Richmond Journal of Law and Technology

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Category: Blog Posts (Page 16 of 21)

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.

Blog: Personal Data Security and the “BYOD” Problem: Who is Truly at Risk?

By: Jill Smaniotto, Associate Manuscripts Editor

“Bring your own device” policies are undeniably on the rise in the realm of business IT.  According a recent survey, roughly two-fifths of U.S. consumers working for large enterprises use their personally-owned devices—i.e. smartphones, tablets, or desktops—for at least some aspect of their work.[1]  Generally, concern surrounding the practice of BYOD has been in regard to the risk to misappropriation of corporate data (i.e., that of the employer’s customers).  However, a recent case has shed light on another area for concern: the risk to employee data when the employer/employee relationship sours.

“Bring your own device” or “BYOD” is a phrase that has become widely adopted to refer to the practice of employees bringing their own personal computing devices to the workplace for use on the corporate network.[2]  In recent years, a shift in IT culture has taken place: the consumerization of IT.[3]  Essentially, there has been a shift from a IT-department-driven culture to one in which consumers are getting the newest, latest technologies ahead of their corporate counterparts.[4]  In turn, these consumers are finding their own personal devices are better suited for their work than those provided by employers.[5]

This use of personal devices to handle corporate data on secure corporate networks is occurring regardless of whether employees have employer consent to do so.[6]  In fact, a survey conducted by ZDNet indicated that only one-quarter of all enterprise employees surveyed are required by employers to bring their own device, suggesting that the remaining three-quarters were doing so without their employer’s consent.[7]  This raises several concerns for data security, as corporate entities are generally not in control of the data accessed via personal devices where employees are using personal devices without the consent of the employer.

Similarly, small and midsized business are embracing the use of BYOD policies at a rapid pace, while failing to address security risks at the same pace.[8]  The cost-saving benefits of operating under BYOD policies is also to blame for the lack of security solutions in place in small, low-capital companies.[9]

Despite the risks, software companies are beginning to encourage the adoption of BYOD policies by offering services to put in place security solutions.[10]  By employing one of these “solutions,” companies can set safeguards for their customers’ data, while allowing the company and the employees to reap the benefits of BYOD.  For example, IBM emphasizes that BYOD increases employee productivity and satisfaction as employees are more comfortable with their own devices.[11]  Additionally, BYOD programs may result in minimal savings for the company, as it shifts the cost to the employee/user.[12]

While the focus is primarily on the risk to company/consumer data, there has been little addressing the risk BYOD poses for the employee/user’s data.  Last week, the U.S. District Court for the Southern District of Texas decided a case addressing that very risk.[13]  In Rajaee v. Design Tech Homes, Ltd., plaintiff Saman Rajaee asserted a claim for loss under Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030.[14]  Rajaee was formerly employed by the defendant, Design Tech Homes, in a position that required he have constant access to email in order to address customer questions and concerns.[15]  Design Tech did not provide Rajaee with a cell phone or smart device.[16]  Instead, Rajaee used his own personal iPhone to conduct his work for Design Tech via a remote access connection to Design Tech’s Microsoft Exchange Server.[17]  Roughly one year after he began working for Design Tech, Rajaee notified Design Tech that he would be resigning in two weeks, and Design Tech immediately terminated Rajaee’s employment.  Shortly thereafter, Design Tech’s network administrator remotely wiped Rajaee’s iPhone, deleting all work-related and personal data.[18]

Rajaee filed suit against Design Tech under the CFAA, alleging that company’s indiscriminate wiping of his iPhone caused him to lose “more than 600 business contacts collected during the course of his career, family contacts (many of which were overseas and some related to family business), family photos, business records, irreplaceable business and personal photos and videos and numerous passwords.”[19]

Under the CFAA, “loss” is defined as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”[20]

Here, the Court held that while Rajaee did assert losses as a result of the defendant’s actions, he did not assert cognizable loss under the CFAA. The Court notes that Rajaee’s assertions of monetary values corresponding to his “losses” are not supported by any evidence, and he failed to produce any evidence relating to his response to the data’s deletion or damages suffered as the result of an “interruption of service.”[21]  Accordingly, the Court granted Design Tech’s motion for summary judgment and dismissed Rajaee’s claim under the CFAA.[22]

The Court’s ruling in Rajaee is troubling in that at this stage, it appears as though there is little recourse for employees who suffer due to their employers’ choices to implement BYOD policies.  Where individuals run the risk of losing personal photographs, messages, and contact information, that risk is further exacerbated by the very nature of such personal data, making it nearly impossible to quantify loss.  It seems as though participation in BYOD programs by employers is on a track to become relatively low-risk, while all of the risk rests with the employee/user, who may be completely beholden to the whims of the employer.

 

[1] Zack Whittaker, Bring-Your-Own-Device Gains Traction in the U.S. – Even if Enterprises Aren’t Ready Yet, ZDNet (Oct. 21, 2014), http://www.zdnet.com/bring-your-own-device-gains-traction-in-the-u-s-even-if-enterprises-arent-ready-yet-7000034925/.

[2] Vangie Beal, What is Bring Your Own Device (BYOD)?, Webopedia (last visited Nov. 16, 2014), http://www.webopedia.com/TERM/B/BYOD.html.

[3] Tony Bradley, Pros and Cons of Bringing Your Own Device to Work, PCWorld (Dec. 20, 2011, 10:42 PM), http://www.pcworld.com/article/246760/pros_and_cons_of_byod_bring_your_own_device_.html.

