Richmond Journal of Law and Technology

The first exclusively online law review.

Page 2 of 27

Defensive Hacking Leads Legal Transition in Cybersecurity

By: Jon Neri,

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

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

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

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

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

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

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

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

 

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

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

[3] Cox, supra note 1.

[4] Id.

[5] See id.

[6] See id.

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

[8] Vijayan, supra note 2.

[9] Id.

[10] Id.

[11] Id.

[12] See id.

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

[14] Vijayan, supra note 2.

[15] Chesney, supra note 7.

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

[17] Id.

[18] Chesney, supra note 7.

[19] Id.

[20] See id.

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

[22] Id. at § 3(2)(B).

[23] Chesney, supra note 7.

[24] Nelson, supra note 16.

[25] Id.

[26] See id.

[27] See id.

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

The Dark Web: A Seemingly Endless Market for Drug Trafficking

By: Jenna Bouley,

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

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

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

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

 

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

[2] See id.

[3] See id.

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

[5] Id.

[6] Id.

[7] See id.

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

[9] See id.

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

[11] Id.

[12] Id.

[13] Id.

[14] Id.

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

[16] See id.

[17] See id.

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

[19] See id.

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

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/.

Why Are Pharmaceuticals Selling Patents to Native American Tribes?

By: Ilya Mirov,

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

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

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

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

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

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

 

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

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

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

[4] See Sachs, supra note 1.

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

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

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

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

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

[10] See Morinville, supra note 6.

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

[12] See Mullin, supra note 9.

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

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

Hang the Rules. They’re More Like Guidelines Anyway.

By: Seth Bruneel,

Autonomous (self-driving) cars are coming. Proponents, enthusiasts, and inventors promise to reduce the amount of auto accidents by up to eighty percent but that still leaves questions for the other twenty percent of the time.[1]  Some of the left-over uncertainty revolves around the questions as to who is held liable and who decides who is liable in auto accidents involving autonomous cars. With many moving parts and many interested parties looking on, someone needs to be planning ahead of the excitement.

Currently, safety issues are regulated by the National Highway Traffic Safety Administration (NHTSA) while state laws control licensing, registration, and insurance.[2]  Twenty-one states have passed legislation related to self-driving vehicles and some of the legislation addressed the testing of such vehicles. [3] Colorado, for example, passed a law this summer that allows autonomous vehicles on the road so long as they obey all the rules of the road such as: seatbelts for passengers, turn signals, and speed limits.[4]

Most states that have passed legislation merely provide various definitions of “autonomous technology” and set out some requirements for the testing of the technology.[5]  A popular element in the statutes is to have a human driver in a position to take control of the vehicle at any time.[6]

Under President Obama, the NHSTA set guidelines for manufactures and developers of autonomous vehicles which included a 15-point safety assessment.[7]  Recently, following the results of a fatal accident involving a car in autonomous mode[8], the Trump administration released “Automated Driving Systems 2.0” which contains suggested guidelines for the testing and development of autonomous vehicles.[9]

Under “Section 1: Voluntary Guidance,” the President’s familiar attitude toward government interference in industry is recognizable; “This Guidance is entirely voluntary, with no compliance requirement or enforcement mechanism.”[10]  President Trump’s strategy when it comes to the regulation of self-driving cars is simple: don’t regulate self-driving cars.[11] This “hands off” approach rolls back the 15-points safety assessment to 12 elements for consideration in an effort to provide some guidance without stifling innovation.[12]  While the two policy outlines share more similarities than obvious at first glance, they both fail to look far enough ahead.

Element 9 of President Trump’s policy attempts to address the behavior of the autonomous driver in the event of a crash.[13]  However, the guidance from the Department of Transportation and NHTSA amounts to little more than common sense. The guidelines leave it to the autonomous systems to self-diagnose and take any action that would either move the car to the side of the road or shut off completely in order to prevent further dangers.[14]

Further, Element 10 is baby step towards answering the question of who is liable in the event of an accident.[15]  The section addresses the need to collect data for testing purposes but fails to require that the data be made available to someone in a position to decide liability. Often, in the event of an accident, the manufacturer will be in the best position to decide who is at fault based on the data recorded by merely plugging into the “black box” and reading the data.[16] This fault-finding tool provides an objective account of what occurred without the reliance upon human memory under traumatic circumstances.

