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The Unimaginably Silly Resistance to Inseams in Women’s Clothing: The Battle for Pants in the Courtroom

By: Spencer Allen,

What makes a piece of clothing proper? As a historian, tailor, and now a law student, this is a question I’ve spent some time considering. In its most pure, clothing is technology. Though simpler than a computer or artificial intelligence, clothing is perhaps the most fundamental way human societies use tools to manipulate the natural environment and change the way we live. As the human species developed society and civilization the things we wore shifted from a matter of pure survival to a matter of technological communication. The things we wear, like the way we speak or the way we walk, is a rough compromise between the individual and society. More than pure individual expression, clothing is communication, and communication needs an interpretive audience. Just like the artist, the wearer of clothes is not fully in charge of what his clothes mean—and any choice of clothing will be given meaning through the analysis of the society. Simply put, clothing is not just a matter of individual preference. All clothing is on some level technological communication—using tools and materials to interact with the world and to shape day to day life. Just as a speaker must rely on society to interpret language, the wearer must rely on society to interpret communication via clothing.

When a person enters the public space, their clothing becomes a uniform—a symbol of who they are and what they are about. My father’s uniform is a heavy blue cotton long sleeve shirt. He has worn it for thirty years at the Toyota factory in Georgetown, Kentucky. For a time, my uniform was the woolen coatee with 3 rows of custom cast buttons, tails, and black and gold piping that I wore as a cadet at the Virginia Military Institute when I marched in the inauguration of the President. As a law student, my new uniform is the business suit. Though the general popularity of suits has declined in recent years, the garment remains the basic uniform of the legal profession—and a symbol to society of the legal profession. That uniform is a powerful symbol. So much so that the word “suit” itself is now strongly enough identified with lawyers to be the title of a television show about lawyers.[1]

The suit’s connection to law is not one forged by personal expression. Instead, the suit has been, for many hundreds of years (at least in the west), intimately connected to those whose work, like lawyers, is building, leading, and maintaining the mechanisms of society.

It is truly astounding in this age of un-hemmed pants, ballooning shirts, and wrinkled jackets with glued interfacing, that women wearing pantsuits is still a “big deal” in the legal profession.[2] In fact, it was not until 1993 that women were allowed to wear pants on the Senate floor.[3] Defying logic, in the era of the “power suit,” women in pants was somehow the sartorial problem.[4]

While the trouser-resistance seems to have crumbled significantly since the 1980’s, women in the profession, including women at Richmond Law, report that there is an unwritten rule in certain courts and offices that women should not wear trousers.[5] Though perhaps not the feeling of the majority, the sentiment exists firmly enough that the Career Development Office at the University of Richmond School of Law counsels 1L women to always wear a skirt to legal interviews.[6]

Now I’m no Jacobin, and I whole heartedly endorse formal and traditional etiquette in the legal profession—but there is absolutely no sartorial, historical, or practical reason to oppose trousers for all. Resistance to lawyers in trousers is purely and simply an insult to the dignity of women in the legal profession. Its time to move on.

I. What are pants?

The rise of pants coincided with the rise of ancient equestrian societies.[7] The relatively complex bit of tailoring technology offered a comfortable buffer between the horse and rider.[8] Pants in ancient times were a symbol of a person who rode a horse—a person of status, a warrior, or leader.[9] The horse rider is the cowboy, the knight, the cabillero, the person who is in control, the person who has authority. In contemporary society, the phrase “he/she wears the pants in the family,” seems to acknowledge the power of the pants-wearer beyond just gender.[10] The pants wearer is the bread winner. The person in control. The person who participates outside the domestic sphere, and thus controls domestic life.

Famously, the ancient Greeks were not a pants wearing people.[11] Even so, pants were a powerful symbol in ancient Greece.[12] In the below vase from circa 470 BC, the patriarchal Greeks represent the matriarchal Amazon warrior wearing pants.[13] The pants are a symbol of the woman’s independence, of her status as a warrior and a leader separate from toga-clad and exclusively male Greek society.[14]

As male-dominated equestrian societies began to become more prevalent, the pants-wearer (and thus the warrior/leader) became exclusively male.[15] Although robes were still popular among aristocratic men, the end of the Roman Empire basically saw the end of pants-free societies, and, speaking generally, the norm in Europe became trousers for men and skirts for women.[16]

The birth of the modern suit—and in a sense modern suit sensibility—came in 1666.[17] As a part of the restoration of the English monarchy, parliament sought to bring back the heir to the throne, Charles II.[18] There was some resistance to the idea of installing a monarch—largely due to a fear of monarchial opulence and excess.[19] During his exile, Charles II spent considerable time in France with the uniquely opulent Louis XIV, the “sun king” (the one who built Versailles).[20]

Many of the English feared Charles II would bring French opulence back to England, and so Charles tapped the breaks on over the top courtly clothes.[21] Instead of the lacey, brightly colored silk suits of the French ruling class, Charles II adopted a plainer look.[22] On October 7, 1666, Charles declared that English court dress would consist of an English wool, knee-length coat and a long waistcoat.[23] The emphasis in this new uniform was “on cloth and cut, not ruffles and accessories.”[24]

In this way Charles II brought the ruling class a bit closer to the people. Dressing not as a “sun king” but as “an ordinary bloke.”[25]

Suits and trousers, progressed through the years until the turn of the 19th century, when the stylish Edward VII popularized modern-styled trousers.[26]

Figure 1: 1066, the Normans can be seen wearing trousers in the Bayeux Tapestry. Supra note 6.

Figure 2: This Greek vase from c. 470 BCE depicts an Amazon woman wearing trousers–maybe even a suit. Does her arming coat match her trousers? Supra note 6.

Figure 3: Edward VII displaying the modern trousers he helped to popularize. Supra note 6.

Figure 4: Louis XIV wearing so much silk he actually needs a small table to hold his cloak. Even the globe in the bottom left corner gets a silk cloak… http://www.voltaire.ox.ac.uk/about-voltaire/explore-world-louis-xiv.

Figure 5: 1675 Charles II reeling it in on the silk (and being presented with the first royal pineapple). http://www.newworldencyclopedia.org/entry/Charles_II_of_England.

II. Women in pants, gasp.

Pants for women began, ironically, with the horse.[27] With the advent of automobiles in the early 20th century, horse riding became more a matter of sport and leisure than of practicality.[28] As with all things impractical and expensive, equestrian sports increasingly became a symbol of wealth and status.[29] Before the 19th century, women in European society rode side saddle, and in skirts.[30] As women became more involved in equestrian sport, they began to ride astride—thus requiring an inseam to separate the rider from the horse.[31]

As cultural norms shifted to allow women more access to physical activity, trousers became a new and important symbol for women who lived more active and not exclusively domestic lives.[32] Just as with men, women’s trousers represented that the wearer was the doer of certain tasks, and that the wearer had an increased independence and control.[33]

One of the first women’s suits came in 1910, when the American Ladies Tailors’ Association created the “suffragette suit,” a blouse, jacket, and ankle length skirt.[34] This served as the precursor to the modern skirt-suit.[35] As women gained ground in the working world, women’s suits became more and more common.[36] Trousers with suits, however, remained for men.[37]

As women gained more power in the political sphere, the skirt-suit, and later the pantsuit, became the uniform.[38]  After a rebellion led by several female members of Congress, the Senate finally allowed women to wear pants in 1993.[39] Margaret King, stylist to renowned suit wearer Margaret Thatcher, remarked in 1987 that the prime minister wore suits so much because “she was in a man’s world, and had to look the part.”[40]

In some sense the word “pantsuit” itself highlights the strange state of women’s suits. Strictly speaking, a pantsuit is just a suit. It is the skirt-suit that is the different garment. In the 2008 presidential election, the pantsuit took center stage when Hillary Clinton referred to her followers as “the sisterhood of the travelling pantsuit.”[41] Perhaps the greatest modern champion of the pantsuit, secretary Clinton has lauded the garment as a uniform that makes her feel professional, and a “visual cue that she was different from men but also familiar.”[42]

More than a symbol, though, Secretary Clinton also praised the pantsuit as useful in avoiding the assault of having photographs taken up her skirt as she was on stage or climbing stairs—both of which happened to her while she was first lady.[43]

Figure 6: Two representative examples of the “suffragette suit.”

