Month: January 2020

By: Eric Richard

With the adoption of the General Data Protection Regulation in 2018, many curious onlookers watched and waited to see whether there would be any like legislation surface in the United States. Federally, those onlookers are still waiting, but some states are taking up the initiative, the most notable being California.[1] Just this month (January 2020), the California Consumer Privacy Act (CCPA) became effective.[2] The new legislation is currently the strongest data privacy law in the United States, providing consumers with ample rights related to accessing their data, having their personal data deleted when requested, and even opting out of having their data sold.[3] Vermont also enacted data protection legislation recently.[4] However, Vermont’s law only covers third parties that buy or resell consumer data, and is not as pervasive.[5]

So, what kinds of businesses need to be scared, or at least aware, of these new laws? The CCPA covers businesses operating in the state of California, such as: ride-hailing services, retailers, mobile service providers, and others that may collect personal data for commercial purposes.[6] Further, the CCPA only applies to companies that have more than $25 million dollars in gross revenues, annually buys, receives or sells personal information of at least 50,000 or more consumers, households, or devices, or derives 50% or more of its annual revenue from selling personal information.[7] Consumers will now be able to see exactly what categories of data any subject company has on them.[8] This includes things like smartphone locations or voice recordings (look out Snapchat).[9] The CCPA even provides specific protection for children.[10] It stipulates that companies must obtain parental permission before selling person details of anyone under the age of 13.[11]

Another California initiative is potentially about to change the way students go through law school in the Golden State. A recent rule change by the State Bar of California will allow state-accredited law schools to teach JD programs entirely online.[12] The result has been two-fold: accredited law schools are now filing applications to offer all online curriculums and non-accredited law schools who currently offer those online curriculums are filing for accreditation.[13] Just like the number of employees who want the option to work from home, this change is likely stemming from the American preference for flexibility in scheduling one’s life. There will be several layers of hoops to jump through in order for all online programs to become accredited, and we’ve yet to see how many students will opt for an online experience as a result, but California is certainly changing the landscap

[1] See Jill Cowan, How California’s New Privacy Law Affects You, NY Times (Jan. 3, 2020), https://www.nytimes.com/2020/01/03/us/ccpa-california-privacy-law.html.

[2] See id.

[3] See id.

[4] See Jason Tashea, Vermont’s new consumer protection law could be a harbinger for tech industry, A.B.A. J. (June. 1, 2019, 12:50 AM), http://www.abajournal.com/magazine/article/sunlight-in-vermont-states-new-consumer-protection-law-regulating-companies-that-buy-or-sell-data-could-be-a-harbinger-for-tech-industry.

[5] See id.

[6] See Cowan, supra note 1.

[7] See Jason Tashea, California’s new data privacy law could change how companies do business in the Golden State, A.B.A. J. (Jan. 1, 2019, 1:50 AM), http://www.abajournal.com/magazine/article/gdpr_california_data_privacy_law.

[8] See Cowan, supra note 1.

[9] See id.

[10] See id.

[11] See id.

[12] See Stephanie Ward, California may offer more opportunities for JDs taught entirely online, A.B.A. J. (Jan. 14, 2020, 6:30 AM), http://www.abajournal.com/web/article/california-may-offer-more-opportunities-for-jds-taught-entirely-online.

[13] See id.

 

image source: https://www.bbklaw.com/news-events/insights/2019/legal-alerts/01/new-year,-new-laws-impacting-public-agencies-i-(1)

By: Monica J. Malouf

The newest generation of mobile networking is upon us. AT&T and Verizon have rolled out their 5G—which stands for 5th generation—plans, and in 2020 both providers intend expansion to nationwide coverage.[1]

In a nutshell, 5G is “a new cellular standard.”[2] It will improve interconnection between users, as well as connection with “smart” devices.[3] It will deliver multi-gigabyte/second rates, decreased latency or lag, increased capacity, and provide “a more uniform user experience.”[4]

Not only will 5G transform cellular network connection, but it will also improve mission-critical communications, “enable[ing] new services that can transform industries with ultra-reliable/available, low latency links—such as remote control of critical infrastructure, vehicles, and medical procedures.”[5] 5G could also generate significant revenue for the U.S. economy, although the full economic effect is yet to be realized.[6]

These improvements obviously appeal to consumers across all network providers. But the appeal comes at a high cost.

