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Category: Blog Posts (Page 15 of 21)

Blog: Effects of Drones on Wildlife

 Deer-Hunting-with-Drones

By Josh Lepchitz, Associate Technical & Public Relations Editor

Unmanned Aerial Vehicles (UAV), better known as drones, have made a big splash into culture recently. John Oliver tackled the issue of drones being used for aerial attacks on enemy combatants, and the makers of South Park raised questions as to to privacy issues that surround drones for personal use as well as taking on a few other issues.[1] Drones, especially for the hobbyist sector, are becoming incredibly popular and widely available. Economic forecasters predict that over the next decade the drone industry will generate over $82,000,000,000.00 and create over 100,000 well paying jobs.[2] According to Mike Blades, a senior analyst for Frost & Sullivan specializing in aerospace and defense, over $720,000,000 was spent world wide in 2014 alone.[3] The driving force behind these numbers is not the military or government market but the everyday consumers.[4] Drones available for consumer purchase range in price from under $100 to several thousands of dollars. It should be plain to see that the drones on the lower end of the price spectrum do not have the range, capabilities, or durability of the more expensive UAVs, but technology and consumer demand are growing at an extremely rapid rate. An apt analogy would be to compare this budding technology and its market to that of cellular phones. It would not be unreasonable; in the near future to see extremely technologically advanced drones for a reasonable price, no different than the cell phone you currently have in your pocket at this moment. This issues that arise with controlling advanced recording, and streaming devices are plentiful, especially privacy concerns, but a growing concern is how will this technology effect wildlife?

Drones aren’t only capable of harassing human populations but they are also capable of tracking and harassing animal populations as well, and it has not gone unnoticed. As of today Colorado, and Montana have statutes, and regulatory laws that make the act of using of drones to aid in hunting a criminal offense, and Michigan, Wyoming, and Arizona are amongst some of the other states likely to join them in the near future.[5] There is a push on a national scale, but for the majority of states no laws are on the books other than the standard FAA regulations.[6] Even the rules promulgated by the FAA are minimal at this point. Under the FAA there are two categories of drone flights, commercial and non-commercial[7]. Under the FAA commercial flights are banned but a Federal Court in Parker v. Huerta could overturn that.[8] When it comes to non-commercial flying of drones the only regulations made by the FAA are that the pilot must stay away from flight-controlled airspace such as airports, stay under 400 feet, stay within the line of sight of the operator, and stay away from crowds.[9] This leaves a lot of wiggle room for a “sportsman” to track, or flush out large game making it easier to bag his trophy. It also makes hunting much easier for poachers, unlicensed hunters, and out of season hunters. Being able to quickly find a trophy animal, get to the location of the animal, make their kill, and extract their trophy before proper authorities can prevent the illegal activity. Now it is unfair to think that all hunting enthusiast would take advantage of such a situation but it is reasonable to think that some would.

While some states have been taking the option of banning drones for the aid of hunting other countries, and even some state conservation agencies have taken a separate approach and began to utilize drones in their operations. Alaskan conservationist have been using drones to track and count endangered species such a as polar bears, as well as using the technology to keep a watchful eye on the the various species.[10] Similar programs have sprung up in African nations to protect species and prevent poaching.[11] Drones also provide a way for biologist and ecologist to observe the animals from a safer, less intrusive distance and aid in the expansion of their knowledge base.

It seems that no matter how they are being used, either for noble or illicit reasons, drones are going to be a growing part of our culture and seem to be infiltrating in so many facets of life ranging from agriculture to spectator sports. Just like cell phones, it is likely that they will become such a fixture in everyday life that a federal regulatory agency, maybe the FAA, will have to take a firm step forward and establish some governance on how drones are used. Until then it seems as if states are in control of the issue and only a select few seem to be addressing the full spectrum of issues that can arise from drones and their usage.

[1] Last Week Tonight with John Oliver (HBO television broadcast Sept. 28, 2014) available at https://www.youtube.com/watch?v=K4NRJoCNHIs, South Park: The Magic Bush (Comedy Central television broadcast Oct. 29, 2014) available at http://southpark.cc.com/full-episodes/s18e05-the-magic-bush.

[2] Clay Dillow, What is the drone industry really worth?, Fortune (March 12, 2013, 6:09 PM) http://fortune.com/2013/03/12/what-is-the-drone-industry-really-worth/.

[3] Barbara Booth, Is it time to buy your kid a drone for Christomas?, CNBC (Dec. 22, 2014, 9:27 AM), http://www.cnbc.com/id/102280825.

[4] Clay Dillow, Get ready for ‘Drone Nation’, Fortune (Oct. 8, 2014, 3:58 PM) http://fortune.com/2014/10/08/drone-nation-air-droid/.

[5] Michael R. Shea, The Drone Report: Do Unmanned Aerial Systems Hae a Place in Hunting and Fishing?, Field and Stream http://www.fieldandstream.com/articles/hunting/2014/03/drone-report-do-unmanned-aerial-systems-have-place-hunting-and-fishing, Kathleen Gray, Bills making using drones to hunt a crime, Detroit Free Press (March 25, 2014, 7:17 PM) http://www.freep.com/story/news/politics/2015/03/25/house-passes-bill-make-hunting-harrassing-hunters-drone-crime/70441434/.

[6] Id

[7] Unmanned Aircraft Systems (UAS) Operational Approval, Notice N8900.227, U.S. Department of Transportation, Federal Aviation Administration, July 30, 2013, available at http://www.faa.gov/documentLibrary/media/Notice/N_8900.227.pdf

[8] Kevin Robillard, Judge strikes down small drones ban, Politco Pro (March 6, 2014) http://www.politico.com/story/2014/03/faa-small-drones-ban-104393.html.

[9] Supra note 7.

[10] Crispin Andrews, Drone-Powered Wildlife Conservation is Taking Off in Alaska, Earth Touch News Network (June 18, 2014) http://www.earthtouchnews.com/conservation/conservation/drone-powered-wildlife-conservation-is-taking-off-in-alaska.

