Richmond Journal of Law and Technology

The first exclusively online law review.

Author: Courtney Gilmore (Page 1 of 3)

Move Fast and Break Things Up: Considering the Possibility of Breaking Up Big Tech with Anti-Trust Law

By: Mitch Torrence,

“Robber Baron” is a term that conjures up images of John D. Rockefeller, Andrew Carnegie, Henry Frick, and Cornelius Vanderbilt; men in dark, smoke filled rooms amassing their fortunes on the backs of monopolistic enterprises. The days of the Robber Barons are gone now. The heads of Silicon Valley, Mark Zuckerberg and Sheryl Sandberg, Jeff Bezos, Tim Cook, Larry Paige, and Sergey Brin don’t exactly fit the description or so it would seem. Rockefeller’s Standard Oil Company was broken up pursuant to the Sherman Anti-Trust Act when the Supreme Court handed down its decision in Standard Oil Company v. United States.[1] Today, Silicon Valley has assumed the mantle once occupied by the likes of Standard Oil, yet conversations about the potential of anti-trust laws to break up the Big Tech companies remain muted. The current state of anti-trust poses a serious problem, but it may be time to consider breaking up the Big Tech companies.

Perhaps the largest hurdle to clear when considering breaking up Big Tech is the state of anti-trust today. Gone are the days of the Standard Oil, American Tobacco, and AT&T breakups.[2] Since the 1980’s, anti-trust has been far less aggressive and less concerned with companies being oversized and depressing competition.[3] The primary driver of this is the rise in prominence of the Chicago School, which moved the focus of anti-trust from structuralism to price theory, focusing on whether or not consumers are paying inordinate prices as opposed to a company driving competition out of the market.[4] This poses an issue with Big Tech companies as many of the services they provide are ostensibly free. This has, as Hubbard notes, allowed the companies to largely fly under the radar but the reality is that the users pay with their data.[5] This line of thinking recently has been challenged more and more by people like Khan and Hubbard, but it remains dominant. It also bears mentioning that the line the Chicago School takes is at odds with the political origin of the Sherman Act.[6] There exists an additional messaging issue in that it’s fairly difficult to say to consumers “the convenience you enjoy from Amazon etc. and the low prices you enjoy, they don’t matter”. [7] Perhaps the most daunting task that remains is the fact that Tech Companies don’t necessarily resemble monopolies as they’re classically understood.[8] It is worth noting that while the iPhone is the most popular phone in America, it accounts for around only a third of phones sold.[9] Furthering this point, Amazon does not account for the majority of online sales, and its market share of American retail remains in the single digits.[10] It’s true that Facebook and Google constitute a duopoly in digital ads, but this is one of the few classic examples.[11] All of this paints a rather bleak picture for the prospect of breaking up the tech companies; at the very least it is an uphill battle. However, a legitimate case remains to be made and it begins with the outsized effect the Big Tech companies have in the economy.

In the first quarter of 2017 the world’s four most valuable companies were Apple, Alphabet, Microsoft, and Amazon; Facebook came in at number 8.[12] This in and of itself is not necessarily problematic; it is generally a good thing for American companies to occupy these slots. The problem arises when one considers how this value is being attained and the cost that comes along with it, most notably the lack of competition in the space. It isn’t a coincidence that the number of companies started in the United States is at a 40-year low.[13] The barrier to entry in these industries, despite what common wisdom would suggest, is high. Moreover, the structure of companies like Amazon or Alphabet that have their hands in every area creates a structural problem that may manifest itself as outsized leverage.[14] As Khan notes, Amazon is able to use its structural advantages to create anti-competitive environments.[15] This is a problem that anti-trust moving away from the Chicago School may be able to solve. Additionally, there are criticisms of the way these companies are developing that may be the province of anti-trust. There is a mythology associated with Big Tech that paints the companies as scrappy upstarts that stay on top of the market through innovation; the reality is murkier. Google, for example, did not develop Android, but rather acquired it.[16] Amazon has employed similar tactics.[17] The result being that these companies can wield their structural power and create anti-competitive environments that may necessitate anti-trust.[18]

The mythology surrounding Big Tech complicates the matter at hand; the reality is that the level of convenience Americans enjoy due to Amazon, Apple, Google, etc. is largely, and perhaps rightly, considered to be a net positive. However, this does not mean these companies can do no wrong nor does it mean that we ought to ignore the very real structural problems these companies are creating. It is not a forgone conclusion that breaking up Big Tech is necessary, and more to the point the current status of anti-trust doctrine in the U.S. would seem to preclude it. That being said, it may still be time to move fast and break up Big Tech.

 

[1] See generally, Standard Oil Co. v. U.S., 221 U.S. 1 (1911).

[2] Id.; see generally American Tobacco v. U.S., 221 U.S. 106 (1911).

[3] See Lina Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017).

[4] Id.

[5] Sean Illing, Why “Fake News” Is an Antitrust Problem, VOX (Sept. 23, 2017), https://www.vox.com/technology/2017/9/22/16330008/facebook-google-amazon-monopoly-antitrust-regulation.

[6] Id.

[7] See Farhad Manjoo, Can Washington Stop Big Tech? Don’t Count on It, New York Times (Oct. 25, 2017), https://www.nytimes.com/2017/10/25/technology/regulating-tech-companies.html?_r=0,

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Natasha Tiku, Digital Privacy is Making Antitrust Exciting Again, Wired (June 04, 2017), https://www.wired.com/2017/06/ntitrust-watchdogs-eye-big-techs-monopoly-data/.

[13] Id.

[14] See Khan, supra note 3.

[15] Id.

[16] See Tiku, supra note 12.

[17] See Khan, supra note 14.

[18]  Id.

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SCOTUS Catching Up With the Times – Electronic Filing Is Finally Here

By: Nicole Allaband,

Courts in general have been slow to adopt technological changes. However, the Supreme Court of the United States has finally taken the plunge and will launch an electronic filing system on November 13, 2017.[1] Chief Justice John G. Roberts, Jr. promised to bring the Supreme Court into the 21st century and implement an electronic filing system back in 2014.[2] It took three years for the new system, developed in-house, to become available but the time has finally arrived.[3]

The federal courts implemented electronic filing in 2001, with bankruptcy courts joining first.[4] The Case Management/Electronic Case Files (CM/ECF) program allows more than 700,000 nationwide to file court documents electronically. Additionally, the public has access to virtually all the documents filed through the website Public Access to Court Electronic Records (PACER).[5] PACER does charge fees for searching, accessing, and printing.[6] The fees are set by the Judicial Conference and are currently $0.10 a page.[7] The new Supreme Court system will make all unsealed documents available to the public for free.[8] The free and quick access to electronic filings will benefit practicing lawyers as well as researchers.

Electronic filing in the federal courts has provided many benefits, including allowing attorneys to file documents from their home or office all day, every day.[9] Initially, the Supreme Court system will require litigants represented by attorneys to file both electronically and in paper.[10] The Supreme Court will likely maintain the dual filing for some time until the Court is sure the system works and is not vulnerable. After review, the filings will be publicly available. Attorneys can file electronically at no extra cost than the regular filing fees.[11] Pro se litigants must still file in paper form and the documents will subsequently be scanned and uploaded to the system.[12]

The CM/ECF system employs a two-step security process.[13] A program verifies each PDF document as it is uploaded.[14] Another program runs periodically to verify that the documents have not been changed since they were uploaded.[15]

To file electronically for the Supreme Court, attorneys must first register with the new system, which can take 1-2 days to process.[16] Only attorneys admitted to the Supreme Court Bar and those attorneys appointed for a specific case are able to register.[17]

The launch of the Supreme Court’s new electronic filing system has many potential benefits for practicing lawyers, as well as researchers. But there are also security concerns.[18] In the age of cyberattacks, ransomware, and hacking, courts are especially cautious because they deal with sensitive information on a daily basis.[19] Courts and the electronic filing systems have been targeted in the past.[20]

The Supreme Court developed its online filing system in-house over the last three years. Developers undoubtedly considered and developed security mechanisms to prevent hacking to steal sensitive information and cyber-attacks that could shut the system down. Technological advances are coming in an increasingly fast pace. Malicious hackers also move at a fast place, finding vulnerabilities in systems faster than “white hat” hackers can plug the holes.[21]

 

[1] See Electronic Filing, The Supreme Court of the United States, https://www.supremecourt.gov/electronicfiling/ (last visited November 7, 2017).

