Month: November 2019 Page 1 of 2

By: Erin Kidd

[1]       An LRAD, short for long-range acoustic device, was used against American protesters for the first time at the G20 Summit Pittsburgh protests in September 2009.[1] Over the past decade, LRADs have only become increasingly popular among law enforcement, to the point where the device is now a common feature of many department’s crowd control arsenals.[2] The device’s use, particularly during protests, is increasingly controversial and contentious and one case in the Second Circuit may change how law enforcement uses this technology.[3]

The LRAD Device

[2]       The LRAD was originally designed for the military as both an acoustic hailing device (AHD) to broadcast commands over long distances and as a painful repellant for approaching enemies.[4] However, the developer of LRAD, which was first known as the American Technology Corporation until 2010 and very recently rebranded from the LRAD Corporation to Genasys in late October 2019,[5] has been adamant in maintaining the LRAD is not a weapon.[6] Despite this, the devices are often referred to as sonic or acoustic weapons and the media coined the term “sound cannon” in order to describe the nature of the LRAD’s capabilities.[7]

[3]       The sound produced by the LRAD is directed forward in a “beam” that is about fifteen to thirty degrees wide.[8] This can be used to broadcast just about anything, from live commands to recorded music, and it is less controversial than the LRAD’s second possible setting, the deterrent alert tone or “area denial function.”[9] The “area denial” tone comes in the form of a manually controlled series of sharp, piercing beeps which can hit the peak decibel capabilities of the device.[10] More than anything else, it is this setting that have led many to refer to the LRAD as a weapon.[11]

[4]       The military-grade versions of the LRAD can transmit sounds up to five and a half miles away at a potential maximum level of 162dB.[12] For comparison, 140dB is roughly equivalent to standing next to a jet engine while a plane takes off or having a shotgun go off next to a person’s ear.[13] According to ASHA, the American Speech-Language-Hearing Association, sound usually starts to be severely painful at 120dB and once sounds which reach 140dB or higher are not safe for any period of time, meaning they can cause instant and permanent damage.[14] Much lower levels can still cause pain and permanent harm, often it just becomes a matter of how long a person was exposed.[15]

[5]       The models preferred by law enforcement, which seem to be the LRAD 500X and the 100X, are not quite as powerful as the military-grade version.[16] However, at apparent maximum levels of 137-140dB and 149-154dB respectively, both are still capable of causing severe pain, disorientation, nausea, migraines, and permanent damage.[17] Though an informational packet from the developer seems to suggest otherwise.[18]

[6]       It seems that, at least as of early 2018, many police departments using LRADs lacked specific training and written policies for use of the device.[19]

The Second Circuit and Sound as a Use of Force

[7]       LRAD has some definite potential benefits, particularly in how it can be utilized to communicate in emergency situations, however, a case in the Second Circuit may help determine the extent to which it can be used against civilians.[20] The case, which was heard as Edrei v. City of New York[21] in the district court and Edrei v. Maguire[22] in the Court of Appeals for the Second Circuit, arose from the NYPD’s use of an LRAD 100X during the 2014 Black Lives Matter protests which followed a grand jury’s refusal to indict Officer Daniel Pantaleo in the killing of Eric Garner.[23]

[8]       Anika Edrei, a photojournalist who was a photography student at the time of the protest, and five other plaintiffs witnessed, but did not interfere with, NYPD officers arresting protesters around the early hours of December 5, 2014.[24] During the arrests, some unknown protesters likely threw glass bottles towards the police and a few others began throwing trash at the street.[25] In response, officers ordered everyone present to return to the sidewalk and some officers began deploying pepper.[26] Two officers began using the LRAD 100X’s to direct people out of the street and, while doing so, they utilized the LRAD’s area denial function “deterrent tone” fifteen to twenty times in the course of about three minutes.[27] Plaintiffs described the use of the tone being used “indiscriminately” and “almost continuously.”[28] Also according to plaintiffs, the officers “fired” the deterrent tone, with the LRAD pointed in their direction, while less than 10 feet away from the plaintiffs and other protesters, photographers, filmmakers, and observers.[29] Per some of the court documents, it seems the LRAD may have had specific warnings posted on it, warning against using the device at such a close range.[30]

[9]       The plaintiffs seem to have suffered migraines, sinus pain, dizziness, facial pressure, ringing in ears, and ongoing sensitivity to noise.[31] One plaintiff was diagnosed with tinnitus in both ears and vertigo which continued even a year and half later.[32] Another experienced hearing loss caused by nerve damage.[33]

[10]     The plaintiffs initially claimed violations of their First Amendment rights, their Fourth and Fourteenth Amendment rights against unreasonable seizure and excessive force under, their rights to equal protection under the Fourteenth Amendment, as well as various other claims.[34] The defendants filed a motion to dismiss, mostly based on qualified immunity.[35] On May 31, 2017, Judge Robert Sweet of the United States District Court for the Southern District of New York granted the motion to dismiss for all but two claims: the Fourteenth Amendment excessive force claim and an assault and battery claim.[36]