 [4] Id.

[5] See Whittaker, supra note 1.

[6] Id.

[7] Id

[8] Pedro Hernandez, Small Biz Mobile Security Lags Behind BYOD Adoption, SmallBusinessComputing.com (Nov. 13, 2014), http://www.smallbusinesscomputing.com/News/Security/small-biz-mobile-security-lags-behind-byod-adoption.html.

[9] Id.

[10] See BYOD: Bring Your Own Device: Why and How You Should Adopt BYOD, IBM (last visited Nov. 16, 2014), http://www.ibm.com/mobilefirst/us/en/bring-your-own-device/byod.html; BYOD – Bring Your Own Device, MobileIron (last visited Nov. 16, 2014), https://www.mobileiron.com/en/solutions/byod; BYOD Smart Solution, Cisco (last visited Nov. 16, 2014), http://www.cisco.com/web/solutions/trends/byod_smart_solution/index.html.

[11] IBM, supra note 10.

[12] Id. 

[13] BYOD-Covered Employee Cannot Prove CFAA Loss After Company Remotely Wiped Phone, 19 Electronic Com. & L. Rep. Online (BNA) (Nov. 13, 2014).

[14] Rajaee v. Design Tech Homes, Ltd., No. H-13-2517, 2014 U.S. Dist. LEXIS 159180, at *3 (S.D. Tex. Nov. 11, 2014).

[15] Id. at *1.

[16] Id. at * 1-2.

[17] Id. at *2.

[18] Id. at *3.

[19] Rajaee, 2014 U.S. Dist. LEXIS 159180, at *3.

[20] Id. at *8-9 (citing 18 U.S.C. § 1030(e)(11)).

[21] Id. at *9-10.

[22] Id. at *11-12.

Blog: Step Into Shaolin and See Where the Wu-Tang Clan Could be Taking Music

By: Josh Lepchitz, Associate Staff

Music streaming programs have drastically changed how it is consumers listen to music. In the United States music sales are 5% and a major contributing factor to the drop in revenue is services like Spotify, Pandora, and YouTube. [1]  This drop in sales has proven not only to be discouraging to major record labels that depend on the sale of cd’s and digital downloads, but it has also received some back lash from popular recording artist.  Artists such as Taylor Swift, David Byrne of the Talking Heads, Dan Auerbach of the Black Keys, Beck, and Thom Yorke of Radiohead have spoken out against the public receiving their music from services like Spotify.[2]  The primary arguments held by these musicians is that they should have a say in how their art is to be distributed to the public, and that these services provide horrible royalties.  The royalties received from Spotify range between $0.006 to $0.0084 cents per stream.[3]  For the major recording artists this is the opposite of what they are used to receiving in royalties.

To combat the increased exposure and decreased royalties artists have come up with various strategies.  Some simply do not allow their music to be accessed on these programs.[4]  Others have become very litigious. For example, Flo and Eddie Inc. represent members of the 1960’s band the Turtles, and they recently won a multimillion-dollar suit against Sirius XM Radio Inc. for the use of some of their copyrighted material and have now placed their sights on Pandora.[5] However, one artist in particular has taken an alternative approach that could be potentially revolutionary in music consumption.  I am speaking of the legendary New York City based hip-hop group the Wu-Tang Clan.  Either as a collective ensemble or as individual artists the Wu-Tang has made an undeniable and lasting impression on music and now they have the potential to change how major recording artists reach the public with their music.

The Wu-Tang have secretly recorded and produced an album that they are calling their opus titled “Once Upon a Time in Shaolin”. Here is where things become interesting, the Wu own the sole rights to the album and there is only one copy of it in existence.   The album will be auctioned off and the expected sale price is in the millions of dollars.[6]  The multiple of reasons behind the unique release include that the group wants to see a revival of music being seen as art and shift the medium closer to the realm of visual works like painting and photography.[7]  The Wu-Tang will receive the proceeds from the auction sale and the sole copy of the album, along with its rights will go to the purchaser.

What this means is after the sale the Wu-Tang is finished with the album and the purchaser can do with it whatever they chose.  Using this model the musicians will receive their payday, and the purchaser can turn around and do whatever with the piece of art.  The buyer could sell and distribute the album, post it online for free or limited purchase download, take the album on tour as the Wu-Tang has in order to give potential buyers a preview, or the buyer could destroy it.

A man from Virginia, Chris Everhart, initiated what ended up being an unsuccessful crowd funding campaign on Kickstarter.com.[8]  He failed to reach his lofty goal of six million dollars in order to purchase and destroy the album.  He sees the project as “self-righteous” and believes that art should be shared with the entire world and not be excluded from the culturally disadvantaged.[9]  His goal was not met but his point does have some potency.  There is the consideration that art is for the public good and the people should have access to it.  Now this is simply one man’s failed goal, but what happens with the music will depend entirely upon who purchases it.

“Once Upon a Time In Shaolin” could be purchased by a record label and distributed normally as any other album, it could go to an eccentric millionaire and be locked away for his own personal use, or it could go to a museum and be placed on display for the public like the Mona Lisa.  An interesting question is what happens if an entity like Spotify purchases the album and requires monthly payments to access their exclusive content.  It would be a possible way for a company like Spotify to alter its business model.  They could go from being a company who receives the majority of its profits from advertisers to a company who relies mostly on subscribers interested in original and exclusive content like Netflix or HBO.

