Richmond Journal of Law and Technology

The first exclusively online law review.

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Blog: More On Apple's Touch ID – Getting Under Our Skin and Around the Law

by Laura Bedson, Associate Staff

Consumers will stop at nothing to get their hands on the newest Apple products.  But, it appears that with the launch of the iPhone 5s those same hands will be used for something more than just coveting Apple’s newest creation.  The introduction of the 5s also meant the introduction of “Touch ID”,  Apple’s latest technological toy, which has replaced the old passcode system as the means of unlocking one’s phone.  As always, Apple has outdone itself with the release of its newest device, however lawmakers have voiced concerns over Touch ID, specifically it’s Fifth Amendment implications.

 Touch ID has been touted by many as the fingerprint scanning device on the new iPhone.  But this is not what it does.  Instead, it goes deeper to get at information under your skin.  Put (very) simply, the technology in the home button of the phone scans information from the sub-epidermal layers of the skin and uses it as one variable in a larger mathematical representation of your fingerprint to identify you as the owner of the phone and unlock it.[1]  What this means is that the biometric system is more concerned with the capacitive properties of the user’s finger than with its print.[2]

 This procedure is markedly different from the alphanumeric password that iPhone users have been used to, in that it would no longer require users to remember such passwords.  While this may seem like a great idea for those of us whose brains are already at capacity, lawmakers and scholars have approached this new advancement skeptically.

 This skepticism grows out of the possible Fifth Amendment implications of using the Touch ID, specifically the right against self incrimination.  Under this privilege, a witness in a criminal or civil proceeding is protected from revealing information that has the potential to incriminate herself.[3]  The privilege however only extends to testimonial statements, which is a statement that reveals the contents of one’s mind.  A password is something that is (ideally) stored in one’s mind, and as such, qualifies as a testimonial statement.  Based on this logic, law enforcement cannot compel a phone’s owner to incriminate herself by requiring her to enter her password and provide access to the contents of her phone.

 Where the privilege fails is when we enter the realm of biometric data, data which includes but is not limited to fingerprints, blood work, and DNA.  Courts have determined that because this evidence does not speak to what someone “knows”, it is not testimonial and therefore is not privileged. Therefore, the use of the new Touch ID technology, which focuses solely on this biometric data, may make it easier for the government to compel information without implicating the Fifth Amendment privilege against self incrimination.  Without this privilege, a phone user would be forced to use her finger to unlock her phone and reveal its contents law enforcement. 

 Over the years our phones have become an extension of our brains, storing all types of what we may consider personal, classified information.  As our reliance on our phones and the information they store increases, it is now, more than ever, crucial to be aware of how these newest advances, while exciting, can impact the right to privately store and access that information.  It will take time to know whether these advancements have constitutional implications, but until then knowledge is power and consumers need to be alerted to the possibility of infringement on their rights.


[1] Chris Davies, iPhone 5s Touch ID Prompts US Senator Security Concerns, Slash Gear (Sept. 12, 2013), http://www.slashgear.com/iphone-5s-touch-id-prompts-us-senator-security-concerns-20298620/

[2] Id.

[3] Marcia Hofmann, Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, Wired (Sept. 12, 2009, 9:29 AM), http://www.wired.com/opinion/2013/09/the-unexpected-result-of-fingerprint-authentication-that-you-cant-take-the-fifth/.

Blog: Email Scanning by Gmail and Other ISPs: Should We Lose Our Privacy Rights When We Send Emails?

by Jasmine McKinney, Associate Staff

In late September, a federal judge allowed a lawsuit against Google to move forward, when ruling that Google may indeed be violating wiretap law when it scans the e-mails of users not using a Gmail account.[1]  Google utilizes automatic scanning of all e-mail that comes through its servers to work its spam filter, build user profiles, and target advertisements.[2]  The main concern is that when one reads Google’s privacy policy, there is no mention of the fact that the content of e-mails — either between Gmail users or Gmail users and users of other email service providers — are being collected.  This suit against Google has made it possible for similar lawsuits to surface against other e-mail service providers.  In early October, a class action arose claiming that Yahoo violates the Wiretap Act as well as other California laws that forbid intercepting private communications.[3]

The Electronic Communications Privacy Act serves to regulate the collection of content through wire and electronic communications.[4]  This Act was an extension to what is commonly called the “Wiretap Statute” and forbids the “intentional interception, use, or disclosure of wire and electronic communications unless a statutory exception applies.”[5]  There were two primary exceptions under the Wiretap Statute.  The provider exception grants providers the right to intercept and monitor communications in an effort to combat theft or fraud.  Additionally, there is also the exception that when information is readily accessible to public any person is permitted to intercept that electronic communication.  In 2005, the Second Circuit interpreted another exception to the Wiretap Act when it ruled in Hall v. Earthlink Network, Inc. that Earthlink’s continued reception of emails sent to plaintiff Hall’s account did not constitute an “interception” under the Wiretap Act because it was part of Earthlink’s “ordinary course of business.” [6]

