Month: October 2016 Page 1 of 2

By: Joe Strafaci,

Over the last twenty years, virtual reality (VR) has grown from a budding concept to a major industry. The VR hardware and software markets are expected to be worth $2.7 billion and $4.7 billion by the end of 2016 and 2018, respectively.[1] The virtual world known as “Second Life” software, created by Linden Research, is estimated to have 171 million active VR users by 2018.[2] But this expansion creates serious legal issues that earlier forms of VR did not present. New and expanding forms of VR enable users to buy property, and more importantly, create their own unique products using the underlying coding of a VR provider.[3] As a result, lawmakers and judges have been confronted with how our legal system treats user-created product while using the underlying IP provided by a virtual reality provider.[4]

User-created and designed content presents unique legal issues for a couple of reasons. First, some debate still exists as to who owns such content. In the VR industry, companies provide the underlying code, but individuals are often responsible for the direct creation of certain content.[5] This issue is the equivalent of asking yourself whether a farmer or a chef is responsible for your meal in a restaurant. Second, courts have not given clear answers on the treatment of virtual property in the event that a company believes it has grounds to discontinue service to an individual. Traditionally, terms of service (TOS) contracts have successfully sorted out legal issues in the technology industry. However, VR companies have encountered specific legal issues with the enforcement of their TOS contracts.[6]

While the debate over the ownership of user-created content is likely not over, the legal field has generally come to the conclusion that ownership rests in the hands of the user and not the writer of the underlying IP.[7] Most prominent VR platform providers have publicly stated that they will recognize the full intellectual property protection of the digital creations of their users and courts have provided rulings consistent with that concept.[8] The U.S. government has recognized commercial entities that solely reside in virtual worlds. In the VR world known as Second Life, Eroc LLC has registered its brand with the United States Patent and Trademark Office for “providing temporary use of non-downloadable software for animating three-dimensional characters.”[9]

Despite the apparent clarity that property rights reside with a user, companies have routinely attempted to craft TOS agreements to do damage to the legal rights of users.[10] In the farmer and chef example, the routine issue is that everyone agrees that the chef (user) gets to fashion the dish (user-created content) and the dish is his own piece of art. However, the farmer (VR platform) often attempts to watch the chef while he makes the dish and the farmer can throw it in the garbage at any time he finds fitting.

A serious problem still exists as to how to properly deal with user-created property when conflict arises between the user and the VR platform as described above. There are many reasons why a VR platform may fairly discontinue service to a user. However, the issue is that the user may have a considerable amount of value invested in the game, not only in purchases, but also in the underlying value of creations manufactured inside the platform. In the real world, a large legal framework exists to protect individuals and their property from creditors, the government, or any other entities that may attempt to encumber it. However, many of these protections are not extended to individuals whose property resides in a virtual world.

In recent years, some courts have attempted to break ground in establishing rights of users who are deprived of their user-created content. In Bragg v. Linden Research, a user sued a VR platform provider for seizing property they owned in Second Life.[11] Bragg had invested $300 in the game to purchase virtual property and had created products to sell to other individuals in the game.[12] The Court ultimately ruled that Linden’s TOS agreement was both procedurally and substantively unconscionable.[13] A group of Second Life users also filed a class action suit against Linden when Linden changed their TOS agreement without their consent in an attempt to deprive of the property rights Linden had previously promised to grant.[14] The parties reached a settlement in 2013.[15] These two cases highlight the broader issue that while all parties may say that property rights reside in the user, much work needs to be done in affording proper consumer protections to individuals who hold and develop property in virtual worlds.

 

 

[1] See Paul Lamkin, Virtual Reality Devices: $4 Billion+ Business By 2018, Forbes (June 18, 2015), http://www.forbes.com/sites/paullamkin/2015/06/18/virtual-reality-devices-4-billion-business-by-2018/#1bfd6428fd92.

[2] See Jonathan M. Purow, Virtual Reality May Create Novel IP Issues in the Real World, Law360 (March 28, 2016), http://www.law360.com/articles/769479/virtual-reality-may-create-novel-ip-issues-in-the-real-world.

[3] See id.

[4] See id.

[5] See Krista M. Coons et al., Virtual Reality Creates Potentially Real Legal Issues, Mondaq (July, 15, 2015), http://www.mondaq.com/unitedstates/x/412502/Trademark/Virtual+Reality+Creates+Potentially+Real+Legal+Issues.

[6] See Purow, supra note 2.

[7] See Coons et al. supra note 5.

[8] See id.

[9] Id.

[10] See Purow, supra note 2.

[11] See Bragg v. Linden Research, 487 F. Supp. 2d 593, 595 (E.D. Pa. 2007).

[12] See id. at 597.

[13] See id. at 606-8.

[14] See Evans v. Linden Research, 2012 U.S. Dist. Lexis 16606.

[15] See Ann Bucher, Judge Oks Second Life Virtual Money Class Action Settlement, Top Class Actions (November, 3, 2013), https://topclassactions.com/lawsuit-settlements/lawsuit-news/5293-judge-oks-second-life-virtual-money-class-action-settlement/.

Photo Source:

http://random42.com/sites/default/files/work/casestudies/Random42-Oculus-GearVR-Headset.jpg

By: Courtney Gilmore,

Less than two months after its much-anticipated launch, Samsung Electronics Company has done away with its Galaxy Note7 Smartphone. On October 10, Samsung issued a statement asking all carrier and retail partners around the globe to discontinue sales and exchanges of the Galaxy Note7.[1] This statement comes after Samsung initially recalled 2.5 million Note7 devices in early September following various reports of the phones catching fire.[2] However, just as Samsung was under the impression that the defect was cured, incidents of the product catching fire continued despite the issuance of replacement devices.

Samsung’s product liability nightmare is widespread. Recently, a Kentucky resident awoke to his bedroom filled with smoke and soon discovered that the source of the smoke was his phone, which was on fire.[3] Samsung allegedly requested that the man hand over his phone for further inspection, but he skeptically refused to give it up as proof of his injury. Samsung apparently did pay for the phone to be examined for cause.[4] The U.S. Consumer Product Safety Commission has been investigating another replacement Galaxy Note7 that caught fire on a Southwest airplane at the Louisville airport.[5] Moreover, a California resident is suing Samsung for second and third degree burns caused by the explosion of his Samsung Galaxy S7 Edge.[6] Though not a Note7, it is yet another Samsung product that has sparked the public’s concerns over product liability actions.

Samsung suspects the cause is defective batteries in the phones and has alleged the fault of one particular battery supplier.[7] The device contains a commonly used lithium-ion battery, which prompts potential issues such as the faulty combination of the “battery’s voltage control system and low-quality materials that go inside a battery cell.”[8] In light of the faulty battery concerns, questions have been raised regarding Samsung’s quality control practices.[9] When a supplier is aiming to mass-produce a product in a short amount of time, quality issues can certainly arise.[10] “Consumer demand drives smaller, thinner devices, and manufacturers are under a lot of pressure to meet those specs on a very tight timeline,” says Elliot Kaye, head of the U.S. Consumer Product Safety Commission.[11]

Notably, Samsung’s latest debacle is not the first product to experience difficulty with the lithium-ion battery. The hoverboard craze came to a screeching halt in 2015 as a result of the batteries in various devices catching fire.[12] Much like the Galaxy Note7, some hoverboards exploded while charging while others exploded while in operation.[13] Sony’s laptops experienced a similar fate in 2008 when the U.S. Consumer Product Safety Commission recalled about 35,000 Sony laptop batteries after several reports of fires.[14] While other manufacturers have experienced battery-related recalls in the past, Samsung’s losses appear to significantly surpass those of Sony and the hoverboard.

