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Category: Blog Posts (Page 2 of 18)

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

By: Rachel Weinberg-Rue,

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

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

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

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

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

 

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

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

[3] Supra note 1.

[4] Id. 

[5] Molteni, supra note 2.

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

[7] Id. at 110.

[8] Id. at 101–02.

[9] Molteni, supra note 2.

[10] Id. 

[11] Id.

[12] Id. 

[13] Molenti, supra note 2. 

[14] See Id.

[15] Id.

[16] Id.

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

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

By: Helen Vu,

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

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

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

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

 

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

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

[3] The Medical Futurist, supra note 1.

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

[5] See id.

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

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

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

[9] See id.

[10] Holbrook, supra note 4.

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

[12] Ebrahim, supra note 8.

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

[14] See id.

[15] See id.

[16] Riley, supra note 2.

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

Collaboration Art & the Future of Copyright Claims

By: James Williams,

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

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

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

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

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

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

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

 

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

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

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

[4] Id.

[5] Id.

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

[7] See Gonzalez, supra note 3.

[8] Id.

[9] Id.

[10] Id.

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

[12] See Galenson, supra note 1.

[13] See id.

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

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

Genetic Discrimination: Not Much Has Changed in Twenty Years

By: Lilias Gordon,

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

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

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

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

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

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

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

 

[1] Gattaca (Sony Pictures Entertainment 1997).

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

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

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

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

[6] GINA § 102(b).

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

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

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

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

[11] Id at 430.

[12] Id.

[13] Rogers, supra note 6.

[14] Id.

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

An Unintended Consequence of Technological Advancements: Revenge Porn

By: Brooke Throckmorton,

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

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

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

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

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

 

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

[2] Id.

[3] Id.

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

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

[6] Id.

[7] Id.  

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

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

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

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

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

[13] Id.

[14] Id.

[15] Id.

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

[17] See Marshall, supra note 8.

[18]  See Goldberg, supra note 11.

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

[20] Id.

[21] See Goldberg, supra note 11.

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

[23] Id.

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

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

By: Nicole Allaband,

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

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

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

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

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

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

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

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

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

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

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

 

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

[2] See id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[22] See id. at 654.

[23]See id. at 655.

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

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

[26] See id. at 136-37.

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

Image Source: http://www.nydailynews.com/new-york/exclusive-staten-island-program-ankle-monitors-track-domestic-batterers-article-1.1443152.

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

By: Mitch Torrence,

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

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

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

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

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

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

 

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

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

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

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

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

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

[7] Id. at 91.

[8] Brief for Appellees, supra note 2.

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

[10] Id. at 96.

[11] Id. at 78.

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

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

[14] Brief for Appellees, supra note 2.

Image Source: http://www.greenberg-art.com/.Toons/.Toons,%20Calif/Redistricting.html.

Defensive Hacking Leads Legal Transition in Cybersecurity

By: Jon Neri,

In light of the recent Equifax data breach, I feel that now is an appropriate time to be talking about current legislative pushes for the public recognition and legalization of defensive hacking efforts. Defensive hacking, sometimes referred to as “hackback,” is a method to prevent and counteract future data breaches that has been scarcely discussed within a political forum up until recently.[1] There is no single process to successfully hack an eminent hacker, and companies have been imploring a wide range of counter-hacking methods for well over a decade.[2] Despite varying avenues for accomplishing a preemptive attack, strategies commonly involve collecting intel on suspect hackers, breach the hackers’ data infrastructures, and then proceeding to destroy any stolen data.[3]

Large companies, banks, search engines, and other internet entities that store the private information of their users are known to contract private companies and individuals who specialize in this practice; the goal being to protect their own networks and data from further breach and prevent the release of confidential information.[4] Despite the known fact that these employed hackers are breaking those same laws as threatening hackers, their methods have rarely gained large-scale public attention.[5] Therefore, the debate on whether such practices should become deemed suitable and further condoned under federal law has never entirely culminated.[6]