The outcome of what happens with the Wu-Tang’s special release is yet to be seen. All theories are purely speculative, but it has accomplished another one of the Wu-Tang’s goals, to spark discussion.[10]  So far in 2014, only one artist has produced a platinum album, which was last month’s release of 1989 by Taylor Swift. Outside of Taylor Swift the only other platinum album is the soundtrack from Disney’s Frozen.[11]  Before the release of 1989, 2014 was the first year that no platinum albums had been awarded to a non-compilation record since 1976, the first year that Recording Industry Association of America (RIAA) began handing out platinum albums.   Music streaming services are here to stay, as far as anyone can tell, and a shift in the landscape of the music industry is inevitable.  What the Wu-Tang accomplished is an expansion on their legacy.  Not only are they going to be known for their accomplishments as artists, but also they could be known for their impact on the music industry as market innovators.

To get a sneak peak of “Once Upon a Time In Shaolin” and some commentary from its producer check out the following link: https://www.youtube.com/watch?v=ABL5Elr16hc.

 

 

[1] Ben Sisario, U.S. Music Sales Drop 5%, as Habits Shift Online, N.Y. Times, Sept. 26, 2014, at B3.

[2] Jillian Mapes, Musicians Drinking the Spotify Haterade: The Collected Complaints, (Aug. 12, 2014, 9:45 AM), http://flavorwire.com/471802/musicians-drinking-the-spotify-haterade-the-collected-complaints, Stuard Dredge, Rdio on Taylor Swift’s Spotify block: ‘This is art. It’s the artist’s choice’, (Nov. 10, 2014, 7:09 AM), http://www.theguardian.com/technology/2014/nov/10/rdio-spotify-taylor-swift-streaming.

[3] Jillian Mapes, Musicians Drinking the Spotify Haterade: The Collected Complaints, (Aug. 12, 2014, 9:45 AM), http://flavorwire.com/471802/musicians-drinking-the-spotify-haterade-the-collected-complaints.

[4] Stuard Dredge, Rdio on Taylor Swift’s Spotify block: ‘This is art. It’s the artist’s choice’, (Nov. 10, 2014, 7:09 AM), http://www.theguardian.com/technology/2014/nov/10/rdio-spotify-taylor-swift-streaming.

[5] Flo & Eddie Inc. v. Sirius XM Radio Inc., et al., No. CV 13-5693 PSG (RZx), 2014 WL 4725382, (C.D. Cal. Sept. 22, 2014). Eriq Gardner, After SiriusXM Success, The Turtles take on Pandora in $25 Million Lawsuit (Exclusive), (Oct. 2, 2014, 1:18 PM), http://www.hollywoodreporter.com/thr-esq/siriusxm-success-turtles-take-pandora-737673.

[6] Zack Greenburg, Why Wu-Tang Will Release Just One Copy Of Its Secret Album, Forbes (March 26, 2014, 12:00 PM), http://www.forbes.com/sites/zackomalleygreenburg/2014/03/26/why-wu-tang-will-release-just-one-copy-of-its-secret-album/.

[7] Id.

[8] https://www.kickstarter.com/projects/510343979/destroy-only-copy-of-new-wu-tang-album (last visited Nov. 10 2014).

[9] Id.

[10] Zack Greenburg, Unlocking The Wu-Tang Clan’s Secret Album in Morocco, Forbes (May 6, 2014, 11:03 AM), http://www.forbes.com/sites/zackomalleygreenburg/2014/05/06/unlocking-the-wu-tang-clans-secret-album-in-morocco/.

[11] Cliff Lee, Congratulations, Taylor Swift: You’ll be the only platinum artist of 2014, The Globe and Mail (Oct. 21 2014, 9:36 AM), http://www.theglobeandmail.com/arts/music/congratulations-taylor-swift-youll-be-the-only-platinum-artist-of-2014/article21180284/.

Blog: Smart Guns and Their Constitutional Concerns

By: Jill Smaniotto, Associate Manuscript Editor

Following the shooting death of eighteen year-old Michael Brown by a police officer in Ferguson, Missouri this past summer, the issue of accountability for police firearm use has been at the forefront of public discourse.[1]  A firearms technology startup in Capitola, California known as Yardarm Technologies recently announced that it has developed a product that may provide the real-time information necessary to maintain greater oversight of the use of police force.[2]

While so-called “smart gun” technology has existed for quite some time, technological advances, coupled with the growing concern over mass shootings and police abuse of force, have prompted further development of the technology.[3]  Yardarm’s new product is a two-inch piece of hardware equipped with an accelerometer and a magnetometer that officers snap into the grip of their firearms.[4]

The sensor records information about when, where, and how police officers use their firearms,[5] providing dispatchers with real-time data.[6]  Currently, the technology requires the officer to carry a smartphone; as the device transmits the data by sending a signal to the phone, which then sends the information to Yardarm’s servers for secure storage.[7]  The Yardarm sensor has capabilities to track the gun’s location, whether the gun is in its holster, when new magazines are inserted, and when it is fired.[8]  Yardarm also intends to develop the product further so that it may be able to tell in which direction the gun is fired.[9]  The technology does not feature a remote disabling mechanism.[10]

Initially, Yardarm intended to sell the device on the consumer firearm market.[11]  Early plans for the device focused on tracking in the event of theft or misplacement of the individual’s firearm and remote locking, but the potential political sensitivities of entering the consumer firearm market proved too great a challenge to the ten-employee startup.[12]  Yardarm then decided to switch its focus to law enforcement agencies, which were already showing interest in the burgeoning technology.[13]  The Santa Cruz Sheriff’s Department and Carollton (Texas) Police Department have begun equipping officers’ weapons with the sensors on a trial basis.[14]