Samsung is now asking consumers “with an original Galaxy Note7 or a replacement Galaxy Note7 to power it down and contact the carrier or retail outlet where [they] purchased [the] Galaxy Note7.”[15] This recall is estimated to cost Samsung nearly $17 billion.[16] With the holiday season rapidly approaching, Samsung’s production halt will likely prove to be significantly beneficial to Samsung’s primary competitors in the market.[17] Amid the legal battle between Samsung and Apple over Samsung’s alleged infringement upon Apple’s design patents, in addition to the release of Apple’s iPhone 7, Samsung’s recall woes could not come at a worse time.[18]

 

 

[1] See Samsung, Updated Consumer Guidance for the Galaxy Note7 (Oct. 10, 2016), http://www.samsung.com/us/note7recall/.

[2] See Se Young Lee, Samsung Scraps Galaxy Note 7 over Fire Concerns, Reuters (Oct. 11, 2016, 2:09 PM), http://www.reuters.com/article/us-samsung-elec-smartphones-idUSKCN12A2JH.

[3] See Monique Blair, Nicholasville Man Injured by Replacement Samsung Phone, WYKT (Oct. 8, 2016, 10:02 PM), http://www.wkyt.com/content/news/Nicholasville-mans-replacement-Samsung-Galaxy-Note-7-catches-fire-396431431.html.

[4] See id.

[5] See Emily Field, CPSC Probing Report of Samsung Galaxy Note Fire on Plane, Law360 (Oct. 6, 2016, 6:55 PM), http://www.law360.com/technology/articles/848988/cpsc-probing-report-of-samsung-galaxy-note-fire-on-plane?nl_pk=a6f0df19-c127-4444-8e8b-a4c34dfadf0b&utm_source=newsletter&utm_medium=email&utm_campaign=technology.

[6] See Robert Donachie, These Pictures Show the Horrifying Result of Samsung’s Phone Explosions, Daily Caller (Sept. 12, 2016, 12:51 PM), http://dailycaller.com/2016/09/12/samsung-phone-explodes-in-mans-pocket-causes-3rd-degree-burns/.

[7] See Jonathan Cheng and Eun-Young Jeong, Samsung Faces New Questions Over Galaxy Note 7 Fires, Wall Street Journal (Oct. 10, 2016, 9:48 AM), http://www.wsj.com/articles/as-incidents-mount-samsung-faces-new-questions-about-galaxy-note-7-recall-cause-1476105325

[8] See id.

[9] See id.

[10] See id.

[11] See Field, supra note 5.

[12] See Sean Hollister, Here Are the Reasons Why So Many Hoverboards Are Catching Fire, CNET (July 9, 2016, 3:43 PM), https://www.cnet.com/news/why-are-hoverboards-exploding-and-catching-fire/.

[13] See id.

[14] See Brian X. Chen, Laptop Fires Prompt Sony Battery Recall – Again, Wired (Oct. 30, 2008, 6:10 PM), https://www.wired.com/2008/10/laptop-fires-pr/.

[15] See Samsung, supra note 1.

[16] See Samsung Halts Production of Troubled Galaxy Note 7, Al Jazeera (Oct. 11, 2016), http://www.aljazeera.com/news/2016/10/samsung-galaxy-note-7-phones-turned-161011060404586.html.

[17] See Lee, supra note 2 (Neil Mawston, analyst at Strategy Analytics, explaining that “the gap is likely to be filled by rivals including Apple and Google Pixel, although probably Oppo, Vivo, LG Electronics, and Sony stand to benefit the most.”).

[18] See Kat Greene, US to Argue in Samsung High Court Fight Over Apple Win, Law360 (Sept. 26, 2016, 9:54 PM), http://www.law360.com/technology/articles/844976/us-to-argue-in-samsung-high-court-fight-over-apple-win?nl_pk=a6f0df19-c127-4444-8e8b-a4c34dfadf0b&utm_source=newsletter&utm_medium=email&utm_campaign=technology.

Image Source:

http://www.androidauthority.com/samsung-remotely-deactivate-defective-galaxy-note-7-715862/

 

By: Abby Johansen,

The idea of three-dimensional printing is not brand new, but the impact of 3D printing’s recent boom and untapped potential presents plenty of new and complicated issues within the realm of intellectual property law.[1] 3D printing allows for the creation or replication of nearly any desired three-dimensional item by the instruction of a “Computer Aided Design” (CAD) file.[2] CAD files are “templates that can be utilized by a computer to print 3D-objects.”[3] It is the CAD files that give the 3D printer specific instructions regarding how to make the desired item. CAD files have unlimited potential as they can be based upon a new idea or they can be generated by scanning a 3D object already in existence.[4] Anyone can make or access CAD files, which has helped to propel the rapid dissemination of 3D printing to the general public.[5]

There are many benefits associated with the growing 3D printing industry, including the potential for the reduction of waste and energy consumption for manufacturers and a decrease in costs associated with labor and raw materials involved in the production process.[6] It is the potential for widespread use throughout any industry and the potential for personal use that makes 3D printing so unique and lucrative. 3D printing is already being used in some of the biggest manufacturing industries like the automotive, aerospace, architecture, fashion, food, and healthcare industries.[7] In a recent United States Patent and Trademark Office (USPTO) blog post, it was reported that the number of 3D printing-related patents filed has increased by 23 times this year as compared with 2010 patent filings, and trademark filings relate to 3D printing have increased by over three times since 2010.[8] Just as 3D printing is working its way into a vast number of industries, 3D printing is already having an impact on intellectual property law.

Due to the reduction of costs associated with 3D printing, affordability of the actual printers and ease of access to their related software is on the rise.[9] The potential for widespread use of 3D printers is not limited to any particular industry, use by any particular type of person, or within any particular geographic area. It is predicted that the market will soon be ready to see 3D printers sold by the masses to the general public in retailers like Walmart or Costco.[10] The potential for widespread use and ease of access to 3D printing has created, and will continue to cause, substantial risks within intellectual property law regimes.

All types of intellectual property protection will likely be impacted by the rise of 3D printing in some crucial way. However, 3D printing allows for the potential to evade the patent system as a whole.[11] Every time a 3D printer creates a copy or a replica of a patented innovation, without permission from the patent holder, it is comparable to the loss of a potential sale for that patent owner.[12] Beyond the increased temptation for infringement, it may also be difficult for patent owners to seek a remedy from infringers. An individual patent owner cannot control every person across the globe with access to a 3D printer to ensure against infringement.[13]

Copyrights face similar risks resulting from 3D printing, as infringement can occur just as easily as with patents. Copyrights may be infringed upon if a 3D printer is used to create a print out of a work protected by a copyright.[14] On the other hand, it is uncertain as to whether 3D printing and the software associated with it can or should even receive copyright protection.[15] Copyright questions relate to both the CAD files and the actual printed item. Protection could potentially exists in blueprints, images, designs printed on the surface of an item, and in the software used to instruct the operation of the printer or in making the CAD design files.[16] Whether a CAD file should be considered as a derivative work of copyright depends on whether the CAD file is a direct copy of the underlying work or whether it was changed or modified.[17] It has been noted that in a 3D printing context, “third party printing services will need a license to use copyright-protected blueprints to print and distribute 3D objects, or to copy and make available to the public 3D objects that have copyrighted images or designs on them.”[18] So, those with copyright protection will need to evaluate and potentially adjust their licensing plains and fees as a result of 3D printing.