Lawsuits such as the ones against Yahoo and Google have raised the question of whether e-mail users should have a reasonable expectation of privacy concerning the messages they send via a third party service providers.  The third party doctrine that was articulated in Smith v. Maryland where the Supreme Court held that once a person involves a third party in communication any legally enforceable privacy rights are lost.[7]  This is precisely the argument that e-mail service providers have attempted to make.  Regardless of which provider an individual chooses to use for their own personal e-mail, once a message is sent to a user who uses some other provider, one’s right to privacy is lost.  However, the question remains whether this doctrine should apply to email service providers like Google and Yahoo.

Aside from an expectation of privacy, there are a number of concerns raised by the use of automatic e-mail scanning.  For example, does Google use automatic scanning solely for the purposes it states or should users be concerned about something more?  Further, should users be concerned with whether the information that is scanned from the e-mails they send is stored by email service providers?  Overall, where should the line be drawn?  The fact remains that we live in a highly technology driven world.  If individuals cannot expect their communications via the Internet to be private, by what means can that expectation be met? Perhaps as this recent litigation continues to unfold, a clear answer will be given as to whether email scanning by service providers is indeed permissible under the Wiretap Act.      


[1] Judge Allows Lawsuit Against Google’s Gmail Scans to Move Forward, http://articles.washingtonpost.com/2013-09-26/business/42421388_1_gmail-users-google-s-marc-rotenberg (last visited Oct. 6, 2013).

[2] Id.

[3] Yahoo Hit with New Lawsuit over Email Scanning in Wake of Gmail Ruling http://gigaom.com/2013/10/03/yahoo-hit-with-new-lawsuit-over-email-scanning-in-wake-of-gmail-ruling/ (last visited Oct. 6, 2013).

[4] 18 U.S.C. §§ 2510-2522 (1986).

[5] Internet Law Treatise, https://ilt.eff.org/index.php/Privacy:_Wiretap_Act (last visited Oct. 6, 2013).

[6] Hall v. Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005).

[7] Smith v. Maryland, 442 U.S. 735 (1979).

Blog: One Week, Two Big Facebook Stories

by Fiona Clancy, Associate Staff

 

On Monday, October 14, 2013, two girls, ages twelve and fourteen were arrested in Florida and charged with aggravated stalking, a third-degree felony.[1]  The charges against the two suspects stem from their cyberbullying of Rebecca Sedwick, just twelve years old, who killed herself in September.[2]  Rebecca had been targeted by the two suspects over the course of ten months, with the suspects posting harassing online messages, among them that Rebecca should kill herself.[3]  Florida Sheriff Grady Judd said the tipping point for making the arrests on Monday was one of the suspects allegedly posted a callous message about Rebecca’s death on Facebook the Saturday before, which included her acknowledging she bullied Rebecca.[4]

 

“Yes ik [I know] I bullied REBECCA nd she killed herself but IDGAF [I don’t give a (expletive)]”[5]

 

On Wednesday, October 16, 2013, two days later, Facebook announced its new privacy policy for teens.[6]  Never before were teens able to make their Facebook posts, pictures, and videos publically visible to anyone and everyone.[7]  Facebook describes the policy change for teens as “a new option to share broadly,” claiming teens “want to be heard.”[8]  While the Facebook news release features one post about a teen publicizing a food drive, and another post about a teen running in a 10k charity run as examples of this new policy in action, one can easily imagine the dark side of this new power in the wake of Rebecca Sedwick’s torment and subsequent suicide.[9]

 

Cyberbullying among teens is a recognized problem in this country, and is its effects are serious.  A 2011 study found that 16% of high school students were electronically bullied in the past year, and that kids who are cyberbullied are more likely to use alcohol and drugs, skip school, have lower self-esteem, and have more health problems.[10]  Cyberbullying is especially troubling because kids who are cyberbullied have a harder time getting away from the behavior.[11]  Before Rebecca’s suicide, she had run away from home, been hospitalized for cutting herself, and had changed schools to escape the torment, but the bullying continued online.[12]

 

So why did Facebook decide to change its teen privacy policy?  Reports speculate that Facebook’s change is motivated by a desire to increase its bottom line.[13]  Marketing and advertising companies that work with Facebook are eager to reach impressionable young consumers and target their advertisements to them.[14]  Now that teen users will be able to post information publicly, marketers and advertisers will glean more information about those teens, which they will use to personalize advertisements directed specifically to them.[15]