[11]     Judge Sweet determined, through comparing the potential harm that can come from the LRAD’s amplified sound to what can happen when “distraction devices” such as stun grenades and flashbangs are used improperly, that the LRAD’s sound was a use of force and it could be used excessively.[37] He further decided the defendants’ defense of qualified immunity was “unavailing” at the motion to dismiss stage and whether or not it applied would need to be determined by the facts of the case.[38]

[12]     When defendants appealed this decision, the Second Circuit Court of Appeals agreed on both counts.[39] In finding the LRAD sound was a use of force the court explained “a device that has ‘incapacitating and painful effects’ when used on a person is considered an instrument of force.”[40] The Appeals Court also agreed with analogizing the LRAD with other other “non-lethal” options available to officers that have been litigated about in the past.[41] In showing that qualified immunity could not dismiss the case at this stage the court explained a reasonable officer, through analogy to standards for use of pepper spray and stun grenades, would have known that excessive force from the LRAD would violate a “clearly established” right.[42]

[13]     The Appeals Court ultimately affirmed the lower court’s decision and remanded the case for further proceedings.[43] This May, the Supreme Court of the United States denied certiorari on the case, which will allow the case to proceed on those findings.[44]

[14]     If the plaintiffs win, not only will they be afforded damages, but the NYPD may face an injunction on using the LRAD devices they own until more studies about the LRAD’s effects are available and appropriate policies, guidelines, and trainings are in place.[45]

 

[1] See, e.g., Matthew Weaver, G20 Protesters Blasted by Sonic Cannon, The Guardian (Sept. 25, 2009, 5:19 AM), https://www.theguardian.com/world/blog/2009/sep/25/sonic-cannon-g20-pittsburgh.

[2] See, e.g., Alex Pasternack, The New Sound of Crowd Control, Vice (Dec. 17, 2014, 10:15 AM), https://www.vice.com/en_us/article/qkve7q/the-new-sound-of-crowd-control.

[3] See, Alex Pasternack, Piercing Sound Can Be Excessive Force, Federal Court Rules, Fast Company (June 14, 2018), https://www.fastcompany.com/40585221/piercing-sound-can-be-excessive-police-force-federal-court-rules.

[4] See, e.g., Ben Kesslen, ‘Plug Your Ears and Run’: NYPD’s Use of Sound Cannons Is Challenged in Federal Court, NBC News (May 22, 2019), https://www.nbcnews.com/news/us-news/plug-your-ears-run-nypd-s-use-sound-cannons-challenged-n1008916.

[5] See LRAD® Corporation Rebranding as Genasys Inc. to Reflect Broader Commitment to Critical Communications, Genasys: Press Releases, (Oct. 23, 2019) https://genasys.com/press-releases/lrad-corporation-announces-corporate-name-change-to-genasys-inc-to-reflect-broader-commitment-to-critical-communications/.

[6] See, e.g.,Halley Bondy, How the LRADWent From a Pirate Deterrent to a Police Crod-Control Tool, The Daily Beast (Sept. 30, 2019, 11:20 AM), https://www.thedailybeast.com/how-the-lrad-went-from-a-pirate-deterrent-to-a-police-crowd-control-tool?ref=scroll.

[7] See, id.

[8] See, e.g., Roberto Baldwin, What Is the LRAD Sound Cannon?, Gizmodo (Aug. 14, 2014, 11:40 AM), https://gizmodo.com/what-is-the-lrad-sound-cannon-5860592.

[9] See Kesslen, supra note 4; Pasternack, supra note 3.

[10] See, e.g., Pasternack, supra note 3.

[11] See,e.g., Kesslen, supra note 4; Pasternack, supra note 3.

[12] See Baldwin, supra note 8.

[13] See Decibel Levels, Hearing Health Foundation, https://hearinghealthfoundation.org/decibel-levels (last visited Nov. 22, 2019); Paul Virostek, Sound Effects Decibel Level Chart, Creative Field Recording (Nov. 1, 2017), https://www.creativefieldrecording.com/2017/11/01/sound-effects-decibel-level-chart/.

[14] Loud Noise Dangers, ASHA, https://www.asha.org/public/hearing/Loud-Noise-Dangers/

 (last visited Nov. 22, 2019).

[15] See, e.g., Decibel Exposure Time Guidelines, Dangerous Decibels, http://dangerousdecibels.org/education/information-center/decibel-exposure-time-guidelines/ (last visited Nov. 22, 2019); How Loud Is Too Loud?, OSHA, https://www.osha.gov/SLTC/noisehearingconservation/loud.html (last visited Nov. 22, 2019).

[16] See Baldwin, supra note 8.

[17] See Curtis Waltman, Police Across the Country Are Adding Sonic Weapons to Their Crowd Control Arsenal, MuckRock (Feb. 5, 2018), https://www.muckrock.com/news/archives/2018/feb/05/lrad-update/ (analyzing LRAD product white pages and other documents received from FOIA requests sent to the Chicago and Houston Police Departments as well as the Massachusetts State Police).