            Discussion surrounding the announcement of this new technology has been divisive. Proponents of technology like Yardarm’s new sensor cite the potential benefits to officer safety in the field, as well as the hope for a pool of objective data that may be used to investigate incidents of alleged police brutality.[15]  Law enforcement agencies are hopeful that this technology will help to solve a problem that is “the worst nightmare for any officer in the field”: deputies in trouble and unable to ask for additional assistance.[16]  Additionally, those in favor of the technology expect that the sensors, like dashboard cameras, will provide objective records of incidents when officers used firearms.[17]  This information may run on a two-way street, though, as it could be used “to exonerate an officer accused of misconduct, or to prosecute a criminal in a court of law.”[18]

            Detractors, however, are not comfortable with the potential implications of widespread use of technology.  Guns rights advocates, such as the National Rifle Association (“NRA”) are wary of the impact of smart guns on Second Amendment rights.[19]  Specifically, the NRA has voiced concern that the proliferation of these sensors may open the door to government regulations requiring this technology on personal firearms.[20]  The American Civil Liberties Union (“ACLU”) expressed concern that the sensors may present an invasion of privacy, but tempered that concern by also admitting that such invasion may be a necessary evil in order to attain some much needed transparency into police behavior.[21]

            While this technology is certainly new, the supposed ease of integration[22] and the volatile state of affairs surrounding police use of firearms may combine to create the spark necessary to ignite the widespread employ of such sensors sooner rather than later.  As Yardarm has made clear its intention to solely market the product to law enforcement and military,[23] detractors of the technology may find their criticisms lacking much weight as compared to the vast public safety benefits in the inevitable debate as to what place smart guns may have in our society.

 

[1] Hunter Stuart, Company Makes Gun Tech That Could Help Prevent Police Brutality, The Huffington Post (Oct. 24, 2014, 11:02 AM), http://www.huffingtonpost.com/2014/10/24/police-gun-tracking_n_6040930.html.

[2] Id.

[3] Haven Daley, California Startup Unveils Gun Technology for Cops, Aol.com (Oct. 24, 2014, 6:57 AM), http://www.aol.com/article/2014/10/24/california-startup-unveils-gun-technology-for-cops/20983460/; David Kravets, Silicon Valley Startup Unveils Internet-Connected Smart Guns for Cops, Ars Technica (Oct. 24, 2014, 12:30 PM), http://arstechnica.com/tech-policy/2014/10/silicon-valley-startup-unveils-internet-connected-smart-guns-for-cops/.

[4] Aaron Tilley, Internet-Connected Guns Are the Next Step for Data-Hungry Police, Forbes (Oct. 24, 2014, 10:00 AM), http://www.forbes.com/sites/aarontilley/2014/10/24/yardarm-sensor-gun/; Stuart, supra note 1.

[5] Stuart, supra note 1.

[6] Kravets, supra note 3.

[7] Stuart, supra note 1.

[8] Tilley, supra note 4.

[9] Id.

[10] Daley, supra note 3.

[11] Tilley, supra note 4.

[12] Id.; Kravets, supra note 3.

[13] Tilley, supra note 4.

[14] Daley, supra note 3; Kravets, supra note 3; Stuart, supra note 1; Tilley, supra note 4.

[15] Daley, supra note 3; Stuart, supra note 1.

[16] Daley, supra note 3. See also Stuart, supra note 1 (“[T]he technology can be also used to keep police officers safer. When an officer draws his weapon, for example, the gun will send an alert to the police command center and to nearby officers, alerting them to a potentially dangerous situation.”).

[17] Stuart, supra note 1.

[18] Id.

[19] Krave
ts, supra note 3.

[20] Id. See also Daley, supra note 3 (noting that Gun Owners of California spoke to concern of future government mandated use of the technology on personal firearms).

[21] Tilley, supra note 4.

[22] See Tilley, supra note 4 (noting that Yardarm is designing its software to easily fit into existing dispatcher software); Daley, supra note 3 (indicating that the device can fit into the handle of most police guns and relies on Bluetooth technology for data transmission).

[23] Tilley, supra note 4.

Blog: E-Commerce and Taxation: Internet Tax Freedom does not Mean Tax Freedom for the Internet

By: Andrew Landrum, Associate Technical Editor

The global advent of interconnectivity has led to breakthroughs in communication, innovation, scientific collaboration, and, most importantly, how to spend money in the comfort of your pajamas.  Online shopping has become the way of the future.  No more will store hours, location, or Netflix conflict with the impulse to buy.  Indeed, this past August, the United States Department of Commerce has reported a steady growth of E-Commerce, as it now comprises an adjusted total of almost 7% of all total retail sales.[1]  For just the second quarter of 2014, the United States E-Commerce sales totaled $75.0 billion.[2]  The problem, however, is that these sales run zero-sum with brick-and-mortar companies.[3]

Brick-and-mortar companies are those businesses that maintain a physical presence in a state.  Their presence supports the local economy, provides jobs, and offers face-to-face customer experiences.  However, it also succumbs them to state and local regulations, like sales taxes.  These sales taxes support state and local governments but also constitute extra burdens on local consumers.[4]  These burdens, however beneficial, are pushing consumers online.[5]

States have attempted to react by passing Internet sales taxes.[6]  These taxes are meant to level the playing field between brick-and-mortar companies and E-Commerce industries.[7]  However, these measures have not gone without resistance.  Policymakers have also been weary of unfair taxation and thus passed the Internet Tax Freedom Act, meant to protect, “unfettered access to one of the most unique gateways to knowledge and engines of self-improvement in all of human history.”[8]  This legislation has served as a springboard for litigation. Online companies argue Internet sales taxes implicate Internet tax freedom and discriminate against out-of-state companies solely because of the nature of their business.