[11] Piyush Jain, Drones Keep Wildlife Alive with Air Shepard Program, Clapway (March 25, 2015) http://clapway.com/2015/03/25/drones-keep-wildlife-alive-123/.

 

http://alterthecourse.com/wp-content/uploads/2012/11/Deer-Hunting-with-Drones.png – photograph source.

Blog: Uber: Who Owns Whom?

By: Jillian Smaniotto, Associate Manuscripts Editor

On Wednesday, March 11, U.S. district court judges in California denied motions for summary judgment in two separate cases involving Uber and Lyft that could mean massive changes in the rapidly developing on-demand services market.[1]  Both cases will go to jury trial.[2]

Both Uber and Lyft are the subjects of suits brought by drivers seeking classification as employees, claiming they have been misclassified as independent contractors.[3]  The classification of these drivers as employees could lead to massive changes to the existing Uber and Lyft schemes, as the companies could then be held responsible for reimbursing drivers for costs incurred incidental to providing rides arranged via the Uber and Lyft services.[4]

These suits come at an interesting time as labor disputes between drivers and rideshare companies have been on the rise of late.  Recently, Uber came under fire in January for claiming to pay its drivers in New York city roughly twenty-five dollars per hour, while reports showed that estimate to be inaccurate, with the figure typically closer to nineteen dollars per hour.[5]  As a result, drivers have begun to move away from working exclusively for one service or the other, choosing instead to combine apps in order to take advantage of the differences.[6]  For example, drivers take advantage of Uber’s surge system—whereby fares rise based on demand—by using Lyft and turning off the Uber app during slow periods, and switching to Uber during surge periods.[7]  Some feel this is the best way to combat the expense of driving for one of these services, as drivers are responsible for gas, insurance, maintenance, and sometimes the purchase of a new-enough vehicle—all necessary expenses for Uber and Lyft drivers.[8]

In the cases brought against Uber and Lyft in the Northern District of California, juries will decide whether drivers have been correctly characterized as independent contractors.[9]  Drivers for both Uber and Lyft, seeking class-action status, argue that they are subject to the control of their respective services, as their fares are set and they are subject to termination for failure to follow certain rules.[10]  Uber and Lyft argue that their drivers are better classified as independent contractors because drivers have the flexibility to set their own schedules and choose their passengers.[11]

The ultimate outcomes in these cases may have far-reaching impacts on ridesharing services, as well as on other on-demand service companies and tech startups.[12]  Classification of Uber drivers—or perhaps on-demand grocery shoppers or housemaids—as employees would ultimately mean that these services would be required to pay for employee benefits and pay into state unemployment programs, clearly increasing overhead costs.[13]  Such changes could stifle the burgeoning startup on-demand service market, especially as the more traditional service sector has begun adopting similar customer-friendly policies.[14]

It is fitting that the District Court judges ruled that this issue is not one appropriate for summary judgment as it is clear that a reasonable jury may reasonably decide either way.  The platforms supporting these services are still evolving, and the regulation has yet to catch up; instead, juries will be “handed a square peg and [be] asked to choose between two round holes.”[15]

 

[1] See Ellen Huet, Juries to Decide Landmark Cases Against Uber and Lyft, Forbes (Mar. 11, 2015, 8:21 PM), http://www.forbes.com/sites/ellenhuet/2015/03/11/lyft-uber-employee-jury-trial-ruling/.

[2] See id.

 [3] See Katy Steinmetz, Uber, Lyft Lawsuits Could Spell Trouble for the On-Demand Economy, Time (Mar. 12, 2015, 2:11 PM), http://time.com/3742608/uber-lyft-lawsuits/.

 [4] See Huet, supra note 1; Steinmetz, supra note 3.

 [5] See Brian Fung, Why Drivers are Winning the Labor War Between Uber and Lyft, Wash. Post (Mar. 3, 2015), http://www.washingtonpost.com/blogs/the-switch/wp/2015/03/03/why-drivers-are-winning-the-labor-war-between-uber-and-lyft/.

[6] See id.

[7] See id.

[8] See id.

[9] See Steinmetz, supra note 3.

[10] See Huet, supra note 1; see also Ellen Huet, How Uber’s Shady Firing Policy Could Backfire on the Company, Forbes (Oct. 30, 2014, 10:00 AM), http://www.forbes.com/sites/ellenhuet/2014/10/30/uber-driver-firing-policy/ (describing how Uber drivers may be “deactivated” under no clear policy and with little to no warning).

Uber_ride_Bogota_(10277864666)[11] See Huet, supra note 1.

[12] See Bob Egelko, Court: Juries to Decide if Uber, Lyft Drivers Are Employees, SFGate (Mar. 11, 2015, 6:42 PM), http://www.sfgate.com/bayarea/article/Juries-to-decide-whether-Uber-Lyft-drivers-are-6128899.php.

[13] See id.; Huet, supra note 1.

[14] See, e.g., Taylor Soper, Taxi Companies Adopt New Apps to Keep Up with Uber, Lyft in Seattle, GeekWire (Mar. 9, 2015, 3:40 PM), http://www.geekwire.com/2015/taxi-companies-adopt-new-apps-to-keep-up-with-uber-lyft-in-seattle/.

[15] Tim Fernholz, Uber and Lyft Drivers Want To Be Paid Like Employees, Not Contractors. But What if They Are Neither?, Quartz (Mar. 12, 2015), http://qz.com/361293/uber-and-lyft-drivers-want-to-be-paid-like-employees-not-contractors-but-what-if-they-are-neither/.

