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Net Neutrality

By: David Hart,

Net Neutrality is the idea that your internet service provider must treat all lawful websites equally. They must not block lawful websites, throttle speeds of certain websites, or accept payment to prioritize the speed of the payer’s website. There is currently a proposal by the FCC that would effectively end Net Neutrality.[1] The heart of the issue is whether broadband internet should be classified as a common carrier or as an information service.

Since 2015, the internet has been effectively regulated under a common carrier classification, as opposed to an information service classification.[2] Before the change in 2015, Internet Service Providers were classified as an information service.[3] This changed after the Title II Order, in which the FCC classified providers as a common carrier, which brings with it much more stringent regulations.

An information service is defined as the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.[4] Contrastingly, telecommunication (which is classified as a common carrier) is defined as the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.[5] The common carrier classification applies to services such as railroads, trucking companies, and telecommunication services.[6]  A common carrier provides a service to the general public and cannot discriminate among its users. They are statutorily prevented from discrimination in charges, practices, classifications, regulations, facilities, or services.[7] What this means to your Internet Service Provider is that they cannot increase speeds for websites that they own, or websites that pay them. If Netflix were to offer them money in order to prioritize the access to Netflix, relative to other sites, they are unable to accept. For another example, take Verizon. Verizon owns the Huffington Post. It makes sense that Verizon would want more people to access the Huffington Post. In theory, Verizon could increase their customers’ internet speed for accessing the Huffington Post while decreasing the speed of accessing other news sites, like CNN’s. Currently, they are unable to do so under the common carrier classification.[8] This would not be the case if Internet Service Providers’ classification is changed to that of an “information service.” Relative to a common carrier classification, the information service class is much less regulated. If Internet Service Providers become classified as an information service, instead of a common carrier, they would no longer be prevented from throttling or increasing speeds based on website and would be able to prioritize some sites over others.[9] However, the FCC proposal would require providers to let their customers (and potential customers) know if they blocked, slowed, or prioritized websites.[10]

The FCC will vote on the proposal December 14, 2017.[11] The FCC proposal argues that the regulatory environment of the common carrier classification has delayed new services and stifled innovation.[12] The proposal aims to end FCC micromanagement of innovative business models and restore the Federal Trade Commission’s power to protect consumers from unfair practices without burdensome regulation.[13] Opponents of the proposal argue that a change in classification would effectively allow providers to determine what websites consumers would be able to see and use.[14] This could be even more problematic as many areas of the country are dominated by a limited number of large internet providers, so even if a customer were to be dissatisfied with their provider’s decisions, they’d have few to no other options.[15]

 

[1] Restoring Internet Freedom, 82 Fed. Reg. 25,568 (Jun. 2, 2017).

[2] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[3] Verizon Communications Inc. v. FCC, 740 F.3d 623 (2014).

[4] 47 U.S.C. § 153 (24) (2017).

[5] 47 U.S.C. § 153 (50) (2017).

[6] 47 U.S.C. § 153 (51) (2017).

[7] 47 U.S.C. § 202 (2017).

[8] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[9] 47 U.S.C. § 202 (2017).

[10] Restoring Internet Freedom Fact Sheet ¶ 216, http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf.

[11] Cecilia Kang, F.C.C. Plans Net Neutrality Repeal in a Victory for Telecoms (Nov. 21, 2017), https://www.nytimes.com/2017/11/21/technology/fcc-net-neutrality.html.

[12] Restoring Internet Freedom Fact Sheet, http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf.

[13] Id.

[14] ACLU: What Is Net Neutrality (Jun. 2017), https://www.aclu.org/issues/free-speech/internet-speech/what-net-neutrality.

[15] Jeff Dunn, America Has An Internet Problem — but a Radical Change Could Solve It, Business Insider (Apr. 23, 2017), http://www.businessinsider.com/internet-isps-competition-net-neutrality-ajit-pai-fcc-2017-4/#-3.

Image Source: https://www.aclu.org/sites/default/files/styles/scale_1200w/public/wysiwyg/web15-siteimages-act-netneutrality-2400x960_0.jpg?itok=SWcUu9tK.

Juror Emotion

By: Niesha Gibbs,

Should jurors be completely void of emotion? When posed with this question, I impulsively answered no. Prompting my answer are cases like that of Cyntoia Brown. Brown’s story has garnered the attention of thousands after a recent post about her went viral. In 2006, the then 16-year-old Brown was sentenced to life imprisonment for the murder of 43-year year old Jonathan Allen.[1] Allen attempted to rape Cyntoia, and in self-defense she shot and killed him.[2] Brown was tried as an adult and ultimately convicted of first degree felony murder and aggravated robbery.[3] Cyntoia’s case, like many others, is a prime example of when just a bit more understanding from a jury would have had an entirely different outcome. Nonetheless, there are instances where far too much emotion certainly clouds judgment. So, where does this leave the plight of nearly all jurors? The unspoken plight of finding the delicate balance between acknowledging sympathy while applying an impartial balance of the law? One solution being offered is artificial intelligence.[4]

With technology present in nearly every facet of the legal profession, from e-discovery to electronic filing, it should come as no surprise that technology has now pervaded to the courtroom itself. Currently, technical advances are being used to “transfer” jurors to the actual crime scene of the trial they are sitting on.[5] However, the strides of modernizing courtrooms haven’t stopped there, robots or algorithms are now being used to determine the guilt or innocence of a defendant.[6] The company Nortpointe, Inc. has created software, Compas, that is designed to assist courts or judges with making “better” – or at least more data-centric – decisions in court.”[7]

