routed abroad can therefore be swept up under EO 12333.[17] Unless the information collected specifically identifies the starting and ending point as being within the United States, the NSA can presume the communication is by and about a foreign national.[18] Unfortunately technology makes it “virtually impossible, in real time,” to determine the location or nationality of the target.[19] Information thus collected can be “retained for further processing.”[20]

Congress recently reauthorized Section 702 FISA.[21] Section 702 specifically authorizes the government to target and collect information from foreigners located abroad.[22] Despite the focus on foreign intelligence collection, Section 702 incidentally collects a large amount of communications from U.S. citizens (without a warrant).[23] Changes in technology coupled with outdated legislation has put Americans’ privacy at risk.[24] FISA defined “electronic surveillance” in 1978, and that definition has remained largely unchanged despite massive changes in technology.[25] The 2017 Reauthorization Act clarifies some procedures for the FBI to obtain collected information and mandates reporting requirements about material breaches.[26] However, the reauthorization does not update the definition of electronic surveillance to keep pace with current technology and the loopholes the intelligence community is able to exploit to collect information on U.S. citizens.[27] The current reauthorization lasts until 2023 but Congress should seriously consider updating the definition of electronic surveillance so that where the information is collected is not determinative of the collection process and the legal protections offered.[28]


[1] Joint Hearings on Surveillance Technology Before the Sen. Comm. On the Judiciary, Subcomm. on Const. Commercce, Spec. Subcomm. on Science, Tech., and Commerce, 94th Cong. 1 (1975) (Statement of Sen. John Tunney).

[2] See id; see also Foreign Intelligence Surveillance Act (FISA), Electronic Privacy Information Center, (last visited Jan. 30, 2018).

[3] See id.

[4] See id.

[5] See id.

[6] See id; see also Jessica Schneider, What is Section 702 of FISA, anyway?, CNN (January 11, 2018),

[7] See id. (only U.S. citizens are protected by the Fourth Amendment); Schneider, What is Section 702 of FISA, anyway?.

[8] See Schneider, What is Section 702 of FISA, anyway?.

[9] See id.

[10] See Jeffrey S. Brand, Eavesdropping on Our Founding Fathers: How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis, 6 Harv. Nat’l Sec. J. 1 (2015).

[11] See Foreign Intelligence Surveillance (FISA Section 702, Executive Order 12333, and Section 215 of the Patriot Act): A Resource Page, Brennan Center for Justice (last updated September 28, 2017),

[12] See id.

[13] See id.

[14] See id; see also Axel Arnbak & Sharon Goldberg, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad, 21 Mich. Telecomm. Tech. L. Rev. 317, 335 (2015).

[15] See Arnbak & Goldberg, at 343.

[16] See id.

[17] See id. at 335.

[18] See id. at 321.

[19] See Williams C. Banks, Data Collection and Advancements in Surveillance Techniques: Next Generation Foreign Intelligence Surveillance Law: Renewing 702, 51 U. Rich. L. Rev. 671, 672 (2017).

[20] See Arnbak & Goldberg, at 321.

[21] See Robyn Greene, Americans Wanted More Privacy Protections. Congress Gave Them Fewer, Slate (Jan. 26, 2018),

[22] See id.

[23] See id.

[24] See id; see also Arnbak & Goldberg, at 319.

[25] See Arnbak & Goldberg, at 329.

[26] See S.139 FISA Amendments Reauthorization Act of 2017,, (accessed Jan. 20, 2018).

[27] See id.

[28] See Arnbak & Goldberg, at 359.

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The Increased Use of Electronic Messaging Evidence in Divorce Proceedings

By: Hayden-Anne Breedlove,

It is crucial for attorneys to keep up with societal changes in communication.[1] As a second-year law student, I recently finished my Evidence course, in which I learned about the ins-and-outs of the Federal Rules of Evidence. During a recent panel of guest speakers, the panelists kept emphasizing the importance of change and keeping up with the changes, specifically in regards to technology. As technology advances, so does the type and forms of messages we as society are able to send and receive. Gone are the days of sending a letter through snail mail or telephoning your ex-spouse to arrange a visitation. Instead, people communicate through text messages, emails, Facebook messages, Snapchats, and a plethora of other forms of electronic communication. It is, therefore, crucial for attorneys to understand and be on top of their knowledge of these new forms of social media and their admissibility in the courtroom.[2] In a recent case, service was even found to be acceptable via Facebook, when all other avenues had proved unsuccessful.[3]