 

Blog: The Likely Impacts of Patenting a Clean Energy Economy

By: Andrew Landrum, Associate Technical & Public Relations Editor

The clean energy industry has soared to new heights in recent years.  Clean energy investment and development have continued to surge despite oil price fluctuations[1], and the Energy Industry Association predicts clean energy production capacity will increase by sixty percent between now and 2016.[2]  New data shows that, concomitant to this expansion, clean energy patents have reached an industry high.[3]  “Everyone is scrambling to stake out their territory and nobody knows how valuable the technology will be,” says C. Erik Hawes of Morgan Lewis & Bockius.  “Those factors . . . have . . . [created] a gold rush on renewable patents[.]”[4]  The skyrocketing rate of new clean energy patents will likely produce mixed results for market participants.

Patents serve a valuable role in development.  They introduce new innovations to the public by requiring the dissemination of technical knowledge in exchange for exclusive rights over the technology.[5]  Small businesses then have access to the patent’s information, which drastically reduces industry learning curves and encourages building upon successful ideas.[6]  The Coalition for Innovation Development & Employment Alliance (IDEA) is a pro-business group launched by the United States Chamber of Commerce, which fights hard for powerful protections to the United States’ patent system.  The patent system, IDEA says, is vital to a growing cleantech industry, which will result in the creation of millions of American jobs.[7]

However, the increase in clean energy patents may also burden companies with increased costs in litigation.  Clean energy companies used to be able to avoid costly patent infringement battles.[8]  But, with the increase in clean energy revenues, that may soon change.[9]  Patent infringement suits are notoriously costly and recent clean energy cases have resulted in up to $170 million in damages.[10]  Surveys show average infringement litigation costs generally run parties over $5 million, and generally last for two to four years.[11]  The actual impact on cleantech patent litigation will be decided once the margin of growth stabilizes and the true value of clean energy is realized.[12]

But, the market is still growing and there are few big players in the renewable market. Once the market is established, however, the patent cases will follow.  According to Ropes & Gray partner, William McCabe, “[o]nce [the companies] build the market, they will become targets of the smaller players and nonpracticing entities who would not find economic value in an injunction.”  Solar and wind companies, in particular, will see an increase in patent infringement claims.[13]  “Wind and photovoltaic solar are very complex technologies that require large capital investments[,]” says McCabe.  “Those manufactures tend to be very large, sophisticated companies who tend to protect their IP rights and who don’t seem timid about protecting them via enforcement.”[14]

This is good news for attorneys as small and medium-sized clean energy companies will have to innovate and work hard to protect their product.  These companies have an interest in creating strong, diverse energy patent portfolios, and will begin to take offensive measures to protect competitive technologies.[15]  Building a patent portfolio may seem daunting, but the companies that get it done will be “be prepared for battle and will reap the rewards.”[16]

Ultimately, it is an exciting time to be involved in the clean energy market.  The renewable patent explosion will continue for the foreseeable future.  Federal and state support will continue to fund research and development, and the potential for green revenue is still uncertain.  Patent attorneys should see this as a gold rush opportunity and work hard to protect the property of these clean energy startups.  Once the patent system starts working for the cleantech companies, America’s “all-of-the-above” energy approach becomes that much more more accessible.

Alternative_Energies

[1] Louise Downing, Clean Energy Investment Jumps 16% Shaking Off Oil’s Drop, Bloomberg (Jan. 9, 2015, 4:00 AM), available at http://www.bloomberg.com/news/articles/2015-01-09/clean-energy-investment-jumps-16-on-china-s-support-for-solar.

[2] U.S. Energy Information Administration, Short-Term Energy Outlook (2015), pp. 10-11, available at http://www.eia.gov/forecasts/steo/report/renew_co2.cfm (noting capacity increases by more than 60%).

[3] Clean Energy Patent Growth Index 2013 Year in Review, Cleantech Group (Apr. 23, 2014), http://www.cepgi.com/2014/04/clean-energy-patent-growth-index-2012-year-in-review.html#more.

[4] Keith Goldberg, Clean Energy Patent Boom Sets Stage for IP Wars, Law360 (Oct. 30, 2013, 6:09 PM), http://www.law360.com/articles/484594/clean-energy-patent-boom-sets-stage-for-ip-wars.

[5] Jeanne C. Fromer, Patent Disclosure, 94 Iowa L. Rev. 540, 548-50 (2009).

[6] Margaret McInerney, Note, Tacit Knowledge Transfer with Patent Law: Exploring Clean Technology Transfers, 21 Fordham Intell. Prop. Media & Ent. L.J. 449, 462 (2011).

[7] Eric Raciti, Is IP Standing in the Way of a Green Planet?, Renewable Energy World (Nov. 5, 2010), http://www.renewableenergyworld.com/rea/news/article/2010/11/is-ip-standing-in-the-way-of-a-green-planet.

[8] Goldberg, supra n. 3.

[9] Teague Donahey, Expect Patent Disputes to Accelerate as Clean Energy Expands, Green Tech Media (Oct. 6, 2014), http://www.greentechmedia.com/articles/read/patent-activity-in-clean-energy-picks-up.

[10] Jess Davis, Mitsubishi Can’t Knock Out $170M Wind Patent Judgment, Law360 (May 29, 2013, 2:00 PM), http://www.law360.com/articles/445617.

[11] Donahey, supra n. 10.

[12]Goldberg, supra n. 3.

[13] Id.

[14] Id.

[15] Donahey, supra n. 10.

[16] Teague Donahey, From Enphase to Wanxiang, How Cleantech Companies are Building Patent Portfolios, Green Tech Media (Doc. 17, 2014), http://www.greentechmedia.com/articles/read/as-patent-disputes-accelerate-clean-energy-firms-look-to-bolster-portfolios.