 

On the legal front, some say the felony charges filed in Florida may mark a turning point in how U.S. law enforcement agencies handle the problem of cyberbullying and stalking, with national ramifications for the prosecution of such cases.[16]  Sheriff Judd said he hoped the arrests would have an impact on cyberbullying, and some say Judd’s tough stance electrifies the growing movement to intensify the battle against juvenile bullying, which has increased and intensified in the era of social media.[17]  Even before the arrests, Florida took the lead nationally in 2004 when it passed a major cyberbullying amendment to its criminal code, which spurred other states to follow suit.[18]

 

Time will tell how these two events, which intersected so poignantly last week, will continue to play out for teens in this country.


[1] Doug Stanglin and William A. Welch, Two Girls Arrested on Bullying Charges After Suicide, USA TODAY (Oct. 16, 2013, 8:11 AM), http://www.usatoday.com/story/news/nation/2013/10/15/florida-bullying-arrest-lakeland-suicide/2986079/.

[2] Id.

[3] Ralph Vartabedian, Charges Against Girls In Suicide May Have National Ramifications, Los Angeles Times (Oct. 18, 2013, 12:39 PM), http://www.latimes.com/nation/la-na-bully-laws-20131018,1903818,7760714.story?page=2.

[4] Stanglin and Welch, supra note 1.

[5] Stanglin and Welch, supra note 1.

[6] Teen’s Now Start With “Friends” Privacy for New Accounts; Adding the Option to Share Publicy, Facebook Newsroom (Oct. 16, 2013), http://newsroom.fb.com/News/737/Teens-Now-Start-With-Friends-Privacy-for-New-Accounts-Adding-the-Option-to-Share-Publicly.

[7] Vindu Goel, Facebook Eases Privacy Rules for Teenagers, New York Times (Oct. 17, 2013, 9:31 AM), http://finance.yahoo.com/news/facebook-eases-privacy-rules-teenagers-200705688.html.

[8] Teen’s Now Start With “Friends”, supra note 6

[9] Teen’s Now Start With “Friends”, supra note 6

[10] What is Cyberbullying?, stopbullying.gov (last visited Oct. 20, 2013, 11:30 PM), http://www.stopbullying.gov/cyberbullying/what-is-it/index.html.

[11] Id.

[12] Stanglin and Welch, supra note 1.

[13] Eric Rosenbaum, Facebook’s ‘Don Draper’ Wants to Pitch Teens, CNBC (Oct. 19, 2013, 7:00 AM), http://finance.yahoo.com/news/facebooks-don-draper-wants-pitch-110000811.html.

[14] Id.

[15] Goel, supra note 7.

[16] Vartabedian, supra note 3.

[17] Vartabedian, supra note 3.

[18] Vartabedian, supra note 3.

Blog: Express Yourself…With Caution! – "Likes" on Facebook

by Jessica Ertel, Associate Staff

 

How many times have you subconsciously clicked the thumbs up button on Facebook?  Every time you log onto Facebook, it is inevitable that something amusing, smart, or relatable will pop up on your news feed which will warrant the social sign of approval, the “like.”  Facebook processes approximately 2.7 billion of these “likes” every day.[1] While Facebook liking simply seems to be yet another form of social interaction, it actually has greater consequences than one might realize.   

Recently, the Fourth Circuit Court of Appeals ruled that “liking” on Facebook constituted protected free speech.[2]  When a former deputy sheriff in Hampton, Virginia, pressed the thumbs up button for his boss’s opposing candidate in the Sheriff election, he suffered an adverse employment action.  By simply liking a Sheriff candidate’s Facebook page, Daniel Ray Carter was expressing his political opinions, expressions that deserve the highest Constitutional protection.  However, the Court noted that this First Amendment level of protection fluctuates depending on whether an individual who has a policymaking role is expressing opinions that intersect with or undermine that public role.  Since a certain political affiliation was not an appropriate requirement for Carter’s job, his political expression on Facebook was given significant protection.  It was improper for Carter to be fired for showing political support for a Sheriff candidate.  

Undoubtedly, every U.S. citizen has the right to freedom of speech.  Yet, it makes sense that an employer can take their employee’s political beliefs into account when that employee’s job necessarily entails policymaking.  An employer will probably not want to hire someone whose Facebook page is stamped with Hitler support groups or racist slurs.  Thus, there is a caveat to the ruling that Facebook “liking” is protected free speech.  While such speech is one’s Constitutional right, that expression is inevitably made public and thus available to whoever happens upon your Facebook page.