Trademark and trade secret protections do not escape effects of the expanding 3D printing industry either. Improperly scanning or printing an item with a trademark may also be considered as infringement.[19] 3D printings of trademarked objects with certain logos or designs could easily confuse consumers as to the actual source of the particular item, which is exactly what trademark protections aim to prevent.[20] Finally, there is a trend occurring where those looking to protect their 3D printed works or associated software are turning away from the more traditional patent or copyright protection and are looking towards trade secret protection instead.[21] Those involved within the software side of 3D printing may face less challenges when recovering damages for trade secret misappropriation and may receive less scrutiny when awarded damages than those litigating through other IP protection areas.[22]

3D printing brings to light the very real fact that the law is often behind the rapid growth and development of scientific and technological advancements.[23] Balancing intellectual property rights and 3D printing needs to stress the importance’s of “user’s rights in 3D printings” and its benefits to society as there is a “need for IP law and policy around 3D printing that views IP as an instrument serving social and cultural values in a balanced environment for consumers, manufacturers, and IP owners.”[24] As 3D printings continues to grow and further reach the public, those involved, at any step of the 3D printing process need to be conscious of how IP rights are created, enforces, and the risks associated with infringement, not only within their own country but on a global scale.[25] Those who recognize these rights and risks and have adapted their business models to permit others to 3D print their products through specific licensing fees are likely to see an increase in revenue.[26] Specifically in the U.S., Congress needs to take action, through new or updated statutes and regulations, to provide clear standards for the expanding 3D printing industry, in order to encourage the continued dissemination of 3D printing while maintaining intellectual property protections for past and future works.

 

[1] See Shira Perlmutter, Intellectual Property and the Challenge of 3D Printing, USPTO: Director’s Forum: A Blog From USPTO’s Leadership (July 15, 2016), https://www.uspto.gov/blog/director/entry/intellectual_property_and_the_challenge.

[2] See Tabrez Y. Ebrahim, 3D Printing: Digital Infringement & Digital Regulation, 14 Nw. J. Tech. & Intell. Prop. 37, 39 (2016).

[3] See id. at 41.

[4] See id.

[5] See id.

[6] See Cerys W. Davies, Managing IP Issues is a Challenge for Manufacturers in the Age of 3D Printing, Says Expert (June 20, 2016), http://www.out-law.com/en/articles/2016/june/managing-ip-issues-is-a-challenge-for-manufacturers-in-the-age-of-3d-printing-says-expert/.

[7] See Angela R. Vicari & David Soofian, 3D Printing: New Legal Issues Emerge with the Technology’s Revolutionary Potential, Mondaq (Oct. 3, 2016), http://www.mondaq.com/unitedstates/x/529188/Product+Liability+Safety/3D+Printing+New+Legal+Issues+Emerge+with+the+Technologys+Revolutionary+Potential.

[8] See Perlmutter, supra note 1.

[9] See Davies, supra note 6.

[10] See Tesh W. Dange, The Left Shark, Thrones, Sculptures and Unprintable Triable: 3D Printing and It’s Intersections with IP, 25 Alb. L. J. Sci. & Tech. 573, 576 (2015).

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

[12] See id.

[13] See Dange, supra note 10, at 580-81.

[14] See Melissa Koch & Brian Stansbury, 3-D Printing: Innovation, Opportunities, and Risk, Law360 (Feb. 24, 2016), http://www.law360.com/articles/757265/3-d-printing-innovation-opportunities-and-risk.

[15] See Ebrahim, supra note 2, at 44.

[16] See Davies, supra note 6.

[17] See Dange, supra note 13.

[18] See Davies, supra note 6.

[19] See id.

[20] See Ebrahim, supra note 2, at 43.

[21] See Bryan Vogel, Anticipating IP Trends in 3-D Printing, Law360 (July 1, 2015), http://www.law360.com/articles/663880/anticipating-ip-trends-in-3-d-printing?article_related_content=1.

[22] See id.

[23] See Viarci & Soofian, supra note 7.

[24] See Dange, supra note 10, at 591.

[25] See Davies, supra note 6.

[26] See id.

Photo Source:

http://i2.cdn.turner.com/cnn/2013/images/07/10/3d.printing.jpg

By: Chresanthe Staurulakis

In today’s world, phones are used more for “Snapchatting” than for making phone calls, and the craze only grows with every new feature Snapchat offers its users. In 2015, Snapchat released the “Lenses” feature, which is known by most as “filters.”[1] Its filters allow Snapchat users to “superimpose masks and characters” over their faces to transform their snaps into something more exciting.[2] There are filters that are unique to certain cities and holidays, and users can even pay a small fee to design their own filter for a special occasion. The feature has become wildly popular and new filter options are available every day.[3] However, a filter that may seem “new” to one user may appear all too familiar to another.

Since these filters have been released, multiple makeup artists have come forward and accused Snapchat of stealing their work to create its new filters.[4] Many of these artists rely on social media accounts to become noticed, land jobs and build their brands.[5] Some have thousands, even millions, of followers on their various Youtube, Twitter, and Instagram accounts.[6] As a result, they are constantly updating their accounts to showcase their latest artwork and designs.

Argenis Pinal, Alexander Khoklov and Mykie are makeup artists who have all developed a cult following on social media due to their unique designs.[7] One day, while scrolling through Snapchat, Pinal noticed that the new “joker” filter looked similar to a design he had recently posted on his Instagram account.[8] Upon noticing the similarities, he posted his original work next to the filter on his Instagram account.[9] The filter was taken down later that evening.[10]

Khoklov also accused Snapchat of taking a geometric design he had created for the cover of Scientific American Mind in 2014 and using it as a filter without his permission.[11] Finally, Mykie had the same issue when she came across a watercolor filter that strongly resembled a look she had created and posted on her Instagram.[12] After she filed a report through Snapchat, the app took the filter down but claimed that “they did not believe the filter infringed on her copyright.” [13] This raises the issue of what protection should an artist expect to have when he or she releases artwork through social media accounts.

Original artistic works are protected by copyright laws.[14] However, for makeup artists like Pinal, Khoklov and Mykie, protecting makeup design and body art design can oftentimes          seem more difficult than protecting paintings or literary works.[15] Makeup design is not formally listed as one of the mediums eligible for copyright.[16] Nevertheless, courts have previously ruled that makeup design can be copyrighted. In Carell v. Shubert Organization Inc., the court held that the makeup artist’s designs for the cast of the Broadway show Cats was protected under copyright law.[17] The band Kiss obtained a federal trademark registration for its signature face paint look in 1978.[18] In addition, one can file for a copyright up to three months after creating a design.[19] Unfortunately, filing for a copyright takes a lot more effort, time and money than most burgeoning artists can afford.[20] Therefore, most of the artwork uploaded on social media accounts is unprotected and Snapchat knows it.[21]

Even more disconcerting, Snapchat is no stranger to giving credit where credit is due. The app often works with large corporations to create filters that advertise various brands. For example, during the 2016 Super Bowl, Snapchat released a specific Gatorade filter.[22] This filter earned 160 million impressions and every user knew Gatorade was the brand behind the filter.[23] Artists are missing out on what could be a great opportunity to further their careers and make their brands known.[24]

It is all too easy to upload one’s latest painting, drawing or design onto one’s Instagram, Youtube, or Twitter account for millions to see. Social media can be a vital resource for up-and-coming artists. However, it is important to remember that this free publicity in fact does come at a price. Constantly posting one’s latest artistic achievements leaves one at risk for the public to see and potentially take without permission. For many, there are few options for recourse when something like this occurs. Thus, it is important that artists be mindful of this issue when posting original works of art onto social media.