Blog: Third Time’s a Charm: Serial’s Adnan Syed is Granted an Appeal

By: Brooke Kargman, Associate Staff

Media has the transformative ability to turn anonymous pursuits into vastly supported missions.  For Adnan Syed, Serial podcast has played the part of a catalyst in bringing his questionable conviction to the attention of the Maryland Court of Special Appeals.[1]

Debuting in October 2014, Serial began sharing the story of Adnan Syed, who was convicted for the 1999 murder of his ex-girlfriend, Hae Min Lee, and is currently serving a life sentence plus thirty years.[2]  The twelve episodes pieced together the minutiae of the case exposing the unnerving partiality and inconsistencies within the investigation and the trial.  Each episode has been downloaded approximately 3.4 million times making Serial the most downloaded podcast in history.[3]

No eyewitnesses and not a single piece of physical evidence tied Syed to the murder.[4]  It was the prosecutor’s lead witness, Jay Wilds, who testified to helping him bury the body, that ultimately lead to Syed’s conviction.[5]  Wilds has changed his story numerous times and even conceded that he had lied on the stand.[6]  A former classmate who has provided an alibi for Syed, at the time prosecutors claim he was committing the murder, was never asked to testify during trial.[7]  Additionally, Syed’s counsel never sought a plea deal from the prosecutor.[8]

Over the span of twelve years, Syed has attempted to appeal his conviction three times claiming ineffective assistance of counsel and an unfair trial.[9]  Two months after the final episode aired, the Maryland Court of Special Appeals has granted Syed an appeal.[10]  As evidence of the media’s vast captive audience, news of the appeal became a trending topic on Facebook.[11]

There are many incarcerated persons who maintain their innocence and whose cases remain unknown and unpublicized.  You could say Adnan Syed is lucky that a radio producer zealously investigated his case and that his case was chosen as the story for Serial’s first season.[12]  It is concerning to think, though, that had Serial not broadcasted his story, he may never have been given the chance to appeal his conviction.serial-social-logo

 

[1] Serial, http://serialpodcast.org (last visited Feb. 24, 2015).

[2] See id.; Abby Phillip, Md. Court Allows Adnan Syed to Proceed With Appeal in ‘Serial’ Case, The Washington Post (Feb. 7, 2015), http://www.washingtonpost.com/news/post-nation/wp/2015/02/07/md-court-will-allow-adnan-syed-to-appeal-his-conviction-in-serial-case/.

[3] Justin George, State: ‘Serial’ Murder Case Should Not Be Reopened, The Baltimore Sun (Jan. 14, 2015), http://touch.baltimoresun.com/#section/-1/article/p2p-82536091/.

[4] Id.

[5] Phillip, supra note 2; George, supra note 3.

[6] Catie Talarski, Rabia Chaudry: “Serial” Had Impact On Adnan Syed’s Appeal, WNPR (Feb. 10, 2015), http://wnpr.org/post/rabia-chaudry-serial-had-impact-adnan-syeds-appeal.

[7] See Phillip, supra note 2 (“Asia McClain,… who attended Woodlawn High School… with Syed, claims in letters that she wrote him in 1999 while he was in jail, and in a new affidavit filed in January, that she remembered speaking to Syed at the public library next to their school at the time…”); Jessica Glenza, Serial: Maryland Special Appeals Court Grants Rare Hearing to Adnan Syed, The Guardian (Feb 7, 2015, 1:39 PM), http://www.theguardian.com/us-news/2015/feb/07/serial-podcast-court-grants-adnan-syed-rare-hearing.

[8] George, supra note 3 (“Syed said that he asked Gutierrez to see what prosecutors would offer as a plea deal, and that she told him there was none when she had never asked prosecutors about it. A prosecutor testified… that Gutierrez never approached him about a plea deal.”).

[9] See Talarski, supra note 6; George, supra note 3.

[10] See Talarski, supra note 6.

[11] George, supra note 3.

[12] Serial, http://serialpodcast.org (last visited Feb. 24, 2015) (“Sarah Koenig, who hosts Serial… she’s been sorting through box after box (after box) of legal documents and investigators’ notes, listening to trial testimony and police interrogations, and talking to everyone she can find who remembers what happened between Adnan Syed and Hae Min Lee… In Season One of Serial, she looks for answers.”).

Blog: Facebook Data Security – Is Your Private Data at Risk on Social Media?

privacy-policy-445153_640By: John Danyluk, Associate Notes & Comments Editor

It is uncertain exactly how much information Facebook has about its users.  The social media giant not only has all of the content uploaded by its 1.35 billion users, it has the information that could be obtained from the staggering 100 billion friendships among those users.  So just how secure is this massive amount of private data, and what would the legal consequences be if a breach occurred?

Facebook suffered one such breach in June 2013.[1]  Although the impact of this particular breach turned out to be relatively minor, it signaled a larger problem for protecting personal data on the internet.  The glitch that occurred in 2013 exposed email addresses and personal phone numbers for contacts even if that data was not visible on Facebook itself.[2]  Although Facebook corrected the problem within twenty-four hours, over six million users had their sensitive personal data exposed.[3]  For these six million individuals, their reasonable expectation of privacy was infringed upon when sensitive details that were not shared on their public profile were not protected.[4]

A data breach not only puts Facebook at significant risk of a public relations nightmare, but it also may result in regulatory investigations from the FTC and civil liability to its users for negligence.[5]  But Facebook would not be left without recourse, as it could institute civil actions under the Computer Fraud and Abuse Act and the Stored Communications Act (among other laws) against the perpetrators.[6]  Additionally, the federal government would likely step in to enforce the criminal provisions of these acts as well.[7]

How can companies like Facebook, who are trusted with sensitive data, prevent data exposure in the future?  In sum, these companies must have “strong security configuration management all the way from the servers through the applications and the user permissions assigned to the data.”[8]  Users of these websites can help themselves as well, by minimizing the number of companies and apps that have access to their personal data.[9]  By taking the time to understand privacy controls and removing apps that the user no longer uses, the threat of one’s privacy being invaded through a data breach can be curtailed.

 

[1] Tony Bradley, Facebook Breach Highlights Data Security’s “Weakest Link” Syndrome, PCWorld, available at http://www.pcworld.com/article/2043042/facebook-breach-highlights-data-securitys-weakest-link-syndrome.html.

[2] Id.

[3] Id.

[4] Id.