To implement nationwide access, the large wireless companies will need to construct or install thousands of new towers. Although they are not “towers,” technically—more like pole-like extensions with booster antennas connected to lamp-posts and stop lights. Nonetheless, these towers prove semi-invasive, and people across the country are displeased.

5G requires that towers be erected in closer proximity to users,[7] which means closer proximity to homes.  AT&T plans to implement 300,000 this year.[8] These towers are eye-sores that the company plans to attach to already existing infrastructure in neighborhoods.[9] Quicker access and connectivity comes a price, right?

Homeowners from New York to Maryland have expressed their concerns about these new cell towers popping up in their neighborhoods.[10] They claim health concerns regarding increased radiation exposure, specifically fears that the exposure causes cancer.[11]  Citizens in Albany have created a group demanding a moratorium on construction until health concerns are addressed.[12]

However, research on the health effects of cell-phone emitted radiation has been inconsistent.[13]  The Telecom industry and even the Federal Communications Commission (FCC) have assured the public that 5G is safe.[14] Additionally, some scientists proffer statistics which show that the human skin can block radio waves at higher frequencies.[15] Nonetheless, people across the world have banded around health concerns surrounding 5G, slowing the implementation of the new generation of mobile networking.[16]

Like any advance in technology, new legal questions arise with the unveiling of the new network. Questions of health, privacy, intellectual property, and other legal implications circle around this next generation of mobile networking. In the race with China to implement nationwide 5G access, the FCC has placed constraints on cities and local governments in their ability to regular 5G within their localities.[17]

The U.S. Conference of Mayors released a statement in opposition following the FCC’s order, stating:

“Despite efforts by local and state governments, including scores of commenters in the agency’s docket, the Commission has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.”[18]

Legal questions will continue to circle around 5G. Will new towers expose users to new levels of radiation? Will the new connective features among smart devices lead to privacy breaches? Will the new towers affect property prices or other elements of the real estate market? The list continues.

Societal desires for faster, more efficient and innovative data-access move with a momentum that the law seems to never quite match. And while that seems daunting for consumers, it means unchartered territory for attorneys. And with unchartered territory means works. Lots of work.

[1] See Brian X. Chen, What You Need to Know About 5G in 2020, N.Y. Times: Tech Fix ( Jan. 8, 2020), https://www.nytimes.com/2020/01/08/technology/personaltech/5g-mobile-network.html?auth=login-google1tap&login=google1tap.

[2] Id.

[3] See Everything You Need to Know About 5G, Qualcomm: 5g FAQ (last visited Jan. 16, 2020), https://www.qualcomm.com/invention/5g/what-is-5g.

[4] Id.

[5] Id.

[6] See id.

[7] See Chen, supra note 1.

[8] 5G Service is Coming – And So Are Health Concerns Over The Towers That Support It, CBS News (May 29, 2018, 8:39 AM), https://www.cbsnews.com/news/5g-network-cell-towers-raise-health-concerns-for-some-residents/.

[9] See id.

[10] See id.; see also Paul Grondahl, 5G Cell Protests Span from Albany to Europe to Russia, Times Union (May 14, 2019, 8:41 PM), https://www.timesunion.com/news/article/Grondahl-5G-cell-protests-span-from-Albany-to-13843495.php#photo-17439917.

[11] See 5G Service is Coming, supra note 8.

[12] See Grondahl, supra note 10.

[13] See id.

[14] See Tad Simons, The Great Rollout: Will 5G Be a Boon for Lawyers?, Thompson Reuters: Legal Executive Institute (July 23, 2019), http://www.legalexecutiveinstitute.com/5g-lawyers-boon/.