[18] See id.

[19] See Bondy, supra note 6.

[20] See Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), cert. denied 139 S. Ct. 2614 (2019)

[21] Edrei v. City of New York, 254 F. Supp. 3d 565 (S.D.N.Y. 2017).

[22] Edrei, 892 F.3d at 525.

[23] See Kesslen, supra note 4; Pasternack, supra note 3

[24] See Edrei, 254 F. Supp 3d at 571.

[25] See id. at 571—72.

[26] See id. at 572.

[27] See id.

[28] See id. at 576.

[29] See id. at 572.

[30] See,e.g., Kesslen, supra note 4.

[31] See Edrei, 254 F. Supp 3d at 572.

[32] See id.

[33] See id.

[34] See Edrei, 254 F. Supp. 3d at 573—83.

[35] See id. at 570, 576.

[36] See id. 577, 582.

[37] See id.at 575.

[38] See id.at 576.

[39] Edrei, 892 F.3d at 545

[40] See id. at 543.

[41] See id. at 542—43.

[42] See id.

[43] See id. at 545.

[44] Maguire v. Edrei, 139 S. Ct. 2614 (2019).

[45] See,e.g., Kesslen, supra note 4.

 

image source: https://www.hawaiitribune-herald.com/2019/07/11/hawaii-news/blnr-char-lrad-is-not-a-weapon/

By: Cassidy Crockett-Verba

As with many things in the internet age, cannabis is relatively easy to find online. A simple Google search of “buy marijuana online” returns over 29 million results. These range from sites that purport to sell marijuana, to sites that help a person find a seller or sites that tell you anything you want to know about a specific strain.[1] Of the websites that purport to sell marijuana, some will only operate within a legal state, while some offer to ship to any non-federal address.[2] While the sites that are offering to ship to any non-federal address may seem appealing to many, they are not risk free. Shipping cannabis by mail is considered drug trafficking and the USPS may confiscate any packages containing restricted items.[3] In addition to legal consequences, many of these sites are scams and do not deliver any products.[4]

As marijuana remains federally illegal and regulating the internet remains next to impossible, consumers are benefitting from the ease of access to cannabis. In the age of instant gratification, consumers are clamoring for an easy way to obtain everything, including weed.[5] Today you can catch a ride, order dinner, and buy groceries all from your phone.[6] You can also order almost anything from Amazon, sometimes in as little as a few hours. Cannabis is no different depending on where you live. In states where cannabis is legal to use, a few apps that offer delivery to your door have popped up.[7] Companies such as Eaze, GreenRush, and Bud have developed apps and websites specifically devoted to ordering cannabis to be delivered to door of anyone in the states in which they operate.[8] These “Uber for weed” apps make marijuana appear as though it were just another item to purchase, not a drug with federal prohibitions attached. The sites have a pop-up with an “are you 21 or older?” barrier to access, but many brewery and distillery sites also have these even though neither are required by law to have them.[9] These websites do not reflect the age-old stereotypes of “stoners.” They are bright, clean, up-to-date, and modern. Companies are promising easy access to cannabis via modern technological models that already exist (like Uber).

In addition to delivery services, there are companies dedicated to putting dispensaries and even individual sellers on the map.[10] These sites often create a literal map of dealers, dispensaries, and medical clinics where people can receive cannabis.[11] Companies like Leafly, Leafdin, and WeedMaps allow consumers to locate, rate, and review sellers which provides consumers with options like never before.[12] Apps like WheresWeed allow consumers to purchase via online ordering in addition to these actions as well.[13] This newfound availability puts cannabis in the hands of people who were perhaps skeptical, embarrassed, nervous or just incapable before this innovation.

People with disabilities may not have access to transportation and may also experience mobility concerns, prohibiting them from visiting a dispensary. This new technology is enabling people with disabilities to have access to life-changing medicine.[14] As the medical benefits are studied more, more dispensaries are moving towards disability-friendliness.[15] However, the ability to receive medicine without leaving the house is incredibly appealing to those with disabilities as they do not need to worry about transportation, mobility, or whether the physical building of the dispensary is accessible. Unfortunately, this is not an area many researchers have concerned themselves with, so there is little information about disabled consumers and their views on the matter. However, it is clear, from social media and personal testimony found on these websites and apps, that disabled customers are benefiting from this technology. Many patients and consumers congregate in closed and secret internet forums and Facebook groups to discuss the benefits and risks of cannabis and purchasing it as well. Although impossible to cite a group without the reader having access to said forum, it is clear from the testimonies available that disabled consumers are thriving with access and availability. The availability of marijuana on the internet (whether illegal or legal) is allowing new patients to discover for themselves whether cannabis can be an effective treatment. This raises concerns for the effect on physicians and the medical community. As more and more people decide for themselves, especially in states with recreational availability, physicians are left out of the conversation and this concerns many healthcare providers.