III. Court dress: what does it mean, why does it matter?

It may be an old-fashioned sentiment, but what lawyers wear to court matters. For many thousands of years, human societies have used clothing to highlight what is important and what is sacred.[44] The uniform of the profession is more than personal expression, it is an elevation of the idea of law and society. Like incense in a church, or a mansion for the president, the clothes that lawyers wear summon the transcendental. They proclaim that what lawyers do, what people do, matters. Suits and trousers in court boldly assert that the work of society today taps into and flows from the lives of humanity through history, and the tradition of civilization.

For at least 100,000 years clothing and jewelry have held significance in human societies.[45] While often diminished as “individual expression” in this, the age of the selfie, adornment and decoration of the body is perhaps the most ancient and pervasive medium for human communication about who we are, what we do, and what we are worth.[46] Indeed, corporal adornment may be older than language.[47]

Refusing women’s right to wear pants in the courtroom is not an inconvenience. It is not a silly rule to be laughed at and ignored. It is a denial of women’s right to participate in the work of society. Wearing trousers in court means something beyond personal expression. It symbolizes a tradition and a history of society and law that women have a right to be a part of. The inseam represents the warrior, the leader, the king, the cowboy, the cabillero.[48] It denotes those who perform the work of creating and sustaining civilization. Pants have never been about gender, but about power.

Hillary Clinton once remarked that the pantsuit was an “anti-distraction technique” and that “[if] there wasn’t much to say or report on what I wore, maybe people would focus on what I was saying instead.”[49]

There is no historical or sartorial reason for women to be scoffed at for wearing trousers in court (and I can’t believe I have to say that). For God’s sake, the Queen wore trousers on a royal tour of Canada nearly fifty years ago.[50] Clearly, access to pants will not change much about circumstances or society. Pants have not and will not lead to any sort of measurable change. But symbols, like art, bear the ineffable. Sometimes feeling leads to being—or in the laconic words of SGM Neel, patriarch of the VMI barracks, “dress like a soldier, feel like a soldier.”

The sort of silly sounding truth is that for a very long time pants have been the uniform of lawyers and leaders. Not because they were men, but because they jumped on the horse and took command. Try jumping on a horse in a skirt. The statement may sound silly, but opposition to such a thing is anything but trivial Absent any compelling reason, there is only one reason left for opposition to inseams—that those opposed to trousers fear women may have something to say, and that others may listen.

Figure 7: https://www.popsugar.com/news/Girl-Pantsuit-Meets-Hillary-Clinton-Book-Signing-44090750.

 

[1] Suits, USA Network (Mar. 19, 2018 12:26 PM), http://www.usanetwork.com/suits.

[2] Ann Farmer, Order in the Closet: Why Attire for Women Lawyers Is Still an Issue, 19 Perspectives 4, 6-7 (Fall 2010), https://www.americanbar.org/content/dam/aba/publishing/perspectives_magazine/2010_fall_order_in_closet.authcheckdam.pdf; Katie J.M. Baker, Forget the Glass Ceiling, We Have Hemlines to Consider, Jezebel (Mar. 16, 2018, 7:12 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider; Gina Rubel, Women lawyers wearing pants: part II, Avvo (Mar. 16, 2018, 7:18 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider.

[3] Megan Garber, Why the Pantsuit? For Hillary Clinton and Many of Her Fellow Women Politicians, a Single Outfit Represents an Uneasy Compromise between Gender and Oower, Atlantic, (Mar. 16, 2018, 6:05 PM), https://www.theatlantic.com/entertainment/archive/2016/08/youre-fashionable-enough-hillary/493877/.

[4] Id.

[5] Id.; informal interview with Jane Baber, president of Richmond Women’s Law.

[6] See generally Career Development Office, General Interviewing Tips, Richmond Law (Mar. 16, 2018, 6:11 PM), https://law.richmond.edu/docs/cdo/interview-guide.pdf (advising women to always wear panty hose to an interview).

[7] A Brief History of Trousers, King and Allen Bespoke Tailoring, (Mar. 16, 2018, 6:15 PM), https://kingandallen.co.uk/a-brief-history-of-trousers/.

[8] Id.

[9] Id.

[10] Wear the Pants, The Free Dictionary by Farlex, (Mar. 16, 2018, 6:22 PM), https://idioms.thefreedictionary.com/wear+the+pants.

[11] Supra note 6.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Supra note 6.

[17] How Charles II Invented the Three-Piece Suit, Permanent Style (Mar. 16, 2018, 6:27 PM), https://www.permanentstyle.com/2009/04/how-charles-ii-invented-the-three-piece-suit.html.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Supra note 17.

[23] Id.

[24] Id.

[25] Id.

[26] Supra note 6.

[27] Ane Bjølgerud Hansen, Horses, fashion & history, Equilife (Mar. 16, 2018, 6:41 PM), http://www.equilifeworld.com/lifestyle/horses-fashion-history/.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Hansen, supra note 27.

[33] Id.

[34] Kate Sullivan, The Fascinating History of Women Wearing Suits, allure (Mar. 16, 2018, 6:50 PM), https://www.allure.com/story/women-suits-history.

[35] Id.

[36] Farmer, supra note 2.

[37] Supra note 6.

[38] Farmer, supra note 2.

[39] Id.

[40] Hansen, supra note 27.

[41] Farmer, supra note 2.

[42] Id.

[43] Id.

[44] Nancy Hynes, Oldest Known Jewelry Discovered: Beads Made from Shells Represent Earliest Personal Adornment, Nature (Mar. 16, 2018, 7:01 PM), https://www.nature.com/news/2006/060619/full/news060619-10.html.

[45] Id.

[46] Id.

[47] Id.; Vyv Evans, How Old is Language? On time Machines, Talking Neanderthals, and the Long(ish) Past of Language, Psychology Today (Mar. 16, 2018, 7:06 PM), https://www.psychologytoday.com/blog/language-in-the-mind/201502/how-old-is-language.

[48] Supra note 6.

[49] Farmer, supra note 2.

[50] The Queen’s Wardropedia; 2 Inch Heels, 200 Handbags and Why She’s Only Worn Trousers Once, Telegraph (Mar. 16, 2018, 7:34 PM), https://www.telegraph.co.uk/fashion/people/shes-only-worn-trousers-publicly-once-and-other-fashion-facts-to/.

Image Source: https://weeklysilence.wordpress.com/2011/12/09/research-paper-pants-phenomenon-the-switch-from-skirts-to-trousers/.

John Henry, the Steam Drill, and the Increasing Demands of Rule 26(g)

By: Kate Bauer,

John Henry, well, he told his captain /

“Captain, a man, he ain’t nothing but a man /

Before I let your steam drill /

beat me down /

I’m gonna die with a hammer /

in my hand, Lord, Lord /

I’ll die with a hammer in my hand”[1]

 

John Henry cut through a mountain, exerting extraordinary effort to beat the steam drill.  The price was steep, costing Henry his life.[2]  Today new technologies providing reliable, cost-effective alternatives to routine human tasks seem to crop up daily.  Innovators wield data to justify adopting the new technology; once adopted, technology’s capabilities eventually become the standard against which human efforts are measured.  Even superb workers struggle to compete with machines that do not eat, do not sleep, and do not tire.

John Henry’s story is currently playing out in the eDiscovery field.  When identifying responsive documents for production, responding parties have a duty under Rule 26(g) to make a reasonable inquiry.[3]  Requirements for a reasonable inquiry have been evolving in recent years.  In the past, having humans manually review the documents was assumed to be accurate, with courts deferring to an attorney’s professional judgment that he had made a reasonable inquiry unless the requesting party could show a deficiency.[4]  The increasing use of technology-assisted review (TAR)—computer algorithms that analyze relevance decisions humans make on a small set of documents, and then extrapolate those decisions to the document collection[5]—has led to an increased emphasis on statistically validating the quality of the production set up front.[6]  These validation requirements were initially intended to objectively verify the accuracy of TAR algorithms, ensuring their results constituted a reasonable inquiry.[7]  Now, at least one court has proposed requiring statistical validation of manual review as well, with threshold recommendations for what values constitute a “high-quality” review.[8]  While research indicates that TAR can probably meet these requirements with ease, the accuracy demands will likely tax the capabilities of human reviewers.

Humans, meet the steam drill.  Good luck keeping up.