On the topic of liability and insurance, the guidelines offer no substantial direction as to how to determine who needs to carry motor vehicle insurance (or even if the insurance will still be necessary).[17] The guidelines can only urge developers, manufacturers, insurance companies, and lawmakers to “being to consider” what to do when these inevitable questions arise.[18]

Early this month, a United States Senate panel passed a bill that would also hinder specific regulation of autonomous cars by preventing individual states from imposing regulations on performance standards.[19]  This is good news for developers and manufacturers but leaves auto safety groups with valid concerns.

In the end, the technology is quickly approaching and due to the optional nature of federal guidance, many problems remain unaddressed. Great freedom has been granted to innovation and the amount promised benefits of autonomous driving technology dwarf the amount of concerns, someone needs to look way ahead and have an insurance and liability system in place in order to avoid confusion.

[1] Automobile Insurance in the Era of Autonomous Vehicles, 25 (2015).

[2] David Muller, Trump Administration’s New Self-Driving Car Guidance is Deliberately Toothless, CAR AND DRIVER (Sept. 15, 2017, 8:01 AM), https://blog.caranddriver.com/trump-administrations-new-self-driving-car-guidance-is-deliberately-toothless/ (last visited Oct. 5, 2017).

[3] Autonomous Vehicles Self-Driving Vehicles Enacted Legislation, National Conference of State Legislatures (Sept. 21, 2017), http://www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx (last visited Oct. 5, 2017).

[4] Tamara Chuang, It’s Official: Colorado Passes First Law to Regulate Driverless Vehicles, THE DENVER POST (June 1, 2017, 2:21 PM), http://www.denverpost.com/2017/06/01/colorado-law-regulate-driverless-vehicles/ (last visited Oct. 5, 2017).

[5] National Conference of State Legislatures, supra note 3.

[6] See id.

[7] Pete Bigelow, Federal Government Releases New Autonomous-Vehicle Policy, CAR AND DRIVER (Sept. 20, 2016, 10:48 AM), https://blog.caranddriver.com/federal-government-releases-new-autonomous-vehicle-policy/ (last visited Oct. 5, 2017).

[8] See Pete Bigelow, “A Tesla Crash, but Not Just a Tesla Crash”: NTSB Issues Final Report and Comments on Fatal Tesla Autopilot Crash, CAR AND DRIVER (Oct. 3, 2017, 11:48 AM), https://blog.caranddriver.com/a-tesla-crash-but-not-just-a-tesla-crash-ntsb-issues-final-report-and-comments-on-fatal-tesla-autopilot-crash/ (last visited Oct. 5, 2017).

[9] Automated Driving Systems 2.0, https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf (last visited Oct. 5, 2017).

[10] Id. at 2.

[11] See Timothy Lee, Trump’s Self-driving Car Strategy: Don’t Regulate Self-driving Cars, ARSTECHNICA (Sept. 13, 2017, 7:30 AM), https://arstechnica.com/tech-policy/2017/09/trumps-self-driving-car-strategy-dont-regulate-self-driving-cars/ (last visited Oct. 5, 2017).

[12] Automated Driving Systems 2.0, supra note 9, at 5-15.

[13] Id. at 13.

[14] Id.

[15] Id. at 14.

[16] Seth Bruneel, The Fast and Furiously Approaching Need for Legal Regulation of Autonomous Driving, 30 BYU Prelaw Rev. 33, 44 (April 1, 2016).

[17] Automated Driving Systems 2.0, supra note 9, at 24.

[18] Id.

[19] David Shepardson, U.S. Senate Panel Puts Self-driving Cars in Fast Lane, REUTERS (Oct. 5, 20177, 10:29 AM), http://mobile.reuters.com/article/amp/idUSKBN1CA1RX (last visited Oct. 5, 2017).

Image Source: https://static.dezeen.com/uploads/2015/11/Volvo-car_concept-26_luxury_transport_dezeen_dezeen_936_6.jpg.

Censorship in Art: What Should Artists Post on Social Media?