[1] See generally, www.theamsterdamcompany.com; www.leafedin.com; www.leafly.com.

[2] See, e.g., www.potlala.com.

[3]See U.S. Postal Service, Pub. No. 52, Hazardous, Perishable, and Restricted Material § 453.12–13 (2019); see also Garyn Angel, High Tech Is Powerfully Influencing the Future of the Cannabis Industry, GreenEntrepreneur (Nov. 28, 2018) https://www.greenentrepreneur.com/article/323868.

[4] See, e.g., Gabe Fine, BBB Issues Warning About Online Marijuana Retailer Scams, Westworld (June 21, 2017) https://www.westword.com/marijuana/better-business-bureau-issues-warning-about-online-marijuana-retailer-scams-9178816.

[5] London Ryynanen England, Comment, Not to Be Blunt, but Consumers Demand Weed with Their Pizza: Model Legislation for Marijuana Courier and Home Delivery Services, 20 S.M.U. Sci. & Tech. L. Rev. 343, 343 (2017).

[6] Uber, GrubHub, Instacart

[7] England, supra note 5, at 343-44.

[8] Angel, supra note 3.

[9] Julie R. Thompson, The Surprising Truth About Why Alcohol Websites Make You Enter Your Age, Huffington Post (July 21, 2017), https://www.huffpost.com/entry/liquor-website-age verification_n_59c3b549e4b06f93538cdd18.

[10] Angel, supra note 3.

[11] Angel, supra note 3.

[12] Angel, supra note 3.

[13] See Home, WheresWeed, www.wheresweed.com.

[14] Lisa Rough, How to Make Your Cannabis Dispensary More Disability Friendly, Leafly (Aug. 16, 2017), https://www.leafly.com/news/industry/how-to-make-marijuana-dispensaries-disability-friendly.

[15] Id.

image source: https://myflorida420.com/medical-marijuana-can-spark-budding-cannabis-industry/weedkeyboard/

By: Patrick Macher

The year is 2000 and I just woke up and ran down the stairs to sit in front of the TV for the next 2 hours. If I was lucky, a new Yu-Gi-Oh or Pokémon would be released, and I could watch as long as my parents let me skip my brother’s basketball game. During the early commercials I would pour a bowl of frosted flakes, and at the noon conclusion of my favorite morning, I would eat a handful of zebra cakes. Today’s kids will never experience the rush of a Saturday morning release because all of their content is just a click-away.

 

In November of 2018, Disney CEO Bob Iger announced the companies’ plan for a new streaming service called Disney+ (“Disney Plus”).[1] In the coming months, Disney+ would gather subscribers, accumulating more than ten million customers by the first week of launch.[2] Investors credit Disney+ for a return of almost 30% on Disney stock through November, 2019.[3]

 

Rewind the clock twenty years to when Cable and Satellite TV companies were fighting for the same market space, a space that had few competitors.[4] Dish, DirecTV and EchoStar battled for customers while providing almost identical products.[5] The companies provided very little on-demand content, as viewers were limited to the scheduled programming on the channels to which they subscribed.

 

Return to the year 2019 and the market has completely changed. Cable and Satellite TV companies hemorrhage customers as the phenomenon of “cord-cutting,” or suspending the traditional TV services, has become a fad with young consumers.[6]

 

The majority of Americans subscribe to at least one streaming service, while the average streamer is now subscribing to three separate platforms.[7] American consumers are exercising more control over the content for which they are willing to pay.[8] Ten years ago, a college football fan may have purchased an extravagant sports package through their TV provider to hopefully watch their teams regular season matchups. Today an ESPN+ account allows fans to live-stream the majority of games even from their mobile devices.[9]

 

In 2007, Netflix announced that it would offer PC streaming in addition to the mailbox subscription service the company had been founded on.[10] Today the market has been flooded with a plethora of streaming services including Netflix, Apple TV, Amazon Prime Video, Hulu, HBO Max, ESPN+ and now Disney+.[11]

 

Streaming giants such as Netflix and Amazon Prime have known for years that the key to maximizing profitability in the streaming world is creating original content.[12] Original content establishes a high-level of control for the streaming platforms and avoids headaches such as international content rights and content contract disputes.[13] Netflix achieved great success with their series Stranger Things, but has struggled to create additional content with the notoriety of the Disney products.[14]

 

Disney’s decision to enter the streaming market comes with an inherit competitive advantage, as Disney owns the rights to the content it will be offering.[15] Disney owns the Disney classics many streamers grew up with such as Beauty and the Beast and 101 Dalmatians, but has also, through the years, purchased the rights to cinematic giants such as the Star Wars and Marvel series.[16]

 

With Disney’s emergence into the streaming market, many investors feared that Netflix and other leading platforms would suffer substantial market losses, but after the first week of Disney+, it seems investors are optimistic that multiple streaming platforms will be able to co-exist.[17] Netflix bounced back from predicted losses in the first week of Disney+, climbing 2.6% on the week, but Disney stock soared 8% following the first week of Disney+.[18]

 

The question seems to have taken a fundamental shift from should consumers have a streaming service, to which streaming services should consumers carry. Sports, cartoons, movies, classics, the options seem almost limitless. However, one thing has remained constant, at the end of whatever show you are watching, on whichever platform you choose, have a couple zebra cakes.