 

[1]^. See Molly McHugh, Swiped: Is Snapchat stealing filters from makeup artists?, The Ringer (June 16, 2016), https://theringer.com/snapchat-stealing-filters-ae39a061c274#.gpiytin2b.

[2]^. See Ian Kar, Copycat: Artists are accusing Snapchat of stealing their work for its hugely popular filters, Quartz (June 16, 2016), http://qz.com/709638/artists-are-accusing-snapchat-of-stealing-their-work-for-its-hugely-popular-filters/.

[3]^. See McHugh, supra note 1.

[4]^. See Andrea Navarro, Snapchat Just Admitted Something Major About Their Filters, Teen Vogue (June 17, 2016), http://www.teenvogue.com/story/snapchat-copying-makeup-artists-filters.

[5]^. See McHugh, supra note 1.

[6]^. See id.

[7]^. See id.

[8]^. See id.

[9]^. See id.

[10]^. See id.

[11]^. See Trace William Cowen, Snapchat Is Being Accused of Stealing Filter Ideas From Makeup Artists, Complex (June 21, 2016), http://www.complex.com/life/2016/06/snapchat-accused-stealing-filter-ideas-makeup-artists.

 

[12]^. See Navarro, supra note 4.

[13]^. See McHugh, supra note 1.

[14]^. See U.S. Copyright Off., Library of Congress, Copyright Basics 1 (2012).

[15]^{. .} See McHugh, supra note 1.

[16]^. See 17 U.S.C. § 102 (2016).

[17]^. See Carell v. Schubert Org., Inc., 104 F. Supp. 2d 236, 247 (S.D.N.Y. 2000).

[18]^. See McHugh, supra note 1.

[19]^. See id.

[20]^. See id.

[21]^. See id.

[22]^. See Kar, supra note 2.

[23]^. See id.

[24]^. See id.

Photo Source:

https://tctechcrunch2011.files.wordpress.com/2016/03/2-snapcode-to-special-discover-channel.png?w=320&h=320

By: Sophia Brasseux,

According The Guardian’s police killing database, at least 818 people have been killed by police officers since January 1, 2016.[1] Many of these deaths have made major waves in the media, like Freddie Gray and Alton Sterling; while countless others have gone largely unnoticed.[2] Although it is hard to say whether police brutality is actually on the rise or if media is just making such brutality more apparent, it has been clear that Americans are taking note of this unfortunate trend. Organizations such as Black Lives Matter have gained significant momentum within the past year in regards to drawing attention current issues with to police brutality.

State governments have taken notice to these movements and are responding in a variety of ways. One is an increased utilization of body-worn cameras. As of August 2016, forty-two of sixty-eight major cities have implemented body-worn camera programs.[3] In response to the outcry for increased use of body-worn cameras after the shooting of Michael Brown in Ferguson, Missouri, President Obama has proposed $75 million for body-worn cameras to be disbursed in state-fund matching program, spanning over three years.[4]

One of the greatest proponents of the movement towards having more body cameras on the street has been the desire for transparency.[5] Logically, transparency would go hand in hand with accountability of police departments, but President Obama has stated that these cameras are “not a panacea” and that the current law enforcement and judicial structure may pose obstacles.[6] A major issue has been that just because police officers are wearing, or supposed to be wearing cameras, it does not necessarily mean the public has access to that footage.[7] But, is that really something the public should have access to?

Several states have been hesitant about giving the public even minimal amounts of access. In June, the California Assembly voted down a bill that would allow public access to police body-worn camera footage.[8] However, assemblyman Bill Quirk, who wrote the bill, stated, “to not release this is a great insult to the idea that body-worn cameras increase trust in police departments.”[9]

Several other states have followed suit by either denying legislation that would allow public access to this footage, or passing legislation to specifically keep this footage out of the hands of the public, such as recent legislation passed in North Carolina.[10] Rationale for the bill included efficiency concerns and uncertainty about the level of discretion police should have in regards to what footage gets released and to whom.[11] Officer Jeffrey Smyth of the Burlington Police Department noted several safeguards the bill offered, such as not allowing “nosy neighbors” to request footage when they notice officers entering homes their neighborhoods.[12]

Officer Smyth only lightly touched on what has actually been a significant factor behind states’ reservations about releasing body-worn camera footage to the public. While there has been a great push for transparency, there has also been an equally significant push for the protection of individuals’ privacy rights. Theoretically, police are supposed to have their cameras recording while on calls, which may include instances ranging from speaking with victims of sex crimes, entering personal residences, to even surveying the scene of suicides. [13]

Police are there for some of the most intimate and painful times in people’s lives, so when calling for complete police transparency and for public access to this type of footage, it is important to take a step back and consider where the right to privacy of victims, individuals, and third parties kicks in. Which, if any, police interactions are considered private? Can the Fourth Amendment right to privacy be extended to offenders as well as victims of crime?

Many states, such as California and New York, are still struggling with these issues in their attempts to pass body camera transparency legislation, but Washington D.C.’s newly proposed law might be a major national breakthrough.[14] Mauriel Bowser, the mayor of Washington D.C., has previously suggested keeping the footage from these cameras exempt from the Freedom of Information Act requests.[15] Her opinion was reflected in legislation she submitted in early September, which included a broad exemption to not release footage of any assaults as well as several other means of limiting the footage to which individuals would have access.[16] Bowser’s plan would allow private individuals to have access to footage from areas that courts have already held there is little expectation of privacy, such as the outdoors on street corners, but footage from within private residences would not be so readily available to the public.[17]

These limitations have been criticized for running counter to the goal of transparency.[18] Bowser’s deputy mayor for public safety, Kevin Donahue, has responded to these criticisms by emphasizing that the regulations are meant to prevent third parties from getting ahold of the footage and then putting it on YouTube or the news.[19] Donahue noted that victims of assaults have already have already been violated and Bowser is hesitant to put such victims at risk of being violated further by a third-party individual by giving the public access to their private matters. [20]

While these issues have not been entirely solved yet, it is important to note that there is going to have to be a trade-off somewhere. Yes, transparency and accountability of our police forces are important, especially in light of many recent tragic events, but what price are citizens willing to pay? Americans have tightly held the right to privacy and courts have resisted trammeling that right. How much of that right are we willing to let go to meet the objectives of police accountability? Can a piece of legislation, such as D.C.’s newly proposed law, strike a balance?

 

[1] See The Counted: People Killed by Police in the U.S. The Guardian, https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database.

[2] See id.

[3] See Ray Sanchez, Police Shootings Highlight Concerns about Body Cameras (Aug. 4, 2016), http://www.cnn.com/2016/08/03/us/police-body-cams/.

[4] See id.

[5] See id.

[6] Id.

[7] See id.

[8] See Liam Dillon, Police Body Camera Transparency Bill Voted Down, LA Times (June 30, 2016), http://www.latimes.com/la-pol-sac-essential-politics-california-police-body-camera-legislature-htmlstory.html.

[9] See id.

[10] See Natalie A. Janicello, Body Camera Legislation in North Carolina Seen as a Blow to Transparency, Times-News (July 5, 2016), http://www.govtech.com/policy/Body-Camera-Legislation-in-North-Carolina-Seen-as-Blow-to-Transparency.html.

[11] See id.

[12] See id.

[13] Maggie Ybarra, Police Body Cameras Raise Privacy Concerns, The Washington Times (May 12, 2015), http://www.washingtontimes.com/news/2015/may/12/police-body-cameras-raise-privacy-concerns/.