 Reasonable Inquiry: Historically, a Deferential Standard

The Rules require an attorney to conduct a reasonable inquiry when putting together a production set.[9] A reasonable production must be substantially complete, as “[a]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[10]  To determine whether an inquiry is reasonable, the court looks to the totality of the circumstances.[11]  The most common remedy for an inadequate production is a motion to compel, with sanctions generally reserved for when an attorney has failed to discover the obvious,[12] when a party fails to timely disclose relevant information,[13] or when a party obstructs access to relevant information.[14]  Absent a showing of deficiency by the requesting party, courts treated a responding party’s assertion of reasonableness deferentially.[15]

To meet the “reasonable inquiry” requirement, it was standard to hire armies of review attorneys to examine potentially relevant documents for privilege and production.[16]  Although utilizing massive review teams was generally considered reasonable if the team was adequately staffed and trained,[17] the exhaustive review approach became increasingly unsustainable from a cost perspective as document volumes continued to grow.

TAR: Reasonable Inquiry Requires Verification

At the turn of the 21st century, document discovery was an area ripe for innovation.  The document review process was painfully expensive: a 1998 study of federal cases found that discovery amounted to at least half of all litigation expenses, and discovery represented 90% of total litigation costs in the most expensive cases.[18]  By 2014, most Fortune 1000 corporations were spending between $5 million and $10 million annually on eDiscovery costs, with seventy percent of those costs spent on document review.[19]  Several companies reported spending as much as $30 million on eDiscovery.[20]

Innovators developed technology-assisted review to address the increasing data volume.  These computer algorithms promised to drastically reduce the time and cost of document discovery by “learning” from attorney decisions regarding relevance for a subset of documents, then applying the same designations to similar documents in the review set.[21]  Attorneys initially regarded these machine-learning claims with skepticism, so TAR advocates plied statistics to make the case that TAR was at least as accurate as exhaustive human review, and possibly more so.[22]  On top of its documented accuracy, on average TAR saved parties 45% of the costs of a traditional document review.[23]  Like the steam drill operators of old, small teams of specialists using TAR could replace the armies of human reviewers laying eyes on every document.[24]

Today TAR advocates have largely succeeded: numerous courts have embraced TAR usage, albeit usually with caveats.[25]  In contrast to the historical deference to human judgment, when TAR was first adopted courts had concerns about its accuracy.  Though academic studies had demonstrated impressive results for certain TAR solutions, the wide variety of solutions purporting to be TAR created fears about the “black box” of the technology.[26]  That one TAR solution worked did not mean a different one would.  Courts were therefore interested in objective statistical measurements such as precision and recall[27] that would help them in determining whether the TAR process had worked (i.e. whether it was reasonable).[28]  Statistical validation allows parties to determine whether TAR is making good predictions or bad ones without verifying TAR’s predictions for every document in the document set.[29]

To ensure TAR was reasonable, courts encouraged parties to be more transparent with TAR productions.[30]  Rather than accepting an attorney’s representation that he had conducted a reasonable inquiry, courts advocated (and at times required) that parties disclose unprecedented access detailing exactly how accurate their review had been.[31]  This approach, though understandable, broke with the deferential approach courts had historically taken to manual review.

Reevaluating Reasonable Inquiry: From Deference to Verification for Manual Review

The same statistics that supported TAR’s superiority also exposed an uncomfortable truth: exhaustive human review is not the “gold standard” it had previously been assumed to be.[32]  In fact, research shows that manual human review is fraught with inconsistency: information retrieval professionals disagree about whether a document is relevant at least as often as they agree.[33]  Attorneys fare even worse: in one study, attorneys agreed on relevance, at best, a mere 28.1% of the time.[34]  Alternative methods to reduce document volume such as using search terms, or “keywords,” also have significant shortcomings.[35]

Nevertheless, before TAR’s emphasis on statistical validation, little effort was expended to measure the accuracy of attorney coding decisions.[36]  Absent a showing to the contrary, courts accepted an attorney’s professional judgment that a review was complete,[37] which was embodied in the Rule 26(g) certification.[38]  A requesting party who disagreed had the burden of showing that the responding party’s production was inadequate before a motion to compel would be granted.[39]

The widespread usage of statistics to validate machine predictions has caused some to suggest applying a similar approach to manual review.  As TAR became more mainstream, so too did awareness about the statistical metrics necessary to evaluate its performance.[40]  The Rule 26(g) reasonableness inquiry is an objective one: what could be more objective than statistical validation?[41]

Special Master Maura Grossman recently ordered parties to apply statistical validation to manual review in In Re Broiler Chicken Antitrust Litigation, a class action currently pending in the Northern District of Illinois.[42]  Anticipating document-intensive discovery, Magistrate Judge Jeffrey Gilbert brought in Grossman, a well-known TAR expert, to arbitrate eDiscovery disputes.[43]  On January 3, 2018, Grossman issued a comprehensive Order governing processing, search methods, and validation.[44]  The Order observes that “[t]he review process should incorporate quality-control and quality-assurance procedures to ensure a reasonable production consistent with the requirements of Federal Rule of Civil Procedure 26(g).”[45]  Uniquely, the Order requires parties to use a Subject Matter Expert (SME) to calculate recall regardless of whether the parties use manual review or TAR.[46]  While recognizing that recall alone is not dispositive, the Order states that “a recall estimate on the order of 70% to 80% is consistent with, but not the sole indicator of, an adequate (i.e., high-quality) review.”[47]

The Broiler Chicken validation provisions weigh heavily in favor of choosing TAR over manual review.  Research shows that manual review tends to produce a wide range of recall values.[48]  For example, in their influential 2011 JOLT study Maura Grossman and Gordon Cormack compared the results of a TAR methodology against a manual review for five different review topics.[49]  While the TAR algorithms averaged a recall of 78.7% across all five categories (ranging from 67.3% to 86.5%), the human reviewers finished with an average recall of 59.3% (ranging from 25.2% to 79.9%).[50]  Similarly, in another study, researchers found that the recall of manual review ranged from 52.8% to 83.6%.[51]  Contrasting the wide range of manual review recall values with the tight band of TAR recall values supports the conclusion that manual review runs a greater risk of failing the Broiler Chicken recall validation protocol.

In addition to the increased risk of failing the Broiler Chicken validation protocol, manual human review involves a costly level of effort. While Rule 1 asserts that the Rules “should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding,”[52] purely human efforts generally involve greater time and expense than TAR.[53]  As shown by the JOLT study, the increased time and expense of human review is unlikely to translate into greater accuracy than TAR provides.[54]

Electing human review over TAR will usually run afoul of Rule 1’s objectives to increase the speedy determination of actions while reducing costs and preserving justice.[55]  Most obviously, manual review takes longer and incurs higher costs that TAR.[56]  Manual review is usually billed at a per-reviewer hourly rate, or on a per-document basis across the entire corpus of potentially relevant documents.[57]  TAR, by contrast, only requires human review of a small subset of documents, with the technology eliminating the need to manually review large portions of the document set.[58]  Additionally, when more reviewers are used, there is a greater chance that their interpretations of relevance will vary, increasing the risk of low recall.[59]  In contrast, a small number of SMEs using TAR to extrapolate their judgments will likely have a more consistent view of relevance than dozens of reviewers.[60]  Lastly, if the recall of the manual review is not at an acceptable level, the existing coding must be manually reevaluated on a document-by-document basis—a laborious and costly process.  However, correcting a TAR algorithm’s incorrect predictions is simple: just change the coding designation on the document the algorithm used to make its prediction.  Within hours (if not minutes) the algorithm will adjust its predictions for all related documents in the document set.  Not even the John Henrys of the document review world can compete with such speed.

Broiler Chicken: A Pecking Order for the Future?

Does Broiler Chicken portend a shift in how courts will assess the Rule 26(g) reasonable inquiry going forward?  Though the Order permits parties to choose either manual review or TAR, there is little doubt that the validation protocol favors TAR usage.  Academic studies and in-the-field usage have established that using TAR is less expensive and faster than manual review, while being at least as accurate (if not more so).[61]  A party who chooses manual review risks (1) falling short of the accuracy mark after incurring substantial time and expense, and (2) having to reevaluate its coding decisions one-by-one.

TAR has not yet entirely surpassed human capabilities, but that time may be coming.  In the Grossman and Cormack JOLT study, on one topic the humans did outperform the algorithm.[62]  Though less than 1% separated man from machine,[63] this slim win for human accuracy shows that traditional methods are not yet obsolete.  For now, courts generally accept that “[r]esponding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.”[64]  Still, the time may be coming when “it might be unreasonable for a party to decline to use TAR.”[65]  After all, John Henrys are rare, but the technology to rival him is cheap, fast, and readily available.

 

[1] Bruce Springsteen with the Seeger Sessions Band, BBC Four Sessions (2008) (covering Pete Seeger’s song “John Henry”), https://www.youtube.com/watch?v=U3eutnpTr3E.