While defensive hacking remains unsupported by codified law, it has long been observed that governing policy appears to support such efforts in countervailing data breaches.[7] In 2005, there was a highly-publicized case in which the plaintiff sued his former employer for wrongful termination after being let go following his independent investigation of a network breach.[8] Shawn Carpenter had been employed at Sandia National Laboratories as a network security analyst when the company’s network was hacked in 2003.[9] Carpenter took it upon himself to launch an independent investigation, utilizing hacking techniques in order to track-down a cyberespionage group centralized in China.[10] He eventually reported his discoveries to the FBI.[11] Once Sandia officials learned of Carpenter’s sharing of information with outside agencies, they terminated him for the inappropriate use of power and confidential information that he only had access to through his position as network security manager.[12]

Carpenter sued and ultimately won his case, the District Court of New Mexico awarding him $4.3 million in punitive damages and over $387,000 in compensatory damages.[13] Carpenter’s attorney gave a statement indicating that the jury’s verdict served as “vindication of his decision to do the right thing and turn over the information he obtained to the proper federal authorities… protect[ing] the national interest.”[14] It’s safe to say that over a decade later, the message sent in the Carpenter ruling stands true today: the law intends to protect those who hack on behalf of security interests, whether those interests stem from government or otherwise.[15]

However, the hush around counter-hacking has steadily grown louder with every news heading boasting another large-scale cybersecurity breach. As a result, some legislatives appear ready to address hackback within the public forum. In March of this year, Representative Tom Graves presented a discussion draft bill which would amend the Computer Fraud and Abuse Act (CFAA).[16] Representative Graves stated that the “bill is about empowering individuals to defend themselves online… [amendment] will serve as a disincentive for criminal hacking because the risk of getting caught will likely go up.”[17] This is because private individuals and companies will now officially be protected under the proposed law, when implementing hacking techniques with the intent to track hackers immediately following a network breach.[18]

The proposed bill essentially provides a “defense to a prosecution under the CFAA that the conduct constituting the offense was an active cyber defense measure.”[19] This means that it is simply to be applied as a justification for the immediate tracking of hackers after a cyberattack.[20] It excludes the “destruction of data” or the “impairment of the functionality of the attacker’s computer system.”[21] Thus, the proposed amendment does not place justice in private hands, but allows victims to conduct an instantaneous defense against hackers and then report relevant information to government agencies responsible for cybersecurity.[22]

While the bill has received praise from legal professionals such as University of Texas law professor Robert Chesney, who sees it as a necessity in our technological age, it is not lacking in critiques.[23] In fact, its strongest opposition is from those who deal in cybersecurity as a profession. Brad Maryman, retired FBI agent and leader cybersecurity firm Maryman & Associates, is not of the opinion that “the average citizen is capable of appropriately identifying the hacker.”[24] This is because cyberattacks are routed through other victims’ network systems after they have been attacked themselves. [25] This creates a string of computers, known in the field as “botnet” networks.[26] Botnets are often incredibly complicated, and the notion that millions of victims engage in searches, trying to navigate such a complex maze, delivering information to authorities along the way could easily turn into chaos for everyone involved.[27]

Regardless of its initial feedback, Rep. Graves’s bill represents a transition in legal discourse surrounding cybersecurity. As data breaches continue to plague our industries, we will undoubtedly see increased efforts to promote legislation concerning cyberattacks and the rights of victims involved. Based on recent events in our cyber community, such rights are likely to incite legal protections concerning defensive hacking techniques in the near future.

 

[1] See Joseph Cox, Revenge Hacking Is Hitting the Big Time, The Daily Beast (Sept. 19, 2017, 1:00 AM), https://www.thedailybeast.com/inside-the-shadowy-world-of-revenge-hackers.

[2] See Jaikumar Vijayan, Reverse hacker wins $4.3M in suit against Sandia Labs, Computerworld (Feb. 14, 2007, 12:00 AM), https://www.computerworld.com/article/2543470/security0/reverse-hacker-wins–4-3m-in-suit-against-sandia-labs.html.

[3] Cox, supra note 1.

[4] Id.

[5] See id.

[6] See id.