[14] Aaron C. Davis, D.C. Mayor’s Plan Would Limit Access to Police Body Camera Footage, The Washington Post (Sep. 9, 2015), https://www.washingtonpost.com/local/dc-politics/dc-mayor-proposes-law-to-keep-police-body-cameras-from-creating-violence-voyeurism/2015/09/09/aecf363a-5728-11e5-b8c9-944725fcd3b9_story.html.

[15] See supra 12.

[16] See supra 13.

[17] See id.

[18] Id.

[19] Id.

[20] Id.

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By: Kathleen Hugo,

In today’s world, people frequently conduct financial transactions through mobile payments. A person can pay her roommate for utilities, split the dinner bill, or chip in for a round of drinks all with the click of a button. A popular platform to conduct such transactions is the peer-to-peer payment service mobile app called Venmo, which acts as a “digital wallet.”[1] While Venmo is known for its user-friendly interface, many users overlook the possibility of potential fraud and the limited legal actions they can take in that event.

Background on Venmo:

Venmo was created in 2009 when one of the cofounders, Iqram Magdon-Ismail, forgot his wallet on a trip to Philadelphia to visit friends.[2] When Magdon-Ismail owed Andrew Kortina two hundred dollars, the two agreed that the situation would be easier solved through a mobile payment system rather than traditional cash or checks.[3] In 2012, Magdon-Ismail and Kortina’s startup, “Venmo,” was purchased by Braintree, which operates the payment systems for companies such as Dropbox, Airbnb, StubHub, and Uber.[4] The following year, Ebay’s PayPal acquired Braintree, making Venmo a subsidiary of PayPal.[5]

How Venmo Works:

To use Venmo, a consumer simply links a credit card, debit card, or checking account to the mobile app, and can immediately send or receive payments from friends in their network.[6] The payments are then retained in a “Venmo Balance” account, which can be used for future transactions or cashed out and deposited into the consumer’s bank account.[7]

The Problem:

Many users incorrectly assume that when sending a payment, Venmo immediately transfers the funds from Consumer A to Consumer B.[8] In reality, Venmo floats the money to Consumer B until the funds have cleared from Consumer A’s bank account.[9] This common misunderstanding of Venmo’s technology is being utilized by scammers to commit fraudulent transactions, with little to no protection for the consumer on the other end.[10] One type of Venmo fraud occurs when Consumer A uses a fraudulent credit card to pay Consumer B.[11] The money immediately appears in Consumer B’s Venmo balance, but when he or she attempts to cash out, the transaction has been reversed for failure to clear Consumer A’s bank account.[12] Another common scam occurs when strangers A and B conduct a transaction via Craigslist.[13] Consumer A, the buyer, deliberately cancels the transaction before Consumer B, the seller, has had time to transfer the money into his or her bank account.[14] In this case, the seller may have already sent the goods to the buyer, but the buyer has now evaded payment, and the seller has no opportunity to recover.[15] For this reason, Venmo does not condone stranger-to-stranger transactions on Craigslist and event sites, instead encouraging users to only engage in “payments between friends and people who trust each other.”[16]

Venmo has limited options for users who fall victim to fraudulent transactions, especially when the consumer is in violation of the User Agreement. Venmo’s user agreement clearly prohibits personal accounts from “receiv[ing] business, commercial, or merchant transactions.”[17] So if Consumer A purchased concert tickets from Consumer B on Craigslist, this could be considered a “merchant transaction” on a personal account, therefore breaching the User Agreement.[18] Venmo does offer the option to create a business account, but this requires “an application and explicit authorization.”[19]

Section (i) of the user agreement, entitled “no buyer or purchase protection,” says just that. In the event of any “unsatisfactory” transactions, the customer will have no option for remedy from Venmo.[20] The only available recourse for consumers is described in section (D)(11), which describes the consumer’s options in case of an “unauthorized transaction,” or an “error that occurs when money is sent from your account that you did not authorize and did not benefit you.”[21] Aside from this limited circumstance, Venmo’s terms and conditions are clear on the fact that “Venmo does not offer buyer or seller protection,” so use at your own risk.[22]

Venmo is a free service designed for convenience, but with that benefit comes the potential burdens of conducting transactions. While Venmo is a widely accessible and easy-to-use option for mobile payments, each consumer must understand its limits in order to protect his or her money.

 

[1] See Venmo, http://www.venmo.com.

[2] See Felix Gillette, Cash is for Losers!, Bloomberg (Nov. 21, 2014, 6:32 AM), http://www.bloomberg.com/news/articles/2014-11-20/mobile-payment-startup-venmo-is-killing-cash; See also Carolyn Lowry, Note: What’s In Your Mobile Wallet? An Analysis of Trends in Mobile Payments and Regulation, 68 Fed. Comm. L.J. 353 (2016).

[3] See Gillette, supra note 2.

[4] Trevir Nath, How Safe is Venmo and Why is it Free?, Investopedia (Mar. 24, 2015, 6:50 PM), http://www.investopedia.com/articles/personal-finance/032415/how-safe-venmo-and-why-it-free.asp; see generally Braintree, https://www.braintreepayments.com (last visited Oct. 3, 2016).

[5] See Gillette, supra note 2. See also Alison Griswold, Venmo Scammers Know Something You Don’t, Slate (Sept. 15, 2015, 9:32 PM), http://www.slate.com/articles/business/moneybox/2015/09/venmo_scam_and_fraud_why_it_s_easy_to_get_ripped_off_through_the_mobile.html.

[6] See Nath, supra note 4.

[7] Id.

[8] See Griswold, supra note 5 (“Contrary to many users’ assumptions, sending money on Venmo does not instantaneously transmit funds from Person A to Person B.”).

[9] See id.

[10] See id.

[11] See Justin Pritchard, Venmo Scams: Can You Get Ripped off on Venmo?, The Balance (July 5, 2016), https://www.thebalance.com/venmo-scams-315823 (“[T]he person might use a stolen, credit card number to fund the payment . . .”).

[12] See Griswold, supra note 5 (“He handed off the devices once he got Venmo’s payment notifications, then later attempted to withdraw funds into his bank account. They never showed up.”).

[13] See id.

[14] See Ethan Wolff-Mann, The Scary Thing You Don’t Understand About Venmo, Time (Sept. 21, 2015), http://time.com/money/4036511/venmo-more-check-than-cash/.

[15] See id.

[16] See Venmo, https://www.venmo.com/about/security (“Avoid payments to people you don’t know, especially if it involves a sale for goods and services (like event tickets and Craigslist items).”).

[17] See User Agreement § B, Venmo, https://venmo.com/legal/us-user-agreement (valid as of Sept. 13, 2016).

[18] Id. at § I.

[19] See Venmo, https://venmo.com/about/security.

[20] See User Agreement § I, Venmo, https://venmo.com/legal/us-user-agreement (valid as of Sept. 13, 2016) (“Company does not currently offer a buyer or purchase protection program in connection with App Payments or any other payments made using a Venmo account. This means that should your purchase turn out to be unsatisfactory for any reason, you will not have recourse with Company, and instead should contact the App provider directly.”).

[21] See id. at § (D)(11).

[22] See Venmo, https://venmo.com/about/security.

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By: Kaley Duncan,

Cyber-security is a growing concern worldwide.[1] Continued increase in information sharing via the internet has left this information susceptible to hacker exploitation.[2] The motive for many cyber-attacks is to sell information gained to sites that use that information for identity theft. [3] If you are like me, your passwords are not only less than creative, but are also likely used for multiple accounts. As such, if your security information has been compromised, the effects can be far-reaching; it could affect not only information from your recent email correspondences, but possibly more important information, such as your bank account number and social security number.[4] Big companies, and even the government, have been looking for ways to combat these hacks.[5] So far in 2016, nineteen companies including Target, Walmart, Snapchat, and the IRS have been targeted by hacking schemes. [6] Recently, another prominent name has been added to the list.