By: James Williams,

Censorship, some people love it, while others loathe it. Does it save society? If so, then from what? Does it harm society? The definition of censorship allows for subjectivity and ambiguity.[1]

Most people know about Michelangelo’s painting in the Sistine Chapel, The Last Judgment, but some may not know that the painting originally featured fully nude characters and had to be covered later for the Church.[2]

In a more recent case, Andres Serrano took a photograph of a crucifix that he had submerged in urine, dubbing it Piss Christ.[3]  Interestingly enough, it was well-received in New York, but North Carolina citizens were not so enthusiastic, and protesters smashed it with a hammer.[4]

With social media, the owners of websites or applications are able to take down content or set restrictions because they are held by private owners. Grace Coddington, Creative Designer at Large for Vogue, made a drawing of a nude figure and posted it on Instagram, where Instagram actually disabled her account.[5]  There are questions about what rights or restrictions these popular platforms should have versus the rights of artists. Some artists claim free speech violations or other violations of the expression, and the classic response is that this is not a governmental ban on free speech. What should artists do regarding vague censorship rules that are haphazardly drafted by privately owned social media platforms?

Instagram has censorship rules that have caused problems rooted in subjectivity and lack of clarity.[6]  Subjectivity makes the censorship policies hard to understand because there are regional differences.[7]  There are special categories of what is “appropriate” for children, which some platforms use as the basis of their policy.[8]  Instagram has a policy[9] against nudity, but it makes a few exceptions for sculptures, breastfeeding mothers, and photos of mastectomy scarring that tend to make it more ambiguous than it is insightful.[10]  The policy specifically mentions a ban on the female nipple[11],  but the elusive male nipple goes unmentioned.

Besides lack of clarity and subjectivity problems, the next problem with censorship rules on social media platforms are the forms of punishment for violating the rules. While some artists’ work is simply removed and the account is still available[12], this punishment is at the lighter end of the spectrum. Artists can lose ALL pictures and access to the account.[13]  This goes beyond simply taking down the picture(s), because they are actually removing the artwork, which may or may not have been the only copy of the art. The ability for platforms to immediately disable the account and then provide notice after its deletion, is similar to civil procedure issues regarding pre-trial seizures, but here there isn’t a chance for the artists to get the art returned nor is there a chance for artists to make a case. It’s not exactly helpful to get notice after the art is taken down, either.

Not all pages are quite as aggressive towards these types of artists. Some websites, like DeviantArt, filter content or access.[14]  Should platforms like Instagram create filters for content to provide minors from accessing the so-called obscene content? DeviantArt has a policy of preventing visitors without an account, or those whose birthdays show they are under 18, from seeing content that has been flagged mature.[15]  They also are more forgiving in the sense that they will not disable the account for that, they will merely take the art down and notify the artist.[16]

Currently, time may be the only resource for artists on platforms like Instagram where the societal standards may shift more in favor of relaxed censorship policies. Otherwise, artists will just have to find platforms similar to DeviantArt that are more permissive and then encourage others to follow in their footsteps.

 

[1] Censorship, Oxford Dictionaries Online, https://en.oxforddictionaries.com/definition/censorship (2017) (“[T]he suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security.”).

[2] Priscilla Frank, A Brief History Of Art Censorship From 1508 To 2014, Huffington Post (updated Jan. 22, 2015), http://www.huffingtonpost.com/2015/01/16/art-censorship_n_6465010.html.

[3] Id.

 [4] Id.

[5] Alice Newell-Hanson, how artists are responding to instagram’s no-nudity policy, Vice (Aug. 15, 2016, 2:10PM), https://i-d.vice.com/en_us/article/gygap7/how-artists-are-responding-to-instagrams-no-nudity-policy.

[6] See id.

[7] See supra note 2.

[8] See Instagram, https://help.instagram.com/477434105621119/ (last visited Sep. 30, 2017).

[9] Id.

[10] Supra note 5 (discussing how artists don’t know what will cause images to be removed contrasted to accounts being disabled).

[11] Supra note 7.

[12] Supra note 5.

[13] Id.

[14] DeviantArt, https://help.deviantart.com/23/ (last visited Sep. 30, 2017).

[15] Id.

[16] DeviantArt, https://help.deviantart.com/93/ (last visited Sep. 30, 2017).

Image Source: https://www.vpnranks.com/how-to-unblock-social-media-using-top-5-vpns/.