[7] Robert Chesney, Legislative Hackback: Notes on the Active Cyber Defense Certainty Act discussion draft, Lawfare Blog (Mar. 7, 2017, 10:30 AM), https://www.lawfareblog.com/legislative-hackback-notes-active-cyber-defense-certainty-act-discussion-draft.

[8] Vijayan, supra note 2.

[9] Id.

[10] Id.

[11] Id.

[12] See id.

[13] Id.; see also Carpegnter v. Sandia Corp., No. 05-06347, N.M. Dist. WL 1108465 (Feb. 21, 2007).

[14] Vijayan, supra note 2.

[15] Chesney, supra note 7.

[16] See Steven Nelson, ‘Self-Defense’ Bill Would Allow Victims to Hack Back, U.S. News, Mar. 9, 2007, https://www.usnews.com/news/articles/2017-03-09/self-defense-bill-would-allow-victims-to-hack-back.

[17] Id.

[18] Chesney, supra note 7.

[19] Id.

[20] See id.

[21] Active Cyber Defense Certainty Act of 2017 (discussion draft), 115th Cong. § 2(1)(B) (2017).

[22] Id. at § 3(2)(B).

[23] Chesney, supra note 7.

[24] Nelson, supra note 16.

[25] Id.

[26] See id.

[27] See id.

Image Source: https://thetempconnection.com/2777-2/.

The Dark Web: A Seemingly Endless Market for Drug Trafficking

By: Jenna Bouley,

In the modern era, most people are familiar with the World Wide Web because they use it every day from running searches to reading the news. However, beneath the surface web exists a much darker place on the Internet, the Dark Web. The Dark Web refers to “a collection of websites that exist on an encrypted network and cannot be found by using traditional search engines or visited by using traditional browsers.”[1] Many people use the Dark Web for its ability to hide one’s identity and activity online.[2] In addition to hiding one’s identity the Dark Web has been used for a much more sinister purpose, buying and selling illicit drugs. [3]

The illicit drug trade done on the Dark Web accounts for over $100 million dollars in sales a year, and as it evolves new methods are developed to combat government crackdowns.[4] According to Carnegie Mellon University computer science professor and Dark Web-watcher, Nicolas Cristin, the Dark Web does anywhere between $300,00 and $500,000 in sales per day.[5] While this may not seem like a lot of money compared to other drug schemes what the Dark Web has that most others do not is a quick recovery time. This means that even after major takedowns the market still maintains a stable rate of sales. Law enforcement agencies can remove entire marketplace with no impact on the $100 millions done in sales per year.[6] This principle was demonstrated when Operation Onymous removed half a dozen sites from the Dark Web in 2014.[7] Operation Onymous captured fully half of the top market sites, which included Silk Road 2, Agora, Evolution, Pandora, Andromeda, and BlueSky.[8] However, Agora, Evolution and Andromeda remained online and had the ability to provide the drugs to the market when its competitors shut down.[9]

This quick rehabilitation time of illicit sites on the Dark Web becomes even more concerning when considering the current opioid crisis. According to law enforcement, a growing number of arrests and overdoses are the result of drugs being bought online.[10] Online sales through the Dark Web have allowed powerful synthetic opioids to be distributed throughout the country through packages sent through the mail.[11] The major problem with sales through the Dark Web is that buyers can visit sites anonymously and make purchases with virtual currencies like Bitcoin.[12] For example, a few flakes of fentanyl can be deadly and is easily sent in the mail.[13] This thought becomes even more concerning when considering that “enough fentanyl to get nearly 50,000 people high can fit in a standard first-class envelope.”[14] However, regardless of the seemingly endless amounts of illicit sellers on the Dark Web law enforcement does not seem dissuaded.