As is the case with any piece of evidence, a proper foundation for admissibility must be laid.[4] This means that a background and context must be provided for your evidence to be admitted.[5] The evidence must also be relevant to the case and authenticated.[6]

Authentication is usually done by a witness giving testimony identifying what the document is or calling a custodian of record who can testify to the accuracy of the contents of the document.[7] However, issues with authentication arise with electronic messages, especially in divorce proceedings.[8]

Circumstantial evidence is necessary for authenticating electronic messages.[9] There must be 1) a printed out version of the messages along with 2) a statement of who the author or sender of the message was.[10]

The first step is simple, as there is a low threshold for providing a printed copy.[11] The second step, however, is more complicated.[12] Identifying who the sender of the message was requires testimony describing distinctive characteristics such as appearance, contents, substance, or a domain.[13] It would also be helpful to have a witness to testify as to the person writing the message.[14]

Text messages are an obvious form of evidence that can be used against a spouse in a divorce case. Flirty text messages or inappropriate photos being sent to someone other than the spouse seem obvious as something that can be used against the sender. A recent Virginia case held that text messages constitute a “writing” for purposes of the best evidence rule and are therefore, assuming other evidence rules and requirements are met, admissible.[15]

However, text messages sent to friends or family that express anger or frustration about a spouse or child can be helpful or harmful to the case, too. A text to a friend talking about how annoying the child is can be used to show the spouse’s state of mind and disposition towards the child.[16] This can be helpful in determining custody and visitation.

Cell phones are not just useful for finding incriminating text messages. Call logs can also be helpful in a divorce case. Joint phone plans allow a spouse to simply log into the account and look at the calls made to and from each spouse’s line in order to catch a suspected adultering spouse.

Social media has become a mecca of information for divorce attorneys. With people posting information and updates about their daily lives through Facebook posts, tweets, or Instagram photos, it is easy to find information about a person’s day-to-day routines. Information found on social media can tell what a person does each day, with whom, and what their reactions and emotions were towards these events.

GPS has become a feature available to everyone. Gone are the days of using maps and asking a gas station clerk for directions. It is easy to determine where a spouse has traveled by simply opening up their GPS app on their phone and looking at the recent locations. With the internet, it is easy to Google the address and find out where it is, whether it is a business, or a private residence.

It is illegal in Virginia to attach a GPS tracking system to someone’s car without their consent.[17] However, private investigators are a common resource used to follow your spouse.[18] Private investigators can follow and collect evidence of a cheating spouse that can be used in a case.

Social media, text messages, and call logs can be used in divorce cases to uncover hidden assets or income, provide proof of spousal misconduct, or provide evidence of poor parenting behavior. It can also be used to prove and calculate child and spousal support. Therefore, it is crucial for both attorneys and law students to understand the ins-and-outs of social media.


[1] See Judge Michele Lowrance & Pamela J. Hutul, Social Media in Divorce Proceedings, Family Law Magazine (Dec. 30, 2016),; see also Shalamar Parham, How Social Media Posts Are Used as Evidence in Divorce and Family Law Cases, Divorce Magazine (Oct. 29, 2016),

[2]  Id.

[3] Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310 (2015).

[4] Va. R. Evid. 2:403.

[5] Id.

[6] Id.

[7] Va. R. Evid. 2:901.

[8] See generally Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 A.L.R.6th 253 (last accessed Jan. 24, 2018).

[9] Harlow v. Comm., 204 Va. 385 (1963).

[10] Brandon K. Fellers & Kristin M. Sempeles, How to Outsmart a Smartphone: Practical Tips on How to Use Electronic Messaging Evidence in the Courtroom, Virginia Lawyer (June 2017).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Dalton v. Comm., 62 Va. App. 113 (2013).

[16] Digital Divorce, A Guide for Social Media & Digital Communications in Divorce, McKinley Irvin Family Law (last accessed Jan. 24, 2018),

[17] VA Code § 18.2-60.5.

[18] Id.

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Technology-Assisted Review: Overcoming the Judicial Double-Standard

By: Kate Bauer,

Although it has been nearly six years since technology-assisted review (“TAR”) first garnered judicial approval as a permissible form of document review,[1] inconsistent rulings about the amount of disclosure TAR requires have hobbled its adoption.  Citing the importance of transparency, courts have tended to look more favorably on parties who agree to exchange the relevant and irrelevant documents used to train the algorithm.[2]  When a party refuses to turn over these documents, some courts have regarded TAR usage with skepticism, or even disallowed it.[3]  This emphasis on transparency overlooks a crucial point: courts do not have authority to compel parties to turn over irrelevant documents.[4]  Further, it makes little sense to hold TAR—which has been shown to be more accurate and more cost-effective than traditional human review[5]—to a higher standard than exhaustive manual review.  Indeed, concerns about accuracy are more appropriately leveled at the document review methods parties have traditionally used, which research has shown are notoriously inconsistent.[6]  Accordingly, a court should regard a party’s decision to use TAR with at least as much deference as is given to traditional methodologies.