While this hasn’t become a widespread practice, it has attracted the attention of prominent legal figures, namely the Honorable Chief Justice John G. Roberts Jr.[8] After being asked about the effect of artificial intelligence in the courtroom, Justice Roberts described it as “putting a significant strain on how the judiciary goes about doings things.”[9] Roberts comments were given over two months after the Supreme Court declined to review the case of Eric Loomis.[10]

In early 2013, Loomis was “sentenced to six years in prison at least in part by the recommendation of a private company’s secret proprietary software.”[11] One can’t help but to believe this decision was partially or even wholly motivated by the implications of such a ruling. Additionally, as with any new discovery, the potential problems that could arise if this method was endorsed by the Court. For example, hacking is regularly associated with some of the most sensationalized scandals. One could only imagine the potential issues that could arise during a highly contentious case, with someone’s life in the balance. Regardless of which side you are positioned on this issue, one point that both sides will concede is that as jurors each person brings their own world view. This worldview is a lens through which legal advocates often rely during a trial. Further, as humans, we have the unique ability to empathize with one another. An ability I think should never be undervalued or overlooked.

 

[1] See AJ Willingham, Why Cyntoia Brown, Who Is Spending Life in Prison for Murder, Is All Over Social Media, CNN (2017), http://www.cnn.com/2017/11/23/us/cyntoia-brown-social-media-murder-case-trnd/index.html.

[2] See id.

[3] See id.

[4] See Kayla Mathews, Is AI Getting Closer to Replacing Jurors, ProductivityBytes (2017), http://productivitybytes.com/ai-getting-closer-replacing-jurors/.

[5] See Nick Caloway, Investigators Use 3D Technology to Solve Crimes, Bring Scenes to Juries, Wkrn.com (2016), http://wkrn.com/2016/10/10/investigators-use-3d-technology-to-solve-crimes-bring-scenes-to-juries/.

[6] See Mathews, supra note 4.

[7] Christopher Markou, Why Using AI to Sentence Criminals is a Dangerous Idea, The Conversation (2017), https://theconversation.com/why-using-ai-to-sentence-criminals-is-a-dangerous-idea-77734.

[8] See See Adam Liptak, Sent to Prison by a Software Program’s Secret Algorithms Sidebar, New York Times (2017), https://www.nytimes.com/2017/05/01/us/politics/sent-to-prison-by-a-software-programs-secret-algorithms.html?_r=0.

[9] See id.

[10] Amy Howe, Federal Government Files Invitation Briefs, SCOTUSblog (2017), http://www.scotusblog.com/2017/05/federal-government-files-invitation-briefs/.

[11] See Liptak, supra note 8.

Image Source: https://www.law.com/insidecounsel/2017/04/19/jury-consulting-gets-emotional-with-the-help-of-te/?slreturn=20180017121919

Can an Improved Debt Collecting System Prevent Effective Scam Enforcement?

By: Daria Ivanova,

What is the IRS impersonation scam? A person receives an unsolicited phone call from a live person or from an automated call dialer who claims to be talking on behalf of IRS.[1] The caller may use a fake name or may not use name at all, or can also provide a fake IRS employee’s badge number.[2] The alleged IRS representative may know the victim’s Social Security Number or other personal information of the victim. The caller tells a targeted victim that he or she owes taxes to the IRS and if this person does not respond and pay them immediately, the victim will be arrested or sued. There also can be threats such as the loss of a business or driver’s license or deportation.[3] The impersonators often use the technique called spoofing when they use voice-over Internet protocol technology to hide their real phone numbers behind real IRS phone numbers.[4] Thus, when a person tries to call back that number, the individual is redirected to a real office of IRS.

The impersonators often ask the victims to use prepaid debit cards, wire transfers, Western Union payments, or MoneyGram payments.[5] As recent as April 2016, the impersonators started to demand the payments in Apple iTunes gift cards. Between April 2016 and October 2016, between 70 and 80 percent of all payments to the impersonators were made through Apple iTunes gift cards.[6] Moreover, in August 2017, the IRS informed the public that impersonators had moved to the e-mail domain. The impersonators started sending phishing emails pretending to work for the IRS and the FBI, urging victims to complete a fake IRS or FBI questionnaire. By clicking the link to that questionnaire, victims downloaded a ransomware that locked their data stored on the device until they paid a ransom to the impersonators.[7]

In October 2016, an IRS scam call center operation in Mumbai, India, was raided by local authorities to uncover that the center produced between $90,000 and $150,000 per day for more than a year.[8] The center produced $33 million to $55 million for that year, and it was targeting U.S. taxpayers.[9] The Treasury Inspector General for Tax Administration (TIGTA) had stated prior to the incident that it knew of 5,500 U.S. taxpayers who lost approximately $29 million, dating back to October 2013, because of the scam operation.[10] The TIGTA Deputy Inspector General for Investigations stated in August 24, 2016 that his agency received 1.5 million complaints and recorded almost $47 million stolen from 8,000 victims.[11] The Department of Justice has been actively trying to prosecute the IRS impersonators, and, in 2016, it successfully prosecuted two individuals tied to Indian scam call centers. One of the individuals, Kaushik Kanti Modi, has been convicted of money laundering charges under 18 U.S.C. Section 1956.[12] Modi bought store-value cards which were subsequently loaded with the scam proceeds and used to buy money orders to deposit into bank accounts.[13] The second individual, Sahil Patel, has been sentenced to 175 months in prison for racketeering, extortion, and aggravated identity theft due to his involvement in India-based scam call centers.[14]