[2] See Brian Fung, The Supreme Court is about to become more transparent, thanks to technology, Wash. Post (August 3, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/08/03/the-supreme-court-has-finally-embraced-the-21st-century/?utm_term=.bac09c44ccf3.

[3] See Electronic Filing, The Supreme Court of the United States.

[4] See FAQs: Case Management/Electronic Case Files (CM/ECF), United States Courts, http://www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-management-electronic-case-files-cmecf#faq-What-is-CM/ECF? (last visited November 7, 2017).

[5] See id.

[6] See Electronic Public Access Fee Schedule, PACER: Public Access to Court Electronic Records, https://www.pacer.gov/documents/epa_feesched.pdf (last visited November 7, 2019).

[7] See id.

[8] See Melissa Heelan Stanzione, Supreme Court Electronic Filing Opens Nov. 13, Criminal Law Reporter, BNA Law Reports,  https://www.bloomberglaw.com/document/XFOUD4HS000000?emc=bnacrl%3A12&jcsearch=bna%25200000015f8215d6fdafffc6f5f0b20000#jcite

[9] See FAQs: Case Management/Electronic Case Files (CM/ECF)

[10] See Electronic Filing, The Supreme Court of the United States.

[11] See FAQs: Case Management/Electronic Case Files (CM/ECF)

[12] See Electronic Filing, The Supreme Court of the United States.

[13] See FAQs: Case Management/Electronic Case Files (CM/ECF

[14] See id.

[15] See id.

[16] See Stanzione, Supreme Court Electronic Filing Opens Nov. 13.

[17] See id.

[18] See David Murphy, U.S. Supreme Court to Deploy New Electronic Filing System Around 2016, PCMag (January 1, 2015), https://www.pcmag.com/article2/0,2817,2474456,00.asp.

[19] See, e.g.,Richard Milne, Maersk cuts profit guidance in wake of cyber attack, Financial Times (November 7, 2017) https://www.ft.com/content/711be9fa-c396-11e7-a1d2-6786f39ef675; Judy Greenwald, Ransomeware risks go mainstream, Business insurance (November 6, 2017), http://www.businessinsurance.com/article/20171106/NEWS06/912317025/Ransomware-risks-go-mainstream; Jake Bernstein, The Paradise Papers Hacking and the Consequences of Privacy, New York Times (November 7, 2017) https://www.nytimes.com/2017/11/07/opinion/paradise-papers-hacking-privacy.html?_r=0.

[20] See U.S. court system targeted in cyber attack: report, Reuters (January 24, 2014), https://www.reuters.com/article/us-usa-courts-hack/u-s-court-system-targeted-in-cyber-attack-report-idUSBREA0O03W20140125

[21] See obert Siciliano, How Hacking Has Evolved with Technological Advances, Balance (August 28, 2017), https://www.thebalance.com/how-has-hacking-evolved-with-technological-advances-1947546.

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What To Do First When Data Is Hacked: A Guide To Mandatory Notification For Virginia Businesses

By: Spencer Allen,

More than four-billion data records were stolen worldwide in 2016.[1] In 2014 alone, nearly half (47%) of U.S. adults had their personal information stolen.[2] Though it is the big hacks that make the news- Yahoo (3 billion), Equifax (143 million), Verizon (6 million)—small and local businesses are no less vulnerable to data breach, and need to be ready to respond quickly when a breach happens.[3]

Virginia law requires businesses to notify affected parties in certain situations where personal data is compromised.[4] Failure to give proper notice can be expensive—up to $150,000 per breach.[5] This article is intended to help Virginia businesses comply with mandatory notification procedures following a data breach.

I. What sorts of breaches require giving notice?

Virginia Code § 18.2-186.6 requires that companies give notice when each of five criteria are met: 1) unencrypted or unredacted; 2) personal information; 3) is accessed or acquired by an unauthorized person (or reasonably believed to have been accessed or acquired by an unauthorized person); 4) which causes identity theft or another fraud (or is reasonably believed to have caused or cause in the future identity theft or another fraud); 5) to any resident of Virginia.[6] Each of the five criteria must be analyzed to determine whether notice is required.[7]

  1. “Unencrypted or unredacted”

“Encrypted” data is data that has been “scrambled” by an algorithmic process.[8] Though the precise way in which data is encrypted depends on the kind of data and the way in which the data is stored and sent, the basic idea is that an algorithm makes the data unreadable without a specific key (or series of keys).[9]

For example, imagine that we apply an algorithm that subtracts one from each number. If we apply the algorithm to an unencrypted number—4765—we arrive at an encrypted number of 3654. In this example we have no way of knowing that the unencrypted number is 4765 unless we have the key—that is, unless we know the algorithm. Without knowing the algorithm, the unencrypted number could be anything, and there is a low probability that we could figure it out by chance.

“Redacted” data is data for which identifying information or confidential information has been removed, and is thus not tied to a particular person or entity.[10] For example, imagine you come across a detailed medical record with no name attached. That data is considered “redacted” because without the identifying information the data is useless for anyone who would seek to exploit it. The data merely shows that someone, somewhere in the world has that medical history.

Basically, this first criteria for data that triggers mandatory notification is that it must be useable. The person who steals or otherwise acquires the data must be able to actually read what it says, and pair the data to particular persons or entities. If compromised data remains encrypted or is redacted, notification is not required by VA § 18.2-186.6.

  1. “Personal information”

Though “personal information” may cover a lot of things, it is specifically defined in the statute.[11] To qualify as “personal information,” data must include:[12]

  1. The first name or first initial
  2. The last name
  3. In combination with or linked to any of the following:
    • More than five digits of a social security number
    • More than the last 4 digits of a driver’s license number or state identification card number
    • More than the last four digits of a financial account number or credit card or debit card number in combination with any required security code, access code, or password that would permit access to the person’s financial accounts.

If the data that is stolen or compromised does not contain all three of the above, notice is not mandatory.[13]

  1. Accessed or acquired by an unauthorized person (or reasonably believed to have been accessed or acquired by an unauthorized person)

Importantly, the statute does not require the data to have actually been stolen.[14] A company must comply with mandatory notice even if the company only has a reasonable belief that the data has been accessed or acquired by an unauthorized person.[15] “Reasonable belief” is subject to the court’s discretion.[16] The issue of reasonable belief as it relates to this statute has never been brought to trial, and thus it is better to err on the side of caution whenever a data breach is suspected.[17]

  1. “Which causes identity theft or another fraud (or the individual or entity reasonable believes has caused or will cause identity theft or another fraud)

This part of the statute holds that mandatory notice is only triggered when an unauthorized person who receives personal data intends to misuse the data or actually misuses the data.[18] Just like the access requirement, actual identity theft or fraud does not have to occur to trigger mandatory notice, all that is required is a reasonable belief that identity theft or fraud has or will occur.[19] This allows effected parties to be notified as soon as possible—and hopefully before damage has been done. Again, as with access, if personal data is stolen it is best to err on the side of caution and assume that the data will be used for identity theft or fraud. Virginia crimes involving fraud are codified in Chapter 6 of Title 18.2 of the Code of Virginia.[20]

This part of the statute is important because it creates a carve-out so that accidental “good faith” breaches do not trigger mandatory notification.[21] For example, imagine that a business owner’s mother-in-law, while snooping on her computer, opens a file called “business records.” The file contains all of the transaction information from the business, including credit card numbers and personal information of customers. Without criteria four, this would trigger mandatory notification because 1) unencrypted; 2) personal information; was 3) accessed by an unauthorized person.[22] However, because the business owner (hopefully) can trust that her mother-in-law will not use the information to commit fraud, this sort of breach does not trigger mandatory notification. The breach neither caused identity theft or fraud, nor would a person reasonably suspect that identity theft had or would happen.