How a Pair of Earrings Can Weigh in on a Multimillion Dollar Trade Secret Dispute: Waymo v. Uber

By: Ilya Mirov,

In Silicon Valley, losing or gaining an employee can lead to a litany of legal issues. It is common practice for former employers to warn new employers against working on projects related to trade secrets that the transitioned employee might be able to reveal. [1] If this employee begins to work for another firm in a similar field, he may be precluded from disclosing trade secret material from his previous employer. [2] Next month, an interesting case of this kind will be tried—Waymo v. Uber.

This case began with the typical vestiges of Silicon Valley employee transitions—stern letters mailed to the new employer and reminders to the employee of his or her duty not to disclose trade secret information. [3] But instead of ending there or settling out of court, this case is going all the way to trial to be decided by the federal circuit in October of this year. [4] The dispute began in 2016 after Waymo’s former self-driving car engineer, Anthony Levandowski, formed his own self-driving truck technology company (Otto Trucking) and began to work for Uber. [5] Waymo’s evidence includes records of an unusually high volume of confidential file downloads from Levondowski’s computer before he left. [6]

Waymo highlights the security that it employed in protecting its trade secret: “All networks hosting Waymo’s confidential and proprietary information [are] encrypted and [require] passwords and dual-authentication for access,” reads the original complaint. “Computers, tablets, and cell phones… are encrypted, password protected, and subject to other security measures. And Waymo secures its physical facilities by restricting access and then monitoring actual access with security cameras and guards.” [7]

But what effect would it have on the case if Waymo also gave away its secret lidar circuit boards to a going-away employee? As revealed in a recent court filing, Waymo turned its previous-model lidar circuit board, the Grizzly Bear 2 (GBr2), into a pair of earrings gifted to Seval Oz, head of Global Partnerships and Business Development for Google’s self-driving car program from 2011 to 2014. [8] She received the earrings when she left the company in the summer of 2014 to run Continental’s Intelligent Transportation System division. [9]

Pierre-Yves Droz, a Waymo engineer on the self-driving team, revealed the nature of the earrings in a deposition given earlier this month. When handed the earrings and asked if he recognized them, Droz identified them as the Grizzly Bear 2 boards. [10] The Grizzly Bear 3, only a minor improvement over the Grizzly Bear 2, provided the basis for the lawsuit. [11] “This is confidential… [It’s] not something we should give to someone, especially if someone is leaving the company,” he said. [12]

It is likely that that Uber will make the argument that Waymo has lost its trade secret protection for its lidar technology through the distribution of these high-tech earrings. [13] Anthony Levandowski exchanged multiple text messages with Oz in an effort to obtain the earrings over the course of several weeks in July and August as was revealed within the filing. [14]

The case is due to go to trial on October 10 and will be an interesting data point to track in trade secret law.

 

 

[1] Derek Handova, Waymo v. Uber: A Gordian Knot Gets Tighter, IPWatchdog, June 15, 2017, http://www.ipwatchdog.com/2017/06/15/waymo-v-uber-gordian-knot-gets-tighter/id=84511/

[2] Id.

[3]Mark Harris, Could a Pair of Earrings Hurt Waymo’s Lidar Trade Secrets Lawsuit?, IEEE Spectrum, Sept. 11, 2017, https://spectrum.ieee.org/cars-that-think/transportation/self-driving/could-a-pair-of-earrings-hurt-waymos-lidar-trade-secrets-lawsuit

[4] Waymo LLC v. Uber Techs., Inc., No. 2017-2130, 2017 U.S. App. LEXIS 17665 (Fed. Cir. Sep. 13, 2017)

[5] Id.

[6] Id.

[7] Mark Harris, Could a Pair of Earrings Hurt Waymo’s Lidar Trade Secrets Lawsuit?, IEEE Spectrum, Sept. 11, 2017, https://spectrum.ieee.org/cars-that-think/transportation/self-driving/could-a-pair-of-earrings-hurt-waymos-lidar-trade-secrets-lawsuit

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

Image Source: https://techcrunch.com/2017/06/07/uber-waymo-lawsuit-stay-denied/.