[5] Evan Brown, Six Interesting Technology Issues Raised in the Facebook IPO, Internetcases, available at http://blog.internetcases.com/2012/02/01/6-interesting-technology-law-issues-raised-in-the-facebook-ipo/.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

Blog: The New Four Walls of the Workplace

social-media-488886_640By: Micala MacRae, Associate Notes and Comments Editor

The Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.[1]  The rise in social media has created a new medium through which workplace harassment occurs.  Courts are just beginning to confront the issue of when social media harassment may be considered as part of the totality of the circumstances of a Title VII hostile work environment claim.  Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.  However, the changing nature of the workplace has continued to expand with the rise of new technology, which allows employees to stay connected to the work environment at different locations outside the physical boundaries of the office.  Harassment has moved beyond the physical walls of the workplace to the virtual workplace.  The broadening conception of the workplace and increasing use of social media in professional settings has expanded the potential employer liability under Title VII.

Social media has become a powerful communication tool that has fundamentally shifted the way people communicate.  Employers and employees increasingly utilize social media and social networking sites.[2]  While companies have turned to social media as a way to increase their business presence and reduce internal communication costs, there has been the consequence of increased social media harassment.  Although social media and social networking sites are not new forms of communication, their legal implications are just now coming into focus.[3]  Several cases have addressed hostile work environment claims stemming from other forms of electronic communication, there are few addressing claims based on social media communications.[4]

The New Jersey Supreme Court, in Blakey v. Continental Airlines, Inc., was one of the first courts to consider whether an employer is responsible for preventing employee harassment over social media.[5]  In Blakey, an airline employee filed a hostile work environment claim arising from allegedly defamatory statements published by co-workers on her employer’s electronic bulletin board.[6]  The electronic bulletin board was not maintained by the employer, but was accessible to all Continental pilots and crew members.[7]  Employees were also required to access the Forum to learn their flight schedules and assignments.[8]

The court analyzed the case under a traditional hostile work environment framework, concluding that the electronic bulletin board was no different from other social settings in which co-workers might interact.[9]  Although the electronic bulletin board was not part of the physical workplace, the employer had a duty to correct harassment occurring there if the employer obtained a sufficient benefit from the electronic forum as to make it part of the workplace.[10]  The court made clear that an employer does not have an affirmative duty to monitor the forum, but that liability may still attach if the company had direct or constructive knowledge of the content posted there.[11]  The court limited consideration of social media harassment to situations where the employer derived a benefit from the forum and it could therefore be considered part of the employee’s work environment.[12]

Workplace harassment is not longer limited to the traditional four walls of the workplace.  As technology and the boundaries of the workplace have changed, courts have struggled to modernize their framework for assessing hostile work environment claims under Title VII.  These problems will only become exacerbated as society continues to embrace social media throughout our daily lives and employers continue to integrate social media into their business practices.

 

[1] See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (finding that workplace harassment based on individual’s race, color, religion, sex, or national origin is actionable under Title VII of the Civil Rights Act).

[2] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[3] See, e.g., Kendall K. Hayden, The Proof Is in the Posting: How Social Media Is Changing the Law, 73 Tex. B.J. 188 (2010).

[4] Id.

[5] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[6] Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).

[7] Id. at 544.

[8] Id.

[9] Id. at 549.

[10] Blakey, 751 A.2d at 551.

[11] Id.

[12] Id.

Blog: The New Meaning of Back Seat Driving

2014-03-04_Geneva_Motor_Show_1186By: Peyton Stroud, Associate Notes and Comments Editor

Are we there yet?  The common adage of road trips has a whole new meaning with the advent of driverless cars.  Imagine a world where the front seat driver can face the backseat passengers, with the car driving itself down the highway.  As of this past January, this dream is becoming a reality.  Automotive giants such as BMW, Audi, and Mercedes-Benz unveiled prototypes of self-driving technologies in the recent 2015 Consumer Electronics Show (CES).[1]  These new vehicle models function autonomously while allowing its passengers to sit back and relax.  Industry experts expect these driverless vehicles to be on the road between 2017 and 2020.[2]

Many current models of cars are already featuring some self-driving technologies including automatic braking systems, adjustable cruise controls, and 360° cameras capable of stopping collisions while at low speeds.[3]  However, this year’s CESs brought more to the table than ever before.  During this year’s CES, Audi unveiled its self-driving car, nicknamed “Jack,” using its system known as the company’s Piloted Driving system.[4]  “Jack” drove an astounding 560 miles to the CES, more than any driverless car has driven before.  Its state of the art system incorporates a series of sensors and laser scanners allowing the car to drive itself in speeds of up to 70 mph.[5]  The Piloted Driving system is intended to be used for highway driving and does not work as well in urban environments, where drivers need to be at the wheel.[6]  Similarly, Mercedes-Benz introduced its driverless model called the Mercedes-Benz F105 Luxury in Motion.[7]  Its new features include a self-driving technology and a zero carbon emissions system, but most notably a new interior design.[8]  The new design allows for the vehicle’s front seats to swing around and face backwards while the vehicle drives its passengers on the highway.[9]

Other technology developers are joining forces with car manufactures to help advance this technology.[10] Nvidia, a large computer chip manufacturer, has introduced the Tegra X1 chip equipping vehicles with deep neural learning, which allows for recognition of pedestrians, cyclists, and other vehicles. More technological innovations on the horizon include systems setting a predetermined route, more adjustable cruise controls, and self-parking technologies.[11]