The Internet Tax Freedom Act was passed in 1988 and will likely be extended indefinitely by the end of this year.  The text of the act clearly prohibits two things: (1) taxes on internet access; and (2) multiple of discriminatory taxes on electronic commerce.[9]  Clearly the first prohibition on internet access has no relevance to online sales tax litigation.  The real issue falls on what is defined as a “discriminatory tax” on E-Commerce.  There has been much debate among online service providers, and state and local governments as to what constitutes a discriminating tax.  These businesses hold that taxing a service or good merely because the transaction occurs online should constitute discrimination and runs in the face of the Internet Tax Freedom Act.[10]  However, as explained by the 7th Circuit, the misleading name does not ensure “tax freedom” but only freedom from unfair taxation.[11]

According to the relevant provisions of the Act itself, discriminatory E-Commerce taxes are those taxes that: (1) are not imposed on the same or similar property, goods, services, or information accomplished through other means; (2) are imposed at a higher rate than those goods, services, or information accomplished through other means; (3) imposes an obligation to collect or pay the tax on a different entity than would otherwise be normally taxed; or (4) the taxes are imposed on an internet access service provider merely because the provider displays the resellers information or processes the orders through an out-of-state computer server.[12]

Accounting for the first three sections, courts have allowed E-Commerce tax statutes for purposes of levelling the playing field between online industries and companies physically present.[13]  E-Commerce taxes that run at a similar rate as those imposed on brick-and-mortar companies have not been found to qualify as “discriminatory” under the Internet Tax Freedom Act.[14]  This statute, despite its name, does not create “tax freedom” per se but instead merely prohibits disadvantaging one type of retailer over another.[15]

The fourth provision has created litigation between cities and states, and online auction and solicitation websites such as Ebay, Craigslist, or Stubhub!.[16]  Courts have drawn a line between these service providers and have declared that if an intermediary takes an active role in, “staging an auction and exchanging goods for money” they have so involved themselves in the transaction that state imposed taxation on the providers service is not discriminatory.[17]  Those that play an active role act as an agent of the reseller and can be taxed accordingly, whereas passive websites that merely list the offer and the offeror’s information cannot.[18]

The availability of online services has blurred the commercial lines, making comparisons between internet companies and brick-and-mortar businesses difficult.  States are, however, allowed to tax each type of company similarly, assuming their services provided are comparable and the tax imposed is equitable.  In an increasingly diverse market, all states can do it ensure all companies have a fair shot at competing for your business.

 

[1] U.S. Census Bureau, Quarterly Retail E-Commerce Sales, U.S. Department of Commerce (Aug. 15, 2014, 10:00 AM) available at, http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf.

[2] Id.

[3] Grant Gross, U.S. residents oppose Internet sales tax, say they’ll shop online less, Computer World (May 13, 2013 5:43 PM), http://www.computerworld.com/article/2497336/e-commerce/u-s–residents-oppose-internet-sales-tax–say-they-ll-shop-online-less.html; See, U.S. Census Bureau, supra at note 1 (displaying an increase of E-Commerce makes up an increasingly large amount of overall retail transactions).

[4] U.S. Census Bureau, Quarterly Summary of State and Local Government Tax Revenue for 2014:Q2, p.2, Sept. 23, 2014, available at http://www2.census.gov/govs/qtax/2014/q2infosheet.pdf (sales tax totaled $89.5 billion in Q2 of 2014).

[5] See, U.S. Census Bureau, supra at note 1.

[6] Kate Tummarello and Bernie Becker, Senators renew Internet sales tax push, the Hill (July 16, 2014, 6:00 AM), available at http://thehill.com/policy/finance/212385-senators-renew-internet-sales-tax-push.

[7] Id.

[8] PERMANENT INTERNET TAX FREEDOM ACT, 160 Cong Rec H 6228.

[9] Interstate Tax Freedom Act, § 1101(a)(1), (2), 47 U.S.C. § 151 note.

[10] Id.

[11] Id.

[12] Interstate Tax Freedom Act, § 1105(2); 47 U.S.C. § 151 note.                     

[13] StubHub!, Inc., 624 F.3d at 366.

[14] Id.

[15] Id., at 365;Travelocity.com, LP v. Wyo. De
p’t of Revenue
, 2014 WY 43, 103 (Wyo.2014) (Noting that policies that do not single out individual consumers and generally apply to all willing to engage in taxed commercial practices are not discriminatory).

[16] Stubhub!, Inc., 624 F.3d at 366.

[17] Id. At 366-67 (“Because the ordinance applies equally to ticket resales at physical auction houses, the Chicago Board of Trade, and venues such as StubHub!, the tax is not “discriminatory”).

[18] Id.

Blog: Twitter Fights for Its First Amendment Right

By: Andrea Mousouris, Associate Articles Editor

Whether we realize it or not, our online activity is being watched. And whether we like it or not, Twitter, among other tech giants, shares our personal data with the U.S. government. Should consumers be aware of what and how much the government asks for? Twitter thinks so.