In July of 2017, American and European authorities worked together to shut down AlphaBay and Hansa Market, which were two of the largest online black markets.[15] AlphaBay went down first and as a result its users flocked to its competitor Hansa Market.[16] However, when Hansa Market was shutdown something odd occurred, users became nervous. Typically, users just move onto the next illicit market, but this shut down caused users to panic and alert each other not to place anymore orders for certain drugs.[17] While it appears the market recovered from this latest shutdown, large shutdowns do appear to have an impact on the market.[18] While the target of these investigations are usually the sellers the key to shutting down these market for good might actually be in discouraging buyers.[19] If no one is buying the products than the markets will shut down on their own because there is no profit. Although, cracking down on sellers is an important aspect of ridding the market of illicit drugs dissuading buyers is also an important piece of shutting down these markets for good.

 

[1] Matt Egan, What is the Dark Web, What is the Deep Web, and How Can you Access It?, TechAdvisor, (Oct. 10, 2017), http://www.techadvisor.co.uk/how-to/internet/what-is-dark-web-what-is-deep-web-how-can-you-access-it-3593569/, (Oct 11, 2017).

[2] See id.

[3] See id.

[4] Andy Greenberg, Crackdowns Haven’t Stopped the Dark Web’s $100M Yearly Drug Sales, WIRED, (Aug. 12, 2015), https://www.wired.com/2015/08/crackdowns-havent-stopped-dark-webs-100m-yearly-drug-sales/, (Oct 11, 2017).

[5] Id.

[6] Id.

[7] See id.

[8] Andy Greenberg, Global Web Crackdown Arrests 17, Seizes Hundreds of Dark Net Domains, WIRED, (Nov. 07, 2014), https://www.wired.com/2014/11/operation-onymous-dark-web-arrests/, (Oct 11, 2017).

[9] See id.

[10] Nathaniel Popper, Opioid Dealers Embrace the Dark Web to Send Deadly Drugs by Mail, The New York Times, (Jun. 10, 2017), https://www.nytimes.com/2017/06/10/business/dealbook/opioid-dark-web-drug-overdose.html, (Oct 11, 2017).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Nathaniel Popper and Rebecca R. Ruiz, 2 Leading Online Black Markets Are Shut Down by Authorities, The New York Times, (Jul. 20, 2017), https://www.nytimes.com/2017/07/20/business/dealbook/alphabay-dark-web-opioids.html, (Oct. 11, 2017).

[16] See id.

[17] See id.

[18] See Leo Kelion, Dark web markets boom after AlphaBay market and Hansa busts, British Broadcasting Corporation, (Aug. 1, 2017), http://www.bbc.com/news/technology-40788266, (Oct. 11, 2017).

[19] See id.

Image Source: http://www.bbc.co.uk/guides/z9j6nbk.

Why Are Pharmaceuticals Selling Patents to Native American Tribes?

By: Ilya Mirov,

On September 8, 2017, Allergan announced that it had transferred ownership of the patents on its lucrative drug Restasis, used for chronic dry eye relief, to the Saint Regis Mohawk Tribe [1]. The Tribe then granted an exclusive license for the drug back to Allergan, in exchange for an upfront sum of $ 13.75 million and $ 15 million per year in ongoing royalties as long as the patent remains in effect [2]. In exchange, the Saint Regis Mohawk Tribe is expected to claim sovereign immunity as a shield from attempts by generic pharmaceuticals at initiating inter partes review (IPR) actions on their respective patents [3]. Not only would these patents be immune from IPRs, but also from declaratory judgment actions in federal court [4].

Inter Partes Review is an administrative post-grant review of a patent that can invalidate some or all claims of the patent in question. In fact, since the institution of the process in 2013 via the America Invents Act, 86% of IPRs that are not terminated before final written decision have resulted in at least one claim being invalidated [5]. There is much debate on whether the expense and unfavorable decisions of the IPR process give alleged infringers too much power over patent owners, who must now weigh these costs against taking any action against the alleged infringer [6]. The proceedings themselves may even be unconstitutional, an issue that the Supreme Court will decide later this year [7].