[2] For an alternative theory, see William Grimes, Taking Swings at a Myth, With John Henry the Man, N.Y. Times (Oct. 18, 2006) (“A smoothly coordinated human team had an advantage over the early drills, which constantly broke down.  The machines were highly efficient, however, at generating clouds of silicon dust. Contrary to the picture presented by the ballads, John Henry would have died not of exhaustion or a burst heart, but of silicosis, a fatal, fast-moving lung disease that took the lives of hundreds of railroad workers.”).

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

[4] See Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM), https://web.archive.org/web/20150405030235/http://orcatec.com/2014/11/04/the-pendulum-swings-practical-measurement-in-ediscovery/ (“We have gone from assessing eDiscovery on the basis of an attorney’s opinion: ‘I’m a professional and I conducted a professional enquiry,’ to . . . a perceived need to ‘prov[e] that we have obtained a certain level of recall.’”); see also Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427–28 (D.N.J. 2009); The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 52 (2018) (“The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.”).

[5] Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 32 (2013) (Technology-assisted review is a “process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document Collection.”).

[6] See Roitblat, supra at note 4.

[7] See Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182, 192 (S.D.N.Y. 2012) (“[I]t is unlikely that courts will be able to determine or approve a party’s proposal as to when review and production can stop until the computer-assisted review software has been trained and the results are quality control verified. Only at that point can the parties and the Court see where there is a clear drop off from highly relevant to marginally relevant to not likely to be relevant documents.”).

[8] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *50–51 (N.D. Ill. Jan. 3, 2018).

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

[10] See Fed. R. Civ. P. 37(a)(4).

[11] Fed. R. Civ. P. 26 advisory committee notes to the 1983 amendments.

[12] R & R Sails Inc. v. Ins. Co. of Penn., 251 F.R.D. 520, 525 (S.D. Cal. 2008).

[13] Gucci America, Inc. v. Costco Wholesale, No. 02 Civ. 3190 (DAB) (RLE), 2003 WL 21018832 at *2 (S.D.N.Y. May 6, 2003).

[14] St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

[15] See The Sedona Conference, supra note 4, at 52.

[16] See, e.g., Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 at *4 (N.D. Cal. Mar. 11, 2011) (finding that party took reasonable steps to prevent disclosure of privileged documents including providing review attorneys with written instructions and a tutorial for the review); Kandel v. Brother Int’l Corp., 683 F. Supp. 2d 1076, 1085–86 (C.D. Cal. 2010) (finding that party had taken reasonable steps to prevent disclosure of privileged documents by staffing and training a document-review team).

[17] See Datel, 2011 WL 866993 at *4; Kandel, F. Supp. 2d at 1085–86.

[18] Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in A Digital Age, 58 Duke L.J. 889, 892 (2009).

[19] Jennifer Booton, Don’t Send Another Email Until You Read This, MarketWatch (Mar. 9, 2015, 10:10 AM), http://www.marketwatch.com/story/your-work-emails-are-now-worth-millions-of-dollarsto-lawyers-2015-03-06.

[20] Id.

[21] See Grossman & Cormack, supra note 5.

[22] See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 1, 37 (2011) (reporting that manual reviewers identified between 25% and 80% of relevant documents, while technology-assisted review returned between 67% and 86%); see also Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, J. of Am. Soc’y for Info.  Sci. & Tech. 70, 79 (2010) (performing an empirical assessment to “answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results,” and concluding that “[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review.”).

[23] eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute 3 (Oct. 21, 2010), https://www.discovia.com/wp-content/uploads/2012/07/2010_EDI_PredictiveCodingSurvey.pdf.

[24] Anne Kershaw & Joseph Howie, Crash or Soar? Will the Legal Community Accept “Predictive Coding?”, L. Tech News, Oct. 2010, http://www.knowledgestrategysolutions.com/wp-content/uploads/LTN_CrashOrSoar_2010_Oct.pdf.

[25] See, e.g., Green v. Am. Modern Home Ins. Co., No. 14–CV–04074, 2014 WL 6668422 at *1 (W.D. Ark. Nov. 24, 2014); Dynamo Holdings Ltd. P’Ship v. Comm’r of Internal Revenue, 143 T.C. 183, 185 (T.C. Sept. 17, 2014); Aurora Coop. Elevator Co. v. Aventine Renewable Energy–Aurora W. LLC, No. 12 Civ. 0230, Dkt. No. 147 (D. Neb. Mar. 10, 2014); Edwards v. Nat’l Milk Producers Fed’n, No. 11 Civ. 4766, Dkt. No. 154: Joint Stip. & Order (N.D. Cal. Apr. 16, 2013); Bridgestone Am., Inc. v. IBM Corp., No. 13–1196, 2014 WL 4923014 (M.D. Tenn. July 22, 2014); Fed. Hous. Fin. Agency v. HSBC N.A. Holdings, Inc., 11 Civ. 6189, 2014 WL 584300 at *3 (S.D.N.Y. Feb. 14, 2014); EORHB, Inc. v. HOA Holdings LLC, No. Civ. A. 7409, 2013 WL 1960621 (Del. Ch. May 6, 2013); In re Actos (Pioglitazone) Prods. Liab. Litig, No. 6:11–MD–2299, 2012 WL 7861249 (W.D. La. July 27, 2012) (Stip. & Case Mgmt. Order); Global Aerospace Inc. v. Landow Aviation LP, No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012); Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012).

[26] Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, 25, 29 (“[I]f the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. I may be less interested in the science behind the ‘black box’ of the vendor’s software than in whether it produced responsive documents with reasonably high recall and high precision.”).

[27] To calculate recall, a party must review a mix of relevant and irrelevant documents.  The party then codes the documents for relevance and compares its decisions about relevance against the algorithm’s predictions about relevance.  The more alignment between human reviewer and the algorithm’s predictions, the better the recall. See Grossman & Cormack, supra note 5 at 27 (defining “recall” as “[t]he fraction of Relevant Documents that are identified as Relevant by a search or review effort.”).

[28] Da Silva Moore, 287 F.R.D. at 185 (“The Court explained that ‘where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results,’ since ‘[p]roportionality requires consideration of results as well as costs.’”).

[29] John Tredennick, Ask Catalyst: In TAR, What Is Validation And Why Is It Important?, Catalyst (Sept. 27, 2016), https://catalystsecure.com/blog/2016/09/ask-catalyst-in-tar-what-is-validation-and-why-is-it-important/.

[30] See id.; see also Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128–29 (S.D.N.Y. 2015); Bridgestone, 2014 U.S. Dist. WL 4923014 at *1 (“[O]penness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.”); Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467 at *11 (declining to allow predictive coding when counsel was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . . .”); Transcript of Record at 9, 14, Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 1:11-cv-06188 (S.D.N.Y. July 24, 2012) (bench decision requiring transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents except privileged).

[31] See sources cited supra note 30.

[32] See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 199 (2007) (“[T]here appears to be a myth that manual review by humans of large amounts of information is as accurate and complete as possible– perhaps even perfect–and constitutes the gold standard by which all searches should be measured.”).

[33] Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt. 697, 701 (2000) (concluding that assessors disagree that a document is relevant at least as often as they agree).

[34] Roitblat et al., supra note 22, at 74.

[35] David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Commc’ns Ass’n Computing Mach. 289, 295–96 (1985) (finding that paralegals who thought they had retrieved 75% of relevant documents using iterative keyword searches had only found 20%).

[36] Roitblat, supra note 4.

[38] See sources cited supra note 4.

[39] See sources cited supra note 4.

[40] See John Tredennick, Measuring Recall in E-Discovery Review, Part Two: No Easy Answers, Catalyst (Dec. 5, 2014), https://catalystsecure.com/blog/2014/12/measuring-recall-in-e-discovery-review-part-two-no-easy-answers/; Ralph Losey, Visualizing Data in a Predictive Coding Project, e-Discovery Team (Nov. 9, 2014, 8:10 PM), https://e-discoveryteam.com/2014/11/09/visualizing-data-in-a-predictive-coding-project/; Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM), https://web.archive.org/web/20150405030235/http://orcatec.com/2014/11/04/the-pendulum-swings-practical-measurement-in-ediscovery/; John Tredennick, Measuring Recall in E-Discovery Review, Part One: A Tougher Problem Than You Might Realize, Catalyst (Oct. 15, 2014), https://catalystsecure.com/blog/2014/10/measuring-recall-in-e-discovery-review-a-tougher-problem-than-you-might-realize-part-1/.