A new piece of legislation may create an obstacle to an effective way of prosecuting these kinds of impersonation scams. The Fixing America’s Surface Transportation (FAST) Act (P.L. 114-94) requires the IRS to use private debt collectors for certain types of debts.[15] The private debt collectors are first required to contact a debtor by a letter and, only after the letter, can the private collectors contact the debtor by a phone call.[16] It has been argued that this could help IRS phone impersonators to deceive more people, as the IRS has historically emphasized that it does not directly contact people by phone to notify them of their debt.[17] With a new debt-collecting mechanism that arguably differs, this would not be so clear anymore. The proponents of private debt collectors have been claiming that people who do owe taxes are, first, notified by a letter, and once they receive a call, the call would already be expected.[18] If a person would receive a phone call prior to a notification letter, he or she could understand that it is a scam. However, it can also be argued that the people who have been notified by a letter would expect a phone call and, thus, may let their guards down once they receive a fake call from IRS impersonators.

These issues were addressed in the deliberations regarding the private debt collector requirement, and the proponents of private debt collectors claimed that the IRS would have time to address that issue prior to putting a new amendment into a full operation.[19] One of the safeguards proposed was to publicly identify private debt collectors so that general public would be able to discern a scam debt collector from a real one much more quickly.[20] Another argument was made that a proper protocol could ensure that the usage of private debt collectors would not make taxpayers more vulnerable to these kinds of scams.[21] Congress has been closely monitoring the issue and bringing up specific problems associated with private debt collectors and impersonating scam operations.[22] The IRS has also been consistently updating its website with all necessary information to inform and warn the general public. Having this scrutiny gives hope that private debt collectors can effectively take on some IRS responsibilities without affecting the U.S. taxpayers’ safety, but only time will tell whether this can be the case.

 

[1] Grassley Letter Raises Impersonation Scam Enforcement Questions, Tax Notes Today (Apr. 11, 2016), https://www.taxnotes.com/tax-notes-today/fraud-civil-and-criminal/grassley-letter-raises-impersonation-scam-enforcement-questions/2016/04/11/g462.

[2] IRS Impersonation Scams Have Victimized Thousands, TIGTA Says, Tax Notes Today (Feb. 16, 2017), https://www.taxnotes.com/tax-notes-today/criminal-violations/irs-impersonation-scams-have-victimized-thousands-tigta-says/2017/02/16/gdmc.

[3] Id.

[4]  Emily Frye & Gregory Staiti, Hold the (Internet) Phone! The Implications of Voice-over-Internet Protocol (VoIP) Telephony for National Security & Critical Infrastructure Protection, 1 ISJLP 571, 585 (2005).

[5] IRS Impersonation Scams Have Victimized Thousands, TIGTA Says, supra note 2.

[6] Id.

[7] IRS Issues Urgent Warning to Beware IRS FBI Themed Ransomware Scam, IRS (Aug. 28, 2017), https://www.irs.gov/newsroom/irs-issues-urgent-warning-to-beware-irs-fbi-themed-ransomware-scam.

[8] Indian Call Center Raid Sheds Light on Scope of IRS Scam Calls, Tax Notes Today (Oct. 7, 2016), https://www.taxnotes.com/tax-notes-today/fraud-civil-and-criminal/indian-call-center-raid-sheds-light-scope-irs-scam-calls/2016/10/07/g988.

[9] Id.

[10] Id.

[11] Id.

[12] Maryland Man Pleads Guilty to Scheme Involving IRS Impersonation, Tax Notes Today (Mar. 22, 2016), https://www.taxnotes.com/tax-notes-today/criminal-violations/maryland-man-pleads-guilty-scheme-involving-irs-impersonation/2016/03/24/g3pd.

[13] Id.

[14] Pennsylvania Man Sentenced for Call Center Tax Fraud Ring, Tax Notes Today (Jul 8, 2015), https://www.taxnotes.com/tax-notes-today/criminal-violations/pennsylvania-man-sentenced-call-center-tax-fraud-ring/2015/07/09/fw8s.

[15] Fixing America’s Surface Transportation (FAST) Act, Pub. L. No. 114-94 § 32102бб, 129 Stat. 1312 (2015).

[16] I.R.C. § 6306 (2016).

[17] Tax Scams / Consumer Alerts, IRS (last updated Aug. 29, 2017), https://www.irs.gov/newsroom/tax-scams-consumer-alerts.

[18] Grassley Letter Raises Impersonation Scam Enforcement Questions, supra note 1.

[19] Id.

[20] Id.

[21] Id.

[22] Collection Agency May Not Be Protecting Taxpayers, Lawmakers Say, Tax Notes Today (Jun. 23, 2017), https://www.taxnotes.com/tax-notes-today/collections/collection-agency-may-not-be-protecting-taxpayers-lawmakers-say/2017/06/26/1rbxs.

Image Source: http://money.cnn.com/2015/01/22/pf/taxes/irs-tax-scams/.