[15] See William J. Broad, The 5G Health Hazard That Isn’t, N.Y. Times (July 16, 2019), https://www.nytimes.com/2019/07/16/science/5g-cellphones-wireless-cancer.html; see also Reality Check Team, Does 5G Pose Health Risks?, BBC News ( July 15, 2019), https://www.bbc.com/news/world-europe-48616174.

[16] See Thomas Seal & Albertina Torsoli, Health Scares Slow the Rollout of 5G Cell Towers in Europe, Bloomberg Businessweek (Jan. 15, 2020, 12:01 AM), https://www.bloomberg.com/news/articles/2020-01-15/health-scares-slow-the-rollout-of-5g-cell-towers-in-europe.

[17] See Simons, supra note 14.

[18] Statement by U.S. Conference of Mayors CEO & Executive Director Tom Cochran on FCC’s Order Subordinating Local Property Rights, The United States Conference of Mayors, https://www.usmayors.org/2018/09/26/statement-by-u-s-conference-of-mayors-ceo-executive-director-tom-cochran-on-fccs-order-subordinating-local-property-rights/.

image source: https://www.computerworld.com/article/3310067/why-5g-will-disappoint-everyone.html

By: Tabetha Soberdash

Once used purely in science fiction movies to portray a far-off, technological-advanced future, smart technology is now something that many individuals use daily in their homes, employment, cars, and so on.[1] Quickly, more and more smart devices are being created and placed into the market for consumers to purchase.[2] Examples of smart devices include: Google Assistant, Amazon Echo, smart lights, programable vacuums, and smart doorbells.[3] These devices allow individuals to do things like search the internet for a new recipe, purchase a book from Amazon, turn off all the lights in the house, or view what is front of a video-doorbell with just a simple voice command.[4] Further, through features, linking sensors, and the connection of the Internet of Things (IoT), smart devices can conveniently be monitored, controlled, or accessed even from a distance.[5]

Overall, the technology is created to be useful and respond to the needs of the users.[6] The devices have even offered new ways for individuals to protect their loved ones and their homes.[7]  An example of this is well demonstrated by the events of December 22, 2019 when an Amazon Alexa device notified the daughter of an elderly man that a theft was taking place in his assistant living facility in Florida.[8]  The device had a “check-in” feature which allowed the daughter to check on her father in Florida from her home in Alaska.[9]  Using that feature, the daughter was able to see the strange man who was going through her father’s wallet. Afterwards, the family was able to notify the police, who then proceeded to arrest a suspect.[10]

While there are many advantages to smart devices, they do come with the major risk of eliminating any realistic expectation of privacy, as many of the devices function by recording nearby interactions and storing the recordings or by providing a visual of what is near the device.[11] As such, there is a great need to protect the users of the devices from any unsolicited uses of the device and its data.[12] In recent years, manufactures of the device have began to provide some options to protect users and their data.[13] One such option is that many of the devices now provide access to the stored recorded data via the user’s account and allow the information to be deleted.[14] Additionally, many devices allow one to turn off the camera or microphone portions when the device is not being used.[15] However, the need for greater protection is clearly being demonstrated as manufacturers, such as Amazon’s home security company, Ring, are finding themselves in the position of firing employees for abusing their ability to view customers’ video feeds and responding to reports of hacking of the devices.[16] As smart devices can be placed in even the most intimate locations of one’s home, including the bedroom, these happenings are causing many to worry about potential intrusions from hackers and abusive employees.[17] Overall, while consumers are gaining many benefits from this new technology, they are also gaining new risks. As time and these concerns are causing manufacturers to alter what protections they provide to users, regulations and suits are sure to follow as policies change. Only time will tell how the law can best catch up to the increase of smart devices and protect the users.

[1] See Jessamyn Dahmen et al., Smart secure homes: a survey of smart home technologies that sense, assess, and respond to security threats, 3 J. Reliable Intelligent Env’ts 83, 83 (2017).

[2] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[3] See Gordon D. Cruse, The Trouble with Devices and the Data They Contain, 41 Fam. Advoc. 33, 34 (2019).