On Thursday, September 22^nd, the email platform Yahoo confirmed that 500 million of its user accounts had been hacked.[7] This is the largest security breach on record.[8] Stolen information included emails, passwords, birth dates, telephone numbers, and, in some cases, even security questions.[9] To make matters worse, Yahoo informed the public that these hacks started in 2012 and were just recently discovered by the company’s security team.[10]

Multiple lawsuits have been filed including a class action alleging gross negligence.[11] The suit, filed by New York resident Ronald Shwartz, contends Yahoo’s security team knew of the breach long before they disclosed it to the public.[12] Thus far, it is unclear when exactly Yahoo personnel were made aware of the 2012 security breach, but many sources state the company was alerted to the security issues in the Summer of 2016.[13] Yahoo claims to have conducted security sweeps since 2012, including one on September 9th, 2016, that led it to believe there was no reason for concern.[14]

Yahoo CEO Marissa Mayor, has released little information regarding the controversy. However, from what little she has commented, the company seems to believe this was a state-sponsored hack.[15] A state-sponsored hack is a cyber-security attack conducted by a foreign government.[16] “Yahoo has been stingy with the facts, but that may be at the request of U.S. law enforcement or the intelligence community,” said Leo Taddeo, a former special agent in charge of the FBI’s New York cyber-crime office, in an interview with The Washington Post.[17] “If, in fact there are signs of a state actor, the authorities would definitely prefer to keep the details out of public domain. Otherwise, the hackers may get tipped off to the U.S. government’s sources and capabilities.”[18]

Others wonder if the new merger with Verizon had something to do with Yahoo’s reluctance to release information on the breaches to the public. Verizon is currently on track to acquire Yahoo for $4.8 billion, a figure that may be affected by the hack.[19] In fact, a study done by Ponemon Institute found that the average cost to remediate data per user is approximately $158.[20] According to those statistics, upwards of $70 billion would be required to mitigate the cost of this size cyber-security breach. Not surprisingly, this will likely affect the company’s worth.[21]

Senator Mark Warner, a Democrat from Virginia and cofounder of the Senate Cyber-Security Caucus, is suspicious of Yahoo’s failure to disclose information that is of such “vital importance” “to keep the public and investors informed” and voiced his concerns in a letter to the U.S. Securities and Exchange Commission.[22] Currently there is no federal law requiring the prompt disclosure of security breaches of this nature.[23] “[The] seriousness of this breach at Yahoo is huge,” said Warner in a statement made Thursday afternoon.[24] Recent security breaches, namely those affecting Target and Yahoo, have compelled Warner to promote legislation protecting consumers.[25] In fact, Warner is “working on bipartisan legislation to create a comprehensive, nationwide, and uniform data breach standard requiring timely consumer notification for breaches of financial data and other sensitive information.” [26] Most states have already enacted statutes requiring disclosure to consumers.[27]

For example, pursuant to Virginia Code §18.2-186.6(B):

If unencrypted or unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person and causes, or the individual or entity reasonably believes has caused or will cause, identity theft or another fraud to any resident of the Commonwealth, an individual or entity that owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system following discovery or notification of the breach of the security of the system to the Office of the Attorney General and any affected resident of the Commonwealth without unreasonable delay.[28]

While the phrase “without unreasonable delay” is largely left up to interpretation, according to the Ponemon Institute report, the average amount of time required to discover a malicious security breach is roughly 229 days. [29] If Yahoo personnel have been forthcoming with their investigation, it took them nearly two years to discover this major security breach, three times the suggested average. [30] One cannot help but speculate, was this really a reasonable delay in disclosure or a calculated cover-up? As new facts emerge the motive may be revealed, but until then the public is left with concerns about Yahoo’s transparency.

 

[1] See generally Phenom Institute, 2016 Cost of Data Breach Study: Global Analysis, at 1 (2016), http://www-01.ibm.com/common/ssi/cgi-bin/ssialias?htmlfid=SEL03094WWEN (analyzing statistics of cyber data breaches worldwide).

[2] See Ali Hedayati, An Analysis of Identity Theft: Motives, Related Frauds, Techniques, and Prevention, 4 J. of L. & Conflict Resol. 1, 2–3 (2012), http://www.academicjournals.org/article/article1379859409_Hedayati.pdf

[3] See id at 10.

[4] See id at 4.

[5] See Riley Walters, Cyber Attacks on U.S. Companies Since November 2014, Heritage.org, http://www.heritage.org/research/reports/2015/11/cyber-attacks-on-us-companies-since-november-2014 (last visited October 3, 2016).

[6] See Judy Leary, The Biggest Data Breaches in 2016, So Far, Identity Force Blog, https://www.identityforce.com/blog/2016-data-breaches

[7] See Kif Leswing, Yahoo Confirms Major Breach – and it Could be the Largest Hack of All Time, Business Insider (Sept. 22, 2016), http://www.businessinsider.com/yahoo-hack-by-state-sponsored-actor-biggest-of-all-time-2016-9

[8] http://www.mercurynews.com/2016/09/23/yahoo-hit-with-class-action-lawsuit-over-massive-data-breach/

[9] See Nicole Perlroth, Yahoo Says Hackers Stole Data on 500 Million Users in 2014, N.Y. Times (Sept. 22, 2016), http://www.nytimes.com/2016/09/23/technology/yahoo-hackers.html?_r=0

[10] See id.

[11] See Reuters, Yahoo is Sued for Gross Negligence Over Huge Hacking, Fortune (Sept. 23, 2016), http://fortune.com/2016/09/23/yahoo-is-sued-for-gross-negligence-over-huge-hacking/

[12] See id.

[13] See Hayley Tsukayama, Data Breach: What Yahoo Knew When Could Cause it Trouble, Union-Bulletin.com, http://www.union-bulletin.com/news/business/data-breach-what-yahoo-knew-when-could-cause-it-trouble/article_0e099de4-880a-11e6-ba24-cff074054d7e.html (last visited October 3, 2016).

[14] See Paul Szoldra, Yahoo Won’t Answer the Most Important Question About its Massive Hack, Business Insider (Sept. 28, 2016), http://www.businessinsider.com/yahoo-massive-hack-2016-9

[15] See Account Security Issue FAQs, Yahoo.com, https://help.yahoo.com/kb/account/SLN27925.html?impressions=true (last visited October 1, 2016).

[16] See Timour Rashed, State Sponsored Hacking and Cyber Security Policy, Tim Tech Support Blog (Apr. 18, 2012), http://timourrashed.com/state-sponsored-hacking-and-cyber-security-policy/

[17] See Hayley Tsukayama, Could Yahoo be in Trouble with the SEC?, The Washington Post (Sept. 28, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/09/28/could-yahoo-be-in-trouble-with-the-sec/

[18] Id.

[19] See Perlroth, supra note 9.

[20] See Phenom Institute Report, supra note 1 at 1.

[21] See Leswing, supra note 7.

[22] See Senator Warner Calls on SEC to Investigate Disclosure of Yahoo Breach, Mark R. Warner Blog (Sept. 26, 2016, 12:15 PM), http://www.warner.senate.gov/public/index.cfm/bloghome; See also Letter from Mark R. Warner, U.S. Senator, to The Honorable Mary Jo White, U.S. SEC Chair (Sept. 26, 2016) (https://www.scribd.com/document/325367178/20160926-Letter-to-SEC-on-Yahoo-Breach).