Twitter is suing the U.S. government in an effort to relax federal restrictions on what the tech company can say publicly about the national security related requests.[1] Defending principles of free speech, Twitter believes the government is violating its First Amendment right by criminalizing the disclosure of the number and type of spying orders it receives.[2]

Consumer technology companies often hold data on suspects that agencies like the National Security Agency are tracking.[3] Many of these agencies routinely request user data from these companies as part of continuing investigations.[4] But for years, technology companies have been limited by the law as to how much they can publicly disclose to their users about these government requests.[5] That has put companies like Twitter, Facebook, and LinkedIn in the difficult position of not being able to let their users know when they hand over their data.

The legality of government spying itself is not at issue in this case; the suit is a dispute about disclosure. Other Internet companies have also protested these restrictions, and in January 2013 the U.S. Department of Justice gave permission to Facebook, Google, LinkedIn, Microsoft and Yahoo to publish the information in bands of 1,000, starting with 0-999.[6] But Twitter’s data requests are much smaller, and so they want the right to tell its users that their accounts do not undergo widespread government surveillance.

On the one side, Twitter’s complaint challenges the basis for adopting a “preapproved disclosure format”, one that constitutes “an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern.”[7] On the other side, the government argues that in the FBI and National Security Agency’s pursuit of defending the country from real security threats, the more that the world knows about their sources and methods, the greater the security risk.[8] The court will have to decide whether such a risk meets the level of legal scrutiny required to restrict a First Amendment right.

In the mean time, Twitter continues to hope for comprehensive reform from Congress of government surveillance powers.[9] The USA Freedom Act of 2014, introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), would allow companies like Twitter to provide more transparency to its users.[10] But until then, the suit will continue as part of a long battle between the U.S. government and the technology companies that hold information on billions of people.

 

[1] Eric Brader, Twitter Sues U.S. Government Over National Security Data, CNN.COM, http://www.cnn.com/2014/10/07/politics/twitter-sues-u-s-government/ (last updated Oct. 7, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Mike Isacc, Twitter Sues U.S. Government Over Data Disclosure Rules, NEW YORK TIMES.COM, http://bits.blogs.nytimes.com/2014/10/07/twitter-sues-u-s-government-over-data-disclosure-rules/ (last updated Oct. 7, 2014).

[6] Supra Note 1.

[7] Complaint at 47, Twitter Inc. v. The U.S. Government, (N.D. Cal. 2014)(No. 14-cv-4480).

[8] Supra Note 5.

[9] Ben Lee, Taking the Fight for #transparency to Court, Twitter Blog, https://blog.twitter.com/2014/taking-the-fight-for-transparency-to-court (Oct. 7. 2014).

[10] Id.

Blog: Transparency in Law Enforcement: The Trend Towards Officer Body Cameras

by Eileen Waters, Associate Staff

 

The concept of body-mounted cameras worn by police officers is not brand new; in fact, police departments across the United States, England, Brazil, and Australia have been implementing systems with wearable cameras since the early 2000s. [1] Recently in the U.S., public interest has put a brighter spotlight on wearable cameras since an incident in Ferguson, Missouri, where an unarmed teenager named Michael Brown was shot by a police officer.[2] Confusion as to what actually happened when the incident occurred has led to debate and speculation about whether there would be less “civil unrest” if the officer who shot Michael Brown had worn a body camera.[3] In an effort to appease those who believe police cameras are the panacea for this subsequent civil unrest, police officers in Ferguson began wearing cameras earlier this month, having been donated by two private companies. [4] Locally, in “Henrico County [Virginia,] police officers will begin wearing body-mounted cameras this fall.”[5] With the acceleration of this trend, it is important to begin analyzing the pros and cons of police officers wearing body cameras.

The benefits of wearable cameras are numerous: the “potential to change the dynamics of police-citizen encounters, to either exonerate or implicate officers in wrongdoing, or provide evidence of citizen misconduct.”[6] “Body-worn cameras can increase accountability” not only for police officers, but also for the citizens they interact with.[7] The city of Rialto, California rolled out a camera program in 2012, and has since reported a 60% reduction in use-of-force incidents and an 88% reduction in filed citizen complaints, “when compared with the year prior to deployment.”[8] William Farrar, the police chief in Rialto, has spoken of cases where citizen have gone to their local police station to file a complaint “and the supervisor was able to retrieve and play on the spot the video of what transpired.”[9] Rialto is not the only city that has experienced a decrease in police-related issues and complaints since employing body cameras, many cities across the country are finding good results with such programs.[10]

Regardless of the benefits, there are also reasons to be wary of this new technology and approach the use of cameras with caution. Arguably, the most prevalent of which is that once a policy of camera-wearing is established by a law enforcement agency, “it will become increasingly difficult to have second thoughts or to scale back” such a program.[11] Many scholars have also strenuously noted privacy concerns that will arise with more camera usage.[12] “It takes little imagination to see how such cameras could augment already ubiquitous CCTV and facial recognition systems, allowing police to retroactively track and monitor innocent passersby.”[13] Proponents of body cameras should ask themselves if they are willing to give up much of their privacy for the program’s benefits. On top of these issues, cameras have a huge economic cost: “agencies that have deployed the cameras spent between $800 and $1,200 for each device.”[14] After the initial cost, it then becomes expensive to store the considerable amount of data created; the New Orleans Police Department will pay “an expected cost of $1.2 million over five years” for 350 body cameras. [15] Overall, there are appreciable costs to body camera programs that need to be weighed with the benefits when deciding whether a program should be implemented.