Will Formalities and the Emerging Use of Technology in Will Creation

By: Rachel Weinberg-Rue,

Within the digital and Internet landscape, there is increasing room and opportunity for individuals to express themselves. Between a host of build-your-own-blog websites, YouTube, Facebook, Instagram and other media platforms, individuals are able to document their experiences as well as their opinions instantaneously with ease. Thus, it comes as no surprise that more and more people are seeking to use technology to also help document their wills and last wishes.[1] However, there are inherent tensions between testamentary formalities and the use of technology.[2]

In the past, will formalities were strictly enforced and required staunch adherence to the writing, signature, and attestation requirements established by the Wills Act in 1837. [3] These rules lack substantial exceptions. Under strict adherence, even the tiniest of errors or any ambiguity could invalidate the entire will.[4] In many cases, this line of reasoning has resulted in outcomes where the goal of realizing testator intent is clearly frustrated[5], and, strictly applied, the rules are seem inherently incompatible with technology. Will formalities dictate that wills must be in writing, and traditionally, this has excluded digital documents, videos, or other digital media from being used to replace or supplement the writing since most documents were handwritten.[6]

In response, many states have moved past strict adherence, and have adopted the harmless error doctrine.[7] Harmless error allows courts to overlook technical errors in the will creation process and look to extrinsic evidence to help reveal testator intent.[8] Today, with wider acceptance of the harmless error doctrine[9] and the increasing use of extrinsic evidence, it has become easier to prove testator intention, and if testator intention is what really matters, it is possible that technology has become more compatible with the will execution process.

However, using technology to help with will creation creates other unique problems. Increasingly, individuals are trying to save testamentary dispositions as E-wills on word processing files or in other digital formats, which poses substantial problems of proof.[10] For example, it is debatable whether an e-signature can satisfy the signature requirement.[11] Even in states that have adopted the harmless error doctrine, a will without a signature cannot be probated.[12] E-wills are also problematic because they are easier to forge. Electronic files are easy to duplicate and easy to alter after completion. Thus, allowing E-wills to be probated might advance fraudulent incentives. Video wills would also be problematic. Although not as open to forgery, they would pose similar problems with signature viability.

Despite these difficulties, technology may still be helpful to will execution.  Although it might not be effective as a mode of will replacement, the use of digital documents and files can be helpful to supplement the will document. For example, videos can serve as a useful tool for documenting testator intent when extrinsic evidence is needed to corroborate ambiguities in the will language or to understand strange bequests. If a relative decides to challenge a will, a video explanation can serve as proof of what the testator intended and be used to show that the testator was mentally competent.[13] Videos can also be used to document the will execution process and serve as proof that all the will was signed, notarized, and attested properly.[14]

As rules surrounding will creation become more elastically treated and as technology progresses, more and more opportunities for technology to supplement parts of the will execution process will present themselves. It will be interesting to see how states will adapt to these changes and whether states with and without the harmless error doctrine will consider more technology friendly applications of the rules. Perhaps in the future, testators will be able to execute a will via live stream or Skype and be able to document their testamentary wishes on a blog or digital journal.

 

[1] Writing Your Will: What is a Video Will?, American Bar Association, https://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/will_video.html (last visited Sept. 27, 2017).

[2] David Horton, Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C. L. Rev. 539, at 563 (2017) [hereinafter Horton].

[3] Id. at 555.

[4] Wills Act Formalities: Modern Trend, thisMatter.com, http://thismatter.com/money/wills-estates-trusts/wills-act-formalities-modern-trend.htm (last visited Sept. 27, 2017).

[5] Horton, supra note 2, at 271.

[6] See id. at 563-68

[7] See thisMatter, supra note 4.

[8] See Id.

[9] See Id.

[10] Horton, supra note 2, at 563.

[11] Id. at 569.

[12] Id.

[13] American Bar Association, supra note 1.

[14] Id.

Image Source:http://pinkandbluemag-28b0.kxcdn.com/wp-content/uploads/2015/07/Dollarphotoclub_86477589.jpg

Cyberstalking: Enabled by Cheap, Accessible Technology

By: Brooke Throckmorton

 

With the frequent use of technology today, it should come as no surprise that its reach is abused. While technology can be entertaining, helpful, and time-saving, it can also be terrifying, intrusive, and ultimately enabling to those who want to intimidate or harm others.