  1. “To any resident of Virginia”

Importantly, mandatory notice does not apply to persons or entities who are not residents of Virginia.[23] However, forty-eight states have mandatory disclosure statutes similar to the one in Virginia (all but Alabama and South Dakota).[24] If personal data concerning a resident of a state other than Virginia has been compromised, it is important to check the laws of that state to determine whether notice is required. For a complete list of similar state statutes, refer to appendix.

II. What happens if no notice is given?

If a company fails to give notice when it is required, the Attorney General may bring an action against it for up to $150,000 per breach. [25]

It is also possible that an individual could sue a company for damages arising out of a failure to give notice of theft of personal information.[26] This remains an unresolved legal question.[27]

III. To Whom Must Notice be Given, When, and What Must it Include?

If a data breach has occurred and it satisfies the above criteria, notice must be given “without unreasonable delay” following the discovery of the breach.[28] If the data is owned or licensed by the company where the breach occurred, notice must be given to 1) the Attorney General of Virginia; and 2) any resident of Virginia affected by the breach.[29]

Notice may be delayed if, after notifying a law enforcement agency, that agency determines that notification would impede a criminal or civil investigation, or homeland or national security.[30]

If the company where the breach occurred does not own or license the data that was compromised, that company must notify the owner or licensee of the data “without unreasonable delay” following discovery of the breach.[31]

  1. Notice to the Attorney General

Notice to the Attorney General of Virginia must include:[32]

  1. A cover letter on official letterhead notifying the VA Attorney General of the breach
  2. Approximate date of the incident and how the incident was discovered
  3. The cause of the breach
  4. The number of Virginia residents affected by the breach
  5. The steps taken to remedy the breach; and
  6. A sample of the notification made to the affected parties, to include any possible offers of free credit monitoring.

Notice to the Attorney General may be addressed to:[33]

Computer Crime Section

Virginia Attorney General’s Office

202 North 9th Street

Richmond, Virginia 23219

  1. Notice to affected persons

            Notice to affected persons must include:[34]

  1. A description of the incident in general terms
  2. The type of personal information that was accessed by the unauthorized person
  3. A description of what the company has done to prevent further unauthorized access
  4. A telephone number that the person may call for further information and assistance, if one exists; and
  5. Advice that directs the person to remain vigilant by reviewing account statements and monitoring free credit reports.

Notice to affected persons may be: 1) written to the last known postal address of the person in the records of the company where the breach occurred; 2) telephone notice; or 3) Electronic notice.[35]

If the cost of providing notice exceeds $50,000, or the number of Virginia residents to be notified is more than 100,000, or the company where the breach occurred does not have adequate contact information or consent to use the contact information, substitute notice can be used.[36] Substitute notice includes:[37]

  1. E-mail notice
  2. Conspicuous posting of the notice on the company website of the individual or the company
  3. Notice to major statewide media

 

APPENDIX: A List of State Notice Statutes

http://www.ncsl.org/research/telecommunications-and-information-technology/security-breach-notification-laws.aspx

Alaska Alaska Stat. § 45.48.010 et seq.
Arizona Ariz. Rev. Stat. § 18-545
Arkansas Ark. Code §§ 4-110-101 et seq.
California Cal. Civ. Code §§ 1798.291798.82
Colorado Colo. Rev. Stat. § 6-1-716
Connecticut Conn. Gen Stat. §§ 36a-701b, 4e-70
Delaware Del. Code tit. 6, § 12B-101 et seq.
Florida Fla. Stat. §§ 501.171, 282.0041, 282.318(2)(i)
Georgia Ga. Code §§ 10-1-910, -911, -912; § 46-5-214
Hawaii Haw. Rev. Stat. § 487N-1 et seq.
Idaho Idaho Stat. §§ 28-51-104 to -107
Illinois 815 ILCS §§ 530/1 to 530/25
Indiana Ind. Code §§ 4-1-11 et seq., 24-4.9 et seq.
Iowa Iowa Code §§ 715C.1, 715C.2
Kansas Kan. Stat. § 50-7a01 et seq. 
Kentucky KRS § 365.732, KRS §§ 61.931 to 61.934 
Louisiana La. Rev. Stat. §§ 51:3071 et seq.
Maine Me. Rev. Stat. tit. 10 § 1346 et seq.
Maryland Md. Code Com. Law §§ 14-3501 et seq., Md. State Govt. Code §§ 10-1301 to -1308
Massachusetts Mass. Gen. Laws § 93H-1 et seq.
Michigan Mich. Comp. Laws §§ 445.63, 445.72
Minnesota Minn. Stat. §§ 325E.61, 325E.64
Mississippi Miss. Code § 75-24-29
Missouri Mo. Rev. Stat. § 407.1500
Montana Mont. Code §§ 2-6-1501 to -1503, 30-14-1701 et seq., 33-19-321
Nebraska Neb. Rev. Stat. §§ 87-801 et seq.
Nevada Nev. Rev. Stat. §§  603A.010 et seq., 242.183
New Hampshire N.H. Rev. Stat. §§ 359-C:19 et seq.
New Jersey N.J. Stat. § 56:8-161 et seq.
New Mexico 2017 H.B. 15, Chap. 36 (effective 6/16/2017)
New York N.Y. Gen. Bus. Law § 899-AA, N.Y. State Tech. Law 208
North Carolina N.C. Gen. Stat §§ 75-61, 75-65
North Dakota N.D. Cent. Code §§ 51-30-01 et seq.
Ohio Ohio Rev. Code §§ 1347.121349.19, 1349.191, 1349.192
Oklahoma Okla. Stat. §§ 74-3113.1, 24-161 to -166
Oregon Oregon Rev. Stat. §§ 646A.600 to .628
Pennsylvania 73 Pa. Stat. §§ 2301 et seq.
Rhode Island R.I. Gen. Laws §§ 11-49.3-1 et seq.
South Carolina  S.C. Code § 39-1-90
Tennessee Tenn. Code §§  47-18-2107; 8-4-119
Texas Tex. Bus. & Com. Code §§ 521.002, 521.053
Utah Utah Code §§ 13-44-101 et seq.
Vermont Vt. Stat. tit. 9 §§ 2430, 2435
Virginia  Va. Code §§ 18.2-186.6, 32.1-127.1:05
Washington Wash. Rev. Code §§ 19.255.010, 42.56.590
West Virginia  W.V. Code §§ 46A-2A-101 et seq.
Wisconsin Wis. Stat. § 134.98
Wyoming Wyo. Stat. §§ 40-12-501 et seq.
District of Columbia D.C. Code §§ 28- 3851 et seq.
Guam  9 GCA §§ 48-10 et seq.
Puerto Rico 10 Laws of Puerto Rico §§ 4051 et seq.
Virgin Islands  V.I. Code tit. 14, §§ 2208, 2209

 

[1] Herb Weisbaum, More Than 4 Billion Data Records Were Stolen Globally in 2016, NBC (Oct. 31, 2017, 10:43 AM), https://www.nbcnews.com/storyline/hacking-in-america/more-4-billion-data-records-were-stolen-globally-2016-n714066.

[2] Jose Pagliery, Half of American Adults Hacked This Year, CNN tech, (Oct. 31, 2017, 10:47 AM), http://money.cnn.com/2014/05/28/technology/security/hack-data-breach/index.html.

[3] Matt Burgess, That Yahoo Data Breach Actually Hit Three Billion Accounts, Wired (Oct. 31, 2017, 10:51 AM), http://www.wired.co.uk/article/hacks-data-breaches-2017; Chris Morris, 14 Million US Businesses Are at Risk of a Hacker Threat, CNBC (Oct. 31, 2017, 10:53 AM), https://www.cnbc.com/2017/07/25/14-million-us-businesses-are-at-risk-of-a-hacker-threat.html.

[4] Va Code Ann. § 18.2-186.6 (2017).