[23] See Perlroth, supra note 9.

[24] See Mark R. Warner Blog, supra note 22.

[25] See id.

[26] Id.

[27] Nat’l Conf. of State Legislatures: Security Breach Notification Laws, (Jan. 4, 2016), http://www.ncsl.org/research/telecommunications-and-information-technology/security-breach-notification-laws.aspx

[28] Va. Code Ann. § 18.2-186.6 (2016).

[29] See Ponemon Institute Report, supra note 1 at 3.

[30] See Perlroth supra note 9.

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By: Hannah Newman,

As an industry, healthcare is quickly changing. When considering the latest technology in the realm of healthcare, many might point to the advances in surgical techniques or the creation of artificial organs. In reality, some of the technological transformations that affect the greater public go much more unnoticed. Electronic health information systems have created a drastic revolution in the way health records are collected, maintained, and disseminated.[1] An electronic health record (EHR) is a “collection of electronic health information about individual patients and populations.” [2] These systems integrate health care information that is currently collected and maintained in multiple different mediums such as paper, electronic record, and film.[3] The purpose of this integration of records is to improve quality of care.

The U.S. health care system has always been fragmented, consisting of multiple providers and separate systems of record keeping.[4] As health care operation costs have skyrocketed and payment methods have shifted, the U.S. health system has responded with organizational consolidation and managed care.[5] In order to facilitate this consolidation, increase efficiency in delivery of care, and decrease costs, health systems have turned to the broad adoption of electronic medical record (EMR) systems.[6]

The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 created a shift in the use of health records by providing financial incentives to promote “meaningful use” of electronic health records by medical providers.[7] According to the Centers for Disease Control and Prevention, the percentage of physicians who adopted the basic electronic medical records increased from 17-34 percent from 2008 to 2011.[8]

Health information systems operate to deliver a seamless continuity of care to patients. These electronic systems help integrate primary care, specialists, hospitals, laboratories, pharmacies, and physical therapy.[9] These systems “facilitate electronic access to clinical information such as demographic characteristics, patient encounters, and laboratory and imaging results, with some systems permitting clinicians’ notes.” [10] While sophisticated systems show promise to improve patient safety and coordination of care, initial stages of implementation can produce the opposite results.[11]

During the period known as the “implementation chasm,” where providers move from one familiar system to a new one, they should be aware of three main areas of medical malpractice liability.[12]

Liability in medical treatment: Greater access to a patient’s medical histories and treatments comes with greater risk of liability.[13] Providers “are responsible for medical information they can access—and there is increased access to e-health data from outside the practice that can be accessed” from the patient’s EHR.[14] Failure to fully review a patient’s medication list, lab results, or radiology reports can greatly alter a course of treatment and can cause serious injury to a patient.[15] If the doctor has access to a patient’s essential health information, but does not review it, he or she could be liable.[16]

Human Error: Like any complex software program, these electronic record systems require practice to successfully operate. Mistakes can result from insufficient education and training, or simple human error.[17] Providers might document the wrong information into the system, incorrectly copy and paste from old visit notes, or order the wrong test.[18] Effective training of the new system, used in conjunction with the existing technology, can help to minimize these errors.[19] Even beyond human error, these software systems can malfunction or crash, potentially causing provider liability as well.[20]

Availability of Records: EMR systems are meant to collect and consolidate a patient’s records for improvement of quality and continuity of care. However, in the event of a medical malpractice suit, providers must often produce any and all patient records as either defense or proof of the claim.[21] EMRs include a more detailed record than what is generally required in a traditional paper record, which can either help or hurt the provider.[22] There is still great debate over what constitutes the “legal medical record,” which should be provided upon patient request.[23] “Under federal law, EMR metadata –which consists of all electronic transactions such as time stamps of clinical activity and the input of orders—is discoverable in civil trials.”[24] Other, more specific, medical malpractice laws tend to vary on a state-by-state basis. [25]

Electronic health record systems are truly transforming the way healthcare serves patients each and every day. They provide for the circulation of information, continuity of care, and convenience for patients and providers. However, broad and effective adoption of these complex systems is still several years away. Until that time, providers face a higher risk of medical malpractice liability.

 

[1] See Richard Hillestad et. al., Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, and Costs, HealthAffairs, Sept. 2005, 1103, 1103, http://content.healthaffairs.org/content/24/5/1103.full.pdf+html.

[2] Tracy D. Gunter, Nicholas P. Terry, The Emergence of National Electronic Health Record Architectures in the United States and Australia: Models, Costs, and Questions, JMIR Publications, 2005, https://www.jmir.org/2005/1/e3/?xml.

[3] Id.

[4] See James C. Robinson & Lawrence P. Casalino, Vertical Integration and Organizational Networks in Healthcare, HealthAffairs, 1996, 7, 8, http://content.healthaffairs.org/content/15/1/7.full.pdf+html.

[5] Id. at 9.

[6] See supra note 1.

[7] See Sandeep S. Mangalmurti et. al., Medical Malpractice Liability in the Age of Health Records, New Eng. J. Med., 2060, 2060 (Nov. 18, 2010) http://www.nejm.org/doi/pdf/10.1056/NEJMhle1005210.

[8] See Molly Gamble, 5 Legal Issues Surrounding Electronic Medical Records, Becker’s Hospital Review (Jan. 19, 2012) http://www.beckershospitalreview.com/legal-regulatory-issues/5-legal-issues-surrounding-electronic-medical-records.html.

[9] See supra note 2.

[10] Id.

[11] Id.

[12] See supra note 7 at 2061.

[13] See David B. Troxel, Electronic Health Record Malpractice Risks, The Doctors Company, (Sept. 2016) http://www.thedoctors.com/KnowledgeCenter/PatientSafety/articles/Electronic-Health-Record-Malpractice-Risks.

[14] Id.

[15] See id.

[16] See id.

[17] See Deirdre Fulton, EHR Mess-Ups Put Doctors at Risk for Malpractice Lawsuits, HIMSS16 Speaker Says, HealthCare IT News, (Jan. 26, 2016, 9:57 AM), http://www.healthcareitnews.com/news/ehr-mess-ups-put-doctors-risk-malpractice-lawsuits-himss16-speaker-says.

[18] See supra note 7 at 2061.

[19] See id.

[20] See id.

[21] See supra note 8.

[22] See id.

[23] See id.

[24] Id.

[25] See id.