Currently, public interest seems to be in favor of wearable cameras. This has prompted Congressman Al Green to propose a federal bill last week that would require any “state or local law enforcement agency that receives Federal funds” to use those funds to purchase “body cameras for use by the law enforcement officers employed by that enforcement agency.”[16] On a state level, New Jersey Senator Donald Nocross announced that he is “drafting legislation that would require all police officers to wear body cameras while on patrol.”[17] Lawmakers, perhaps reacting to public opinion, are in the beginning stages of legislating for mandatory use of police body cameras. Now is the time where engaged citizens need to decide if these programs should be implemented nation-wide or not. As this post suggests, the issue is not black and white, and should be discussed and critiqued before concrete legislation is enacted.


 

[1] Joshua Kopstein, Police Cameras are No Cure-all After Ferguson, Aljazeera America (Aug. 29, 2014, 6:00AM), http://america.aljazeera.com/opinions/2014/8/ferguson-race-policesurveillancetechnology.html.

[2] Id.

[3] Justin T. Ready & Jacob T.N. Young, Three Myths About Police Body Cams, Slate (Sept. 2, 2014 12:54AM), http://www.slate.com/articles/technology/future_tense/2014/09/ferguson_body_cams_myths_about_police_body_worn_recorders.html.

[4] William Cummings, Ferguson Police Begin Using Body Cameras, USA Today (Sept. 1, 2014 1:43AM), http://www.usatoday.com/story/news/nation/2014/09/01/ferguson-police-cameras/14920587/.

[5] Ted Strong & Brandon Shulleeta, Henrico Police to Roll Out Body Cameras for Officers, Richmond Times Disptach (Sept. 14, 2014), http://www.timesdispatch.com/news/local/henrico/henrico-police-to-roll-out-body-cameras-for-officers/article_1fe0fb5e-8752-573f-85e2-07ff33bf562b.html.

[6] Bryce Clayton Newell, Crossing Lenses: Policing’s New Visibility and the Role of “Smartphone Journalism” as a Form of Freedom-Preserving Reciprocal Surveillance, 14 U. Ill. L. Tech. & Pol’y 59, 82 (2014).

[7] Kevin Johnson, Police Body Cameras Offer Benefits, Require Training, USA Today (Sept. 12, 2014 6:21 PM), http://www.usatoday.com/story/news/nation/2014/09/12/police-body-cameras/15522059/.

[8] Id.

[9] Randall Stross, Wearing a Badge, and a Video Camera, The New York Times (Apr. 6, 2014), http://www.nytimes.com/2013/04/07/business/wearable-video-cameras-for-police-officers.html?_r=2&.

[10] Id.

[11] Johnson, supra note 6.

[12] Kopstein, supra note 1.

[13] Id.

[14] Johnson, supra note 6.

[15] Id.

[16] Transparency in Policing Act of 2014, H.R. 5407, 113th Cong. (2014).

[17] New Jersey Senator Proposes Bill Requiring Mandatory Body Cams for Police, Police State Daily (Sept. 11, 2014), http://policestatedaily.com/new-jersey-senator-proposes-bill-requiring-mandatory-body-cams-police/.

Homer Simpson May Be Headed to Court…D’Oh!

by Megan Carboni, Associate Staff

 

            Earlier this August, patent rights’ holder Alki David, owner of Hologram USA, filed suit against The Simpsons’ broadcaster, 20th Century Fox, for alleged patent rights infringements.[1] David asserts infringement of his acquired hologram technology used to bring Homer Simpson to life at this year’s Comic-Con convention in San Diego.[2] Oddly enough, Homer Simpson is not the only celebrity in hot water over alleged unauthorized use of David’s patented technology. Michael Jackson’s estate and Pulse Evolution are also being sued for the unauthorized use of David’s hologram technology to bring Michael Jackson back to life at the Billboard Music Awards.[3] Adding more fuel to the fire is Pulse’s cross complaint stating that David is “falsely claim[ing] credit for creating and developing the visual effects spectacle [of Jackson] in a nationally-televised interview on CNN, in press releases, and on his various websites […].”[4]

            So, where did this all begin? Stepping back in time, back to 1862, a stage trick for magic shows was developed by two magicians called “Pepper’s Ghost.”[5] “Pepper’s Ghost” was a lifelike illusion technique that has currently been popularized in movie special effects, concerts, and amusement park rides.[6] Most recently, “Pepper’s Ghost” inspired the hologram technology behind Tupac Shakur’s resurrection at the 2012 Coachella Music Festival, whose patent rights were acquired by David and Hologram USA in February 2013.[7] Unfortunately for the late Michael Jackson and the animated Homer Simpson, neither Pulse nor Fox obtained any licensing rights to use the same hologram technology to create their holograms before they were publicly debuted. [8] Thus, enter the multimillion-dollar patent infringement suits brought by David. David’s attorneys representing him in the Jackson lawsuit state that Pulse, and now Fox, “have created significant confusion in the marketplace [and] diluted the value of the Hologram USA brand.”[9]

            But were Simpson and Jackson holograms made with the same technology? Of course, patent experts in this field will have to weigh in to determine if any of David’s claims of stolen holograms have any weight to them. The accused parties have publicly disavowed David’s allegations, with Fox saying “[t]his filing is totally without merit […] except to say […] Mr. David has demonstrated his insatiable need to stay relevant.”[10] Pulse adds in their own suit against the Hologram USA owner that David is merely “divert[ing] public and industry attention away from Pulse Entertainment,” asserting claims against David of unfair business competition practices and trade libel.[11] Pulse further asserts that the “mischaracterization of the [Michael Jackson] animation as a hologram highlights David’s complete lack of technical expertise….[This] was not a hologram at all, rather, it was an animation projected onto a screen.”[12]

            Will the courts find for David in his patent infringement claims? Or will they find that there is little substance to his allegations? Does the industry need the distinction between each of the types of technology and animation to continue to bring this type of entertainment to the masses? Is it also coincidence that Fox successfully sued one of David’s media companies for copyright infringement in 2012?[13] Time, or a hefty settlement (D’Oh!), will tell who has the future rights to collect off of celebrity holograms/animations technology.