[5] § 18.2-186.6 (I)

[6] § 18.2-186.6 (B).

[7] Id.

[8] Lee Bell, Encryption Explained: How Apps and Sites Keep Your Private Data Safe (and Why That’s Important), Wired, (Oct. 31, 2017, 11:18 AM), http://www.wired.co.uk/article/encryption-software-app-private-data-safe

[9] Id.

[10] Rick Borstein, Redaction in a Digital World, Law Practice Today (Oct. 31, 2017, 11:39 AM), https://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/july11/redaction_in_a_digital_world.html.

[11] § 18.2-186.6 (A).

[12] Id.

[13] Id.

[14] § 18.2-186.6 (B)

[15] Id.

[16] Id.

[17] The only record of § 18.2-186.6 being brought before a court is in regards to a private suit. The case was dismissed for lack of standing. Corona v. Sony Pictures Entm’t, Inc., 2015 U.S. Dist. LEXIS 85865 (C.D. Cal. 2015).

[18] § 18.2-186.6 (B).

[19] § 18.2-186.6 (B).

[20] Va Code Ann. § 18.2-168-246.15 (2017).

[21] § 18.2-186.6 (B).

[22] Id.

[23] § 18.2-186.6 (B).

[24] Refer to Appendix.

[25] § 18.2-186.6 (I).

[26] Id.

[27] Supra note 17.

[28] § 18.2-186.6 (B).

[29] Id.

[30] Id.

[31] Id.

[32] Office of the Attorney General of Virginia, Database Breach Notification Requirements Updated July 1, 2017 (2017), https://www.oag.state.va.us/CCSWEB2/files/Data_Breach_Notification_Req.pdf.

[33] Id.

[34] § 18.2-186.6 (A).

[35] Id.

[36] Id.

[37] Id.

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Brain Imaging, Algorithms, and the Development of Suicide Prevention Law

By: Rachel Weinberg-Rue,

Suicide has become the second leading cause of death among young adults aged 10-24 in the United States today.[1] Over the past 30 years, suicide rates in the country have continued to rise.[2] More young people die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia, influenza, and chronic lung disease combined.[3] Society is well aware of the problem. There are many factors and behaviors that healthcare providers and loved ones can trained to pick up on. According to the statistics, four out of five teenagers who attempt suicide provide warning signs.[4] However, the attempts happen anyway, which strongly indicates that the warning signs come far too late if they come at all. The reality of the matter is that suicide is not easy to diagnose[5]. If it was, it would not be the crisis that it is today.

Developments have been made within federal law to address these concerns. Since the Call to Action to Prevent Suicide (1999), a national conference on suicide prevention, the government has been actively involved in creating national strategies of suicide prevention.[6] Laws like the Garrett Lee Smith Memorial Act, which aimed to reduce[7] suicide prevention among young adults and was signed into law in 2004, have been passed.[8] The government has funded many research projects, and many suicide prevention programs have been proposed. However, the government’s efforts have clearly been unsuccessful given the climbing suicide rates.

Luckily, new scientific research suggests that it may be possible to detect suicidal tendencies in individuals with the use of brain scans and artificial intelligence.[9] Researchers at Carnegie Mellon and the University of Pittsburgh analyzed how suicidal individuals think and feel differently about concepts like life and death by looking at how their brains reacted using fMRI data.[10] They then programmed machines with learning algorithms to be able to detect frontal lobe flares at the mention of those concepts.[11] 90 percent of the time, the computations enabled the machines to accurately and successfully pick out suicidal ideators.[12] The machines were actually able to distinguish between people who had actually attempted self harm from those who only thought about it.[13] Researchers hope to further develop these algorithms to search for clues that would indicate suicide-linked brain patterns before self-harm even occurs.[14]

The downside of using fMRI imaging to detect suicidal ideators is the expensive costs involved, which is why other researchers have suggested that similar algorithms can be used to analyze medical records, social media, and data that is more accessible and available than brain scans.[15] Researchers at Florida State and Vanderbilt have seen an 85 percent success rate using such algorithms.[16]

The government has a legitimate interest in preventing suicide in our country and has been been increasingly involved in suicide prevention efforts, but more must be done.  The development of suicide-prevention algorithms could play a major role in structuring the legal approach to suicide prevention. Hopefully, in the future, we will see laws that utilize the data gathered by algorithms like these and provide viable strategies that can be implemented in our communities.

 

[1] Youth Suicide Statistics, Tʜᴇ Jᴀsᴏɴ Fᴏᴜɴᴅᴀᴛɪᴏɴ, http://prp.jasonfoundation.com/facts/youth-suicide-statistics (last visited Nov. 2, 2017).

[2] Megan Molteni, Controversial Brain Imaging Uses AI to Take Aim at Suicide Prevention, Wɪʀᴇᴅ (Oct. 30, 2017, 12:00 PM), https://www.wired.com/story/fmri-ai-suicide-ideation.

[3] Supra note 1.

[4] Id. 

[5] Molteni, supra note 2.

[6] Vivian Le, Note, Fighting Against the Silent Epidemic: An Imperative for a Federal Suicide Prevention Act Narrowing the Lens on Mental Health, 25 S. Cᴀʟ. Rᴇᴠ. L. & Sᴏᴄɪᴀʟ Jᴜsᴛɪᴄᴇ 87, 99 (2015).

[7] Id. at 110.

[8] Id. at 101–02.

[9] Molteni, supra note 2.

[10] Id. 

[11] Id.

[12] Id. 

[13] Molenti, supra note 2. 

[14] See Id.

[15] Id.

[16] Id.

Image source: https://timedotcom.files.wordpress.com/2014/12/brain-scan-fmri-mri.jpg?quality=85.

The 3D Printing Industry’s Disruption of the World of Intellectual Property

By: Helen Vu,

As 3D printing technology continues to develop, the possibilities for its potential uses increases exponentially. Medical devices such as prosthetics, implants, and casts can now be produced at much lower prices than they would be otherwise.[1] A company named KoreLogic used 3D printing to build the interior and exterior of an entire car, decreasing the vehicle’s weight and lowering costs.[2] Through the process of additive manufacturing, which involves the layering of materials to create a fully formed object, owners of 3D printers can produce items they would normally only be able to obtain from a manufacturing company.[3] While this technology can cut costs and increase efficiency for consumers, manufacturers must address the effect of 3D printing on their bottom lines. Every person that has the capability to print a product at home is a lost customer who would have otherwise purchased the item from the manufacturer.[4] Patent rights have normally prevented people from copying processes and products that belong to others.[5] However, as with other technological advancements, the law has yet to catch up to new developments in the area, and the legal world has not found a way to apply intellectual property law neatly to 3D printing.

While industrial 3D printers can cost up to $500,000,[6] at-home consumers can purchase desktop models for as little as $400.[7] These printers cannot produce objects as sophisticated as their more expensive counterparts but as manufacturers of 3D printers continue to improve their products, it will not be long before cheaper printers can create more than crude forms.[8] This presents an issue for the many patent-owners who have exclusive rights to many products that can be reproduced using 3D printing technology.[9] Although they certainly do not want others to produce items that they have an exclusive right to, the growing availability of 3D printers make it difficult to protect against all patent infringement involving additive manufacturing. Those who use extremely large-scale 3D printing in an industrial context may be easier to monitor but it would be extremely difficult, if not impossible, to identify every at-home user who commits patent infringement using widely available pieces of equipment such as computers and 3D printers.