[41] Too bad for the people who became lawyers because they were told there would be no math.

[42] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 (N.D. Ill. Jan. 3, 2018).

[43] Michele C. S. Lange, TAR Protocol Rules the Roost: In Re Broiler Chicken, The ACEDS eDiscovery Voice (Feb. 8, 2018), http://www.aceds.org/blogpost/1653535/294460/TAR-Protocol-Rules-the-Roost-In-Re-Broiler-Chicken.

[44] Broiler Chicken, No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *45, *47 (N.D. Ill. Jan. 3, 2018).

[45] Id. at *45.

[46] Id. at *45, *47.

[47] Id. at *50–51.

[48] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[49] Grossman & Cormack, supra note 22 at 37.

[50] Id.

[51] Roitblat et al., supra note 22, at 79.

[52] Fed. R. Civ. P. 1.

[53] See eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute, ii, 3 (Oct. 21, 2010), https://www.discovia.com/wp-content/uploads/2012/07/2010_EDI_PredictiveCodingSurvey.pdf.

[54] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[55] See Fed. R. Civ. P. 1.

[56] See eDiscovery Institute, supra note 53.

[57] See, e.g., Patrick Oot et. al., Mandating Reasonableness in A Reasonable Inquiry, 87 Denv. U. L. Rev. 533, 548 (2010) (“[To review 1.6 million documents] [i]t took the attorneys four months, working sixteen hours per day seven days per week, for a total cost of $13,598,872.61 or about $8.50 per document.”).

[58] See Grossman & Cormack, supra note 5.

[59] See Roitblat et al., supra note 22, at 74.

[60] See Voorhees, supra note 33.

[61] See Grossman & Cormack, supra note 22, at 37; Roitblat et al., supra note 22, at 79.

[62] Grossman & Cormack, supra note 22, at 37.

[63] Id.

[64] See, e.g., Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Kleen Prod. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465 at *5 (N.D. Ill. Sept. 28, 2012); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009); see also The Sedona Conference, supra note 4, at 52.

[65] Hyles, 2016 WL 4077114 at *3.

Image Source: https://www.nrm.org/2016/06/john-henry-2009/.

Digital Accessibility for Disability

By: Eli Hill,

Under the Americans with Disabilities Act (“ADA”), private entities, including businesses and nonprofits, must provide individuals with disabilities equal access to the services they offer.[1]  When a private entity uses a space for a public gathering with the purpose of education, sales, recreation, or presentation, that service is considered a public accommodation.[2]  Since the dawn of the digital age, the courts have continued to grapple with whether website operations should be classified as a “public accommodation”.[3]

The  courts have been hesitant to classify any business operation within cyberspace as a public accommodation.[4]  At the time the ADA was enacted in 1990, society was not as reliant on the Internet as today.[5]  Listed examples of public accommodations in the policy itself only include services that are offered within “brick and mortar” buildings.[6]  As businesses extended their brands and marketing online, disability advocates pressed the courts to reconcile this shift against the ADA language and intentions.[7]

To date, business websites are still not counted as a public accommodation on its own.[8] However, the courts have found that websites which offer information on physical store locations are a beneficial support for the public accommodation provided in-store.[9]  Expanding this idea further, the courts are exploring the idea of websites as gateways to actual business interactions.[10]   The intangible barriers are earning attention alongside the tangible ones and so committees are again pushing for a more progressive analysis of the ADA.[11]

As the construction of websites grossly outpaces physical space constructions, the obstructions in access to the digital portals require equal attention.[12]  More and more companies continue to abandon the physical storefront model of operation and build their corporate strategies around purely web-based models. [13]  Accordingly, a dynamic interpretation of the ADA against an equally dynamic digital sphere will remain a necessary platform of judicial review.[14]

 

[1] 28 C.F.R. § 35. 104, 35.160 Lexis (Feb. 2, 2018)

[2] See U.S. Dept. of Justice: Civil Rights Div., Title III Technical Assistance Manual III-1 (2000), https://www.ada.gov/taman3.html.

[3] See Joseph L. Friedman & Gary C. Norman, The Norman/Friedman Principle: Equal Rights to Information and Technology Access, 18 Tex. J. on c.l. & c.r. 47, 48-9 (Fall 2012).

[4] Id. at 47.

[5] See id.

[6] See 42 U.S.C.S. § 12181 Lexis (Feb. 26, 2018) (listing out examples of public accommodations).

[7] See, Rendon v. Valleycrest Prods., 294 F.3d 1279, 1283 (11th Cir. 2002).

[8] See e.g., Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801 LEXIS, 15457 (S.D. Fla. Feb. 2, 2017).

[9] See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); see also Earll v. Ebay, Inc., 599 F. App’x 695 (9th Cir. 2015) (finding that there must be a connection between the good and service offered by a public accommodation and an actual physical space).

[10] See generally Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) (comparing “brick and mortar” walls and websites as offering boundaries from which customers operate within).

[11] See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (referencing the need to address website accessibility).

[12] See Bradley Allan Arehart & Michael Ashley Stein, Integrating the Internet, 83 Geo. Wash. L. Rev. 449, 454 (Feb, 2015).

[13] See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (finding by jury trial for the first time the need to recognize websites as a nexus to the business operation).

[14] See id.

Image Source: https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/website-accessibility-disabilities-regulations-doj.aspx.

Are FBI Anti-Piracy Warnings More Bark Than Bite?

By: James DeSantis,

Thanks to its ubiquitous placement at the beginning and end of commercially released films, the criminality of copyright infringement is perhaps the most widely viewed criminal statute in the United States.[1] Despite its prominent place in the American psyche, the very existence of criminal liability for violating copyright laws is of relatively recent origin and one that has only ever been intermittently enforced.[2] It is important to distinguish between civil and criminal liability for copyright infringement. Civil action by one party against another is by far the most common way of protecting copyright infringement; whereas, criminal action for copyright infringement requires enforcement by government agencies and can lead to prison sentences.[3] Criminal liability for copyright abuse follows a consistent pattern of periodically raising fines and penalties while simultaneously lowering the legal thresholds for what types of activities constitute criminal infringement. Despite the increasingly stiffer penalties, expanded prosecutorial powers, and wide public awareness, criminal enforcement for copyright infringement is more honored in the breach than the observance− rarely does a breach result in serious liability.

Under the Constitution’s Copyright Clause, Congress has the power “to promote the Progress of Science and the useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.[4]” The first criminal provision in U.S. copyright law was introduced 1897, which made it a misdemeanor for the “unlawful performances and representations of copyrighted dramatic and musical compositions” as long as the violation had been “willful and for profit.[5]” Until the implementation of criminal penalties for copyright infringement, copyright concerns were entirely a civil rather than a criminal matter.[6] The idea was that copyright violations were of private financial concerns rather then the purview of the criminal justice system, especially considering that many types of copyright infringement can be beneficial to the public.[7]

As the entertainment industry grew and the technology advanced, the financial gains for reproducing another’s successful work became an ever increasing concern and criminal penalties for copyright infringement were greatly expanded in 1909 with amendments to the Copyright Act.[8] The Act expanded the copyright law to include all copyrighted material and added penalties of up to one year in prison.[9] Over the years, Congress periodically raised the statutory punishment for criminal copyright violations. First, in 1948, fines were increased from $1,000 to $10,000 and again in 1976, fines were raised from $10,000 to $25,000.[10] However, it was not until 1982, coinciding with the advent of home video and compact cassettes, that congress made copyright infringement for audio and visual recordings a felony punishable by both a $250,000 fine and five years imprisonment.[11] While criminal punishments exist on paper, criminal charges for copyright infringement are rarely enforced.[12] Of the 3300 published copyright cases between 1948 and 1997, only sixty-eight (two percent) involved criminal charges.[13]

The first major court decision of the then nascent issue of mass online copyright infringement occurred in United States v. LaMacchia, which exposed the legal limitations the government faced in attempting to enforce criminal copyright laws in the digital age.[14] The 1994 ruling dismissed a criminal action against a 21-year-old MIT student who made copyrighted software freely available for download through his electronic bulletin board.[15] Despite causing over $1,000,000 in losses to the software companies, LaMacchia could not be prosecuted under the existing law because it could not be shown that he personally profited from the scheme.[16] In response to the Supreme Court’s ruling in LaMacchia, which became known as the “LaMacchia loophole,” Congress passed the No Electronic Theft Act (NET Act) in 1997, amending the language requiring “commercial gain” to any “receipt, or expectation of receipt, of anything of value.”[17]