 

 

[1] See Cynthia Littleton, Bob Iger Talks Disney+, Hulu Plans and His Vision for Enlarged TV Studio, Variety (Nov. 8, 2019) https://variety.com/2018/digital/news/disney-disney-streaming-service-launch-2019-1203023789/

 

[2] See Daniel Strauss, Disney Shares Spike After Company Announces Disney Plus Surpassed 10 million Sign-Ups Since Launch, Markets Insider (Nov. 13, 2019) https://markets.businessinsider.com/news/stocks/disney-stock-price-jumps-on-disney-plus-sign-up-count-2019-11-1028686618

 

[3] See id.

 

[4] See Dish Network, J.D. Power Ranks Dish Network No.1 in Customer Satisfaction; EchoStar Ranks Ahead of Cable, Satellite Competitors in Overall Customer Satisfaction (Sep. 1, 2019) https://ir.dish.com/static-files/87451047-7c28-4721-a9cc-dc4e49db41bb

 

[5] See id.

 

[6] See Jon Brodkin, Cable and Satellite TV Sinks Again as Online Streaming Soars, ARS Technica (Mar. 7, 2019) https://arstechnica.com/information-technology/2019/03/cable-and-satellite-tv-sinks-again-as-online-streaming-soars/

 

[7] See Dennis Sellers, There’s a Massive Consumer Shift Toward Streaming Video Services, AppleWorkd.Today (Apr. 13, 2019) https://www.appleworld.today/blog/2019/4/13/theres-a-massive-consumer-shift-toward-streaming-video-services

 

[8] See id.

 

[9] See Sara Jane Harris, How to Find ACC Network: TV Channels, Live Stream, Watch Online, Sporting News (Sep. 07, 2019) https://www.sportingnews.com/us/ncaa-football/news/how-to-find-acc-network-tv-channels-live-stream-watch-online/1kkk677chbhfb1lb2j865wch9f#live-stream

 

[10] See Miguel Helft, Netflix to Deliver Movies to the PC, New York Times (Jan. 16, 2007) https://www.nytimes.com/2007/01/16/technology/16netflix.html?mtrref=en.wikipedia.org&gwh=7D248A0F0C9318DB726094B71284A484&gwt=pay&assetType=REGIWALL

 

[11] See Alex Sherman, Disney+ isn’t Really the Beginning of the Streaming Wars – the Next Year is Just a Warm-Up, CNBC (Nov. 16, 2019) https://www.cnbc.com/2019/11/16/disney-plus-streaming-wars-just-warming-up.html

 

[12] See Brian Barrett, Amazon and Netflix Look to Their Own Shows as the Key to World Domination, Wired (Dec. 12, 2016) https://www.wired.com/2016/12/amazon-netflix-look-shows-key-world-domination/

 

[13] See id.

 

[14] See David Trainer, Netflix’s Original Content Strategy is Failing, Forbes (Jul. 19, 2019) https://www.forbes.com/sites/greatspeculations/2019/07/19/netflixs-original-content-strategy-is-failing/#243bb62b3607

 

[15] See Dan Jackson, Everything We Know About Disney’s New Streaming Service, Thrillest (Oct. 15, 2019) https://www.thrillist.com/entertainment/nation/disney-streaming-service-disney-plus

 

[16] See id.

 

[17] See Noel Randewich, One Week In, Netflix’s Stock is Weathering Disney+, Rueters (Nov. 19, 2019) https://www.reuters.com/article/us-streaming-stocks/one-week-in-netflixs-stock-is-weathering-disney-idUSKBN1XT1D8

 

[18] See id.

 

image source: https://www.polygon.com/2019/11/11/20959171/disney-plus-shows-movies-subscription-pricing-news-devices-and-more

By: Derek Reigle

Law enforcement and prosecutors have been collecting the American people’s genetic information. This isn’t a shock. Violent felons have been required to submit their DNA into a federal DNA database for the past several decades.[1] However, genetic collection by law enforcement is no longer being limited to just violent criminals. One of the more disturbing ways that law enforcement has been expanding their DNA harvesting is by merely asking individuals for their DNA. These requests for DNA have been made by law enforcement as a possible way to lower a criminal sentence in plea bargain misdemeanor cases, or to even dismiss simple traffic tickets.