Intellectual property lawyers have suggested various solutions to the problem of improper reproduction of patented objects, each with their own advantages and pitfalls. Because bringing legal action against every individual who infringes a patent through the use of a 3D printer would be impractical for the above-named reason, it seems more logical to go after those broader entities that facilitate the infringement.[10] In order to print an object, the user must have a Computer-Aided Design (CAD) file that instructs the 3D printer on how to create the form.[11] It has been suggested that those who create CAD files for products covered by patent protection and producers of software that help share those files should be held responsible for inducement of patent infringement. However, it is unclear how patent protection could cover CAD files, since they are digital blueprints of a patentable object rather than the objects themselves.[12]

Retaining intellectual property rights and protecting against infringement becomes increasingly harder in a time when technology purposefully makes it easier for individuals to directly obtain objects, information, and ideas. However, as impossible as it may seem to come to a solution that appeases all parties and covers all bases, regulations will inevitably develop to catch up to the technology due to the high interest that the manufacturing industry has in retaining exclusivity over their patented products. A decade ago, the improper distribution of copyrighted films and music albums using file-sharing software such as Grokster was the bane of the entertainment industry’s existence.[13] While illegal file sharing still exists today, the industry managed to significantly reduce the improper distribution of their copyrighted materials by taking the developers of that software to court and successfully shutting them down.[14] In the process, entertainment corporations were jolted into focusing more on digital products and less on the market for hard copies of albums and films.[15] Similarly, while the development of 3D printing technology may present difficult patent protection issues for manufacturers, it may also present opportunities to capitalize on a new market.[16] As technology grows in unimaginable ways, the industry that has the most at stake will find a method of managing their patent rights.

 

[1] See The Ultimate List of What We Can 3D Print in Medicine and Healthcare!, The Medical Futurist, http://medicalfuturist.com/3d-printing-in-medicine-and-healthcare/.

[2] See P. Andrew Riley & Elizabeth D. Ferrill & Benjamin T. Sirolly, Catch Me If You Can: Auto Parts in the Era of 3D Printing, Law 360 (2014).

[3] The Medical Futurist, supra note 1.

[4] See Timothy Holbrook, How 3-D Printing Threatens Our Patent System, Scientific American (Jan. 6, 2016), https://www.scientificamerican.com/article/how-3-d-printing-threatens-our-patent-system1/.

[5] See id.

[6] See Sara Angeles, The Best Industrial 3D Printers, https://www.business.com/categories/best-industrial-3d-printers/ (Oct. 31, 2017).

[7] See Tony Hoffman, The Best 3D Printers of 2017 (Jan. 18, 2017), https://www.pcmag.com/article2/0,2817,2470038,00.asp.

[8] See Tabrez Y. Ebrahim. 3D Printing: Digital Infringement & Digital Regulation, 14 Nw. J. Tech. & Intell. Prop. 37 at 41 (2016).

[9] See id.

[10] Holbrook, supra note 4.

[11] See What is 3D Printing?, https://www.stratasysdirect.com/resources/what-is-3d-printing/ (Oct. 31, 2017).

[12] Ebrahim, supra note 8.

[13] See Jeff Leeds, Grokster Calls It Quits on Sharing Music Files, N.Y. Times (Nov. 8, 2005).

[14] See id.

[15] See id.

[16] Riley, supra note 2.

Image Source: https://www.mcgilldaily.com/2014/02/3d-printing-a-disruptive-technology/.

Collaboration Art & the Future of Copyright Claims

By: James Williams,

Designers have used a variety of tools throughout the years, and various platforms have been marketed for them. Designers already are involved in a variety of intellectual property such as design patents, copyright, and trademark. There has been a mix of designers who work collectively or work individually.[1]  If the designer is working on commission, then usually they are not entitled to the rights of the work unless the work doesn’t fit under the statute or if the contract assigns the copyright to someone else.[2]  Seeing how there are already many ways for designers or artists in general to get involved with intellectual property, it will be interesting to see how technology makes access to intellectual property claims more or less accessible.

Adobe is well known for its program Photoshop, and it is still highly popular to this date for designers.[3]  Some recent additions into the market have been Sketch and Figma. Sketch is a program that is supposed to be marketed as a simpler and more accessible version of Photoshop with its own additions.[4]  Sketch “helps designers make digital products as a group, letting multiple people collaborate in real time as they draw, drag, and edit elements on the screen.”[5]  However, with the new “cutting-edge” technology attempting to unseat Adobe, which is more established, the presence of bugs makes the effort even more challenging.[6]

Figma has made a large move into collaborative efforts for designers.[7]  It has two new notable features: code mode and prototype mode.[8]  Code mode allows designers to directly alter the code.[9]  Prototype mode allows designers to create, edit, and share prototype designs.[10] With the program’s trackable contribution features, the individual authorship contributions could be more easily traceable. Authorship traceability is incredibly important when it comes to copyright ownership as will be discussed below. The collaborative contribution features in Figma are similar to how Google Docs allows people to contribute to documents in real time.[11]

As designers in general work for hire or for commission-based projects, this could even be a move in the direction of collaborating with clients in a more direct sense. With the Internet’s accessibility, collaboration is even easier. There is a growing trend suggesting that joint authorship and collaboration will be more common in science fields which utilize intellectual property claims heavily.[12]  It’s possible that this trend will also become more noticeable in the art field[13], given the right circumstances.

For artists that work in collective groups and intend on joint authorship as a goal, this could be the way for tracking who has been making what types of changes. If there is a contest over whether one person was the true author, assuming one person contests joint authorship, then this could be an excellent program for evidentiary purposes, in theory.

The requirements for joint authors in copyright include: each author must have made a substantial and valuable contribution to the work; each author must have intended that his/her contribution be merged into inseparable or interdependent parts of a unitary whole; and each author must have contributed material to the joint work which could have been independently copyrighted.[14]

Thinking back to Figma, if admitted properly as evidence, the logs that track each members work could serve as basis for claims of independent or joint authorship. Yes, there may be questions of whether the work being done by the various designers and coders involves the work sufficient to satisfy the claim, but with technology that maintains tracking of each contributor’s parts, it may be easier to prove whether sufficient joint authorship existed. There may not be an exact trend of people who seek joint authorship just because the technology makes it easier. Only time will tell whether it will become preferred or more common, but accessibility will be less of a burden for designers with Figma and other programs.

 

[1] See David Galenson & Clayne Pope, Collaboration in Science and Art, The Huffington Post (Jul. 23, 2012, 4:26 PM) (updated Sep. 22, 2012), https://www.huffingtonpost.com/david-galenson/collaboration-in-science-_b_1687024.html.

[2] 17 U.S.C. § 101 (considering that most work designers do would not fall within the statutory provisions under the second part of work-made-for-hire, the only way for designers to lose copyright, aside from transfer of copyright, would be if the work was considered as part of their employment and there were agency elements involved).

[3] See Robbie Gonzalez, Figma Wants Designers to Collaborate Google-Docs Style, Wired (Sep. 25, 2017, 12:07 PM), https://www.wired.com/story/figma-updates/.

[4] Id.

[5] Id.

[6] WebdesignerDepot Staff, Infographic: Sketch Vs Photoshop, Webdesigner Depot (Mar. 20, 2015), https://www.webdesignerdepot.com/2015/03/infographic-sketch-vs-photoshop/.

[7] See Gonzalez, supra note 3.

[8] Id.

[9] Id.

[10] Id.

[11] George Easton, Google Docs Has Full ‘Track Changes’ Word Integration, (Dec. 4, 2014, 10:30 AM), https://www.viwoinc.com/google-docs-has-full-track-changes-word-integration/.

[12] See Galenson, supra note 1.

[13] See id.

[14] See 17 U.S.C. § 101, supra note 2.

Image Source: http://sketchhunt.com/2016/09/10/sketch-vs-adobe-xd-vs-figma-_taylorpalmer/.

Genetic Discrimination: Not Much Has Changed in Twenty Years

By: Lilias Gordon,

The movie Gattaca came out in 1997, starring Jude Law, Ethan Hawke, and Uma Thurman. Based in the “not-to-distant-future,” employment discrimination is no longer about race, sex, or any other protected class. Rather, a person’s genetic code is the only determining factor for school admissions and employment options. Discrimination is now a science.[1]

Fear of genetic discrimination was not limited to science fiction, becoming a public concern in the late 90’s and early 2000’s. In the early 2000’s, the Human Genome Project finished sequencing the human genome. Media, scientists, and legislators all created a public perception of a pending landslide of discrimination and privacy invasions.[2] Spurred on by this fear, many states created statutes barring genetic discrimination.[3] Despite all this collective concern, there is still no consensus on what exactly is the legal issue surrounding genetic discrimination — or, if this is a problem at all.