The same is true for one’s Twitter account.  Even though there is an option to make one’s Twitter profile private, this social media site provides in its Privacy Policy that any information that a user posts is considered publicly available information.[3]  In a New York case, the Court ruled that the defendant’s Twitter account could be subpoenaed after he participated in an Occupy Wall Street march on the Brooklyn Bridge.[4]  Presumably, the defendant’s political expressions on Twitter would be used against him to prove that he participated in this protest in which he was arrested for disorderly conduct. 

Since Facebook liking now qualifies as protected First Amendment speech, it seems that tweeting should qualify as well.  And, although these social media expressions are guaranteed Constitutional protection, that does not diminish the fact that these expressions are made public.  An employer cannot fire someone for their political expressions on Facebook or Twitter, but there is still the reminder that those opinions and views are out there for the world to see.


[1] Ashlee Vance, Facebook: The Making of 1 Billion Users, Bus. Wk., Oct. 4, 2012, at 2, available at http://www.businessweek.com/articles/2012-10-04/facebook-the-making-of-1-billion-users#p2

[2] Bland v. Roberts, 12-1671, 2013 WL 5228033 (4th Cir. Sept. 18, 2013), as amended (Sept. 23, 2013).

[4] People v. Harris, 36 Misc. 3d 613, 619, 945 N.Y.S.2d 505, 509 (Crim. Ct. 2012). 

Blog: The CSI Effect

by Emma Buck, Associate Staff

 

Like millions of Americans, I appreciate a good crime show where you can cheer on the good guys and count down the episodes until Bones and Booth or Castle and Beckett or DiNozzo and David get together. However, this harmless entertainment may be creating jury biases that are very hard to account for and eliminate. With the rise of television shows such as CSI, NCIS, Bones, and Law and Order, many legal professionals speculate that jurors with no criminal justice or forensic science experience are approaching trials with an innate bias formed from viewing these programs. While some say that these shows assist the jury in following criminal proceedings, prosecutors and defense attorneys alike argue that jurors are unable to objectively view the strengths and weaknesses of the evidence presented at trial because they have formed unrealistic expectations of what is normal in a criminal trial.[1] This phenomenon is referred to as the “CSI Effect.”

In the recent and highly publicized Zimmerman trial, the prosecution faced problems related to the CSI Effect. In his closing statement, prosecuting attorney John Guy stated, “There are no Rachel Jeantels on CSI.”[2] Rachel Jeantel was Trayvon Martin’s friend who was on the phone with him moments before he died. She has been ridiculed across the nation for her informal and hostile testimony during the trial.[3] However, witnesses are individuals and the majority of them are not going to be as polished and articulate as those seen on shows such as CSI. Guy’s comment highlights the prosecution’s concern that, despite the probative value of her testimony, jurors may not respect the evidence provided by Jeantel simply because it is not what they expect to see from a star witness.

Prosecutors struggle with the CSI Effect when there is a limited amount or complete lack of physical evidence.[4] In television dramas, the brilliant forensic scientist (whose office is somehow just an elevator ride away from both the interrogation room and the coroner’s office—looking at you, NCIS) is always able to recover a fiber or a hair or a bead of sweat that conclusively ties the suspect to the crime. These expectations are simply not realistic. Many cases are decided based on non-scientific data, such as witness testimonies, or when the physical evidence is a piece of the puzzle rather than the conclusive answer.[5] These juries also know of the tests that can be used and are hesitant to convict without knowing that Abby has run everything through the mass spec, even if these tests are unnecessary. To combat this, some prosecutors have even taken to having experts provide negative evidence, testifying that these tests are unnecessary and that the evidence was thoroughly processed.[6]

While this issue is primarily felt on the side of the prosecution, defense attorneys also claim that the CSI Effect has made their jobs more difficult.[7] When there is physical evidence, jurors are unlikely to question its validity. Essentially, the extreme sophistication and likeability of television’s forensic heroes and heroines has left jurors with the impression that once evidence has been gathered, it is flawless.[8] Defense attorneys must carefully point out potential flaws in the evidence in hopes that the jurors are willing to ignore their preconceived notions about the criminal justice system operating smoothly and with complete accuracy.

Litigators across the nation have taken action to minimize the impact of the CSI Effect on juries. This has primarily come in the form of adapting voir dire questions to determine whether the CSI Effect will influence a juror, crafting jury instructions that minimize jury miscomprehension, and utilizing expert witnesses for both positive and negative evidence.[9] Some states have specifically approved voir dire questions related to the CSI Effect.[10] While we would all like to believe that jurors are able to separate what they see on television from the realities of the courtroom, lawyers must be prepared to handle these unrealistic expectations. So next time that you curl up to watch Temperance “Bones” Brennan discover the murder location based on dust residue in the victim’s bones from the murder weapon, remember that criminal law is not “as seen on TV.”