Just as the future of IPRs is uncertain, so are the bounds of sovereign immunity in relation to IPRs. This year, the first precedent for sovereign immunity in IPR cases held that state-owned institutions, like universities, cannot have their patents challenged in IPR proceedings unless they waive immunity. Claims against them would instead be decided in federal court, where patent owners fare better against alleged infringers [8]. This most recent case regarding the Mohawk Tribe will decide whether Native American Tribes can exercise sovereign immunity in the same way. State sovereign immunity is granted by the Eleventh Amendment of the Constitution, but Native American Tribal sovereign immunity is granted by Congress, and can thus be limited by Congress [9].

The Mohawk tribe has not publicly commented on these deals yet, except to say that they have a similar arrangement with a technology company. Their actions show that they are ready and willing to enter the patent business, and they will certainly benefit from this new income source. The unique version of sovereign status that Congress affords Tribes does not support some of the typical income sources for a government body (i.e. use of land as collateral), and some do not want Congress to further limit their economic power [10]. Those who believe the IPR process unduly weakens patent rights may also support tribal patent assignments.

On the other hand, many question the legitimacy of the patent transfers. Judge William Bryson, who is overseeing Allergen’s federal infringement lawsuit has asked if the partnership with Mohawk is a “sham,” and whether Mohawk will be a co-plaintiff in the case [11]. Senator Claire McCaskill (D.-Mo.) introduced a bill to prevent tribes from entering in patent deals like these, calling it a “brazen and absurd loophole” [12]; four democratic senators have asked for an investigation [13].

The decisions of these cases could affect legal, economic, and business strategies. Keep an eye out for updates.

 

[1] Rachel Sachs, Be Very, Very Concerned About Allergan Just Did, Bill of Health, Sept. 9, 2017, http://blogs.harvard.edu/billofhealth/2017/09/09/be-very-very-concerned-about-what-allergan-just-did/.

[2] Tom Kulik, Why Assigning Patents to Native American Tribes to Avoid Inter Partes Review Is Bad Medicine Above the Law, Oct. 9, 2017, https://abovethelaw.com/2017/10/why-assigning-patents-to-native-american-tribes-to-avoid-inter-partes-review-is-bad-medicine/?rf=1.

[3] Kevin E. Noonan, Mohawk Nation Exercises Sovereign Immunity in Inter Partes Review, Patent Docs, Sept. 25, 2017, http://www.patentdocs.org/2017/09/mohawk-nation-exercises-sovereign-immunity-in-inter-partes-review.html.

[4] See Sachs, supra note 1.

[5] Patent Trial and Appeal Board Statistics (Mar. 31, 2016), https://www.uspto.gov/sites/default/files/documents/2016-3-31%20PTAB.pdf.

[6] See Paul Morinville, Native Americans Set to Save the Patent System, IP Watchdog, Oct. 9, 2017, https://www.ipwatchdog.com/2017/10/09/native-americans-set-save-patent-system/id=88871/.

[7]  Top of Form Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 137 S. Ct. 2239 (2017)Bottom of For

[8] See Dennis Crouch, Sovereign Immunity Excuses University of Florida from IPR Challenge, PatentlyO, Feb 1, 2017, https://patentlyo.com/patent/2017/02/sovereign-university-challenge.html.

[9] Joe Mullin, New Bill Would End Native American “Sovereign Immunity” for Patents, ARS Technica, Oct. 9, 2017, https://arstechnica.com/tech-policy/2017/10/new-bill-would-end-native-american-sovereign-immunity-for-patents/

[10] See Morinville, supra note 6.

[11] Meg Tirrell, Judge Asks if Allergan’s Patent Deal with Mohawk Tribe is a ‘Sham’, CNBC, https://www.cnbc.com/2017/10/06/judge-asks-if-allergans-patent-deal-with-mohawk-tribe-is-a-sham.html.

[12] See Mullin, supra note 9.

[13] Brendan McDermid, Four Senators are Calling for an Investigation into a Deal between Allergan and a Native American Tribe, CNBC, https://www.cnbc.com/2017/09/27/four-senators-are-calling-for-an-investigation-into-a-deal-between-allergan-and-a-native-american-tribe.html.

Image Source: http://petrieflom.law.harvard.edu/resources/article/why-a-drug-company-is-selling-patents-to-a-native-american-tribe.

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