Vaping: Not Just Tobacco

title_ny_4thave_0

By: Daniel Eggleston

 

E-cigarettes, also called vape pens, were once heralded as a much safer alternative to traditional cigarettes, and a way for smokers to either kick the habit or decrease cancer risks.[1] Because e-cigs are available in a wide array of flavors and devices (some look like pipes, others like cigarettes, and many look like futuristic gadgets), many members of the public grew concerned of the e-cig’s potential appeal to youngsters.[2] The FDA released statistics corroborating this fear: in “2013-2014, 81% of current youth e-cigarette users cited the availability of appealing flavors as the primary reasons for use.”[3], and that “e-cigarettes . . . [w]ere the most commonly used tobacco product among youth” in both 2014 and 2015.[4]

While these statistics might raise eyebrows by themselves, a new use for vape pens is becoming increasingly more widespread.[5] CNN published a story on vape pens being used to as a vehicle to consume illegal drugs like flakka, methamphetamines, heroin, and marijuana.[6] “Water-soluble synthetics are easily converted into liquid concentrate that can go into the device cartridges and be vaped just like nicotine and other legal substances.”[7] This makes it difficult for law enforcement officers to detect if illicit drug use is occurring or whether an e-cig simply contains flavored tobacco oil.[8] Police have a harder time establishing probable cause because of the uncertainty of an e-cig contains nicotine, or something worse.[9] Furthermore, this masked consumption has also resulted in people unknowingly consuming, and in some cases overdosing, on illegal drugs the user unknowingly consumed.[10]

Researchers at Virginia Commonwealth University received a grant from the Department of Justice to explore “how drug users are increasingly using e-cigarette devices to vape illicit drugs.”[11] Users pass on this knowledge via online drug forums and YouTube tutorials, explaining how meth can be consumed in the workplace, with no one the wiser.[12] What’s more, social media users and celebrity culture are endorsing vape pens as a discreet way to get high in public, in school, or in the workplace.[13]

The research team is testing the efficacy of vape pens in delivering drugs like meth, heroin, marijuana, and others to the user.[14] That vape pens are effective is indisputable given the wide-spread consumption of drugs through the devices – what the researchers are measuring is the dosage levels transmitted in the vapor clouds and analysis of the “commercially available e-liquids to see if the purported contents matched the labels.”[15] The researchers found wide discrepancies between ingredients listed on the labels and what the e-liquids actually contained.[16] Some e-liquids contained drugs that labels specifically claimed they did not contain, prompting the researchers to cite major concern over the lack of regulatory labeling oversight.[17]

The Food and Drug Administration has responded to some of these concerns with increased regulation over the e-cigarette industry.[18] One of these regulations requires “federal approval for most flavored nicotine juices and e-cig devices sold in vape shops.”[19] What remains to be seen, however, is how the FDA responds to the use of e-cigs for their as a vehicle for consuming illicit drugs.

 

 

 

[1] See Sara Ganim & Scott Zamost, Vaping: The latest scourge in drug abuse, CNN, (last visited Sept. 5, 2015) http://www.cnn.com/2015/09/04/us/vaping-abuse/.

[2] See id.

[3] Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), Food and Drug Admin. (last visited Feb. 13, 2017) https://www.fda.gov/TobaccoProducts/Labeling/ProductsIngredientsComponents/ucm456610.htm#regulation.

[4] See id.

[5] See supra note 1.

[6] See id.

[7] Id.

[8] See id.

[9] See supra note 5.

[10] See id.

[11] Brian McNeill, Shedding light on a vaping trend: Researchers study the use of e-cigarettes for illicit drugs, Va. Commonwealth Univ. News (last visited Feb. 22, 2017) https://news.vcu.edu/article/Shedding_light_on_a_vaping_trend_Researchers_study_the_use_of.

[12] See id.

[13] See id.

[14] See id.

[15] Supra note 10.

[16] See id.

[17] See id.

[18] See Laurie Tarkan, How new rules could kill the vaping boom, Fortune (last visited Sept. 29, 2015) http://fortune.com/2015/09/29/vaping-fda-rules/.

[19] Id.

Image Source: http://assets.hightimes.com/styles/large/s3/title_ny_4thave_0.jpg.

Volume XXII Issue IV

May 16, 2016

Dear Readers,

The Richmond Journal of Law and Technology is proud to present its fourth and final issue of the Twenty-Second Volume. At its inception in 1995 JOLT became the first law review to be published exclusively online. From this moment on, the Journal has continued to set trends in legal scholarship. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. The articles in the Fourth Issue offer exciting discussions on forward-looking areas of the law and give readers a glimpse into the ways in which technology is transforming the legal landscape. The Journal hopes that these articles will drive advancements in the law and in practice, and we look forward to the discussions they evoke.

In our first article, entitled “Digital Direction for the Analog AttorneyData Protection, E-Discovery, and the Ethics of Technological Competence in Today’s World of Tomorrow,” authors Stacey Blaustein, Melinda McLellan, and James Sherer outline some of the many challenges facing attorneys operating in the current high-tech legal environment. The article examines the ways in which existing and emerging ethical rules and guidelines may apply to the practice of law in the digital age. Cloud technology and social media are among the prominent technical platforms which, while convenient and efficient, pose significant threats to the technologically incompetent lawyer and his clients. This article is certain to spark further conversation about these issues as they continue to evolve.