[4] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[5] See Heetae Yang et al., IoT Smart Home Adoption: The Importance of Proper Level Automation, 2018 J. Sensors 1 (2018).

[6] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[7] See, e.g., Holly Bristow, Amazon Alexa device alerts family to man suspected of stealing from loved one at assisted living facility in Florida, Fox10 Phoenix (Jan. 09, 2020), https://www.fox10phoenix.com/news/amazon-alexa-device-alerts-family-to-man-suspected-of-stealing-from-loved-one-at-assisted-living-facility-in-florida.

[8] See id.

[9] See id.

[10] See id.

[11] See Tara Melancon, ARTICLE: “Alexa, Pick an Amendment”: A Comparison of First and First Amendment Protections of Echo Device Data, 45 S.U. L. Rev. 302, 314–15 (2018).

[12] See, e.g., Malena Carollo, Got a smart home device as a gift? Don’t forget to secure it, Tampa Bay Times (Dec. 26, 2019),  https://www.tampabay.com/news/business/2019/12/26/got-a-smart-home-device-as-a-gift-dont-forget-to-secure-it/.

[13] See, e.g., Amazon Privacy Notice, Amazon, https://www.amazon.com/gp/help/customer/display.html?nodeId= 468496.

[14] See, e.g., Amazon Help and Customer Service View Your Dialog History, Amazon, https://www.amazon.com/gp/help/customer/display.html/ref=help_search_17?ie=UTF8&nodeId=201602040&qid=1513968463&sr=1-7.

[15] See, e.g., Lauren Barack, Here’s how to make Alexa stop listening to your conversations, Mediafeed (Apr. 27, 2019),  https://mediafeed.org/heres-how-to-make-alexa-stop-listening-to-your-conversations/.

[16] See Audrey Conklin, Amazon’s Ring fired four members of staff for snooping on customers, Fox Business (Jan. 09, 2020), https://www.foxbusiness.com/technology/amazon-ring-fired-four-employees-video-footage.

[17] See id.

image source: https://dss.tcs.com/breaking-down-barriers-to-big-data-analytics-connected-intelligence-platform/

By: Merrin Overbeck

A rising issue in today’s society is that of deep fake videos, “. . . a portmanteau of ‘deep-learning’ and ‘fake,’ [deep fake videos] are audio or visual material digitally manipulated to make it appear that a person is saying or doing something that they have not really said or done.”[1] This technology uses algorithms to create incredibly realistic videos through the use of images or audio recordings of actual people.[2] These videos have been increasingly common on social media platforms, Facebook being one of the main locations where these videos are posted.[3]

These videos have become increasingly common because new technology allows average individuals to create deep fake videos without the need for specific experience or skill with technology. For example, in January 2018, a free user-friendly application was released that made deep fake technology available to the general public.[4] This application allowed any individual with access to the internet and images of a person’s face to create a deep fake video.[5] Not only has this technology become more easily accessible, but it also has grown so sophisticated in that “an average internet user by the 2020 election could create doctored videos so realistic forensic experts will have to verify whether the content is real.”[6]

While this technology can be used in harmless ways, individuals with access to this technology have unfortunately found illegal uses for it. One example is “deep-fake pornography,” which is related to nonconsensual pornography in which there is a disclosure of private, intimate images or videos of another person without that individual’s consent.[7] This illegal use of deep fake technology is harmful because individuals are turned into “objects of sexual entertainment against their will, causing intense distress, humiliation, and reputational injury.”[8] Another example is its use in white collar crime and financial crimes. This technology has been used by criminals to impersonate company executives to defraud businesses.[9] In order to understand how harmful this technology can be, consider a situation in which, right before a company’s Initial Public Offering:

a deepfake video . . . show[s] the company’s CEO soliciting a child prostitute or saying something he shouldn’t say in a way that upends the initial public offering. . . If released at a crucial time, a deep-fake video could destroy the marketplace’s faith in a CEO or company. Depending on the timing of the release, a deep-fake video can hijack people’s lives and companies’ fortunes.[10]