Technology-assisted review (“TAR”) is a method of document review in which attorneys manually review a subset of documents—commonly referred to as a “seed set”—for relevance, then submit those decisions to a computer algorithm.[7]  The algorithm then (1) examines the documents the attorneys have coded, (2) identifies conceptually similar documents within the collection, and (3) predicts whether these conceptually similar documents are relevant or irrelevant based on how the attorneys coded similar documents in the seed set.[8]  By amplifying attorney decisions on these training documents to similar documents across the document universe, TAR enables attorneys to quickly and accurately categorize documents they have not laid eyes on.[9]  As with human reviewers, attorneys ensure they have properly trained the algorithm by reviewing samples of TAR predictions.[10]  Where TAR predictions are incorrect, attorneys correct erroneous coding on the original training document that informed the TAR predictions.[11]  TAR then adjusts its predictions for all similar documents in the database.[12]

Prior to the development of TAR algorithms, document review was understood to be a linear process in which teams of attorneys reviewed documents one by one. Linear human review is time-consuming, expensive, and inconsistent.[13] Reviewer coding errors amplify these issues because correcting errors requires manual re-review of existing coding decisions.  With the volume of electronically-stored information increasing year over year, the expense of this model has become increasingly unsustainable.[14] To reduce the volume of data for review, attorneys frequently rely on keyword searches (the equivalent of CTRL + F); however, this method has also been shown to have substantial shortcomings.[15]  The burdens of reviewing large amounts of data motivated recent revisions to the Federal Rules to emphasize “proportional[ity] to the needs of the case” as a factor that could be considered in limiting the scope of discovery.[16]

Despite increasing document volumes and research on the shortcomings of traditional review methods, the perception of linear human review as the “gold standard” of document review has stubbornly persisted.[17]  Although empirical data demonstrates that TAR can achieve results as good as or superior to exhaustive manual review,[18] courts hesitated to stray from the accepted linear review model.

In Da Silva Moore v. Publicis Groupe, the first opinion to approve the use of TAR, Judge Andrew Peck lauded the defendant’s decision to turn over the relevant and irrelevant documents it had used to train the algorithm (“seed sets”).[19]  Peck felt that this approach “reduced fears about the so-called ‘black box’ of technology,” and “highly recommend[ed] that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”[20]  However, Judge Peck’s praise for the defendant’s decision to disclose its seed set should not be interpreted as a judicial requirement disclosure; indeed, as he himself noted in a later opinion, Da Silva Moore stopped short of any such requirement.[21]

The Federal Rules of Civil Procedure require cooperation in discovery,[22] but they also dictate that irrelevant documents are outside the scope of discovery.[23]  In defining scope, the Rules state, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case” (emphasis added).[24]  Because relevance to a claim or defense is a prerequisite for obtaining discovery, documents which attorneys identify as irrelevant are, by definition, outside the scope of discovery.[25]

While parties are still free to agree to exchange irrelevant documents if they wish, the Rules do not authorize courts to mandate such disclosure.[26]  In the context of TAR, one court observed that requests for the whole seed set “reached well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find. That [an opposing party] has no right to discover irrelevant or privileged documents seems self-evident.”[27]

Good reasons exist for only authorizing courts to compel the production of relevant documents. As one court has observed, without such limitations a party seeking discovery might “obtain a permit to explore the documents in the possession of his adversary in the hope that he may find something which may adversely affect the adversary’s case, or that may prove helpful to the case of the movant.”[28]  Even if a fishing expedition would be unlikely to unearth anything of value, the client may still wish to withhold irrelevant materials to safeguard against potential disclosure of sensitive, damaging, or embarrassing information of no consequence to the instant litigation.  Because irrelevant materials often run the gamut from fantasy football updates and grocery lists to private medical information and romantic indiscretions, clients have compelling privacy interests at stake in withholding irrelevant materials.[29]

[30][31][32]  In this vein, the DOJ Antitrust Division requests that parties who utilize TAR provide one or more statistically significant samples of nonresponsive documents for DOJ review to ensure obviously responsive documents are not omitted. [33]  However, while t[34]

Nevertheless, several courts have opined that parties should provide access to irrelevant documents in the name of transparency.[35]  This sympathy may be based on misreading Da Silva Moore as requiring disclosure seed sets,[36] when in fact Peck merely praised and encouraged the defendant’s decision to disclose its seed sets.[37]  For example, in one case the court refused to allow a party to use TAR, noting that the party proposing to use it was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . . .”[38]  In several other cases where the parties have agreed to exchange seed sets of their own volition, courts have made it clear that such transparency is expected.[39]  However, requiring that parties exchange documents outside the scope of discovery is an impermissible exercise of judicial authority.