Our second article, and final article of Volume XXII, is the selected 2016 JOLT Student Comment. Written byJOLT’s graduating Managing Editor, Megan Carboni, this article makes an exciting and bold proposal to bridge the gap in employment classification for workers in the “sharing” or “collaborative” economy. This new technology-enabled marketplace, spurred by Uber and mimicked by numerous other innovative service-sharing applications, posits a vexing balancing act between meeting the needs of businesses and their quasi-employees. Uber and similar businesses rely on classifying their workers as independent contractors, avoiding the potentially crippling benefits and obligations that these businesses would be forced to provide for their employees. At present there are only two definitions—employee and independent contractor—making it difficult to strike a balance without severely interfering with the employer’s business or employee expectations and needs. This article proposes an innovative third classification, the “dependent contractor,” as the best solution to meet the needs of both employer and employee.

On behalf of the entire 2015–2016 JOLT staff, I want to extend our sincerest thanks for your continued readership. I would also like to thank each of our authors for the time and hard work they have put into these articles. As always, JOLT greatly appreciates the ongoing support from the University of Richmond School of Law and is especially grateful for the guidance of our faculty advisors, Dean Jim Gibson and Professor Chris Cotropia.

On a more personal note, I wanted to extend my utmost appreciation and gratitude to the 2015–2016 JOLTEditorial Board and staff. It has been a pleasure serving as the Editor-in-Chief of Volume XXII and I could not have successfully completed the Volume without the consistent hard work and dedication of the Journal’s members. On behalf of the outgoing class of 2016, I would like to wish Volume XXIII and the new Editorial Board all the best as they continue shaping JOLT’s reputation as the leading publication in the legal technology world.

 

Sincerely,

 

John G. Danyluk                                                                                                                             Editor-in-Chief, Volume XXII

 

Digital Direction for the Analog Attorney – Data Protection, E-Discovery, and the Ethics of Technological Competence in Today’s World of Tomorrow, by Stacey Blaustein, Melida L. McLellan, and James A. Sherer

A New Class of Worker for the Sharing Economy, by Megan Carboni

What about Us? Are the disabled getting a fair treatment with the rapid growth in smartphones?

old-people-with-ipad-655x400

By: Matt O’Toole

Have you ever wondered what kind of tablet applications are out there for disabled people? You probably aren’t the only one. In fact, part of your answer may to do with the fact that they are little out accommodating those affected with disabilities.

When the ADA was enacted in 1990, the Internet was only in its nascent stage, and e-commerce as we think of it today was unheard of.[1] Nevertheless, some courts have extended the ADA’s reach to websites that offer and sell goods or services to the public, mandating that websites are accessible to persons with disabilities.[2]

Putting aside the merits of whether the ADA, in its current form, should apply to websites at all, the question that is then raised is: how do companies make their websites fully accessible?[3] Unfortunately, there currently are no generally accepted ADA standards for website construction and that seems like a big issue that gets very little attention.[4]

How can this country be so advanced in its technology but yet be so behind on its advances to folks with disabilities?

According to the United States Bureau, 8.4% of our population has a disability, under the age of 65.[5] There is certainly a market out there and whether legislation has done enough to reach that remains to be seen.

Congress instituted section 508 in 1998 to make new online opportunities available to people with disabilities and to encourage the development of software and technologies to help make this happen.[6] An amendment of the Rehabilitation Act of 1973, Section 508 requires federal agencies to make their electronic and information technology available to disabled citizens.[7]

In 2006, the National Federation of the Blind brought Target to district court and charged that Target’s Website is inaccessible to the blind and violates the Americans with Disabilities Act of 1990, along with several other California human rights act.[8]

“What this means is that any place of business that provides services, such as the opportunity to buy products on a Web site, is now a place of accommodation and therefore falls under the ADA,” said director of user experience for Mindshare Interactive Campaigns LLC Kathy Wahlbin.[9]

As baby boomers start to turn the corner, the number of disabled users increases and the software continues to develop.[10] Section 508 will continue to be relevant and I’m not sure that it’s necessarily the government at fault here. It is just that the advancement of technology comes more people, and more disabled user. It is just that we shouldn’t leave them behind.

With technology now moving to much greater heights than just the internet, I think instead of making more updates to Snapcaht, folks should consider making phone applications more accessible to those in need.

Photo Source: http://icdn5.digitaltrends.com/image/old-people-with-ipad-655×400.jpg

 

 

[1] Kyle David, Web Accessibility: Section 508 Compliance , Blog, (Oct. 28, 2015), http://www.corpcounsel.com/id=1202728515700/New-ADA-Lawsuits-Target-Website-Accessibility?mcode=0&curindex=0&curpage=ALL. [hereinafter David]

[2]Id.

[3] Michael J. Chilleen and Brad Leimkuhler, New ADA Lawsuits Target Website Accessibility, Corporate Counsel (June 5, 2015), http://www.corpcounsel.com/id=1202728515700/New-ADA-Lawsuits-Target-Website-Accessibility?mcode=0&curindex=0&curpage=ALL&slreturn=20150929131629

[4]Id.

[5]United States Census Bureau. (Oct. 28, 2015), http://www.census.gov/quickfacts/table/PST045214/00.

[6]See David supra, note 1.

[7]Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973).

[8] Nat’l. Fed’n of Blind v. Target, 452 F.2d 946, 956 (2006).

[9]See David supra, note 1.

[10]Id.

Overbearing or Common Sense? Drone Registry.

travel-channel-drone-australia

By: Curtis Hazelton,

In our society, it makes perfect sense for one to be accountable for his or her actions, so why should unmanned aircrafts be any different? The Department of Transportation and the Federal Aviation Administration have recently proposed a possible fix to this accountability issue.