Originally heralded as a major legislative victory for the software and entertainment industries, the NET Act has been so rarely enforced by the Department of Justice (DOJ) that is widely seen as a major disappointment.[18] Despite no shortage of potential prosecutions that could be pursued, the NET Act is emblematic of how the mere existence of a law on the books is of little value, if the law is never actually enforced.[19]

Out of frustration with the lack of governmental assistance in combating rampant online piracy, the entertainment and software industries have aggressively lobbied congress to expropriate federal funds to go after online pirates and to allow the DOJ file civil suits against suspected pirates.[20] These lobbying efforts have had limited legislative success, and the chance that an individual in the United States will be criminally accountable for engaging in online piracy is negligible.[21] For all the efforts lobbying the U.S. government to take a more aggressive role in prosecuting online copyright infringers under federal criminal statutes, the most noticeable effect is the use ever more intimidating anti-piracy banners shown before films and on the back of CDs.[22] While Hollywood and the music industry aggressively warn customers of the criminal repercussions for illegally sharing a copyrighted work, in reality, governmental enforcement against online copyright infringement is rare.[23] So rare that the next time you see the FBI’s intimidating warning label you should see it as a public service announcement on behalf of entertainment companies rather than a genuine threat of prosecution from the U.S.’s highest law enforcement agency.

 

[1]http://thefbiwarningscreens.wikia.com/wiki/The_FBI_Warning_Screens_Wiki. (Public interest in FBI Warning screens is so high that they have even developed their own cult following as evidenced by their own Wikia fan page.)

[2] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

[3] 18 U.S. Code § 2319.

[4] U.S. Const. Art. I, § 8, cl. 8.

[5] Act of Jan. 6, 1897, ch. 4, 29 Stat. 481-82.

[6] See 17 U.S.C. §§ 502-505.

[7] Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. Rev. 731, 733 (2003). (Copyright laws have always been a balance between private interests and benefits that accrue to the public).

[8] The Criminalization of Copyright Infringement in the Digital Age, 112 Har. L. R. 7, 1705, 1707 (1999).

[9] The Copyright Act of 1909 § 28.

[11] Piracy and Counterfeiting Amendments Act of 1982, Pub. L. 97-180, 96 Stat. 91

[12] Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 Wm. & Mary L. Rev. 2209 (2003).

[13] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA 527, 529 (1999).

[14] United Sates v. LaMacchia, 871 F. Supp. 535 (D. Mass 1994).

[15] Benj Edwards, The Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic (Nov. 4, 2016) (Bulletin Board Systems (BBS) were a precursor to the modern Internet in which individuals had their own servers that could be accessed remotely. The advent of Internet service providers and dial up modems destroyed the market for BBS in matter of months).

[16] United States v. LaMacchia, 871 F. Supp. at 542.

[17] No Electronic Theft Act (NET Act) Pub. L. 105-147. 111 Stat. 2678 (1997). (Making it a crime to willfully upload copyrighted materials to the Internet regardless of presence or absence of a profit motive).

[18] See Virginia Man Sentenced for Violation of the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet (March 3, 2000); First Criminal Copyright Conviction Under the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet, https://www.justice.gov/archive/opa/pr/1999/August/371crm.htm.

[19] Stuart Biegel, Beyond our Control?: Confronting the Limits of our Legal System in the Age of the Internet, The MIT Press, (2013).

[20] See The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (Aptly titled the PIRATE Act, the bill would allow federal prosecutors to file civil lawsuits against suspected copyright infringers and would allocate federal funds specifically for combating online piracy.); see also, Internet Property Enforcement Act of 2007, S.2317; Contra, Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279)

[21] See Kevin Paulson, Guilty Verdict in First Criminal Trial for Online Music Piracy, WIRED, May 23, 2008 https://www.wired.com/2008/05/guilty-verdict/.

[22] https://www.iprcenter.gov/ip-theft/digital-ip-theft.

[23] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

Image Source: https://www.hollywoodreporter.com/thr-esq/fbi-anti-piracy-warnings-over-time-pictures-322495.

New Hope for the Environmental Law Enforcement?

By: Daria Ivanova,

The field of environmental conservation has never been the most technologically advanced one, partially because of the lack of funds and partially because of the lack of motivation on behalf of the conservation community.[1] This, generally, old-school community has been attempting to solve main problems by extending protected areas and investing in ecosystem services, such as water purification.[2] However, a younger generation of conservation actors believes that this is not enough to address exponentially growing and ever-changing environmental problems.[3] Alex Dehgan and Paul Bunje perceived this problem in the environmental conservation field and seized the opportunity.[4] They figured that if technology can help solve wildlife extinction, why can’t they use it?[5] In fact, they believe in the power of technology to the extent that they claim that “[w]e’ll need a tribe of hackers, makers, economists, engineers, and entrepreneurs to help a sometimes technophobic conservation community reverse the sixth mass extinction.”[6]

A device Conservation X Labs has been developing is a child of the problem it is being created to eradicate. Conservation X Labs was awarded $159,000 to work on the development of the device which could analyze the origin and the species of timber imports.[7] These funds were obtained from a giant lumber company, Lumber Liquidators, which violated the Lacey Act protecting wildlife and plants from illegal harvesting.[8] The investigation purporting to uncover those illegal activities spanned for several years.[9] The Environmental Investigation Agency agents have been traveling from across the world to China to find out who smuggled Russian timber there.[10] This all could have been prevented if the law enforcement personnel had a device which could identify the type of timber smugglers were attempting to illegally introduce into the market.[11] Now it seems to be closer to reality.

One of the reasons why the scientific community has not used the technology that much was the price. However, nowadays, it is becoming more accessible. For example, in Biodiversity Conservation All. v. United States Forest Serv., 765 F.3d 1264 (10th Cir. 2014), Biodiversity Conservation Alliance contested the United States Forest Service’s decision to change one of Wyoming’s trails. The Forest Service used satellite imagery to identify the number of fens which could be affected by the change and the plant life in fens.[12] Even though the technology in that case did not necessarily work to preserve the environment, the Conservation X Labs’ device promises incredibly beneficial uses.

The Conservative X device looks like a video game joystick, but it is actually a hand-held scanner which is not as expensive as similar modern prototypes.[13] The system behind using the scanner is following. Living cells have a part which the scientists call a “barcode.”[14] The “barcode” is a sequence of DNA located in mitochondria which has 648 base-pair region.[15] The University of Guelph in Ontario contains the Barcode of Life Database which has the mitochondrial DNA of 275,000 species.[16] Using this database, scientists can identify the sequences specific to a certain species, then synthesize it and freeze-dry onto reference chips.[17] The people using the scanner would insert a small piece of a ground-up tissue mixed with a drop of water in a one of two kinds of microfluidic chips.[18] One type of chip would simply say yes or no, whereas the other type could compare to up to several references chips.[19] Introducing this type of device would not only offer the enforcement agencies a way to efficiently prevent numerous violations, but would it also encourage the innovation in the environmental enforcement field. By showing that technology can be both affordable and beneficial for protecting the environment, Conservation X Labs and other similar entities do way more than just creating technological help for the conservation community. It forces a strong culture clash within the whole community.[20]

 

[1] Scott Dance, Concerned Activists, Lawmakers Waiting for Delayed Data on Maryland’s Environmental Law Enforcement, TheBaltimoreSun.com (Oct. 31, 2016 06:42PM), www.baltimoresun.com/features/green/blog/bs-md-environmental-enforcement-20161027-story.html.

[2] Richard Leakey, Conservation Alone ‘Is Not Enough’, BBCNews (Sep. 10, 2007), http://news.bbc.co.uk/2/hi/science/nature/6983914.stm.

[3] Eillie Anzilotti, Bold Conservation Ideas Go from Concept to Reality on This New Collaboration Platform, Fast Company.com (Sep. 20, 2017), https://www.fastcompany.com/40468095/bold-conservation-ideas-go-from-concept-to-reality-on-this-new-collaboration-platform.

[4] Virginia Gewin, A Handheld DNA Scanner Could Crack Down on Wildlife Identity Theft, The Atlantic.com (Feb. 9, 2018), https://www.theatlantic.com/technology/archive/2018/02/conservation-tech/552779.

[5] Julia Luthringer, Who Are Tomorrow’s Leaders in Ocean Conservation?, Huffpost.com: The Blog (Sep. 15, 2016, 03:17PM),  https://www.huffingtonpost.com/conservation-x-labs/who-are-tomorrows-leaders_b_12031010.html.