Legally, self-driving smart cars could pose some significant problems in both the regulatory and data privacy realm.[12]  In a regulatory sense, there are currently no transportation laws regarding self-driving cars.[13]  Furthermore, others remain weary of the “data collection” required by the cars. [14]  However, the most profound legal implication could be liability ridden – Who is responsible when something goes wrong?  More specifically, who is liable if a self-driving cars hits and kills someone?  Who is responsible for the parking ticket when the car did not recognize a no parking sign?[15]  Only four states and the District of Columbia have addressed laws regarding self-driving vehicles.[16]  Some of these states have passed laws allowing manufacturers solely for testing purposes.[17]  In an effort to predict the legal implications of these new cars, lawyers look to current liability laws for guidance.[18]  For example, in cases of parking tickets, the owners of the car will be liable.[19]  In cases of injury, product’s liability law will most likely govern cases of injury thereby allowing the victim to sue both the owner of the car and also the car’s manufacturer.  According to Professor John Villasenor, “product liability law, which holds manufacturers responsible for faulty products, tends to adapt well to new technologies.”[20]  Furthermore, Sebastian Thrun, inventor of driverless cars, opines that these driverless cars could help in reconstructing accidents and making assignment of blame more clear-cut.[21]  In his view, the trial lawyers are the ones in trouble.[22]

However, criminal penalties pose a more significant problem than civil penalties.[23]  Since criminal law centers around the intent of the perpetrator, it will be difficult to figure out how to adapt these laws to technology because robots cannot be charged with a crime.[24]  Further, “the fear of robots” and of a machine malfunctioning raise concerns for the American public.[25]  However, it seems as if Americans are willing to take the risk.  According to the Pew Research Center, nearly half of Americans would ride in a driver-less car.[26]  Time will tell if these self-driving cars will endure public scrutiny.

 

[1] See Steve Brachmann, Self-driving Cars and Other Automotive Technologies Take Center Stage at CES, IPWatchdog.com (Jan. 11, 2015), http://www.ipwatchdog.com/2015/01/11/self-driving-cars-center-stage-at-ces/id=53480/.

[2] Bill Howard, Self-driving Cars Are More Than A Promise, Extreme Tech (Jan. 12, 2015, 11:45 AM), http://www.extremetech.com/extreme/197262-its-2015-self-driving-cars-are-more-than-a-promise.

[3] Brachmann, supra note 1.

[4] Id.

[5] Brachmann, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See Howard, supra note 3.

[11] See id.

[12] See id.

[13] See id.

[14] Id.

[15] See Claire Cann Miller, When Driverless Cars Break the Law, N.Y. Times (May 13, 2014), available at http://www.nytimes.com/2014/05/14/upshot/when-driverless-cars-break-the-law.html?_r=0&abt=0002&abg=0.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Miller, supra note 11 (quoting John Villasensor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings (Apr. 2014), available at http://www.brookings.edu/~/media/research/files/papers/2014/04/products%20liability%20driverless%20cars%20villasenor/products_liability_and_driverless_cars.pdf).

[21] See Miller, supra note 11.

[22] See id.

[23] Id.

[24] See id.

[25] Miller, supra note 11.

[26] See id.

Blog: How Technology is Helping Catch Child Sex Traffickers

traffickingBy: Bradford Schulz, Associate Staff

Drugs.  Guns.  Trafficking.  Human trafficking is the third-largest criminal enterprise in the world.[1]  Specifically, sex trafficking is the fastest-growing enterprise in the world.[2]  It is estimated that 60% of all human trafficking victims were trafficked for sexual purposes, and the FBI has reported that cases of sex trafficking involving children are increasing.[3]  In fact, it is estimated by the State Department that a third of teens, 150,000 annually, who run away from home are trafficked within 48 hours.[4]  “Lisa” (fictional name for J.S. in State v. Hopson) was one of these children who ran away from home and got caught up in sex trafficking.[5]

In March 2010, a 15-year old Lisa left home so that she could “find herself.”  In an effort to make enough money to drive to California, Lisa prostituted herself out for Mr. Hopson.[6]  Hopson taught Lisa how to handle payments, how to check if a customer was a police officer, and how to avoid identification.[7]  In addition, Hopson posted daily advertisements on “backpage.com” which often showed Lisa posing on pool tables.[8]  Backpage.com has developed a nationwide online reputation as a sex prostitution marketplace.[9]

In September 2010, a 13-year old “Briana” (fictional name for S.L.) ran away from home and was picked up by traffickers.[10]  The sex traffickers dressed Briana in lingerie, took photos of her, and posted her advertisements on backpage.com.  It is a similar story for “Tasha” (fictional name for L.C.) who also had photographs of her taken while wearing skimpy clothing, and was featured in online advertisements.[11]  All girls were prostituted and raped via online advertisement brokering.

Backpage.com is an online marketplace (i.e. Craigslist), that also includes “escort” sections that solicit advertising of escort services.  The website is organized by geographic locations to help filter searchers to nearby services.  It is argued that backpage.com uses the term “escort” in order to provide listings of prostitution and sex trafficking sale advertisements with some deniability.[12]  Backpage.com provides posting rules and lists content requirements that prohibit the use of profanity, graphic images, or the collaboration of illegal services and trafficking.  However, a trial court noted that almost every advertisement post in the “escort” section violates backpage.com’s posting and content rules.[13]  In an effort to minimize child sex trafficking, the three victims are attempting to shut down backpage.com because it hosted their pimps’ escort solicitation.

Backpage.com argues that its website is protected by free speech and § 230 of the Communications Decency Act.[14]  The CDA was written to protect internet sites, such as Google, Wikipedia, Twitter, Youtube, and Craigslist, from liability of content posted by third parties.  The statute states that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.”[15]  So the question is, does CDA § 230 immunize websites from liability for third-party content even though “the unlawful nature of information provided is not enough to make it the [website’s] own speech.”[16]  Backpage.com is more than allowing third-party flagrant free speech on its website; it is arguably facilitating the pimping of under age children.  The real question is not whether Backpage.com is protected by free speech but whether their actions go beyond speech.  This issue is up for consideration by the Supreme Court of Washington State.[17]

In addition to litigation, groups focused on stopping child sex trafficking have established the Human Exploitation Rescue Operative (HERO) Child-Rescue Corps.  HERO is a program developed by the U.S. Immigration and Customs Enforcement (ICE) to provide wounded special operations forces training in computer forensics and law enforcement.[18]  The goal of HERO is to incorporate special op wounded soldiers into the law enforcement effort to stop online child sex trafficking by supplementing their skill set with computer forensic training (“image and process digital media,… assisting investigators in identifying “high-value targets and locate child victims”).[19]  By utilizing their military training, coupled with advanced computer forensics, ICE hopes that the HERO operatives will be able to help track down victims and help prosecute child sex traffickers.