 



 

 

[1] Homer Simpson Duffed With Patent Lawsuit, WORLD INTELL. PROP. REV. (Aug. 18, 2014), http://www.worldipreview.com/news/homer-duffed-with-patent-lawsuit-7050.html.

[2] Id.

[3] Id.

[4] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[5] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[6] Amended Complaint and Demand for Jury Trial at 2, Hologram USA, Inc. et al. v. Pulse Evolution Corp. et al. (D. Nev. May 29, 2014) (No. 2:14-cv-00772).

[7] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[8] Id.

[9] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[10] Gardner, supra note 6.

[11] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire, THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[12] Id.

[13] See WORLD INTELL. PROP. REV., supra note 1.

Blocked: The Limits of Social Media as Evidence

by John A. Myers, Associate Staff

 

In the digital age, social media has become a dominant form of communication. Because of the increased usage of social media in recent years, user contributions to social media have increasingly been used as evidence in litigation. The main legal question that has arisen from social media as evidence is: How much access of their social media account does a party have to give to an opposing party that is requesting the evidence? If one party wants to introduce a single social media post as evidence against the opposing party, should that party have access to the other party’s entire social media account, or just that single post? Courts have recently started to adjudicate on this issue and the results have been mixed, with some courts arguing that access to opposing parties social media account is an unreasonable intrusion on privacy.

 

Because of the public nature of social media, posts made on social media sites have increasingly contributed to litigation. For example, the American Academy of Matrimonial Lawyers published a survey indicating 81% of divorce proceedings involve social media evidence, with 66% coming from Facebook alone.[1] It’s easy to understand how a Facebook post blasting a spouse or an Instragram picture showing a spouse with a mistress could be used as evidence during a subsequent divorce proceeding. The problem becomes when a court has to decide how much access the requesting party should be given to the opposing party’s social media account. While it may be easier to just allow the requesting party to have temporary access to the opposing party’s account for the purposes of securing the evidence requested, that also opens up the possibility that that party could find more evidence against their opposing party that wasn’t specified in a discovery request.[2]

 

Because of the potential encroachment on the privacy of the opposing party, courts have been hesitant to allow complete access to the requesting party and have attempted to establish a two-part test regarding access to social media evidence.[3] Firstly, the social media evidence must have some relevance to the facts that it is seeking to support.[4] This first part is well ingrained in the Federal Rules of Evidence and similar state rules for introduction of evidence from any source.[5] Secondly, the court must determine whether blanket access to the social media account is allowed or if the requesting party need only be given the social media post in question. Recent court cases have split on this issue. Some courts said that blanket access to the other party’s social media account is per se unreasonable.[6] Other courts have granted blanket access, but with restrictions. In Largent v. Reed, the plaintiff was ordered to turn over her Facebook login information to opposing counsel, who would then have 21 days to inspect a limited section of the account.[7] After that period, the plaintiff could change her password to prevent any further access to her account by opposing counsel.

 

What is most interesting about social media as evidence and its development is the affect on an individual’s privacy. Since the advent of Facebook, Twitter, and other social media platforms, the main legal question surrounding these platforms has been: How much privacy should their users expect from comments made on those sites? While the answer has almost always been “None”, the first cases to address the introduction of social media as evidence seem to indicate that there is at least some material on social media that is off limits to opposing parties. A Pennsylvania court recently concluded that a court order that would grant the opposing party access to information on a Facebook account that was only intended for “Friends” (of which the opposing party was not one), would be intrusive and potentially embarrassing for the acquiescing party.[8] Other state and federal cases have concluded that searches of social media accounts are an intrusive way of gathering evidence and less speculative and “annoying” methods should be used when possible.[9]

 

The use of social media as evidence is still in its infancy and its introduction or exclusion will likely develop for decades to come. It will be interesting to see the progress of social media evidence and whether future courts continue to hold certain aspects of social media to be off limits for evidentiary purposes.

 

 

[1] Press Release, American Academy of Matrimonial Lawyers, Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers (Feb. 10, 2010) (on file with author).

 

[2] Fed. R. Civ. P. 26(A)(ii)

 

[3] Margaret DiBianca, Discovery and Preservation of Social Media Evidence, Business Law Today (Jan. 2014), http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html.

 

[4] Fed. R. Evid. Rule 401(a).

 

[5] Id.; Va. R. Evid. 2:401.

 

[6] Trail v. Lesko, No. GD-10-017249, LEXIS 194, at *30-31 (Pa. D. & C. Jul. 3, 2012).

 

[7] Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Pa. D. & C. Nov. 8, 2011).

 

[8] See Lesko, LEXIS 194, at *28-30.

[9] Id.; Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-11735, 2011 U.S. Dist. LEXIS 121600, at *1-3 (S.D. Mich. Oct. 20, 2011). 

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