Congress followed suit in 2008, passing the Genetic Information Nondiscrimination Act (GINA).[4] The substantive provisions of GINA were geared towards preventing healthcare providers from making decisions based on genetic information.[5] GINA bars insurers from discriminating based on a person’s likelihood of developing a genetic disease; thus individuals are only protected if they are asymptomatic.[6] However, in almost ten years, under 200 cases have litigated this statute, with about a quarter of these cases coming out of the 4th Circuit. For example, in 2013, there were 333 employment discrimination complaints filed based on GINA, compared to 90,000 based on everything else.[7] Most of the genetic discrimination concerns born in the 90’s and early 2000’s have not matured into real legal problems.

Legal theorists have asserted that —while disseminating personal genetic information is a huge risk— this is not a discrimination issue. Genetic information is better understood as creating privacy concerns by compromising the autonomy of an individual by foreclosing opportunities on the basis of genetic characteristics.[8] This suggests that mapping the civil rights model onto a brand new type of discrimination will hamper society’s ability to deal with the problem.[9] Said another way, our intuition that this is a discrimination issue is wrong.

Genetic discrimination may become more of a problem as technology advances. Perhaps we just have not yet reached the “not-to-distant-future.” “As technological advances increasingly permit detection of subtle physiological changes, the line between using genetic information and non-genetic medical information will become more and more difficult to police.”[10] There is no clear scientific distinction between genetic information and non-genetic information, despite the fact GINA turns on this difference. However, this is still a far cry from a Gattaca-esque fear. Or, perhaps the real harm is this irrational fear itself, which is slowing down potentially life-saving research. Mass genetic testing may be incredibly valuable, aiding genetic disease research and treatment development.[11] People are reluctant to undergo genetic testing out of fear of discrimination, which leads to less data for disease research.[12]

In the intervening decades since genetic discrimination became a concern, there has been a lot of legislation, but little case law and arguably only a fraction of the landslide of discrimination we expected. While the lofty problems we anticipated have not materialized, genetic discrimination has recently become a real-life concern, garnering much public attention.

Anyone following politics has heard the term “preexisting condition” thrown around in relation to healthcare debates. GINA does not protect a person as soon as they become symptomatic. However, GINA does not exactly define what symptomatic means.[13] Because the Affordable Care Act covers most preexisting conditions, this definition was never really tested.[14] Without the ACA, GINA will be the only way to make sure healthcare companies cover preexisting conditions. Because GINA has no clear definition of symptomatic, stripping healthcare laws could allow your genetics to become a preexisting condition.

 

[1] Gattaca (Sony Pictures Entertainment 1997).

[2] Sonia M. Suter, The Allure and Peril of Genetic Exceptionalism: Do We Need Special Genetic Legislation?, 79 Wash. U. L. Q. 669, 676 (2001).

[3] Karen Rothenberg, Genetic Information and Health Insurance: State Legislative Approaches, 23 J. L. Med. & Ethics 312, 313 (1995).

[4] Genetic Information Nondiscrimination Act of 2008, 110 P.L. 233, 122 Stat. 881.

[5] Marion Crain, Pauling Kim & Micheal Selmi, Work Law: And Case Materials 430 (Carolina Academic Press 3rd ed.) (2015).

[6] GINA § 102(b).

[7] Adam Rogers, The House Health Plan Makes Your Genes a Preexisting Condition, Wired Magazine (May 4, 2017, 7:55 PM) https://www.wired.com/2017/05/house-health-plan-makes-genes-preexisting-condition/.

[8] Pauline T. Kim, Genetic Discrimination, Genetic Privacy: Rethinking Employee Protection for a Brave New Workplace, 96 Nw. U.L. Rev. 1497, 1498 (2002); Suter, supra note 1, at 747.

[9] Kim, supra note 9, at 1498.

[10] Crain, supra note 5, at 432.

[11] Id at 430.

[12] Id.

[13] Rogers, supra note 6.

[14] Id.

Image Source: http://www.councilforresponsiblegenetics.org/blog/post/Protecting-Genetic-Data-A-Primer-for-Employers.aspx.

An Unintended Consequence of Technological Advancements: Revenge Porn

By: Brooke Throckmorton,

The rise and improvement in technology in the recent decades is monumental. In 2000, GPS went mainstream, and texting was forever embedded into our world.[1] Wikipedia has only been around since 2001.[2] Google went “public” in 2004, making all the answers to life questions available at our fingertips.[3] Technology has no doubt made our lives easier; however, it has also made many lives a living hell through the embarrassment, harassment, and humiliation that is revenge porn.

Revenge porn is an epidemic that has swept across the entire world. Revenge porn is known more formally and preferably as nonconsensual pornography.[4]  It is defined as the “distribution of sexually graphic images of individuals without their consent.” [5]  This includes images originally obtained with and without consent.[6]  For example, as image obtained with consent could be in the context of a private relationship whereas an image obtained without consent could occur by means of a hidden recording or a sexual assault recording.[7]  While a popular view on nonconsensual pornography is that it is not very harmful, in all actuality, nonconsensual distribution of intimate images is not a “minor inconvenience” but rather a form of “sex abuse.”[8] Nonconsensual pornography affects average people as well as celebrities. Some celebrities who have fallen victim to this crime include but are in no way limited to: Kate Middleton, Rhianna, Jennifer Lawrence, Kate Upton, Prince Henry.[9] Even male marines were not above posting nonconsensual pictures of their female comrades.[10] In reality, “we are all a moment away from being a psycho’s target.”[11]

A brief history of nonconsensual pornography reveals how far we have come, yet still have so far to go, in combatting this dilemma. Nonconsensual pornography was initiated by Hustler Magazine’s “Beaver Hunt” issue in 1980 which published nude photos of an “unwilling and unknown woman” taken by her husband on a camping trip that were later stolen.[12] In 2000, an Italian researcher coined this new “genre” of photos as “realcore pornography” where photos and videos of ex-girlfriends initially sent for private use, became public.[13]  In 2008 through 2010, the revenge porn sites really stepped up their game. Websites emerged solely dedicated to posting nonconsensual porn, even going as far as mixing “real” user-submitted photos with staged versions and a scoundrel launched a website featuring naked photographs along with the victims’ full names and links to their social media pages.[14]  In 2010, a man from New Zealand became the first to go to prison for posting nonconsensual pornography on Facebook.[15] Fast forward to today where 38 states plus the District of Colombia have nonconsensual pornography laws on the books.[16] However, society’s still very problematic view towards women does not help the situation. As President Obama said when he launched his campaign to end sexual assault on college campuses called “It’s On Us,” prevention of these types of acts is “going to require a fundamental shift in our culture.”[17]

It would not make sense to write this article without mentioning a woman who has led the vigorous revolution in fighting back against nonconsensual pornography. I had the pleasure of being inspired by her when she came to speak here at University of Richmond in September of this year. This woman’s name is Carrie Goldberg. She is an attorney who started her own law firm in Brooklyn, focusing on the types of crimes discussed below, after falling victim to this hateful crime herself.[18] In addition, she lectures about revenge porn and online privacy across the country; has been featured in articles in the New Yorker, Glamour, The Huffington Post, Nightline and CNN; and was named Cosmo’s “Fun, Fearless Female” in August 2014.[19] Her firm specifically focuses on obtaining justice for victims of revenge porn, domestic violence, sexual assault, blackmail, extortion, sextortion, and anti-abortion terrorism.[20] Goldberg describes the act of nonconsensual pornography as “bodies put on a platter for the internet to consume.”[21] As if Carrie Goldberg is not inspiring enough, her law firm’s website provides access and support to victims of these crimes in its structure and empowering quotes including “You are not crazy. Your situation is.”[22] Ms. Goldberg’s firm has removed 18,101 nonconsensual pornography photos and videos, and de-anonymized 164 harassing emails as of today.[23] With an empowering figure such as Carrie Goldberg heading a firm that combats one of society’s most pressing issues, nonconsensual pornography does not have a bright future in this country.