For example, in Orange County, California a program known as “spit and acquit” has been ongoing for over a decade.[2] The program is simple. One must merely consent to giving the Orange County Attorney General their DNA and charges may be waived or significantly decreased.[3] In short, DNA has become a bargaining tool in prosecutorial negotiations with the accused.[4] In fact, in order to plead guilty to nearly any misdemeanor, you must now voluntary submit to giving your DNA to the Orange County District Attorney’s office.[5]  As a result of this program, Orange County prosecutors now have a colossal 150,000 person genetic database in their possession. [6]

In the past decade in Florida, and other states, another unusual genetic collection practice by law enforcement has emerged. This time it has been dubbed “stop and spit”.[7] An example of this would be the police stopping someone for speeding and during their traffic stop, they ask for a sample of saliva, and agree to let the person go if they provide it.[8]

Proponents of these genetic collection tactics argue that it deters crime because potential criminals are now aware that their genetic information is out there.[9] Critics of this system argue that the value is significantly outweighed by the scary precedent that is starts in regard to DNA collection and genetic surveillance.[10]

Obviously, this collection of DNA and genetic information by law enforcement and prosecutors has led to the storage of massive amounts of data.[11] These databases of genetic information have been coined “dragnets” because of the analogy of a net dragging through a pond, collecting anything that it can scoop up.[12] These unregulated and unusual genetic databases are not going away, and their practice is continuing.[13]

So how useful are these databases to catch criminals? Despite what supporters of genetic surveillance say, these databases are not particularly useful for investigating crime.[14] Furthermore, these databases open up a pandora’s box of troubling questions. Why exactly are police creating these massive genetic databases? Could these databases be used against innocent people? What is this mass genetic collection leading to? Ultimately, it seems clear that most people do not have any idea of the ramifications and information that they are giving away when providing a DNA sample.[15]  For these reasons, it seems wholly inappropriate for law enforcement to use their position of authority to collect and gather DNA.

 

 

 

[1] Bruce Budowle et.al, CODIS and PCR-Based Short Tandem Repeat Loci: Law Enforcement Tools, Promega (last visited Nov. 20, 2019), https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf..

[2] Andrea Roth, “Spit and Acquit”: Prosecutors As Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Lauren Kircher, DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit, ProPublica (Sep. 12, 2016), https://www.propublica.org/article/dna-dragnet-in-some-cities-police-go-from-stop-and-frisk-to-stop-and-spit.

[8] See id.

[9] See id.

[10] See Id.

[11] See Sheldon Krimsky & Tania Simoncelli, Genetic Justice, 28-46 (2011).

[12] See Id.

[13] See Id.

[14] See id.

[15] See generally Tania Lombrozo, Scientific Literacy: It’s Not (Just) About The Facts,NPR (Sep. 14, 2015), https://www.npr.org/sections/13.7/2015/09/14/440213603/scientific-literacy-it-s-not-just-about-the-facts

image source: https://www.aclu.org/blog/privacy-technology/medical-and-genetic-privacy/proposal-expand-mandatory-dna-collection

 

By: Anne Groves

Introduction

 

Customers of personal technology companies are specifically vulnerable to warranty breach, because these customers rely on the technology they purchase, yet they often don’t understand their rights pertaining to the warranties for their devices.[1] This has taken the form of class action lawsuits against personal technology companies.[2] Following is a brief overview of two noteworthy class action lawsuits against personal technology companies:

 

 

Close Call: Best Buy Class Action

 

Recently, Best Buy and Samsung narrowly dodged a Warranty Class Action Lawsuit. This class action lawsuit was filed by Tawana and Anthony Ware.[3] Plaintiffs claim that Best Buy and Samsung provided their customers with fraudulent warranties, and plaintiffs argued that the Geek Squad Protection Plan they purchased with their Samsung television qualifies as a warranty and consequently should be subject to the standards laid out in the Magnuson-Moss Warranty Act. Plaintiffs alleged that Best Buy failed to live up to their protection plan’s promises pertaining to how they compensated customers for issues with their device. [4] Best Buy and Samsung first endeavored to have the class action lawsuit dismissed by claiming the customers’ allegations were time-barred. However, Samsung and Best Buy withdrew this motion to dismiss in November 2018.[5] Then, in December 2018, Samsung and Best Buy filed a new motion to dismiss, and this motion was accepted by U.S. District Judge Sharon Coleman. Judge Coleman determined that the protection plan in question is listed separately on the Wares’ receipt, meaning it was a separately purchased item and not a warranty for the item.[6] If the protection plan was included in the price of the item, it would fit the statutory definition of a warranty and therefore would be subject to the standards of the Magnuson-Moss Warranty Act. Judge Coleman also explained that the Magnuson-Moss Act intends to cover the materials and workmanship of a product and does not refer to service plans that cover wear and tear or preventative maintenance.[7]

 

Active Class Action: Lawsuit Against Apple

 