Judge Peck, in his subsequent Rio Tinto v. Vale opinion, observed that whether disclosure of a seed set is required is an “open question.”  He points out that there are alternative methods to evaluate the adequacy of productions besides disclosing seed sets.  Peck mentions three alternatives to seed sets that a requesting party might use to evaluate a production it receives: (1) identifying gaps in the production, (2) calculating statistical recall, or (3) performing a quality control of samples of documents identified as not responsive.[40]  While identifying gaps can be performed by analyzing the contents of productions a party receives, the other two options—like disclosure of seed sets—would require the opposing party to disclose irrelevant documents in its possession.[41]  Here we see one concern motivating these transparency demands: that parties using TAR might be failing—whether by neglect or by design—to disclose relevant documents.  However, as with mandatory disclosure of seed sets, a judicial order requiring parties to reveal irrelevant documents as a condition of using TAR would be an ultra vires act.

The concern that relevant documents are being withheld from discovery is nothing new, and it is not specific to TAR.  Courts have grappled with discovery disputes for the past century, extensively revising discovery rules in the process.[42]  The following process emerged: relevant, unprivileged documents[43] are to be produced upon request,[44] and the producing attorneys must certify that they have made a reasonable inquiry in response to a discovery request.[45]  To ensure cooperation, the Rules impose mandatory sanctions for improper certifications[46] and discretionary sanctions for failure to cooperate in discovery.[47]  Ethical rules supply an affirmative obligation for attorneys to maintain technological competence[48] and to deal fairly with one another.[49]

If the existing discovery rules have been sufficient for traditional review, they must also be sufficient for TAR because both methods rely on the accuracy of human judgment.  Concerns about bad faith aside, when a traditional document production withholds relevant documents, it does so as a result of the inconsistent judgment calls made by humans.  Similarly, to the extent that a TAR production omits relevant documents, it does so because human judgments trained it to do so.[50]  Document review is only as accurate as the judgments of the reviewers performing the review.  Because TAR has been demonstrated to correctly amplify attorney coding decisions more consistently than teams of human reviewers,[51] concerns about the content of a production rest on the same foundation as they ever did: the potential for human error.

Elevated judicial scrutiny of TAR productions is also unwarranted because the rules already require attorneys to certify that they have made a reasonable inquiry in response to a discovery request, regardless of review methodology. [52]  Attorneys who certify unreasonably deficient productions face mandatory sanctions,[53] and discretionary sanctions remain available for failure to cooperate.[54]  These sanctions supply a powerful deterrent against lax review methodologies, whether TAR or traditional. Because TAR enables attorneys to apply their judgment across the document universe more consistently than manual review, TAR actually reduces deficiencies.[55]

For the reasons discussed, it is unreasonable to hold TAR to a higher standard than manual review methodologies.[56]  First, TAR has been shown to be more accurate, cost-effective, and efficient than manual review.[57]  Second, courts have no authority to require parties to disclose irrelevant documents.[58] Attempting to impose ultra vires disclosure requirements on the use of TAR forces parties who refuse to sacrifice their privacy to pursue costly, time-consuming manual review.  Ironically, this process is likely to be less accurate than using TAR in the first place. Third, procedural safeguards already exist to ensure that attorneys are making reasonable inquiries in response to discovery requests.[59] If these procedural safeguards are sufficient to govern manual review despite its shortcomings, they must also be sufficient when employing a superior methodology such as TAR.

The stark reality is that the volume of discoverable data is continuing to grow.  If judges don’t stop imposing unreasonable restraints on the use of TAR, litigation will become a privilege reserved for the few parties who can afford the exploding expense of discovery.


[1] Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182, 192 (S.D.N.Y. 2012).