While not everyone can be Carrie, you can bring recognition and understanding to this problem. For example, stop victim-blaming. By this I mean, stop telling victims of nonconsensual pornography that they should not have sent the picture in the first place. Instead, society should be telling the perpetrator, A.K.A. the person who put the photos online, to not post the pictures in the first place. This situation is comparable to what happens in sexual assault situations. People may say, “you should not have worn that dress” or “you should not have drank so much tequila that night.” When in reality, society should be telling the perpetrator of the assault, not the victim of the assault, to refrain what acting in a certain manner.

 

[1] Ki Mae Heussner, The Top 10 Innovations of the Decade, ABC News (Dec. 1, 2009),  http://abcnews.go.com/Technology/AheadoftheCurve/top-10-innovations-decade/story?id=9204931.

[2] Id.

[3] Id.

[4] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/how-to-report-revenge-porn-on-social-media/ (last visited Oct. 19, 2017).

[5] Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345 (2014).

[6] Id.

[7] Id.  

[8] Jojo Marshall, Why We All Need to Worry About Revenge Porn, Elle, (Sept. 24, 2014), http://www.elle.com/life-love/sex-relationships/news/a15497/what-is-revenge-porn/.

[9] Janelle Griffith, Revenge Porn: Well-Known Celebrity Victims, nj.com, (Jan. 9, 2015 at 9:12AM),http://www.nj.com/entertainment/index.ssf/2015/01/celebrity_revenge_porn_victims.html; Keith Perry, Revenge Porn: Some of the Biggest Celebrity Victims, The Telegraph, (Sept. 30, 2014, 12:17 AM), http://www.telegraph.co.uk/news/celebritynews/11129357/Revenge-porn-some-of-the-biggest-celebrity-victims.html.

[10] Luis Martinez, US Navy Makes Distributing Nude Photos without Consent a Punishable Offense, ABC News (Apr. 20, 2017 at 12:59AM), http://abcnews.go.com/US/us-navy-makes-distributing-nude-photos-consent-punishable/story?id=46902843.

[11] Carrie Goldberg, Esquire, Founder of C.A. Goldberg PLLC, The Future of Sexual Privacy: 5 Ways to Combat Revenge Porn on College Campuses (Sept. 19, 2017).

[12] Alexa Tsoulis-Reay, A Brief History of Revenge Porn, New York Magazine (Jul. 21, 2013), http://nymag.com/news/features/sex/revenge-porn-2013-7/.

[13] Id.

[14] Id.

[15] Id.

[16] Cyber Civil Rights Initiative, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 19, 2017).

[17] See Marshall, supra note 8.

[18]  See Goldberg, supra note 11.

[19] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/team/carrie-goldberg/ (last visited Oct. 19, 2017).

[20] Id.

[21] See Goldberg, supra note 11.

[22] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/ (last visited Oct. 19, 2017).

[23] Id.

Image Source: http://www.vocativ.com/339362/federal-revenge-porn-bill/index.html.

Using GPS Devices to Help Enforce Protection Orders in Domestic Violence Cases: A Great Tool with a Few Kinks to Work Out

By: Nicole Allaband,

Domestic violence is a widespread epidemic in the United States. Each year, between 1.8 and 4 million domestic violence incidents are reported.[1] One in three women will experience some form of domestic violence in her lifetime.[2]

Protection from abuse orders are a common remedy the courts will use to prevent future violence and protect survivors of domestic violence.[3] These orders can be tailored to fit the circumstances but frequently include no contact provisions.[4] However, no contact provisions can be difficult to enforce because the abuser is usually intimately familiar with the routine of the survivor.[5]

Studies have shown that as many as one quarter to two thirds of protection orders are violated.[6] The time following a survivor’s decision to separate from his or her abuser is often a very dangerous period for the survivor because the abusers seek to reassert their dominance and deter the survivor from seeking help.[7] For various reasons, police do not always enforce protection orders or respond to reported violations. In the case of Castle Rock v. Gonzales, Supreme Court ruled that police cannot be sued for failing to enforce a protection order.[8] Abusers therefore feel emboldened to violate a protection order which they view as a mere piece of paper.[9]

Electronic monitoring can be very useful in enforcing protection orders, deterring abusers, and helping survivors get their lives back.[10] Electronic monitoring has been used for years to track convicted sex offenders deemed a high risk, and has reduced recidivism rates of sex offenders.[11] A study in Connecticut demonstrated that using global positioning satellite (GPS) devices can be similarly used to deter abusers from violating the protection orders.[12]

GPS devices worn by the abuser cannot prevent crime but the technology can be used to alert law enforcement, and the survivor, if the abuser enters an area deemed off-limits, giving the survivor a chance to escape.[13] The device can be programmed to include multiple exclusion zones, including the survivor’s residence and place of employment, as well as children’s school, family residences, and other areas the survivor frequents.[14] However, a study conducted in 2009 found that only one third of law enforcement agencies using electronic monitoring in domestic violence cases utilized the alert system for survivors.[15]

Since the early 2000s, many states have statutorily authorized the use of GPS devices to enforce protection orders.[16] Judges have the discretion to impose electronic monitoring in both the pre-trial and post-trial phases.[17] Imposition of electronic monitoring before a trial poses serious due process issues.

The Supreme Court has held that electronic monitoring is a search and seizure within the scope of the Fourth Amendment.[18] Therefore, a person is entitled to due process before being placed on electronic monitoring. The test developed in Mathews v. Eldridge controls – the court must balance the governmental interest against the individual interest and the potential for erroneous deprivation of a right.[19] In cases of domestic violence, the state interest is compelling – protection of domestic violence survivors.[20]

But the individual interest is also compelling – a right to be free in one’s person. A conviction of a domestic violence charge or a hearing at which the abuser has the opportunity to be heard before a permanent protection order is granted, satisfies the due process requirements. However, courts should follow strict guidelines before imposing electronic monitoring in the pre-trial phase or as a condition of a temporary emergency protection order.

Jacquelyn Campbell developed a dangerousness assessment that courts can use during the pre-trial phase to determine if electronic monitoring is warranted.[21] The danger assessment seeks to evaluate the risk for further abuse and the potential lethality of the abuse.[22] The assessment is a 20-question form focusing on risk factors like the severity and frequency of abuse, use or possession of weapons, whether substance abuse is involved (drugs or alcohol), jealousy, stalking, and threats.[23]

In addition to the constitutional due process issues, a more practical issue exists – who will pay for the GPS devices and the personnel to monitor the abuser? The costs of electronic monitoring vary but are approximately $10 per day per abuser.[24] Courts have the discretion to impose the costs on the abuser.[25] Again, this raises constitutional issues if the electronic monitoring is imposed during the pre-trial phase. Additionally, many of the abusers in domestic violence cases cannot afford to pay for the electronic monitoring. In these instances, some courts allow for the abuser to apply for a fee reduction or waiver.[26] Another potential avenue for funding is the Violence Against Women Act (VAWA) which mandates the federal government provide support in investigating and prosecuting domestic violence.[27]

Studies show that GPS devices have the potential to decrease violence against survivors and deter abusers from violating protection orders. However, courts must be cautious in utilizing the technology during the pre-trial phase. Due process concerns require that the court hold a hearing before ordering electronic surveillance. Jacquelyn Campbell’s dangerousness assessment questionnaire is a good tool for courts to use when evaluating domestic violence cases. States also need to seriously consider funding these programs, either through state funds or federal grants under VAWA, because many abusers cannot afford the costs of the electronic monitoring. While due process concerns and the cost of electronic monitoring must be carefully considered, courts should not be deterred from utilizing the technology because it has proven to be successful in enforcing protection orders and protecting survivors of domestic violence.

 

[1] See Suraji R. Wagage, When the Consequences Are Life and Death: Pretrial Detention for Domestic Violence Offenders, 7 Drexel L. Rev., 195, 201 (2015).

[2] See id.