Alleges apple violated consumer protection charge, namely by charging customers high prices for what they think to be new or “like new” devices and parts under their AppleCare/AppleCare+  programs. In reality, these replacements were actually inferior or used parts.[8] Effectively, plaintiffs are arguing that refurbished parts by definition does not comport with the wording of the AppleCare+ contract. The class action is saying Apple committed fraud by failing to uphold its promise of iPhone, iPad and iPhone replacements that are equivalent to new in both performance and reliability. The class action seeks damages for consumers who paid for AppleCare+ and the additional cost for a device replacement through AppleCare+.[9] On Sept. 17, 2019, U.S. District Judge William H. Orrick issued  an order certifying this class of consumers against Apple in this class action. In this same order, Judge Orrick also denied Apple’s motion for summary judgement.[10] The class is being represented by Hagens Berman. Hagens Berman is an incredibly successful consumer litigation law firms in the country. They have achieved over $260 billion in consumer settlements.[11]

 

 

The takeaway here? Read and understand the warranty before your next big technology purchase.

[1] See generally What You need to Know About Warranty Laws You Have More Rights Than You Might Think, Consumer Reports (May 2013), https://www.consumerreports.org/cro/magazine/2013/05/the-word-on-warranty-protection/index.htm.

[2] See generally id.

[3] See Emily Sorter, Best Buy Dodges ‘Geek Squad’ Warranty Class Action Lawsuit, Top Class Actions (Feb. 4, 2019),  https://topclassactions.com/lawsuit-settlements/consumer-products/electronics/877480-best-buy-dodges-geek-squad-warranty-class-action-lawsuit/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See AppleCare, Hagens Berman https://www.hbsslaw.com/cases/applecare.

[9] See Chance Miller, Judge Says Class-Action Suit Against Apple over Refurb AppleCare+ Replacements Can Continue, 9TO5Mac (Sept. 17, 2019), https://9to5mac.com/2019/09/17/applecare-lawsuit-refurbished-devices/.

[10] See id.

[11] See supra note 9.

image source: https://www.marketwatch.com/story/supreme-court-allows-lawsuit-over-apples-iphone-apps-to-proceed-2019-05-13

By: Matt Romano

This week a federal district court in Boston ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment.[1]  This ruling came in a lawsuit, Alasaad v. Nielsen, filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of eleven travelers whose smartphones and laptops were searched without reasonable suspicion at a US port of entry.[2]  The suit was filed against both U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) whose officers conducted these searches.[3]

 

A suspicionless search of a cell phone or laptop may seem like a clear violation of these travelers fourth amendment rights, but that’s not necessarily true when the search is conducted at a port of entry into the United States.  Under the Fourth Amendment, people are protected against unreasonable searches and seizures.[4] A warrantless search is per se unreasonable under the Fourth Amendment, unless one of a few specifically established and well-delineated exceptions apply.[5] One of these exceptions applies to border searches.[6] This border search exception applies to all ports of entry within the US including airports.[7] It is not limitless, but in many cases it does not even require reasonable suspicion.[8] When evaluating whether a suspicionless search under the border exception is permissible, courts generally balance of its necessity for the promotion of legitimate governmental interests and the level of intrusion upon an individual’s privacy.[9]

 

ICE and CBP argued that conducting these searches is invaluable to helping ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband; and to facilitate lawful trade and travel.[10]  To support this argument,  ICE and CBP referenced 34 published cases involving the seizure of at the border of digital contraband or evidence.[11]  The court was not persuaded that these 34 cases were significant enough to overcome the traveler’s privacy interests though.[12] The CBP alone reportedly conducted 108,000 searches of electronic devices between 2012 and 2018, and the 34 cases were from a much larger period of time than just those seven years.[13]

 

When considering the privacy interest of travelers, the Supreme Court has court applied the border search exception without requiring reasonable suspicion to searches that it considers “routine.”[14] Whether a search is considered routine depends solely on degree of invasiveness and intrusiveness of the search.[15] ICE and CBP classify all border searches of electronic devices as either basic or advanced, requiring a showing of reasonable suspicion for advance searches only.[16]  The court in this case could not discern difference in the amount of information accessed between basic and advanced searches though.[17]  Most of the seizures of the eleven travelers’ devices in this case were all considered basic, and yet their duration ranged from 45 minutes to 15 days.[18]  During these “basic” searches, the officers accessed photographs, contacts, and data of both a personally and professionally sensitive nature.[19]  Based on how intrusive these searches were and the comparably weak governmental interest in conducting them without reasonable suspicion, the court held that neither advanced nor basic searches were routine and both require reasonable suspicion.[20]  This may only be a district court decision, but it still marks a major step toward protecting international travelers’ privacy rights.

 

[1] Federal Court Rules Suspicionless Searches of Traveler’s Phones and Laptops Unconstitutional, ALCU, Nov. 12, 2019, https://www.aclu.org/press-releases/federal-court-rules-suspicionless-searches-travelers-phones-and-laptops.

[2] Id.

[3] Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at 2 (D. Mass. Nov. 12, 2019).

[4] See Id. at 23.

[5] Id.

[6] Id.

[7] See U.S. v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015).