[2] See, e.g., Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128-29 (S.D.N.Y. 2015) (Peck, M.J.); Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678, 2014 U.S. Dist. WL 3563467, at *10 (D. Nev. 2014); In re Biomet M2a Magnum Hip Implant Prod. Liab. Litig., No. 3:12-MD-2391, 2013 U.S. Dist. WL 6405156, at *2 (N.D. Ind. 2013); Da Silva Moore, 287 F.R.D. at 192.

[3] See, e.g., Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467 at *10; Biomet, 2013 U.S. Dist. WL 6405156, at *1 (“An unexplained lack of cooperation in discovery can lead a court to question why the uncooperative party is hiding something, and such questions can affect the exercise of discretion. . . . But I don’t have any discretion in this dispute. I won’t order Biomet to reveal which of the documents it has disclosed were used in the seed set, but I urge Biomet to re-think its refusal.”).

[4] See Fed. R. Civ. P. 26(b)(1).

[5] See generally Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 1 (2011).

[6] Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt. 697, 701 (2000) (concluding that assessors disagree that a document is relevant at least as often as they agree); David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Commc’ns Ass’n Computing Mach. 289, 295-96 (1985) (finding that paralegals who thought they had retrieved 75% of relevant documents using iterative keyword searches had only found 20%).

[7] See Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 29 (2013).

[8] See id. at 32.

[9] See id.

[10] Id. at 34.

[11] Id. at 33-34.

[12] Id.

[13] See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 199 (2007).  See also Grossman & Cormack, supra note 5 at 37; Voorhees, supra note 6; Blair & Maron, supra note 6.

[14] See The Sedona Conference, supra note 13 (“Even assuming that the profession had the time and resources to continue to conduct manual review of massive sets of electronic data sets (which it does not), the relative efficacy of that approach versus utilizing newly developed automated methods of review remains very much open to debate.”).

[15] See Blair & Maron, supra note 6, at 295-96 (1985).

[16] Fed. R. Civ. P. 26 advisory committee notes to 2015 amendment.

[17] See The Sedona Conference, supra note 13 (“[T]here appears to be a myth that manual review by humans of large amounts of information is as accurate and complete as possible– perhaps even perfect–and constitutes the gold standard by which all searches should be measured.”)

[18] See Grossman & Cormack, supra note 5, at 37 (reporting that manual reviewers identified between 25% and 80% of relevant documents, while technology-assisted review returned between 67% and 86%).  See also Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, J. of Am. Soc’y for Info.  Sci. & Tech. 70, 79 (2010) (performing an empirical assessment to “answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results,” and concluding that “[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review.”).

[19] Da Silva Moore, 287 F.R.D. at 192.

[20] Id.

[21] Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128-29 (S.D.N.Y. 2015) (Peck, M.J.).

[22] Fed. R. Civ. P. 37.

[23] Fed. R. Civ. P. 26(b)(1).

[24] Id.

[25] Id.

[26] See id.

[27] Biomet, 2013 U.S. Dist. WL 6405156, at *1.

[28] United States v. Becton, Dickinson & Co., 30 F.R.D. 132, 134 (D.N.J. 1962).

[29] Matthew Lynch, Discovery Evolutions Hold Promise for Greater Privacy Benefits for Litigants, IT-Lex Technology Law, Oct. 22, 2013, available at

[30] See The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009).

[31] See id.

[32] Id.

[33] Tracy Greer, Technology-Assisted Review and Other Discovery Initiatives at the Antitrust Division, Department of Justice (2014), available at

[34] Fed. R. Civ. P. 26(b)(1).

[35] See, e.g., Bridgestone Ams., Inc. v. Int’l Bus. Machs. Corp., No. 3:13-1196, 2014 U.S. Dist. WL 4923014 at *1 (M.D. Tenn. 2014); Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11; Transcript of Record at 9, 14, Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 1:11-cv-06188 (S.D.N.Y. July 24, 2012).

[36] See Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11 (declining to allow predictive coding when counsel was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . .”). But see Biomet, 2013 U.S. Dist. WL 6405156, at *2 (holding that, while a party’s failure to disclose seed set fell below Sedona Conference Cooperation Proclamation standard, the Proclamation “can’t provide [the court] with authority to compel discovery of information not made discoverable by the Federal Rules.”).

[37] See Da Silva Moore, 287 F.R.D. at 192. (“[Defendant] confirmed that ‘[a]ll of the documents that are reviewed as a function of the seed set, whether [they] are ultimately coded relevant or irrelevant, aside from privilege, will be turned over to’ plaintiffs. . . . This Court highly recommends that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”).  See also Rio Tinto, 306 F.R.D. at 128 (Peck, M.J.) (“One TAR issue that remains open is how transparent and cooperative the parties need to be with respect to the seed or training set(s).”).