[3] See Natalie Fox Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously, 43 U. Memphis L. Rev. 171, 180 (2012).

[4] See M. Alexandra Verdi, Strengthening Protections for Survivors of Domestic Violence: The Case of Washington, D.C., 64 Buffalo L. Rev. 907, 913 (2016).

[5] See Amanda Rhodes, Strengthening the Guard: The Use of GPS Surveillance to Enforce Domestic Violence Protection Orders, 2 Tenn. J. Race, Gender & Soc’y Just. 129, 132 (2013).

[6] See Jaime Kay Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 Wis. J.L. Gender & Soc’y 1, 8 (2013); see also Hannah Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 19 Wm. & Mary J. Women & L. 301, 318 (2013).

[7] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 175-76, 179; see also Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[8] See Castle Rock v. Gonzales, 545 U.S. 748 (2005).

[9] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[10] See Rhodes, Strengthening the Guard, 140; see also Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342; Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 184.

[11] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 182.

[12] See Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342.

[13] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 183-84; Oren M. Gur et al., Specialization and the Use of GPS for Domestic Violence by Pretrial Programs: Findings from a National Survey of U.S. Practitioners, 34 J. Tech. Human Services 32, 44-45 (2016).

[14] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 8.

[15] See Gur, Specialization and the Use of GPS for Domestic Violence by Pretrial Programs, 45.

[16] See id. at 34; see also Mass. Ann. Laws ch. 209A § 7 (LEXIS through Act 95 of the 2017 Legislative Session); Ind. Code Ann. § 35-33-8-11 (Burns, LEXIS through the end of the First Regular Session of the 120th General Assembly).

[17] See Shelley M. Santry, Can You Find Me Now? Amanda’s Bill: A Case Study in the Use of GPS in Tracking Pretrial Domestic Violence Offenders, 29 Quinnipiac L. Rev. 1101, 1110 (2011).

[18] See Grady v. North Carolina, 135 S. Ct. 1368 (2015).

[19] Mathews v. Eldridge, 424 U.S. 319 (1976).

[20] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 205.

[21] See Jacquelyn C. Campbell et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, J. Interpersonal Violence 653, 655 (2009).

[22] See id. at 654.

[23]See id. at 655.

[24] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 27.

[25] See Rhodes, Strengthening the Guard, 136.

[26] See id. at 136-37.

[27] Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 (discussing using federal funds under VAWA for state programs).

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Opening the Door: The Potential Impact of Gill v. Whitford on the Effect of Redistricting Technology

By: Mitch Torrence,

On October 3, the Supreme Court heard oral arguments in Gill v. Whitford, commonly known as the “Wisconsin Gerrymandering Case”. The Court in Gill will consider, amongst other things, a workable standard for analyzing the existence of a political gerrymander; such a standard they previously had found to be lacking in the Veith or LULAC cases.[1] Specifically, the Court will consider a three-pronged test by which courts can evaluate whether a state’s political maps have been gerrymandered.[2] Chief Justice Roberts’ and Justice Gorsuch’s criticisms of the standard notwithstanding, it is a workable standard which the Court ought to adopt.[3] Underneath the Court’s considerations in Gill lies the way in which technology has, or rather could affect redistricting efforts moving forward.

Depending on who you ask, technology is either the panacea in redistricting efforts with technology or it is a doomsday device which can be used to achieve whatever political end desired; the reality is more subdued.[4] The best districts are compact, contiguous, and contain roughly equal population; one need merely take a cursory glance at current state districts to understand that describing current districts in this way would be incredibly generous.[5] Redistricting technology truly ought to be viewed as being a tool to aid in redistricting efforts and combating vote dilution via gerrymandering. However, redistricting technology is not a silver bullet that can solve all problems. The technology still has major shortcomings; most notably that even if one were to advocate for completely outsourcing redistricting efforts to a fully automated method the technology simply cannot generate adequate maps at the necessary scale.[6]

There exist further issues with alternative methods of redistricting technology; Altman and McDonald rightly note with semi-automated methods of redistricting which would allow the user to input certain criteria there exists a political divide over what the proper criteria in map drawing ought to be.[7] More simply put, there is a partisan divide over how we ought to draw maps and what we should be attempting to do in map drawing. It also bears mentioning that these criteria may not be the province of the court but rather could be construed as non-justiciable political questions, so long as the criteria or stated goals would not be disenfranchising certain sects of voters via vote dilution. Even still, the Court may take the view that even if certain voters are having their votes diluted this may still be a non-justiciable political question, so long as those voters don’t belong to a protected class; this conversation is at the heart of Gill.[8] Beyond the issue of criteria in semi-automated methods of redistricting, there is the issue of dealing with legal intricacies such as the Voting Rights Act that may complicate the process and may prevent semi-automated or automated map drawing to fail. [9]

It also should be noted that redistricting technology really is not effective at accurately determining if there is in fact a gerrymander occurring. McDonald and Altman note that while this would be a noble pursuit, the technology detects gerrymanders where one may not exist simply based upon the criteria the technology may be looking for.[10] It may be that redistricting technology’s best use is in encouraging public participation in the redistricting process.

It previously was the case that map drawing technology was cost prohibitive undertaking.[11] However, with the introduction of open source programs such as District Builder this is no longer the case. In fact, by using a program like District Builder the public can directly participate in redistricting via map drawing.[12] By engaging the public in this way and raising the profile of redistricting and drawing redistricting efforts out of the shadows we may arrive at a place where political gerrymanders may be harder to attain, though this may be wholly idealistic; thought maybe not because of the rise in the use of programs such as District Builder.[13] However, the openness of the process and advances in the technology may provide a basis by which courts can effectively judge existing maps by the proposed three-pronged test.

The Court in Gill is considering a workable standard by which it may evaluate political gerrymanders. As a part of that standard challenged maps would be subject to tests on the intent, effect, and justification for a challenged map chosen by the legislature.[14] This standard would enable the courts to not only look at flaws in existing maps but compare them to maps that had also been generated as possible options while considering why those maps were rejected. It is here that the openness of the process enabled by redistricting technology may come into play. Redistricting technology has opened the door to the public to engage substantially in map drawing. Beyond that, the public has taken advantage of this opportunity. Should the Court adopt the e standard put forward by the Appellees in Gill, the public would be further empowered. Redistricting technology is not a silver bullet, nor should it be, but should the Court in Gill rule for the Appellees the impact these technologies may have will be unleashed, and for the better.

 

[1] See generally, Vieth v. Jubalier, 541 U.S. 267 (2004); LULAC v. Perry, 567 U.S. 966 (2012).

[2] Brief for Appellee at 9, Gill v. Whitford, 2017 U.S. S. Ct. Briefs LEXIS 3053 (2017) (No. 16-1161).

[3] Gill v. Whitford Oral Argument; OYEZ (October 3, 2017), https://www.oyez.org/cases/2017/16-1161, (Where Chief Justice Roberts refers to the Appellee’s standard as “sociological gobbledygook” and Justice Gorsuch compares the standard to his personal steak rub).

[4] Micah Altman & Michael McDonald, The Promise and Perils of Computers in Redistricting, 5 Duke J. Const. L. & Pub. Pol’Y 69 (2010).

[5] Aaron Sankin, The Tech Revolution that Could Fix America’s Broken Voting Districts, Daily Dot (Jan. 21, 2016), https://www.dailydot.com/layer8/redistricting-technology-obama-gerrymendering/.

[6] Altman & McDonald, supra note 4, at 80–88,

[7] Id. at 91.

[8] Brief for Appellees, supra note 2.

[9] Altman & McDonald supra note 4 at 91.

[10] Id. at 96.

[11] Id. at 78.

[12] United States Election Project, http://www.electproject.org/redistricting (Last visited Oct. 17, 2017).

[13] Micah Altman & Michael McDonald, Technology for Public Participation in Redistricting, Chap. 12, 247, 250, (2011),  http://openscholar.mit.edu/sites/default/files/dept/files/altman2012-technology_for_public_participation_in_redistricting.pdf.

[14] Brief for Appellees, supra note 2.

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