[1] http://www.economist.com/node/15949089

[2] http://www.washingtonpost.com/blogs/compost/wp/2013/07/12/the-weirdness-of-the-george-zimmerman-trial/

[3] http://tv.msnbc.com/2013/06/27/zimmerman-trial-how-will-the-jury-react-to-rachel-jeantel/

[4] http://www.usnews.com/usnews/culture/articles/050425/25csi.htm

[5] http://usatoday30.usatoday.com/life/television/news/2004-08-05-csi-effect_x.htm

[6] http://www.economist.com/node/15949089

[7] http://www.npr.org/2011/02/06/133497696/is-the-csi-effect-influencing-courtrooms

[8] http://usatoday30.usatoday.com/news/nation/2004-08-05-csi-effect_x.htm

[9] http://apps.americanbar.org/litigation/committees/trialevidence/articles/winterspring2012-0512-csi-effect-jurors.html

Blog: Vindictive Exes Need to Find a New Outlet: States Consider Outlawing ‘Revenge Porn’

by Taylor Linkous, Associate Staff

Technology and pornography–one of the great love stories of our time. That’s right; technology and porn have always had an exciting, juicy, and mutually beneficial relationship.  Where technology goes, porn follows.  Take the Polaroid camera. Much of the success of the Polaroid camera is said to come from the fact that people could take explicit photos without having to go to the store to get the film developed.[1]  Now, cell phones and more specifically, camera phones have seemed to give people this same sense of privacy and promiscuity.  However, this is a false sense of privacy considering we now have the internet, an amazing, yet very scary place where your boyfriend, girlfriend, or whoever else comes across these explicit photos can post them for the world to see.  This is called revenge porn.

 Revenge porn is a nude picture or video that is publicly shared on the internet, usually by an ex-lover, for the purpose of humiliation.[2] This happened to Holly Jacobs, a Florida woman who is now a strong advocate of strengthening laws against revenge porn and who founded the website End Revenge Porn.[3] Jacobs found out from a friend that nude photos she had sent to her ex-boyfriend had been posted on her Facebook and then later to hundreds of revenge porn websites. Even more disturbing was that her name, email address, and place of business were posted along with the pictures.[4] As if finding out your body was exposed to the entire internet world was not enough, she went to the police only to discover they could do nothing for her. 

Currently, the act of posting revenge porn is a crime in only two states, New Jersey and just recently, California.  New Jersey’s Title 2C: 14-9 is an invasion of privacy law which is directed at people who secretly photograph or videotape another person while they are naked or engaged in sexual activity without their consent.[5]  Although the law was not drafted with the criminalization of revenge porn in mind, it was written broad enough to apply to revenge porn situations. 

About a month ago, the California legislature passed SB 255, a revenge porn bill introduced by Senator Cannella.  Governor Jerry Brown signed the bill into law on October 1st and it went into effect immediately.[6]  The law makes posting revenge porn a misdemeanor punishable by up to 6 months in jail and a $1,000 fine.[7]

Revenge porn has become a hot topic in recent months as a couple of other states have attempted to draft legislation specifically directed at criminalizing revenge porn.  This past year, Florida, the home state of Holly Jacobs, tried and failed to pass a revenge porn law.[8]  Also, just recently, New York Senator Joseph Griffo and Assemblyman Edward Braunstein announced they would introduce a bill criminalizing revenge porn.[9] The Wisconsin legislature is also considering a revenge porn bill.[10]

Many have voiced concerns about enacting laws that ban revenge porn. First, the failure of the Florida bill was partly due to concerns that such a law would abridge free speech in violation of the First Amendment.[11]  Similar concerns have been expressed regarding California’s newly enacted revenge porn law.  The ACLU initially opposed the bill because of First Amendment concerns, but has since changed this position and stated there are no objections to the bill.[12]  While most would agree that revenge porn is repulsive and wrong, it may be difficult to strike the right balance with a law that successfully bans the posting of revenge porn without simultaneously restricting legitimate free speech. 

Next, many people don’t see a point in criminalizing this activity as victims are already able to file civil suits against the person who posted the pictures.  However, filing a civil suit takes lots of time and money.  Moreover, the reality is that once these pictures are posted to a revenge porn website, they will spread like wildfire all over internet and are next to impossible to take down.  A civil suit won’t really remedy this issue.  Threatening criminal penalties for posting revenge porn may be a better way to deal with the problem as it will discourage people from posting the pictures in the first place.