Traditionally, unregistered aircrafts (manned or unmanned) could fly up to 600 feet above ground level, a rather empty section of the skies, where they were unlikely to fly into anything.[1] Although600 feet above ground level seems spacious fordrone users, not every drone user flies their drone within the 600 feet fly-zone nor do they follow the guidelines of drone-free locations. According to Department of Transportation Secretary, Anthony Foxx, “Registration will help us enforce the rules against those who operate unsafely, by allowing the FAA to identify the operators of unmanned aircraft.”[2] Regulation of the traditionally unregistered aircraft may make it easier to address the important issues of insurance and liability.

The increase of personal drone purchase and operation in the United States has caused many problems.The FAA stated that so far in 2015, pilots reported unsafe activity by unmanned aerial vehicles about 100 times a month.[3] In July, 5 “unmanned aircraft systems” prevented California firefighters from dispatching helicopters with water buckets for up to 20 minutes over a wildfire that roared onto a Los Angeles-area freeway, burning out cars.[4] During the second round match of the U.S. open between FlaviaPennetta and Monica Niculescua drone flew over the stadium and crashed into the stands. Subsequently, the match was stopped for a period while officers examined the drone and the operator arrested for reckless endangerment and operating a drone in a New York City public park outside of prescribed area.[5] The aforementioned situations highlight the need to impose liability on drone operators for accidents caused by drones.

Although some people are wary about government regulation, the registration proposal by the FAA and DoT could be the best way to ensure that drones and other unmanned aircraft are used safely. Though the Department of Transportation is still working to finalize their efforts to require drone registration before the holiday season, drone users, new and old, should be on the lookout for a change in legislation.

Photo Source: http://skift.com/wp-content/uploads/2015/10/travel-channel-drone-australia.jpg

 

 

 

[1] Jordan Golson, The Feds Want a National Drone Registry by Christmas,

Wired (Oct. 19, 2015, 2:28 PM) www.wired.com/2015/10/the-feds-want-a-national-drone-registry-by-christmas/.

[2]Id.

[3] Renee Marsh and Ben Brumfield, U.S. announces task force aimed at mandatory drone registration, CNN (Oct. 19, 2015 6:11 PM)www.cnn.com/2015/10/19/politics/drone-registration-task-force-announced/index.html

[4]Id.

[5] Laura Wagnor, Drone Crash At U.S. Open; New York City Teacher Arrested, National Public Radio (Sep. 4, 2015, 2:24 PM) www.npr.org/sections/thetwo-way/2015/09/04/437539727/drone-crash-at-u-s-open-new-york-city-teacher-arrested.

The End of DraftKings and FanDuel?

fanduel-draftkings-100615-getty-ftrjpg_1p54pimj33xpv1ul6hwkremi6f

By: Jenni Lyman,

On Sundays, each NFL play seems to be sandwiched in between a series of incessant testimonials touting the ease of winning thousands of dollars from onlinedaily fantasy football. Both DraftKings and FanDuel are on target to spend $150 million in Q3. [1] It is reasonable to believe these two companies will remain a staple of sportsprogramming considering the amount of cash in their quiver devoted to marketing. However, there appear to be a slew of legal principles tailored to prevent unfairness to consumers that may put an end to the two companies. [2] Recent promo codes such as ‘Win’, ‘Success’, or ‘Fun’ could change to ‘Fraud’.

Online daily fantasy sports are not regulated under the Unlawful Internet Gambling Enforcement Act of 2006 because they are considered games of skill as opposed to raw gambling. Slate. See also. Act. [3]

Last Thursday, Draft Kings player, Adam Johnson filed a class action lawsuit in federal court in Manhattan. [4] The complaint alleges the two companies violated the laws of three states—New York, FanDuel’s corporate headquarters, Massachusetts, where DraftKings maintains its principal place of business, and Kentucky, where Johnson resides. [5]

First, the complaint alleges the two companies acted in concert. [6] Moreover, they follow the same rules regarding employee participation and issue numerous joint statements on their website. [7] The linchpin of the suit is the fact that employees of both companies had access to data and information that is not public. [8] The suit alleges that analytics are run to determine how lineups on FanDuel would fare if they were entered into DraftKings contests. [9] Finally, Johnson alleges the “companies failed to take reasonable steps to prevent insiders from competing against members of the proposed class of plaintiffs.”[10] Shockingly, DraftKings employees have won around $6 million in winnings from the $2 billion awarded by FanDuel so far. [11]

So, if Johnson can prove the two companies had knowledge of the insider trading, he has a successful claim for fraud and could recover his money by proving he would not have paid $100 to play a rigged game. [12]

To add to the legal fire, even if Johnson is unable to prove insider trading exists, there is also a possible claim of negligence. The claim alleges the companies failed to take reasonable steps to prevent competition from insiders against the proposed class of plaintiffs. [13] The suggested class is only those who dished out money in a DraftKings account prior to October 6, 2015. [14] Lastly, violations of the Kentucky consumer protection statute and the New York false advertising law are included in the suit. [15]

As we settle in for another weekend of FanDuel and DraftKings commercials spattered with football, could Johnson v. FanDuel be a season ender?

 

 

 

[1] Anthony Crupi, Fantasy Sports Sites DraftKings, FanDuel September Spend Tops $100 Million, Advertising Age, Sept. 30, 2015, http://adage.com/article/media/draftkings-fanduel-spe/300658/.

[2]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[3]Id.

[4] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[5]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[6]Id.

[7]Id.

[8]Id.

[9] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[10]Culhane, supra note 4.