[6] Gewin, supra note 4.

[7] Id.

[8] Kiken v. Lumber Liquidators Holdings, Inc., 155 F. Supp. 3d 593 (E.D. Va. 2015).

[9] Jani Actman, From Trees to Tigers, Case Shows Cost of Illegal Logging, National Geographic.com (Nov. 10, 2015), https://news.nationalgeographic.com/2015/11/151110-timber-russian-far-east-illegal-logging-siberia.

[10] Id.

[11] Ian Evans, Deeply Talks: Fighting Illegal Fishing With Big Data, Robots and A.I., NewsDeeply.com (Feb.14, 2018), https://www.newsdeeply.com/oceans/articles/2018/02/14/deeply-talks-fighting-illegal-fishing-with-big-data-robots-and-a-i.

[12] Biodiversity Conservation All. v. U. S. Forest Serv., 765 F.3d 1264 (10th Cir. 2014).

[13] Gewin, supra note 4.

[14] Nick Lane, Biodiversity: On the Origin of Bar Codes, Nature.Com (Nov. 18, 2009), www.nature.com/news/2009/091118/full/462272a.html.

[15] Nicola Davis, How DNA Barcodes Can Beat the Wildlife Traffickers, The Guardian (Aug. 16, 2014), https://www.theguardian.com/science/2014/aug/16/biodiversity-determined-by-difference-in-dna-barcode.

[16] Sue Palminteri, Portable DNA Analysis Tool Identifies Species on Site to Help Combat Wildlife Crime, Mongabay (Dec. 6, 2017), https://news.mongabay.com/wildtech/2017/12/portable-dna-analysis.

[17] Gewin, supra note 4.

[18] Id.

[19] Id.

[20] Id.

Image Source: https://www.theatlantic.com/technology/archive/2018/02/conservation-tech/552779/.

How Private Spaceflight May Collide with Space Law

By: Helen Vu,

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

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

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

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

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

 

[1] See Tariq Maliq, Success! SpaceX Launches Falcon Heavy Rocket on Historic Maiden Voyage, Space.com (Feb. 6, 2018), https://www.space.com/39607-spacex-falcon-heavy-first-test-flight-launch.html.

[2] See id.

[3] See Nell Greenfieldboyce, SpaceX Set To Launch World’s Most Powerful Rocket, The Two-way (Feb. 5, 2018), https://www.npr.org/sections/thetwo-way/2018/02/05/582464054/spacex-set-to-launch-worlds-most-powerful-rocket.

[4] See The Space Race, History.com (2010), http://www.history.com/topics/space-race.

[5] See id.

[6] See id.

[7] See Timeline: 50 Years of SpaceFlight, Space.com (Sept. 28, 2012), https://www.space.com/4422-timeline-50-years-spaceflight.html.

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

[9] See id.

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

[11] See id.

[12] See id.

[13] See Loren Grush, Elon Musk’s Tesla Overshot Mars’ Orbit, but it Won’t Reach the Asteroid Belt as Claimed, The Verge (Feb. 8, 2018), https://www.theverge.com/2018/2/6/16983744/spacex-tesla-falcon-heavy-roadster-orbit-asteroid-belt-elon-musk-mars.

Image Source:  https://fsmedia.imgix.net/69/ca/9e/05/611b/47ea/8580/49057a4a632d/spacex-says-by-late-next-year-the-falcon-heavy-will-launch-two-astronauts-to-the-moon.pngrect=0%2C61%2C1103%2C368&dpr=2&auto=format%2Ccompress&w=650.

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

By: James DeSantis,

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

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

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

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

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

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

 

[1] David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation, Wired, Sept. 4, 2008, https://www.wired.com/2008/09/proving-file-sh/.

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

[3] Id. at 113.

[4] Fed. R. Civ. P. 20(a)(2).

[5] Felicia Boyd, The End of John Doe Copyright Suits in the US?, Intellectual Property Magazine (Sept. 2012), http://www.btlaw.com/files/Uploads/Documents/Publications/028-029_Sept_2012-FO.pdf.

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

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

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

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

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

Image Source: http://www.zdnet.com/article/censorship-creep-pirate-bay-block-will-affect-one-third-of-uk/.

First Ride-Sharing, Now Patent Sharing

By: Seth Bruneel,

About ten years ago someone had an idea. It is doubtful that patent protection is available for the idea, but protection from patents was the idea. Several major US companies got together to find ways to mitigate the risk of facing off against non-practicing entities (“NPE”), also termed “Patent Trolls.” [1]  The answer to their problems came about as Allied Security Trust.

Allied Security Trust (“AST”) is a consortium of companies that pool resources to share costs in acquiring and licensing patents. [2] The companies pool their money in AST, which in turn buys patents on the open market. [3] AST then resells the patents on the condition that the buyer grants a free license to all of the members of the consortium. [4]  This allows a member-company to have access to more patents at less cost than it would have access to on its own and worry less about infringing on patent owner’s rights, specifically, those rights owned by a NPE. [5]

Earlier this month, AST, which now includes Google and Ford Motor Company, purchased another 70 patents. [6]  Perhaps taking a page out of Costco Wholesale’s book and “buying in bulk,” AST secured the patents for a total cost of $2.5 million.[7]  The price of a patent ranted from $25,000 to $390,000, putting the average price of a single patent at $128,000. [8]

One way AST is able to keep prices down is the way the program is structured. Patent owners submit a proposal to sell their patent to the group through AST at a take-it-or-leave-it price.[9]

AST turned this practice into an annual event last year with the title “Industry Patent Purchase Program” (“IP3”).[10]  The program was an initial success but was adjusted this year to limit the participants to AST “members only” and narrowed the scope of the patented technologies up for sale to: (1) Internet of Things; (2) Wireless; (3) Content Delivery; (4) Networking; and (5) Communications. [11]

It will be interesting to see if this idea catches on in other areas of technology and if so, what the USPTO’s response to this “patent-sharing” idea.

 

[1] ABOUT US, http://www.ast.com/about-us/asts-mission/ (last visited Feb. 15, 2018).

[2] SERVICES, http://www.ast.com/services/ (last visited Feb. 15, 2018).

[3] Id.

[4] Malathi Nayak, Google, Ford, Others Complete Defensive Patent Group Buy, PATENT TRADEMARK & COPYRIGHT J. (Feb. 9, 2019), https://www.bloomberglaw.com/document/X7OEB2CG000000?emc=bnaptcj%3A11&jcsearch=bna%2520000001616bfad7b6a1eb6fff20b70000#jcite (last visited Feb. 15, 2018).

[5] See ABOUT US, supra note 1.

[6] See Nayak, supra note 4.

[7] Id.

[8] Id.

[9]  See Nayak, supra note 4.

[10] Announcing IP3 – The First Industry Patent Purchase Program, (May 18, 2016), http://www.ast.com/news_article/calling-patent-owners-google-ibm-ford-cisco-leading-global-companies-want-buy-patents-new-ip3-purchase-program-ast/ (last visited Feb. 15, 2018).

[11] Gene Quinn, AST Acquires 70 Patent Assets in Fixed Price, Fixed Term Buying Program, IPWATCHDOG (Feb. 13, 2018), http://www.ipwatchdog.com/2018/02/13/ast-acquires-70-patent-assets-fixed-price-fixed-term-buying-program/id=93662/ (last visited Feb. 15, 2018).

Image Source: https://infograph.venngage.com/p/90715/what-are-patents.