Another example of the illegal use of deep fake technology, and the example that the rest of this post is going to discuss, is its use to distribute false news and information by malicious groups. According to Europol, “little or no technical expertise is required to [create these videos], and recent developments in deep fake video and audio mimicking technology make it easier to spread disinformation and impersonate individuals.”[11] In this context, these videos are created in order to sway voters to prefer one political ideology over another.[12] This was a major issue in the 2016 presidential election, and the primary location where these videos were sent was Facebook.[13] Social media platforms such as Facebook is a popular platform for individuals to post these videos on because of the ability for individuals to post frequently about the topic of their choice.[14] The ease of posting these videos to Facebook has led to Facebook receiving criticism about its complacency in the issue of the spread of false information.[15]

After learning of the issues that deep fake videos have caused on its platform, Facebook recently implemented a new policy that bans some deep fake videos from its website.[16] In its official announcement regarding this new policy, Facebook noted that deep fake videos that were “meant for satire are still fine, along with any that have a more serious purpose.”[17] This means that videos that were edited to enhance the clarity or quality of the video are still allowed.[18] Facebook’s announcement is largely focused on just preventing videos that are part of “a misinformation campaign, what Facebook calls manipulated media.”[19] Facebook is able to do this because various technology companies have created means of detecting videos that are created using this technology. For example, one way of determining that a video is a deep fake is observing the lack of blinking in the subject of the videos.[20]

While this policy decision by Facebook helps to partially solve the issue of the harmful use and distribution of deep fake videos, there is still a wide variety of harm that these videos can cause. In order to be able to detect videos in which only a small portion is altered, technology companies are going to have to focus on the development of technology that keeps up with the fast-paced development of deep fake technology. This is an important consideration because circumvention “used to take years, [but] it can now occur in two- or three-months’ time.”[21] Unfortunately, this technology that was developed with the intention of helping to detect deep fake videos can also actually be used to create more convincing fakes.[22] An example of this occurred when German researchers created an algorithm that would be able to detect “face swaps”[23] in videos, but then discovered that this technology could actually be used to “improve the quality of face swaps in the first place- and that could make them harder to detect.”[24]

Therefore, while Facebook’s decision to start to ban harmful deep fake videos does help solve the problem partially on that specific platform, deep fake technology is a rising issue that technology companies, governments, law enforcement agencies, and society as a whole must be aware of. Facebook is just one example of entities becoming aware of this issue and responding.

 

[1] Mary Anne Franks & Ari Ezra Waldman, Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions, 78 md. l. Rev. 892, 893 (2019).

[2] See id. at 894.

[3] See Josh Brandon, Facebook Bans Deepfake Videos That Could Sway Voters, But Is It Enough?, Forbes, (Jan. 13, 2020) https://www.forbes.com/sites/johnbbrandon/2020/01/13/facebook-bans-deepfake-videos-that-could-sway-voters-but-is-it-enough/#4a6d6283476b.

[4] Nancy McKenna, Head to Head, 15 No. 7 Quinlan, Computer Crime and Technology in Law Enforcement, July 2019.

[5] See id.

[6] Olivia Beavers, House intel to take first major deep dive into threat of ‘deepfakes’, The Hill, (June 13, 2019) https://thehill.com/homenews/house/448278-house-intel-to-take-first-major-deep-dive-into-threat-of-deepfakes.

[7] Supra note 1, at 893.

[8] See id. at 893.

[9] Henry Kenyon, AI creates many new malicious opportunities for crime, Europol says, Congreessional Quarterly Roll call, 2019 WL 3244189 (July 19, 2019).

[10] Robert Chesney & Danielle Keats Citron, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security, 78 Md. L. Rev. 882, 887 (2019).

[11] Supra note 5.

[12] Supra note 3.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Supra note 5.

[21] See id.

[22] See id.

[23] See id.

[24] See id.

 

image source: https://pixabay.com/photos/twitter-facebook-together-292994/