[11]Rovell, supra note 8.

[12]John Culhane, The DraftKings Crash, Slate, Oct. 13, 2015, http://www.slate.com/articles/sports/sports_nut/2015/10/the_insider_trading_scandals_could_bring_down_draftkings_and_fanduel.html.

[13]Id.

[14] Darren Rovell, Class action lawsuit filed against DraftKings and FanDuel, ESPN, Oct. 9, 2015, http://espn.go.com/chalk/story/_/id/13840184/class-action-lawsuit-accuses-draftkings-fanduel-negligence-fraud-false-advertising.

[15]Culhane, supra note 11.
Photo Source: http://images.performgroup.com/di/library/sporting_news/3f/f1/fanduel-draftkings-100615-getty-ftrjpg_1p54pimj33xpv1ul6hwkremi6f.jpg?t=1051596368

The Legality of Self-Driving Cars: Whose fault is it?

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By: Manny Olojede,

Welcome to the future, Marty. Self-driving or autonomous cars will actually become a “thing” soon. But whose fault is it if the self-driving car runs a red light? The driver or the car? The manufacturer or some other third party? The chicken or the egg? Are robot cars even legal? With Tesla Motors’ recent announcement regarding its new “Auto-Pilot” software, there are numerous questions of legality and liability brought to the forefront of lawmakers’ agendas.

On October 14, 2015, Tesla Motors became the first automotive company to roll out advanced auto-pilot technology into its vehicles.[1] The Tesla Version 7.0auto-pilot software update will allow its Model S car to steer within lanes, change lanes, manage speed by using active, traffic-aware cruise control and scan for a parking space, alert [the driver] when one is available, and parallel park on command.[2] Though these features are an advancement in autonomous car technology, Tesla emphasizes that this update does not mean the car is fully autonomous and hands free.[3] In order for this software to function, your hands must be touching the wheel; otherwise the car will revert to manual mode after a few seconds.[4] Tesla is cautiously rolling out this technology, as it is aware of the few regulations surrounding autonomous vehicles.[5] However, Tesla does seek to allow its cars to be hands free in the future as new regulations are implemented and the technology improves.

Currently, the law surrounding self-driving cars in the United States has been ambiguous at best. In the majority of states, autonomous cars are not illegal, though New York is the only state that requires a “driver” to have his hands on the wheel at all times.[6] Only fourteen states have considered legislation regulating self-driving cars and nine of those have failed to pass bills specifically legalizing the cars, leaving the area of self-driving cars relatively grey.[7] Consequently, Tesla’s announcement has put on pressure on lawmakers to clarify these grey areas.

The National Highway Transportation Safety Administration has declined to comment on Tesla’s announcement but lauded the potential safety benefits of autonomous technology in statements made by Transportation Secretary Anthony Foxx earlier this year.[8] “The Department wants to speed the nation toward an era when vehicle safety isn’t just about surviving crashes; it’s about avoiding them,” Foxx said. “Connected, automated vehicles that can sense the environment around them and communicate with other vehicles and with infrastructure have the potential to revolutionize road safety and save thousands of lives.”[9] Based on these statements, autonomous technology seems to align with the future goals of the NHTSA and this may give a clue to as how regulations will be shaped surrounding them. However, it remains to be seen how the law will evolve.

Though the legal landscape surrounding self-driving cars in the United States has not been fully carved out, carmakers such as Volvo, Mercedes-Benz, and Google have indicated that they will likely accept the legal liabilities for their cars in the United States when they are put on sale to the general public. Volvo, in particular, has promised to accept full liability whenever one of its cars is in autonomous mode.[10] Though this promise may indicate car makers’ current confidence in the technology and hold carmakers strictly liable, Volvo, along with Mercedes and Google, have expressed that as the technology improves, they will expect fewer and fewer accidents.[11]

Ultimately, as the development of self-driving car technology quickly improves, it will be important for lawmakers to tackle these tough questions in a timely fashion. Carmakers have set the pace, and if the law does not catch up soon, there will be many more questions and problems for the government to answer about self-driving cars.

 

 

[1] Grayson Ullman, Tesla’s Self-driving Software: Is It Legal?, Fed scoop (October 16, 2015, 5:43 PM), http://fedscoop.com/teslas-self-driving-update-how-is-it-legal.

[2]Id. (citing Tesla Motors Team, Your Autopilot Has Arrived, Tesla Motors Blog (October 14, 2015), http://www.teslamotors.com/blog/your-autopilot-has-arrived)

[3] Molly McHugh, Tesla Cars Now Drive Themselves, Kinda, WIRED.com (October 14, 2015 6:19 PM), http://www.wired.com/2015/10/tesla-self-driving-over-air-update-live.

[4]Id.

[5]Id.

[6]Ullman, supra note 1.

[7]Id.

[8]Id. (citing Catherine Howden, Transportation Secretary Foxx Announces Plan to Add Two Automatic Emergency Braking Systems to Recommended Vehicle Advanced Technology Features, National Highway Transportation Safety Administration (January 22, 2015), http://www.nhtsa.gov/About+NHTSA/Press+Releases/NHTSA-sets-AEB-plans,-highlights-lives-saved-repoot)

[9]Id.