[38] Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11.

[39] See, e.g., Bridgestone, 2014 U.S. Dist. WL 4923014 at *1 (“[O]penness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.”); Transcript of Record at 9, 14, Fed. Hous. Fin. Agency (bench decision requiring transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents except privileged).

[40] Rio Tinto, 306 F.R.D. at 128-29 (“Requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.”).

[41] In order to calculate recall, a party must review a mix of relevant and irrelevant documents.  The party then codes the documents for relevance, and compares its decisions about relevance against the algorithm’s predictions about relevance.  The more alignment between human reviewer and the algorithm’s predictions, the better the recall. See Grossman & Cormack, supra note 7, at 27 (defining “recall” as “[t]he fraction of Relevant Documents that are identified as Relevant by a search or review effort.”).

[42] See, e.g., Fed. R. Civ. P. 26 advisory committee notes to 1946, 1970, 1980, 1983, 1993, 2000, 2006, and 2015 amendments; Fed. R. Civ. P. 37 advisory committee notes to 1970, 1980, 1993, 2000, 2006, and 2015 amendments.

[43] Fed. R. Civ. P. 26(b)(1).

[44] Fed. R. Civ. P. 34(a).

[45] Fed. R. Civ. P. 26(g).

[46] Fed. R. Civ. P. 26(g)(3).

[47] Fed. R. Civ. P. 37(b).

[48] Model Rules of Prof’l Conduct r. 1.1 (Am Bar Ass’n 2016).

[49] Id. at R. 3.4.

[50] See Grossman & Cormack, supra note 7, at 29.

[51] See Grossman & Cormack, supra note 5, at 37.

[52] Fed. R. Civ. P. 26(g).

[53] Id.

[54] Fed. R. Civ. P. 37(b).

[55] See Grossman & Cormack, supra note 5, at 61.

[56] Rio Tinto, 306 F.R.D. at 129 (“[I]t is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”).

[57] See Grossman & Cormack, supra note 5; Voorhees, supra note 6; Blair & Maron, supra note 6.

[58] Fed. R. Civ. P. 26(b)(1).

[59] Fed. R. Civ. P. 26(g)(3); Fed. R. Civ. P. 37(b).

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America’s Overlooked Surrogate Mothers

By: Kate Bauer,

Heart-warming stories of successful surrogacy arrangements permeate the media.[1] Jimmy Fallon, Nicole Kidman, Elizabeth Banks, Elton John, Amy Smart, and Sarah Jessica Parker are just a few of the celebrities who owe their children’s existence to gestational surrogates.[2]  Websites soliciting surrogates extoll the noble and generous “gift” a surrogate gives.[3]  Despite the rosy picture of altruism (for a price)[4] proffered by the success stories and websites, evidence suggests that these transactions prey on lower-income women with few alternatives.

Commercial surrogacy is a business transaction in which buyers rent a woman’s womb to gestate one or more babies.  In return for the rental fee, the woman agrees to surrender the babies she births to the buyers.  There are two types of surrogacy, traditional and gestational.  In traditional surrogacy, the woman’s own egg is artificially inseminated, making her the biological mother of the child she carries.[5]  Traditional surrogacy is generally disfavored due to the legal and emotional complexities involved.[6]  In gestational surrogacy, a child is created through in vitro fertilization (IVF) using the gametes of the buyers or third parties, and then implanted into the surrogate.[7]  A gestational surrogate is not biologically related to the child she carries.[8]

Policy arguments for and against surrogacy abound, but reliable information about surrogates is scarce.  Proponents of surrogacy emphasize a woman’s freedom to contract.[9]  Opponents contend that surrogacy contracts are characterized by unequal bargaining power and inability to accurately forecast costs.[10]  Missing from this debate is reliable information about the surrogates themselves.  Poor women and women carrying multiples are at greater risk of pregnancy complications and death than average,[11] yet anecdotal evidence suggests that these characteristics are common among surrogates.[12]

While the vast majority of developed countries have either banned surrogacy or limited it to altruistic arrangements (i.e. no fee),[13] the United States has no federal legislation regulating surrogacy. [14] State law is a patchwork.[15]  As a result, no reliable statistics are maintained regarding the women who become surrogates.[16]  Analysis of commercial surrogacy therefore rests on anecdotal evidence.  The anecdotal evidence paints a troubling picture.