In 2009, 14 out of every 1,000 people, age 18 or older, fell victim to stalking.[1] One in four of these stalking victims reported some form of cyberstalking (83% by e-mail, 35% by instant messaging).[2] Stalking is often defined by its effect on the victim, namely, the fear it produces.[3] Stalking creates a type of “psychological prison” for victims that includes feelings of fear, paranoia, shame, isolation, depression and in severe cases, Post Traumatic Stress Disorder (PTSD).[4] Stalking is legally defined as “following or loitering near another” to “annoy or harass that person or to commit a further crime such as assault or battery.”[5] Some statutes incorporate additional elements such as requiring the victim feel “distressed” about their own personal safety or the safety of close friends or family.[6] The definition of cyberstalking adds the element of intimidation through the use of e-mails or the Internet to place “the recipient in fear that an illegal act or injury” will be inflicted upon the recipient or a member of that person’s family or household.[7] The rise in availability of cheap technology has allowed cyberstalking to replace traditional approaches to stalking.[8]

Advanced technology allows stalkers to constantly terrorize their victims by “tracking and monitoring them” as they move throughout the world with their smartphones, computers, and I-pads.[9] In addition to GPS tracking systems installed in virtually every smartphone, social media plays a huge role in enabling abusers to reach their victims. With multiple social media outlets to choose from, it allows stalkers multiple options to observe and intimidate their victims. For example, a 2017 feature introduced on the Snapchat app, called Snap Map, allows your “friends” to view your location at all times if you are “opted-in”.[10] If a user chooses to opt-in and share their location with “friends”, these “friends” can view the user’s location at all times, even if the user is not chatting with them in the app or sending them snapchats.[11] The biggest concern with this new feature is that some users may not understand the implications of turning on their Snap Map location.[12]  In turn, they may be inadvertently sharing their location at all times with potential cyberstalkers.

You may be asking how the law deals with cyberstalking. Good news! There is a federal statute that specifically speaks to the crime of cyberstalking.[13] The statute is titled “Stalking” but contains a provision that refers specifically to using “any interactive computer service or electronic communications service or electronic communication system of interstate commerce” with intent to do harm or place a person under surveillance for such harm.[14] A Virginia man was recently charged, convicted, and sentenced to 41 months in jail under this statute in March of this year.[15] Richard Killebrew, a resident of Norfolk, Virginia, used a computer and cell phone to communicate threatening messages, some of which contained death threats, to multiple victims in Nebraska.[16] As for the state law frontier, some states have enacted specific cyberstalking statutes. Others continue to rely on their stalking statutes and apply the terms to electronic communications.[17] This can be problematic given the unique nature of cyberstalking.[18]

While there are laws in place to bring relief to victims of cyberstalking, you can be proactive by monitoring your own Internet activities. For example, if you have Snapchat, ensure that you are either opted-in or opted-out of Snap Map. If you have a smart phone, you can monitor which apps are using your location. You can find location services in your privacy settings. In these settings, you can view if you are sharing your iPhone location. You can also scroll down to view which apps are using your location, indicated by “never”, “while using”, or “always.”

While the federal government and select state governments have expanded their statutes to explicitly include cyberstalking, all states should have such a provision. Since cyberstalking can be done at any and all times, there should be unique statutory language to speak to the solely electronic communications. While cyberstalking is not wholly preventable, there are means that you can monitor your online activities that can make you less susceptible to cyberstalking.

 

 

[1] Katrina Baum, Shannon Catalano, Michael Rand, Stalking Victimization in the United States, U.S. Dep’t of Just., (Jan. 2009), https://www.justice.gov/sites/default/files/ovw/legacy/2012/08/15/bjs-stalking-rpt.pdf.

[2] Katrina Baum, Shannon Catalano, Michael Rand, Stalking Victimization in the United States, U.S. Dep’t of Just., (Jan. 2009), https://www.justice.gov/sites/default/files/ovw/legacy/2012/08/15/bjs-stalking-rpt.pdf.

[3] See Melvin Haung, Keeping Stalkers at Bay in Texas, in Domestic Violence Law 282, 284 (Nancy Lemon ed., 2013).

[4] Id. at 285.

[5] Stalking, Black’s Law Dictionary (10th ed. 2014)

[6] Id.

[7] Cyberstalking, Black’s Law Dictionary (10th ed. 2014).