[10]Mark Harris, Why You Shouldn’t Worry About Liability for Self-Driving Car Accidents, IEEE Spectrum (October 12, 2015, 8:00PM), http://spectrum.ieee.org/cars-that-think/transportation/self-driving/why-you-shouldnt-worry-about-liability-for-selfdriving-car-accidents (citing Press Release, Volvo Car Group, US Urged to Establish Nationwide Federal Guidelines for Autonomous Driving (October 7, 2015), available athttps://www.media.volvocars.com/global/en-gb/media/pressreleases/167975/us-urged-to-establish-nationwide-federal-guidelines-for-autonomous-driving).

[11] Neil Briscoe, Car Makers to Accept Liability for Self-driving Cars, The Irish Times (October 12, 2015, 2:16 PM), http://www.irishtimes.com/life-and-style/motors/car-makers-to-accept-liability-for-self-driving-cars-1.2388608.

 

Photo Source: http://www.forcegt.com/wp-content/uploads/2012/09/volvo_road_train-10.jpg

Blog: The Growing Problem of E-Waste

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By: Ryan Suit,

Lining up to be the first person to get the latest and greatest device has become a cultural phenomenon, and to some it could even be called a religion.[1] Just this past weekend, Apple sold 13 million new iPhones.[2] But when you get that iPhone 6S or 6S Plus, will you throw away your iPhone 6? And what ever happened to your iPhone 5, 4, 3, 2, or even original iPhone? Concern over so-called “e-waste” has lead many jurisdictions to pass legislation to combat the accumulation of technological garbage.[3]

E-waste is the broad term for any piece of technology that has an electric cord or battery that is thrown away. The term is a catch-all for phones and computers to refrigerators and appliances.[4] The problem of e-waste is worldwide. 41.8 Million tons of e-waste were dumped globally in 2014, yet less than a sixth of that was properly recycled.[5] When many people think of e-waste, they conjure images of computer dumps in Africa, China, and India, where old pieces of technology are burned and scavenged for leftover precious metals.[6] That is obviously a huge problem, but the issue is not solely abroad.[7] In 2014, the United States was responsible for 7.1 tons of e-waste, over 1 million more tons than any other country.[8] The need for legislation to deal with e-waste is not just apparent, it is pressing.

Currently, the EPA recommends that e-waste such as phones, computers, and televisions be recycled at your local e-waste collection center.[9] Additionally, the EPA has made it the responsibility of the e-recycler to erase all the data on devices being recycled.[10] One of the most notable problems of e-waste recycling is the risk of identity theft.[11] If old hard drives or devices still have private or personal information stored on them, there is a risk that such information could be recovered.[12] Although the risk of identity theft is present, many recycling centers can wipe storage devices clean, or can destroy the devices entirely.[13] That being said, the EPA’s recommendation has only done so much to curb the threat of identity theft and increase rates of e-waste recycling.

Most e-waste recycling policies are left to the states.[14] To date, twenty eight states have passed legislation to deal with e-waste.[15] Most of the legislation places the responsibility of recycling e-waste on the manufacturers of the products. However, only about 1 million of the 7.1 million tons of e-waste in the U.S. was recycled last year.[16] Such a low rate of e-waste recycling, coupled with close to half of the states in the U.S. still not having any e-waste laws on the books, makes for a bleak outlook.

States have not done enough to combat e-waste. The EPA’s recommendation has fallen short of what it aims to achieve. E-waste is becoming more common, and the constant creation of new tech products only creates more e-waste. Now is the time for federal legislation to tackle the e-waste problem. Pull out your new iPhone to look up where your local landfill is located. If legislation is not passed soon, that landfill may be filled with e-waste.

 

[1] Philip Elmer-DeWitt, “Welcome to the Church of Apple”, Fortune (Sept. 27, 2015), http://fortune.com/2015/09/27/apple-church-temple/.

[2] James Vincent, “Apple sells 13 million iPhones in opening weekend record”, The Verge (Sept. 28, 2015), http://www.theverge.com/2015/9/28/9407767/apple-iphone-sales-6s-6s-plus.

[3] Sophia Bennett, “It’s 2015: Which States Have E-Waste Legislation?”, Electronic Recyclers Internation, Inc. (July 2, 2015), http://electronicrecyclers.com/2015/07/it-s-2015-which-states-have-e-waste-legislation.

[4] Id.

[5] Alister Doyle, “U.S., China top dumping of electronic waste; little recycled”, Reuters (April 20, 2015), http://www.reuters.com/article/2015/04/20/us-environment-waste-idUSKBN0NA00V20150420.

[6] Samantha L. Stewart, “Ghana’s e-Waste Dump Seeps Poison”, Newsweek (July 25, 2011), http://www.newsweek.com/ghanas-e-waste-dump-seeps-poison-68385.

[7] Id.

[8] Supra note 5.

[9] U.S. Environmental Protection Agency, Frequent Questions, http://www3.epa.gov/epawaste/conserve/materials/ecycling/faq.htm.

[10] Virginia Department of Environmental Quality, Computer and Electronics Recycling, http://www.deq.virginia.gov/Programs/LandProtectionRevitalization/RecyclingandLitterPreventionPrograms/ElectronicsRecycling.aspx.

[11] ForeRunner Recycling, http://www.forerunnerrecycling.com/faq.html#What_if_we_needed_destruction_of_the_drives_to_insure_the_data_is_secure.

[12] Id.

[13] Id.

[14] Supra note 5.

[15] Supra note 3.

[16] Supra note 5.

 

Photo Source:  http://www.mesacounty.us/assets/0/79/162/190/7eae68b9-5e0c-4e9b-8961-038eab6127e7.jpg

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