On the flipside, there are also concerns that revenge porn laws could be written too narrow.  For example, as written, California’s new law makes revenge porn illegal only if the photo was taken by the same person who distributes it and that person must have distributed the picture with the intent to cause serious emotional distress.[13]  This means that if a girl takes the naked picture of herself and sends it to her boyfriend and then her boyfriend later posts the picture on a revenge porn website, the California law would not apply.  Moreover, showing that a person posted revenge porn with the intent to cause serious emotional distress may be difficult to prove.  People may post these pictures intending to make money rather than with an intent to cause emotional distress.  

There are still many questions to be answered about criminalizing revenge porn.  While state laws criminalizing revenge porn are a start, it may be necessary for federal law to address the issue.  It will be interesting to see how many states follow California’s lead and whether Congress decides to step in. 

Finally, in case you’re interested, a revenge porn case popped up in local news in the last month as the Albemarle County Commonwealth’s Attorney, Denise Lunsford, filed for a protective order in Missouri against her former lover, David Cosgrove, former chief legal counsel to Governor Bob Holden, for posting nude pictures of her on the Internet.[14]  Cosgrove has asked the judge to dismiss the request and sanction Lunsford for “filing an unnecessary legal complaint.”[15]

           


[7] Id.

[10] Id.

[15] Id.

 

Blog: Aging Adults and Technology

by Morgan Ackerman, Managing Editor

 

Admittedly aging adults is not the first thing that comes to mind when thinking about the intersection of law and technology. However, there have been many recent technological advancements to aid aging adults and their caregivers. These advancements are aimed to both enable seniors to live at-home longer, and to help their caregivers.[1]

            Some of these advancements include Smartphone applications that help track medications[2], GPS trackers to monitor aging adults with Alzheimer’s and dementia[3], sensors, skin detectors, and social interaction tools.[4] All of these new technologies are making it possibly for many seniors to live independently, and for those caring for seniors, to better care for them. Along with these life enhancing, and life saving technologies comes potential legal ramifications. 

            The Supreme Court recently ruled that placing a GPS tracker on a car is considered a search under the 4th Amendment.[5]  Police will now need to obtain a warrant to lawfully place a GPS tracker on cars of criminal suspects. The court’s ruling leaves open the question of whether individuals can place GPS trackers on others. Private investigators have used the term “electronic stalking” when referring to the misuse of GPS trackers, and this is a serious concern surrounding GPS trackers.[6]

             In the context of aging adults, the use of GPS trackers to monitor seniors with Alzheimer’s and dementia seems to be a gray area. Likely, individuals tracking these adults are family or medical professionals that have gained consent to track individuals. However, this technology has an extraordinary potential for abuse and has yet to be regulated.

            Smartphone applications that help track medications may be the targets of medical malpractice lawsuits.[7]  Currently, Apple’s iPhone Developer Program License Agreement indemnifies Apple from liability for all iPhone applications, and places liability on the individual developers.[8] The potential that these medicine-tracking apps could have a glitch, or malfunction is high. A glitch or a malfunction could seriously harm a person relying on the app. The potential harm on the elderly population, that might solely rely on the app to remind them to take their medication, could have an even greater harm. With Apple’s indemnity clause, this leaves the Smartphone application developers liable. There has yet to be a medical malpractice case for medical Smartphone apps, but medical malpractice experts and the FDA foresee this scenario arising.

            Given the reality of such problems the FDA recently issued final rules on the development of medical Smartphone applications.[9] However, the FDA did not issue regulations of medicine reminders, caloric in-take, heart monitors, etc. leaving these types of medical apps unregulated.

            Overall, the implications of modern technology that aids the aging populations are positive, but the legal consequences should be kept in mind.

 


[1] Mario Sollitto, Technology for Elderly Enhances Health, Safety, Agingcare.com, http://www.agingcare.com/Articles/techology-for-elderly-living-at-home-147427.htm   Technology for Elderly Enhances Health, Safety Agingcare.com.

[2] MedCoach Medication Reminder, itunes.com, https://itunes.apple.com/us/app/medcoach-medication-reminder/id443065594?mt=8.

[3]Elderly & Special Needs GPS Tracking, Brick House Security, http://www.brickhousesecurity.com/category/gps+tracking/elderly+care+gps+tracking+products.do.

[4] Mario Sollitto, Technology for Elderly Enhances Health, Safety, Agingcare.com

[5] United States v. Jones, 565 U.S. ____, 132 S.Ct. 945 (2012); see also Adam Liptak, Police use of GPS is Ruled Unconstitutional, NYTimes.com,

http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html.