Technology in various forms is at the forefront of the child sex trafficking issue.
Just as technology and online websites streamline “escort” business, so too will technology help facilitate the prosecution of child sex traffickers.

 

[1] The UN Refuge Agency, Conference puts focus on Human Trafficking, fastest Growing Criminal Industry, (Oct. 11, 2010), http://www.unhcr.org/4cb315c96.html.

[2] FBI Law Enforcement Bulletin: Human Sex Trafficking, Mar. 2011, http://www.fbi.gov/statsservices/publications/law-enforcementbulletin/march_2011/human sex trafficking.

[3] United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons at 35 (2012); Traff1ckinR in Persons Report, 2013 U.S. Dep’t of State Ann. Rep. 382-83.

[4] Online and Anonyrnous: New Challenges to Prosecuting Sex Trafficking (NPR radio broadcast Aug. 3, 2013), (available at http://npr.org/templates/transcript/transcript.php?storyld=208664066 (“Online and Anonymous”)).

[5] State v. Hopson, 170 Wash. App. 1012 (2012).

[6] Id.

[7] Id

[8] Id.

[9] Id.

[10] Brief of Respondents, Village Voice Media Holdings, L.L.C. and Backpage.com v. J.S., S.L., and L.C., No. 90510-0, Supreme Court of the State of Washington.

[11] Id.

[12] Id.

[13] Verbatim Report of Proceedings, 49: 14- 50: 12.

[14] 47 U.S.C. § 230.

[15] 47 U.S.C. § 230(c)(1).

[16] Universal Commc ‘n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007).

[17] Brief of Petitioners, Village Voice Media Holdings, L.L.C. and Backpage.com v. J.S., S.L., and L.C., No. 90510-0, Supreme Court of the State of Washington.

[18] U.S. Immigration and Customs Enforcement, HERO Child-Rescue Corps Program, http://www.ice.gov/hero.

[19] Id.

Blog: Is it a Bird? A Plane? No, it's a Drone

By: Arianna White, Associate Staff

As a child, I spent many afternoons with my father and his two helicopter-enthusiast brothers.  We would go to the park and launch remote controlled helicopters and rockets in to the sky.  We flew the large, complex kind of helicopters that could drop packages from great heights and do flips while in the air.  Although craft helicopters are less in vogue today than they were twenty years ago, other small-scale flying devices have recently returned to popular consciousness.  I’m talking, of course, about drones.

When thinking about drones, many people imagine their military application.  Otherwise known as predator drones and Unmanned Combat Aerial Vehicle (UCAV), these machines are used to perform precise strikes of enemy targets.[1]  The use of these drones relies on information gathered by intelligence agencies to identify targets, and a remote operator who controls the drone’s movements.[2]

Beyond their common conception, however, the term drone refers to a larger class of Unmanned Aircraft Systems that have both public and private applications in the United States.[3]  Many Police departments, like the New York City Police Department, use drones to survey the public under the pretext that drones are intended to “check out people to make sure no one is… doing anything illegal.”[4]

Corporations and personal enterprises have also determined that drones can serve in varied, but important roles.  Amazon, for example, is interested in using drones for package delivery and has asked the Federal Aviation Administration (FAA) for permission to develop and test a drone program.[5]  While the FAA has yet to issue the necessary license to Amazon, the company persists in its request that the agency permit its use of drones.[6]

Mexican drug cartels have also developed drones to deliver packages, although their program follows a decidedly less legal route than Amazon’s.[7]  On January 19, 2015, a drone carrying nearly six pounds of methamphetamine crashed in a Mexican city along the Mexico-US border.[8]  In early 2015, a South Carolina man received a fifteen-year prison sentence for his attempt to deliver contraband to a South Carolina Prison.[9]  The crashed drone carried marijuana, cell phones and tobacco on to the prison’s grounds, although the delivery was never received by any of the prison’s inmates.[10]

Given the proliferation of unmanned aircraft, both sophisticated and home made, the FAA lacks a sophisticated policy that effectively regulates their use.  While the “current FAA policy allows recreational drone flights in the U.S.[, it] essentially bars drones from commercial use.”[11]  Although industry analysts expected the FAA to publish its proposed rules by the end of 2014 and begin the notice and comment period, the agency did not meet that goal.[12]  In fact, Gerald Dillingham, the GAO ‘s director of civil aviation said that the “consensus of opinion is the integration of unmanned systems will likely slip from the mandated deadline [and not be finalized] until 2017 or even later.”[13]

During the 112th legislative session, Congress passed the FAA Modernization Act of 2012.[14]  The act was designed to, among other non-drone-related purposes, “encourage the acceleration of unmanned aircraft programs in U.S. airspace.”[15]  Agency guidelines, in place since 1981, currently control the use of personal unmanned aircraft.[16]  Of these, individuals are prohibited from “flying above 400 feet, near crowds, beyond the line of sight or within five miles of an airport.”[17]  These types of guidelines seem reasonable and appropriate to regulate small scale, personal model aircraft and drone use.

However, there is a glaring need for federal policy that addresses and regulates the commercial use of drones.  In the absence of such a policy, local governments have begun to fill the gaps that the FAA left behind.  According to the New York Times, “At least 35 states and several municipalities have introduced legislation to restrict the use of drones in some way.”[18]  These different laws serve various functions, including governing the permissible police uses of drones, defining what type of use constitutes unlawful surveillance, and determining the punishments allowable for violations of the particular law.[19]  By allowing individual local governments to determine their own rules, in the absence of a federal standard, the FAA has missed the opportunity to both promote nationwide responsible drone use and ensure their safe, uniform use across the country.  While other countries, like Canada, Australia, and the United Kingdom have already begun enacting laws that allow commercial use of drones,[20] the United States is still stuck in 2012.