[8] Supra note 3, at 282.

[9] Id.

[10] See What’s the Deal with Snap Map?, Tech. Safety (Sept. 21, 2017 3:13 PM), http://www.techsafety.org/blog/2017/7/6/whats-the-deal-with-snap-map.

[11] See id.

[12] See id.

[13] See 18 U.S.C. 2261A(2).

[14] Id.

[15]  Virginia Man Sentenced for Cyber Stalking, U.S. Dep’t of Just., (Mar. 13, 2017), https://www.justice.gov/usao-ne/pr/virginia-man-sentenced-cyber-stalking.

[16] Id.

[17] Is There a Law Against Cyberstalking or Cyberharassment?, HG.org, https://www.hg.org/article.asp?id=31710.

[18] Id.

Image Source: https://www.google.com/search?q=cyberstalking&rlz=1C5CHFA_enUS706US706&source=lnms&tbm=isch&sa=X&ved=0ahUKEwjFvNCsl7fWAhWLKyYKHYZbCXwQ_AUICygC&biw=1184&bih=590#imgrc=l49WQTiho3FbHM

Reproductive Technology Creates More than Just Children

By: Hayden-Anne Breedlove

Married couples often do not think about custody issues in the event of divorce. Many couples with children get caught up in the moment and fail to plan what to do in the event of a divorce. With today’s advances in reproductive technology, new legal issues are arising in custody disputes that involve children that have not yet been born.

Recent innovations in reproductive technology allow individuals, who at one time were unable, to become pregnant. The egg, sperm, and womb needed to make a baby can be provided by three separate people or after a person’s death. However, new legal and ethical issues have arisen with the new technology that extend beyond the standard of which parent is more “fit” to act as custodian of the child. Judges are now left with the question of deciding who has custody over a frozen egg post-divorce.

Take for example a married woman diagnosed with a form of cancer that would eliminate the possibility of her getting pregnant after her treatments. What if she chose to have her eggs inseminated by her husband’s sperm before her cancer treatments and then frozen for the couple’s use at a later time? What if the couple gets divorced before they can use these eggs? Who gets to keep them or should they just be destroyed? Should the wife be allowed to birth her ex-husband’s children? If not, the woman would not be able to have any more children since her cancer treatments left her sterile. These issues grant the court both a moral and ethical dilemma in deciding cases.

Davis v. Davis was the first case that addressed this topic.[1] During the marriage, the couple attempted to conceive through in-vitro fertilization.[2] The couple later got divorced, thus giving rise to the dispute at bar.[3] The dispute arose over what to do with the eggs. The wife initially wanted the frozen pre-embryos implanted in her but then decided she wanted them to be donated to childless couples.[4] The husband wanted the eggs to be discarded.[5] The court ruled in favor of the father, allowing for the eggs to be discarded and destroyed, citing the rationale that his interest in not becoming a parent outweighed the interest in the wife who wished to donate the embryos.[6]

The court held in Litowitz v. Litowitz that embryos could not be implanted in the wife post-divorce without the husband’s consent.[7] In this case, a couple was unable to have a child since the wife was unable to produce eggs or give birth.[8] They got eggs from a third party egg donor and fertilized them with the husband’s sperm.[9] Through this process, they had one child, but later got a divorce.[10] After the divorce, the mother sought to have the eggs implanted inside her in order to have another child.[11]

The court seems to be ruling in favor of the party who chooses to have the eggs destroyed, perhaps as a consideration under the Fourth Amendment’s right to privacy.[12] The right to privacy of the parent choosing to not go forward with having a child is stronger than the right of the other parent to have a child.[13] As reproductive technology advances and becomes more common for couples facing challenges with childbirth, the court will continue to have to rule on cases involving this issue.

[1] Recent Case Law on Division of Frozen Embryos in Divorce Proceedings, http://www.divorcesource.com/research/dl/children/03mar54.shtml (last visited Sept. 18, 2017).

[2] Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Litowitz v. Litowitz, 146 Wn.2d 514, 515 (S.C. Wash. 2002).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See supra note 2; See also supra note 7.

[13] See supra note 1.

Image Source: http://www.istockphoto.com/photo/happy-family-gm515779948-88654551.

Page 2 of 27

Powered by WordPress & Theme by Anders Norén