In the United States, surrogate mothers generally earn between $30,000 and $50,000 to carry a baby to term,[17] though fees as low as $12,000 have been reported.[18]  This amount is just a fraction of the amount buyers invest in the process, generally $116,000 or more.[19]

Surrogacy agencies have revealed that military wives are popular as surrogates.[20] Though they account for just 1% of the population, agencies indicate that between 15 and 20% of surrogates are military wives.[21]  In some geographic locations, military wives make up 50% of the area surrogates.[22] This popularity provides insight into the characteristics that buyers find appealing in a surrogate.

Military wives make good surrogates for three main reasons: (1) they have few alternative job opportunities, (2) their husbands’ incomes are comparatively low, and (3) they have medical insurance.

Regarding lack of job opportunities, Melissa Brisman, who runs a New Jersey surrogacy agency observes, “[Military wives] move around a lot, so they really can’t get their teeth into a career, and if they want to contribute to society and do something useful, [surrogacy is] a good use of their time.”[23] A 2014 study corroborates Brisman’s assessment.[24] The Military Spouse Unemployment Report found that 90% of military wives were underemployed.[25]  Further, among wives 18-24 the unemployment rate was 30%, and among wives 25-44, the unemployment rate was 15%.[26] Study participants cited “frequent moves, deployments, living in areas with poor local labor market conditions, and long hours that keep service members from assisting with parenting” as factors that negatively impacted their employment opportunities.[27]

Low income is likely another factor driving military wives to surrogacy.  New enlistees in the Army start off making as little as $19,000 a year, while more senior enlisted individuals can make up to $37,000.[28] With standard surrogacy fees matching or surpassing yearly income and few realistic job alternatives, surrogacy begins to seem like an appealing option.

Lastly, the U.S. military offers numerous benefits to military families, including free healthcare.[29]  Women with their own healthcare are attractive to buyers of surrogate services, who otherwise must shoulder the surrogate’s medical costs as part of the agreement.  One surrogacy site, for example, expressly tiers its compensation according to whether potential surrogates possess their own healthcare.[30]  Women with health insurance are paid $5,000 more than their counterparts without it.[31]

The heavy utilization of military wives reveals characteristics of desirable surrogacy candidates: women with limited job opportunities, limited income, and minimal medical expenses. Further supporting this assessment is the ongoing trend of outsourcing surrogacy to India, where all medical expenses, including the surrogate’s fee, are available for $12,000.[32] These financial disparities between buyers and surrogates can give rise to unequal bargaining power in the surrogacy context.

Surrogacy contracts are another potential hazard to surrogates.  Due to lack of regulation, buyers employ lawyers to draft custom surrogacy contracts.[33]  These contracts commonly contain provisions requiring the surrogate to carry multiple babies (increasing the risk of pregnancy complications[34]), or to agree to abort one or more babies at the buyer’s request.[35] Though a woman cannot legally be compelled to undergo an abortion against her will,[36] some scholars have posited that the surrogate could be still liable for money damages for failure to comply.[37]  Fear of financial consequences and inability to afford independent legal counsel may coerce unwilling surrogates into honoring these illegal contract provisions.[38]

In addition to the risks of unequal bargaining power, the surrogate’s inability to reliably predict and value the damage her body may incur as a result of pregnancy is a pressing public policy concern.[39]  Individuals have a psychological tendency to underestimate negative consequences (“optimist bias”),[40] which may lead surrogates to irrationally discount the possibility of physical disability or death resulting from pregnancy complications.[41]

In the United States, the interplay between the optimist bias and the physical risks of pregnancy is particularly salient.  Maternal mortality in this country is the highest of any developed country, and rising.[42] The mortality risk is particularly severe for black women, who die from pregnancy-related complications at rate 3 to 4 times that of white women.[43]  Low income women and women in rural areas are also at increased risk,[44] as are women who are pregnant with multiples.[45]  With no official statistics on surrogacy, little data exists to validate the ability of surrogates to appropriately assess their risk of complications.

The risk of surrogate exploitation stands in stark contrast to the narrative of altruistic surrogacy that the media and surrogacy agencies strive to project.[46]  Though anecdotal evidence paints a troubling picture of surrogacy in the United States, little comprehensive analysis is possible without more information.  Collecting demographic data about the women who become surrogates, their pregnancy characteristics, and their maternal outcomes is vital to forming sound public policy regarding surrogacy arrangements.  It’s time to start paying attention to America’s surrogates.