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By: Lindsey McLeod,

Supposed threats to cyber security once seemed to be nothing more than rhetoric meant to frighten American constituents. Recently, however, these threats have proven to be legitimate, as cyber security has impacted the American political arena.[1] As the American people heard from presidential candidates Donald Trump and Hillary Clinton in the first presidential debate, the cyber-security threat from both domestic and foreign hackers is a very real danger to American national security.[2] The reality of the cyber-security threat from domestic and foreign entities has had an especially strong effect on these candidates. The very votes we cast for them may be vulnerable to such breaches.[3]

As electronic voting methods become the norm in dozens of districts across the country, the effort to protect the security and validity of ballots introduces a noticeably different challenge. A system that once presented us with issues such as the “hanging chad” that tarnished the image of the 2000 Presidential election is now primed for an entirely different ballot security problem.[4]

With Election Day nearly a month away, awareness and uncertainty surrounding potential cyber-security threats in the United States is growing. In fact, hacks have already been reported in both Illinois and Arizona. [5] Though election results in these states have not been impacted, the fact that the systems were hacked, coupled with the recent hack of the Democratic National Convention presents an unsettling narrative regarding electoral security here in the United States.[6] The hacks that have already occurred resulted in the release of voter identifiable information, including social security, address and name information.[7] Though officials concede that these electronic voting methods evidently do not adequately protect voter information, they contend that the systems do not risk the validity of election results because they are not connected to the Internet.[8] Specialists on both sides of the issue, however, disagree on whether the lack of Internet capability is protection enough.[9] Despite the fact that specialist agree that a hack affecting the results of an election is unlikely, the fear among American voters regarding the security and validity of our election process remains high.[10]

The question still remains whether an electronic ballot presents the same security that a paper ballot does, considering both the absence of a paper trail and the possibility of pre-programmed results.[11] As was evidenced 16 years ago in Bush v. Gore, the paper trail can become a valuable tool when challenging vote tabulation.[12] Should this year’s electoral process be challenged after the November 8 election, the different methods of voting would create a problem in that there would not be a uniform paper trail. Proponents of the paper ballot look to this as one of our largest security problems: how can we insure the validity of our votes if we cannot be sure that all votes can be tabulated manually in the event of a hack, or even in the event of a mere computer error?[13]

The issue of how to fix such a process brings to light some unique challenges that the structure of our electoral system pose. Proponents of uniform ballot initiatives claim that the current system “result[s] in a patchwork collection of federal, state and local laws: all separate and all unequal”.[14] The structure of the American electoral system also presents a unique challenge in terms of implementing a uniform voting method. In a country run on a system that promotes state-run elections, the reality is that a uniform federal system would likely bring a challenge on federalism grounds. The Help America Vote Act of 2002 attempted to move towards a more uniform approach to elections, in which federal funds were authorized for election administration and thus facilitating minimum standards for voting systems.[15] These required minimum standards, however, fall far from the requirements that proponents of new voter security measures are calling for.[16]

Should the United States fall victim to a hack affecting election outcomes, Congress could likely prescribe a uniform voting method for federal elections, but integrating a federal election standard in conjunction with state elections would present a problem. In Oregon v. Mitchell the court found that Congress had the right to impose an age related voting restriction in federal elections but that this restriction could not mandatorily extend to state elections.[17] This precedent would facilitate the implementation of uniform voting methods for federal elections, but the same could not be said for state elections.[18] Thus, if a state objected to a federally mandated uniform voting method, they could conduct the state elections on their own terms while simultaneously conducting the federal elections as prescribed. Further investigation into whether the federal government may call for the uniform voting method as a means of making our elections less vulnerable to cyber-security threats presents an interesting angle that proponents may consider in an attempt to distinguish Mitchell.

This November, American citizens and politicians alike will cast their vote and hope that the security and validity of that choice is protected by the security measures in place. It is possible that a debate regarding the security of the 2016 election may begin after the results are tallied, and this could prompt further discussion on fortifying the security of our electoral system.[19] Thank goodness that come January 20, 2017 we will have Donald Trump, who is uniquely adept at navigating foreign relations (or relationships) with arguably one of America’s largest cyber-security threats, or Hillary Clinton, who has had her cyber-security knowledge put to the test in her evaluation of the pros and cons of private email servers, at the helm to further guide us on this topic.[20]

 

[1] See generally Harriet Taylor, Fears of a hacked election may keep 1 out of every 5 voters home, says report, CNBC (Sept. 29, 2016) http://www.cnbc.com/2016/09/29/fears-of-a-hacked-elction-may-keep-1-out-of-every-5-voters-home-says-report.html (explaining the implications of a study determining that one in five registered U.S. voters may stay home on election day because of fears about cyber-security and vote tampering).

[2] See Eyragon Eidam, Presidential Debate 2016: Cybersecurity Highlights Significant Differences in Policy, Understanding Between Candidates, Government Technology (Sept. 27, 2016) http://www.govtech.com/security/Presidential-Debate-2016-Cybersecurity-Highlights-Significant-Differences-in-Policy-Understanding-Between-Candidates.html.

[3] See Wesley Bruer & Evan Perez, Officials: Hackers Breach Election Systems In Illinois, Arizona, CNN (Aug. 30, 2016) http://www.cnn.com/2016/08/29/politics/hackers-breach-illinois-arizona-election-systems (describing the amount of voter information compromised in Illinois and Arizona).

[4] Guy-Uriel E. Charles et al., Election Law Stories, 547-49 (Joshua A. Douglas & Eugene D. Mazo eds., 1st ed. 2016) (describing the 2000 Presidential Election in Florida in which “hanging chads”, a term used to describe a punch-hole vote that was not entirely punched through, were a contentious issue that played a large role in the the Bush v. Gore litigation and ultimately the 2000 Presidential Election results).

[5] See supra note 3.

[6] See Id. (“Investigators believe the hackers are likely based overseas, according to a law enforcement official”).

[7] Id.

[8] See Richard Clark, Yes, It’s Possible To Hack The Election, ABC News (Aug. 19, 2016), http://abcnews.go.com/Politics/hack-election/story?id=41489017 (“if sophisticated hackers want to get into any computer or electronic device, even one that is not connected to the internet, they can do so”).

[9] See Id (explaining that a hacker would not necessarily need an internet connection to hack an election device).

[10] See John F. Banzhaf III, Warning – This Presidential Election Could Be Hacked, Perhaps By A Foreign Power, Breitbart (Aug. 23, 2016) http://www.breitbart.com/2016-presidential-race/2016/08/23/warning-presidential-election-hacked-perhaps-foreign-power/.

[11] See supra note 7.

[12] See supra note 4.

[13] See Craig Timberg & Andrea Peterson, Here’s How Russian Hackers Could Actually Tip An American Election, Washington Post (Aug. 30, 2016) https://www.washingtonpost.com/news/the-switch/wp/2016/08/30/could-hackers-tip-an-american-election-you-bet/ (describing how the most vulnerable voting methods are those without paper records of the electronic tabulation of votes).

[14] Uniform Election Standards and Real Accountability, FairVote.org (Last visited: Oct. 1, 2016) http://archive.fairvote.org/?page=64.

[15] See Help America Vote Act, 107 Pub. L. No. 252 (creating the U.S. Election Assistance Commission and setting minimum standards for voting systems as well as requirements for adopting uniform standards on what constitutes a vote).

[16] See Id.

[17] See Oregon v. Mitchell 400 U.S. 112, 134 (holding that under Art I, § 2, the States have the power to set qualifications to vote in state and local elections, and the whole Constitution reserves that power to the States except as it has been curtailed by specific constitutional amendments).

[18] See Id.

[19] See Dara Lind, Donald Trump: “the only way we can lose…is if cheating goes on”, Vox.com (Aug. 13, 2016) http://www.vox.com/2016/8/2/12342600/trump-rigged-clinton-steal-election (describing the remarks made by Donald Trump the potential for rigged election results).

[20] See Jonathan Martin & Amy Chozic, Donald Trump’s Campaign Stands By Embrace of Putin, N.Y. Times (Sept. 8, 2016) http://www.nytimes.com/2016/09/09/us/politics/hillary-clinton-donald-trump-putin.html (describing that Trump is embracing his reputation for his appreciation for Vladimir Putin as a strong and effective leader); see also Garrett Graff, What the FBI Files Reveal About Hillary Clinton’s Email Server, Politico (Sept. 30, 2016) http://www.politico.com/magazine/story/2016/09/hillary-clinton-emails-2016-server-state-department-fbi-214307 (explaining the recently released emails that were sent on Hillary Clinton’s private email server).

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