[8] See. Alasaad, 2019 U.S. Dist. LEXIS 195556, at 25.

[9] See Id.

[10] See id. at 26.

[11] Id. at 43.

[12] See Id.

[13] Id.

[14] See Id. at 33.

[15] Id.

[16] See Id. at 5.

[17] Id. at 51–52.

[18] See Id. at 48–51.

[19] See Id.  (accessing photos of a woman without her headscarf and a man’s privileged conversation with his lawyers).

[20] See Id. at 52.

image source: https://wtop.com/wp-content/uploads/2019/05/TSA-Border_Protection_16473.jpg

By: William Nash

The payment of collegiate athletes for their roles within their universities has been a heavily debated topic throughout the United States, and on Tuesday, October 29th, 2019, a substantial step was made in that direction.[1] The National Collegiate Athletic Association (NCAA) made a statement that collegiate athletes will now be able to profit off of their names, images, and likenesses.[2] The NCAA making this change, allows for student athletes, who are not being paid anything past the cost of attending their university, to now profit off their own personal brand or celebrity.[3] Allowing student athletes to profit from their names, images, and likenesses (NILs) is a substantial change from the previous athletic climate that had been present for so long in the United States.[4]

There are many critics of the NCAA’s current amateurism model, which has focused on student athletes being completely restricted from any financial benefit of their commercial value on the field or off it.[5] The amateurism model denies student athletes of any compensation, but allows for the universities, coaches, and the NCAA itself to generate billions of dollars in revenue.[6] The NCAA claims that their collegiate model “enhances the educational experience of college athletes, who are fully integrated into universities’ academic communities and enjoy greater academic success than regular students,” although many critics have begun to see differently.[7]

An abrupt change of heart from the NCAA policy didn’t seem feasible in the near future, but state legislatures have put political pressure on the NCAA to “pick up the pace” regarding their policy.[8] The first, and largest, threat to the NCAA came when the state of California enacted the Fair Pay to Play Act in September of this year.[9] The Fair Pay to Play act prohibits California colleges from denying student athletes of their NILs.[10] There has been extensive support for the Fair Pay to Play Act because of the benefits it hopes to bring student athletes.[11] A study conducted pursuant to the Act discovered that an astonishing majority of Division-I football players are currently living below the poverty line.[12]

Afterward, numerous states have moved to adopt similar policies, gathering a multitude of support from legislatures all across the political spectrum.[13] Rep. Mark Walker (R., N.C.) even proposed a bill that threatened the NCAA’s amateurism tax status.[14] The new idea has been an easy one for both sides to adopt because many believe that profiting off of NILs isn’t just for the benefit of an athlete, but a basic human right.[15]

Many analysts believe the new change in policy by the NCAA will bring numerous benefits to student athletes as well as collegiate sports in general, while others don’t believe there will be a substantial difference.[16] One anticipated benefit is the enhancement for female collegiate athletes.[17] Because female athletes will be able to profit off of their NILs, they will be able to “grow their personal brand during their college careers, [and] the NCAA will actually open possibilities for more women athletes to maximize their earning potential through sports.[18]

While this announcement by the NCAA is a large step in a politically popular direction, the NCAA has not yet formally stated the exact rules governing NILs and college athletes.[19] Only a continued study of NILs and college athletics will prove the actual opportunities and if benefits truly do follow this change.

image source: https://www.sportingnews.com/us/ncaa-football/list/college-football-rankings-pre-preseason-top-25-2019/1r65demw2tmtf1wd2epbfnfmk9

[1] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[2] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[3] See Greta Anderson, NCAA Votes for Athlete Payment, Inside Higher Ed (Oct. 30, 2019), https://www.insidehighered.com/news/2019/10/30/college-athletes-permitted-be-paid-name-image-likeness.

[4] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[5] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[6] Id.

[7] See Richard M. Southall, The US Collegiate Model of Intercollegiate Athletics: Questioning National Collegiate Athletic Association, LawInSport, https://www.lawinsport.com/sports-law-events/seminars/24-the-us-collegiate-model-of-intercollegiate-athletics-questioning-national-collegiate-athletic-association-ncaa-hegemony.

[8] See Tim Sullivan, Lawmakers Forcing Slow-Moving NCAA to Pick up the Pace of Change, USA Today (Oct. 10, 2019, 9:06 AM), https://www.usatoday.com/story/sports/college/2019/10/10/ncaa-amateurism-model-being-pushed-change-legislation/3928243002/.

[9] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[10] See Isabella Borges, Fair Pay to Play Act: End of Amateurism?, Golden Gate L. Rev. Blog (Oct. 14, 2019), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1065&context=ggu_law_review_blog.

[11] See id.

[12] See id.

[13] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[14] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[15] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[16] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[17] See Isabella Borges, Fair Pay to Play Act: End of Amateurism?, Golden Gate L. Rev. Blog (Oct. 14, 2019), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1065&context=ggu_law_review_blog.

[18] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[19] See id.