[1] Graham Slaughter, Photo of Toronto Dads with Newborn Son Goes Viral, Toronto Star, July 3, 2014,

[2] Jen Juneau, 32 Famous Families Who’ve Welcomed Children Through Surrogacy, People (Dec. 18, 2017, 6:55 PM),

[3] ART Parenting, About becoming a gestational surrogate mother in Virginia, (“Becoming a surrogate mother requires a level of commitment that only a generous, capable and nurturing woman can meet. We know that raising children is one of the ultimate joys in life. A willingness to share that joy with others is truly admirable . . .”) (last visited Dec. 21, 2017); ConceiveAbilities, Becoming a Surrogate, (“Your desire to help intended parents build their family through gestational surrogacy is both generous and noble.”) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Become a Surrogate, (“Surrogate mothers provide an amazing gift for couples and individuals experiencing infertility. It takes a very special woman to become a Surrogate Mother. . . . Our Surrogates are generously compensated and are truly appreciated and admired for what they are doing.”) (last visited Dec. 21, 2017).

[4] Leslie Morgan Steiner, Who Becomes a Surrogate, The Atlantic, Nov. 25, 2013,

[5] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 470-71 (2015).

[6] Id. at 471.

[7] Id.

[8] Id.

[9] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision Making Capacity, 31 J. Legis. 329, 330 (2005).

[10] Id. at 329-30.

[11] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, (page last updated Nov. 22, 2017); Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

[12] See Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016); see also discussion infra.

[13] Bruce Hale and Stephen Page, Whose Rights Are They, Anyway?, ABA SciTech Law., Summer 2016, 8, 10 (“The United States is alone among Western countries in affirmatively allowing women to be paid a fee to be a gestational surrogate.”).

[14] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 486-87 (2015).

[15] Id.

[16] Ari Shapiro, Surrogate Parenting: A Worldwide Industry, Lacking Global Rules, NPR, June 11, 2015,

[17] Circle Surrogacy & Egg Donation, Compensation and Benefits, ($30,000-$40,000 base fee) (last visited Dec. 21, 2017); ConceiveAbilities, Surrogate Mother Pay, ($35,000-$45,000 base compensation) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Surrogate FAQs, ($30,000-$50,000 compensation) (last visited Dec. 21, 2017).

[18] Elisabeth Eaves, Want To Work For $3 An Hour?, Forbes, July 24, 2009,

[19] Morrissey, 51 Willamette L. Rev. at 483.

[20] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010,

[21] Id.

[22] Lorraine Ali, The Curious Lives of Surrogates, Newsweek, Mar. 29, 2008,

[23] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010,

[24] Institute for Veterans and Military Families, Military Spouse Unemployment Report, Feb. 12, 2014 at 6,

[25] Id. at 6.

[26] Id.

[27] Id. at 4.

[28] U.S. Army, Army Pay Chart and Basic Pay: Active Duty Soldiers, (last visited Dec. 21, 2017).

[29] See, e.g., U.S. Army, Military Compensation: Army Benefits, (last visited Dec. 21, 2017), U.S. Navy, Military Pay, (last visited Dec. 21, 2017).

[30] Circle Surrogacy & Egg Donation, Compensation and Benefits, ($30,000-$40,000 base fee) (last visited Dec. 21, 2017).

[31] Id.

[32] Abigail Haworth, Surrogate Mothers: Womb for Rent, Marie Claire, July 29, 2007,

[33] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 516 (2015).

[34] Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

[35] Morrissey, 51 Willamette L. Rev. at 533; Jane Ridley, Confessions of a surrogate mother, New York Post, June 16, 2014,

[36] See, e.g., Fla. Stat. Ann. § 63.213(3)(b); Tex. Fam. Code Ann. § 160.754(g).

[37] John A. Robertson, Precommitment Issues in Bioethics, 81 Tex. L. Rev. 1849, 1869 (2003).

[38] Brandy Zadrozny, Her Body, Their Choice: When a Surrogate Refuses to Abort, The Daily Beast (Dec. 19, 2015, 12:13 PM),; Elizabeth Cohen, Surrogate offered $10,000 to abort baby, CNN, Mar. 6, 2013,

[39] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and the Limits on Human Decision Making Capacity, 31 J. Legis. 329, 329-30 (2005).

[40] Id. at 330-31 (“The optimistic bias relates to individuals’ tendency to underestimate risks or negative consequences down the road. In economic terms, the endowment effect captures the idea that people place particular value on goods that they already hold, and value them above other goods with equivalent market values.”).

[41] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017,

 [42] Id.

 [43] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, (page last updated Nov. 22, 2017).

 [44] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017,

 [45] Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

 [46] See Juneau, supra note 2.

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