[6] Id.

[7] Satish Misra, iPhone Medical Apps Medical May Be Targets of Medical Malpractice, KevinMD.com, http://www.kevinmd.com/blog/2010/04/iphone-medical-apps-medical-malpractice-targets.html.

[8] Id.

[9] Melissa Gall, FDA Announces Regulations of Medical Smartphone Apps, Locum Tenens Daily, http://www.locumtenensdaily.com/fda-announces-regulations-of-medical-smartphone-apps/.

Sedona Conference® to Use JOLT Article at 10th Annual Georgetown Law Center Advanced e-Discovery Institute Program

For ten years, the Sedona Conference® has been working together with the Georgetown Advanced e-Discovery Institute to produce the finest e-Discovery education in the nation. To celebrate the ten year anniversary of this unique collaboration, the Sedona e-Discovery Cooperation Training Program will come to Georgetown on November 21 to host three concurrent sessions entitled “Cooperation in Practice.” Each session will feature a panel of experts, including state and federal judges, who will review and critique the performance of two teams assigned to negotiate the scope of discovery in an employment discrimination case.

The Sedona Conference® has requested permission to include a JOLT article as part of the materials used to familiarize the team participants and attendees with the case study and the practical tools for cooperative advocacy. The article requested was included in Vol. XVIII, Issue 3 , and titled Cooperation – What Is It and Why Do It? by Hon. David J. Waxse. 

The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights.  The Sedona Conference’s mission is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on critical issues.

To learn more about the upcoming program, please visit https://thesedonaconference.org/sedona-ediscovery-cooperation-training-program.

sedona conference logo

 

 

Blog: Privacy Concerns and the New iPhone

by Silvia Lee, Associate Staff

 

People waited in lines all over the world on Friday, September 20th to purchase Apple’s latest release, the iPhone 5s. Among the mobile device’s new features is a fingerprint scanner built into the home button. After an initial set-up, Apple’s proprietary “Touch ID” technology can scan sub-epidermal layers to allow users to unlock their phones and make iTunes purchases by scanning their fingerprint. Addressing privacy and security issues, Apple has stated that the biometric data is encrypted and stored only on the device and the information will not be sent to Apple’s servers or Cloud service. In addition, third party apps will not have access to the Touch ID system.

The much talked-about feature has at least one lawmaker voicing his concerns. Senator Al Franken, the Chairman of the Senate Judiciary Subcommittee on Privacy, Technology and the Law, has written a letter to Apple CEO Tim Cook in which he poses several questions regarding the new technology. One of his concerns is whether Apple considers the biometric data to be “contents” of communication or a “subscriber number or identity.”[1] Under the Stored Communication Act, “content” cannot be freely disclosed to law enforcement agencies without a warrant, while “subscriber number or identity” requires only a subpoena.[2]  

            Senator Franken is also concerned with how secure the fingerprint scanner actually is. He notes that “[p]asswords are secret and dynamic; fingerprints are public and permanent.”[3] If a passcode is compromised, users can change it for a new one, but fingerprints are unique and unchangeable. He fears that someone could lift a user’s fingerprint and use it to hack into the phone and all the information stored within.

The idea of lifting a fingerprint and hacking into an iPhone 5s has been turned into a competition on a website launched by Nick DePetrillo and Robert Graham. The site is crowdfunding a bounty for the first Touch ID hack. The duo claims their motives are to show that it is more difficult than people think. The crowdfunding campaign has raised over $5,000.00 so far and garnered much attention on Twitter with the hashtag #istouchidhackedyet.[4] In order to win the bounty, the hackers must post a video detailing the process of lifting a fingerprint from an everyday object (like a beer mug) and using it to unlock an iPhone 5s.[5] As of 10:00 no official winner of the bounty has been declared, but the Chaos Computer club from Germany is rumored to have accomplished the feat and have published a step-by-step guide.[6]

So far Apple has stayed silent on the matter. However, with a successful Touch ID hack a mere two days after the phone’s release and Senator Franken’s request for answers to his queries within a month, Apple may be pushed to speak sooner than anticipated.


[1] Andrea Peterson & Hayley Tsukayama, Fingerprint Scanner for iPhone 5s Raises Privacy, Security Concerns, Wash. Post, (Sept. 20, 2013), http://www.washingtonpost.com/business/technology/fingerprint-scanner-for-iphone-5s-raises-privacy-security-concerns/2013/09/20/0992cbee-222f-11e3-966c-9c4293c47ebe_story.html.