Olympic Records: Team Drone Popularity is Outpacing Team Drone Policy

By: Eli Hill,

During the  opening ceremonies of the 2018 Winter Olympics, people watching around the world gave witness to a world record being broken.  In the largest display of its kind, over 1,218 drones took to the night skies of Pyeongchang for a large-scale synchronized performance.[1]  The mechanized fleet put on a colorful, LED dotted and darting spectacle, eventually forming the shape of a swaying snowboarder and transitioning into the iconic image of the interlocking Olympic Rings.[2]

Orchestrated by Intel, these drones were part of the company’s “Shooting Star” platform, a project that had been building to this Pyeongchang moment for many years.[3] After launching an initial synchronized swarm of 100 drones with four controlling pilots from a test site in 2015, Shooting Star capabilities grew to handle over 500 drones with just one controlling pilot only a year later in 2016.[4]  Most notably, Intel brought its Shooting Star show into the public’s direct line of sight during Lady Gaga’s 2017 Super Bowl halftime show when a 300 drone fleet converged to form the image of a fluttering American Flag above the NRG stadium.[5]

While ‘drone shows’ represent a relatively new sort of spectacle, the Olympics have been slowly incorporating drones within their broadcast productions for many years.[6]  During the 2014 Winter Olympics in Sochi, Russia, the Olympic Broadcasting Services (“OBS”) used drone cameras to film freestyle skiing and snowboarding, events which in of themselves also embodied the idea of a fresh spectacle. [7] Able to capture thrilling moments from dynamic viewpoints, the OBS went on to use 50 high speed drone cameras at events, for athlete introductions, and during the presentation of awards at the 2016 Summer Games in Rio.[8]

As global broadcasting platforms continue to experiment with drone capabilities in the realm of entertainment, traditional caution and safety concerns over commercial drone use remain.[9]   Recent risk assessments claim that the majority of drone-related accidents stem from faulty tech rather than human operating error.[10]  Given that drone show choreography puts greater reliance on the automated programming, those overseeing mass events remain appropriately cautious.  Broadcasts of both Shooting Star displays at the Super Bowl and at Pyeounchang were prerecorded, as concerns over weather conditions, fleet visibility, and the assured safety of a live audience forced Intel to adopt a more conservative roll out.[11] Currently, Intel has no plans to sell models of its Shooting Star drones, but given the popularity of their displays, it’s merely a matter of time until the general public has access to tech capable of creating individualized spectacles.[12]

While many countries have taken steps to regulate civilian drone use within the airspace of their own borders, international standards and policies still lack definitive traction.[13]  The United Nations continues to advocate strongly for the registration of all commercial drones within a national database.[14] In the last year, member states of the International Civil Aviation Organization (“ICAO”) included drone management guidelines as an action item at their annual symposium.[15]  Despite the championing recognitions, the popularity fueling the drone culture is clearly outpacing any policy being designed to regulate it.

By 2024, the global market growth of drones is projected to reach upwards of $13 billion.[16]  The current lag in standardized regulations allow drone manufactures to occupy a unique position of influence, especially at high profile, multinational sporting events.  Da-Jiang Innovations (“DJI”), the drone manufacturer responsible for over half of all small civilian drone sales, has capitalized on the absence of explicit international regulations by supplying the protections against its very own products.[17] Responding to concerns from South Korean authorities over civilian piloted drones, DJI developed a software patch that temporary prevents all drones of DIJ design from operating within protected Olympic event areas.  Providing such a service is not unusual for DIJ, as they have instituted these self-regulations at U.S. political party conventions, the G7 Summit in Japan, and the 2016 Euro football tournament in France.[18]

In addition to their record-breaking display at the Opening Ceremonies, Intel plans to deploy its light-show legions nightly in Pyueongchang. [19] Squadrons of 300 drones will animate the airspace above Olympic medal presentations for the duration of the Winter Games.[20]  As these displays continue to showcase the wonders of drones, not just their weaponing, their commercial popularity will remain on the rise.  The continued spectacle will push international policy and put pressure on international policy to keep pace.

 

[1] See Brian Barrett, Inside the Olympics Opening Ceremony World-Record Drone Show, Wired, (8:00pm on Feb. 9, 2018), https://www.wired.com/story/olympics-opening-ceremony-drone-show/.

[2] See id.

[3]See Jacob Brogan, How Intel Lit Up the Super Bowl with Drones and Why, Slate, (10:25am on Feb. 6, 2017),  http://www.slate.com/blogs/future_tense/2017/02/06/how_the_intel_drones_at_the_lady_gaga_super_bowl_halftime_show_worked.html.

[4] See id.

[5] See Nathan Bohlander, Here Come the Drones- And the Legal Headaches, Law360 (Feb. 23, 2017)(describing drone show in connection to Super Bowl halftime).

[6] See generally, Waibel, M., Keays, B., Augugliaro, F.. Drones shows: Creative potential and best practices, Verity Studios (Jan. 2017), https://veritystudios.com/whitepaper/#appendix.

[7] See Zehra Betul Ayranci, Use of Drones in Sports Broadcasting, 33 Ent. & Sports Law. 79 (2017).

[8] See id. at 80.

[9] See Waibel, supra note 6.

[10] See id.

[11] See Barrett, supra note 1.

[12] See Dieter Bohn, Intel’s new Shooting Star Mini drones can make indoor light shows, The Verge (11:15pm on Jan. 8, 2018), https://www.theverge.com/2018/1/8/16866880/intels-shooting-star-mini-drones-indoor-light-shows-ces-2018.

[13]  See Ayranci, at 90.

[14] See id.

[15] See Philbin, Anthony, ICAO to Seek Global Traffic Management Solutions for Drone Operations, ICAO.int (May 15, 2017, Montreal), https://www.icao.int/Newsroom/Pages/ICAO-to-seek-global-traffic-management-solutions-for-drone-operations.aspx.

[16]  Ayrunci, at 90.

[17] See Malek Murison, DJI Puts No-Fly Zones in Place for South Korea Winter Olympics, DroneLife Blog (Feb. 7, 2018), https://dronelife.com/2018/02/07/dji-no-fly-zones-south-korea-winter-olympics/.

[18] See id.

[19] See Brian Barrett, Inside the Olympics Opening Ceremony World-Record Drone Show, Wired, (8:00pm on Feb. 9, 2018), https://www.wired.com/story/olympics-opening-ceremony-drone-show/.

[20] See id.

Image Source: https://www.businesswire.com/news/home/20180209005739/en/Intel-Drone-Light-Show-Breaks-Guinness-World.

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

By: Kaley Duncan,

“Alexa tell me a joke.”

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

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

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

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

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

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

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

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

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

 

[1] TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016) https://www.review-weekly.com/blog/technology/11-dad-jokes-from-amazon-echo/.

[2] Grant Clauser, What is Alexa? What is the Amazon Echo, and Should You Get One? NY TIMES: The Wirecutter (Feb. 10, 2017), http://thewirecutter.com/reviews/what-is-alexa-what-is-the-amazon-echo-and-should-you-get-one/; see also TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016) https://www.review-weekly.com/blog/technology/11-dad-jokes-from-amazon-echo/.

[3] Andrew Gebhart, Google Home vs. Amazon Echo: Alexa Takes Round 1, CNET (Feb. 2, 2017), https://www.cnet.com/news/google-home-vs-amazon-echo/.

[4] BI Intelligence, How Many Amazon Echo Smart Home Devices have been Installed?, Business Insider (Jun. 7, 2016, 8:00PM), http://www.businessinsider.com/how-many-amazon-echo-smart-home-devices-have-been-installed-2016-6.

[5] Amazon Developer, https://developer.amazon.com/alexa (last visited Mar. 12, 2017).

[6] Amazon Prime, https://www.amazon.com/Amazon-Echo-Dot-Portable-Bluetooth-WiFi-Speaker-with-Alexa/b?node=14047587011 (last visited Mar. 12, 2017).

[7] Arash Khamooshi, Breaking Down Apple’s iPhone Fight with the U.S. Government, NY Times (Mar. 16, 2016) https://www.nytimes.com/interactive/2016/03/03/technology/apple-iphone-fbi-fight-explained.html?_r=0.

[8] Hope King, Tech Companies Standing up to Government Data Requests, CNN Tech (June 18, 2015, 6:06PM), http://money.cnn.com/2015/06/18/technology/data-protection-government/.

[9] Eric Ortiz, Prosecutors Get Warrant for Amazon Echo Data in Arkansas Murder Case, NBC News (Dec. 28, 2016, 2:13PM), http://www.nbcnews.com/tech/internet/prosecutors-get-warrant-amazon-echo-data-arkansas-murder-case-n700776.

[10] Mem. ex rel Amazon’s Mot. to Quash Search Warrant at 1–2, Ark. v. Bates, No. CR-2016-370-2 (Benton Co. Cir. Ct. Ark. 2017), available at https://www.documentcloud.org/documents/3473747-Amazon-Memorandum-Seeking-to-Quash-Echo-Search.html#document/p1.

[11] Rich McCormick, Amazon Gives up Fight for Alexa’s First Amendment Rights after Defendant Hands Over Data, The Verge (Mar. 7, 2017, 1:20AM) http://www.theverge.com/2017/3/7/14839684/amazon-alexa-first-amendment-case

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

[13] Id. at 1169.

[14] Id. at 1172.

[15] Id. at 1177.

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

[17] Id.

[18] Id. at 1774.

[19] Id.

[20] Id.

Image Source: https://lawstreetmedia.com/blogs/technology-blog/alexa-first-amendment/.

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