 

[1] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[2] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[3] Federal Aviation Administration. Unmanned Aircraft Systems. https://www.faa.gov/uas/.

[4] https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf

[5] www.cnet.com/news/amazon-asks-faa-to-let-it-ramp-up-drone-developments/

[6] http://www.regulations.gov/#!documentDetail;D=FAA-2014-0474-0014

[7] http://thetequilafiles.com/2014/07/10/mexican-cartels-building-drones-to-traffic-drugs-into-the-us/

[8] http://www.latimes.com/world/mexico-americas/la-fg-mexico-meth-drone-20150121-story.html

[9] http://www.greenvilleonline.com/story/news/crime/2015/01/20/man-receives-years-flying-drone-sc-prison/22053651/

[10] http://www.washingtonpost.com/news/post-nation/wp/2014/07/31/a-delivery-drone-carrying-marijuana-cell-phones-and-tobacco-crashed-outside-of-a-s-c-prison/

[11] http://www.wsj.com/articles/drone-flights-face-faa-hit-1416793905

[12] http://www.bloomberg.com/news/2014-12-31/faa-fails-to-meet-2014-goal-for-proposed-drone-regulations.html

[13] http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/the-faa-wont-make-up-its-mind-on-drone-rules-until-2017-at-the-earliest/

[14] https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf

[15] http://www.npr.org/2012/04/17/150817060/drones-move-from-war-zones-to-the-home-front

[16] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[17] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html, http://www.faa.gov/uas/publications/model_aircraft_operators/

[18] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[19] http://www.ncsl.org/research/civil-and-criminal-justice/2014-state-unmanned-aircraft-systems-uas-legislation.aspx

[20] http://www.bostonglobe.com/opinion/editorials/2014/12/07/faa-flying-blind-drone-regulation/OO4HIaE4HQv037gJ2PbXyL/story.html

Blog: To Execute, or to Exonerate the Actually Innocent – Is That Really the Question?

By: Brooke Kargman, Associate Staff

There have been vast advancements in forensic science largely due to developments in DNA technology.  Many prisoners who have maintained their innocence have accessed DNA evidence ultimately substantiating their claims, which was previously unobtainable.[1]  Inevitably, appeals courts are now confronted with “actual innocence” claims, including writs of certiorari and writs of habeas corpus, from prisoners who have maintained their innocence.[2]  Through the use of DNA technology, more than 300 wrongfully convicted people in the United States have been exonerated.[3]  Included in that sum are 18 people who have served time on death row.[4]

The discussion about the death penalty is an ongoing debate with many different angles.  Discussing the death penalty as a suitable punishment for our future capital offenders is a proactive debate; circulating advocacy for or against punishing potential future capital offenders.  Support for the death penalty has wavered, but is currently the lowest it has been since 1972, at 60%.[5]  Discussions of the death penalty have now emerged into a retroactive aggressive debate.  It has been argued that a person who is “actually innocent” does not necessarily have the constitutional right to be released from death row.[6]

The question becomes: does a convicted felon who has had a full and fair criminal trial have a constitutional right to be liberated of their death sentence when their “actual innocence” claim is supported by new evidence?

Many of our history’s esteemed policymakers have asserted that the Constitution is a “living document” so far as allowing lawmakers to create laws that adapt to society’s progressive ideals and advancements while reserving the rights written in the Constitution’s text.[7]  Former Supreme Court Justice O’Connor has said, “execution of a legally and factually innocent person would be a constitutionally intolerable event.”[8]

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) implemented tighter restrictions on habeas cases and expanded the deference given to federal courts.[9]  The Supreme Court has held that innocence is not enough and that a convicted felon does not have the constitutional right to postconviction DNA testing, even at their own expense, to prove their actual innocence.[10]  In the widely talked about Troy Davis death penalty case, Justice Scalia dissents to Davis’ Petition for Writ of Habeas Corpus and writes, “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.”[11]

By not finding it constitutionally obligatory to exonerate “actually innocent” people from their death sentence, our policymakers are keeping our Constitution stagnant.  The Eighth Amendment of our Constitution prohibits cruel and unusual punishment,[12] and executing an innocent person in the 2000s is seemingly anything but commonsensical or in accordance with the concept of our Constitution as a “living document.”

 

[1] Browse the Profiles, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Nov. 23, 2014).

[2] E.g., Petition for Writ of Certiorari, In re Davis, 557 U.S. ___ (2009) (No. 08-1443).

[3] Mission Statement, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Nov. 23, 2014).

[4] Id.

[5] See Jeffrey M. Jones, Americans’ Support for Death Penalty Stable, GALLUP (Oct. 23, 2014), http://www.gallup.com/poll/178790/americans-support-death-penalty-stable.aspx.

[6] See Dahlia Lithwick, Why It’s Constitutional to Execute an Innocent Man, NEWSWEEK, (Sept. 2, 2009, 8:00 PM), http://www.newsweek.com/why-its-constitutional-execute-innocent-man-79487.

[7] See generally Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution”, 76 N.Y.U.L. Rev. 1456, 1457 (2001) (“[C]onstitutional provisions are… interpreted to meet present social needs… Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the ‘earliest efforts’ to adopt a changing, evolving Constitution.”); Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (“[T]he words of the Amendment are not precise… their scope is not static… must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).

[8] David Grann, Trial By Fire, THE NEW YORKER (Sept. 7, 2009) http://www.newyorker.com/magazine/2009/09/07/trial-by-fire.

[9] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

[10] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 36-37 (2009) (No. 08-1443); DA’s Office v. Osborne, 557 U.S. 52 (2009).

[11] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 2 (2009) (No. 08-1443) (Scalia, J., dissenting) available at http://www.supremecourt.gov/opinions/08pdf/08-1443scalia.pdf.

[12] U.S. Const. amend. VIII.

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