[2] Sen. Al Franken, Sen. Franken Questions Apple on Privacy Implications of New Fingerprint Technology, Al Franken (Sept. 20, 2013), http://www.franken.senate.gov/?p=press_release&id=2562.

[3] Id.

[4] Adam Vrankulj, Can the iPhone 5s Be Spoofed With a Lifted Print? Hackers Crowdfund Reward to Find Out, Biometric Update (Sept. 20, 2013), http://www.biometricupdate.com/201309/can-the-iphone-5s-be-spoofed-with-a-lifted-print-hackers-crowdfund-reward-to-find-out (Arturus Rosenbacker originally pledged $10,000 toward the bounty but has since been discovered as a scammer, http://www.zdnet.com/charlatan-hijacks-iphone-5s-fingerprint-hack-contest-fools-press-7000020978/).

[5] istouchidhackedyet, www.istouchidhackedyet.com (last visited Sept. 22, 2013 11:30 P.M.).

[6] How to Fake Fingerprints? Chaos Computer Club, (Sept. 22, 2013), http://dasalte.ccc.de/biometrie/fingerabdruck_kopieren?language=en

Blog: Google’s Street View Captures More Than Just Pictures

by Dylan Denslow, Associate Staff

 

If you ask someone a question and they don’t know the answer, it’s a fair guess that their answer will be “Google it.”  These days, it seems like Google is used for everything – it’s expanded much further than a simple Internet search engine.  While this expansion has its fair share of benefits, it also means that Google continues to collect even more piles of data from its users.  However, just recently the Ninth Circuit issued an opinion in Joffe v. Google that will rein in some of Google’s activity and have implications for other Internet users.

 

Google’s Street View program is a feature connected to the company’s popular Google Maps and Google Earth applications, which allows users to see 360-degree panoramic images of cities from a street-level perspective.  Google provides this service by sending computer-filled vehicles with cameras down city streets. While capturing street images between 2008 and 2010, Google’s Street View cars simultaneously collected around 600 gigabytes of data transmitted over Wi-Fi networks in more than 30 countries.  Among the types of data captured were personal emails, usernames, passwords, videos and documents[1].

 

The US Wiretap Act generally prohibits the intentional interception, use, or disclosure of wire, oral and electronic communications unless a statutory exception allows for such activity.[2] One such exception involves communications that are readily accessible to the public, such as radio communications[3]

 

In Joffe v. Google, Google argued that the case should be dismissed based on the theory that its collection of data from unencrypted Wi-Fi networks fit within the Wiretap Act’s exception covering communications readily available to the public.  However, the Ninth Circuit felt otherwise and held that “Google’s collection of data from unencrypted Wi-Fi networks under its Street View program is not exempt from federal wiretap laws.”[4]  Specifically, the court noted that unencrypted Wi-Fi networks do not qualify as radio communications and that they are not electronic communications readily accessible to the general public.[5] This case represented the first time an appellate court addressed the issue and made a determination on the Wiretap Act’s applicability to unencrypted Wi-Fi networks.[6]

 

The practical implication of this ruling is that anyone who intercepts your information on an unencrypted Wi-Fi network may be punished. Anyone can join an unencrypted network, and once joined all of the data on the network is available to all connected devices. Without hacking, it is easy to collect data from these networks both intentionally or unintentionally. Some privacy experts are concerned that going forward, this court’s holding has the potential to “create accidental outlaws of researchers, and the generally technical and curious.”[7] Because of the relative ease in accessing data on unencrypted Wi-Fi networks, Internet users and researchers in particular should be aware that even their unintended use of an open Wi-Fi network may expose them to potential legal risks.

 


[1] Google Street View ruling denotes “landmark” privacy case on Wi-Fi-enabled data collection, SC Magazine, http://www.scmagazine.com/google-street-view-ruling-denotes-landmark-privacy-case-on-wi-fi-enabled-data-collection/article/311655/ (last visited September 22, 2013).

[2] See 18 U.S.C. § 2511 (2013).

[3] Id.

[4]Google loses appeal in Street View privacy lawsuit, PC World Australia, http://www.pcworld.idg.com.au/article/526168/google_loses_appeal_street_view_privacy_lawsuit/ (last visited September 22, 2013).

[5] Apparently Open WiFI is actually private, The Privacy Blog, https://www.theprivacyblog.com/online-privacy/apparently-open-wifi-is-actually-private/ (last visited September 22, 2013).

[6] Google Street View ruling denotes “landmark” privacy case on Wi-Fi-enabled data collection, SC Magazine, http://www.scmagazine.com/google-street-view-ruling-denotes-landmark-privacy-case-on-wi-fi-enabled-data-collection/article/311655/ (last visited September 22, 2013).

[7] Id.

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