Month: November 2020 Page 1 of 2

By Danielle M. Taylor

 

In August of 2017, Netflix launched a campaign entitled #FirstTimeISawMe. In a number of short, yet poignant videos, various artists, entertainers, and creatives – including renowned directors, Spike Lee and Ava DuVernay – opened up about the first time they saw an on-screen character who looked like them.[1] The hashtag quickly grew, inspiring people from communities and demographics that are typically rejected or type-casted by mainstream media, myself included, to take to the internet and tell the stories of their “first time.” Though part of a much more expansive conversation about creating characters and telling stories that reflect diversity across race, gender, sexuality, and ability,[2] the campaign was also representative of Netflix’s specific commitment to Black storytelling.[3]

 

This past June, Netflix announced via Twitter that it had curated a Black Lives Matter Collection.[4] The company stated, “[w]ith an understanding that our commitment to true, systemic change will take time – we’re starting by highlighting powerful and complex narratives about the Black experience.”[5] Separate from their already existing “Strong Black Lead” collection, these carefully extracted titles tell various stories of the Black experience in America and the battles against racial injustice.[6] Popular titles found in the collection include, but are far from limited to: Ava DuVernay’s 13^th; Barry Jenkins’s Oscar Award winner, Moonlight; Spike Lee’s Malcolm X; and forever first lady, Michelle Obama’s documentary, Becoming. This was a captivating move by the streaming giant, at a time when Black art served as not only a method of expression for those who sometimes struggle to find the words, but also a therapeutic escape from reality in the throes of a very trying summer. Netflix’s next announcement further substantiated their commitment to bringing Black characters to our screens and has resurfaced my thoughts about the #FirstTimeISawMe.

 

In August, Netflix announced, again via Twitter, this time from their “Strong Black Lead” account, that they had acquired the rights to seven of the most beloved and classic Black sitcoms from the 1990s and 2000s.[7] Beginning August 1, Netflix released one series almost every two week, and now that all seven are available, Netflix is the new home to Moesha, The Game (seasons 1-3), Sister Sister, Girlfriends, The Parkers, Half & Half, and One on One.[8] These shows are cultural favorites and per Netflix’s twitter account, have been in demand from subscribers for quite some time.[9] I am one of those subscribers, and I am thrilled that Netflix delivered.

 

Though I have missed them during the years they were not in syndication, I am fortunate enough to have grown up while these shows were on the air. Their revival not only brings about fond memories but has led me to give thought to the first time I saw a television character who I could see myself in. In 1996, Moesha aired on UPN and it was 1999 when I saw my first episode. Starring famed singer, Brandy Norwood (“Brandy”) as the show’s namesake character, Moesha, in its six seasons, chronicled the life of a young Black girl navigating life in her upper-middle class family. While figuring out friendships, dating, high school, and eventually college, in the years following her mother’s death, Moesha was a regular teenager, but also – somehow – a daughter, a big sister, an activist, and a trendsetter. Moesha wore braids, challenged issues of racial and gender equality, was an impassioned journalist, and had her choice between several of the best colleges in the country – ivy league schools and historically Black colleges. Moesha confronted social norms, broke rules, and created her own. To me, she was iconic.

 

The first episode I ever saw aired February 9, 1999 and was titled “Life Imitating Art”.[10] I was not even four years old. I, of course only, remembered bits and pieces of the episode but in re-watching it multiply times since then, I have grown to understand it better over the years. In this very distinct episode, racial tensions had arisen in Moesha’s high school between Black and Latinx students after a mural of Latino American civil rights activist, Cesar Chavez was painted in the school cafeteria during Black History Month. During the morning broadcast that Moesha hosted, she called out the school for allowing the mural to be painted during the month of February and not including any prominent Black figures.[11]This was flame that ignited the tension between, not only students, but Moesha and her good friend, Antonio, who painted the mural. As the episode progresses, Moesha is forced to open her eyes to the plight of another racial minority[12] in a way that I believe had to be unprecedented for a show about a teenager. Admittedly, this is a lesson that I am still exercising to this day. Although we live in a time of intense racial disparities and glaring anti-Black racism and violence, I would be insensible if I refused to see the plight of other marginalized groups – Moesha taught us that in 1999 and reminds us of it today.

 

As I think back to the first time I saw me in a television character, in the image of complex, yet down to earth high schooler, I have to acknowledge Moesha as one of the only shows that I have been able to grow up with. At four, I chose to be Brandy for Halloween. At five, I ran around with a Brandy doll. At 15, I figured getting braids would be cool because Moesha rocked them. At 16, I decided that being a debutant could not possibly be that bad if Moesha had done it. At 17, getting into Spelman College was even cooler because Moesha was accepted there too. At 25, I get to reflect on the first time I saw myself in a television character and recall the lessons I did not know I would still value more than twenty years later. These recent additions have turned Netflix’s Strong Black Lead into a time capsule – one that will undoubtedly allow another young Black girl to see herself for the first time – and opening up its contents will prove valuable for the future.

 

[1] Eric King, Ava DuVernay, Spike Lee, more talk representation for powerful new Netflix campaign, Entertainment (Aug. 1, 2017), https://ew.com/tv/2017/08/01/netflix-first-time-i-saw-me-campaign/.

[2] See id.

[3] See Netflix (@Netflix), Twitter (June 10, 2020, 9:00 AM), https://twitter.com/netflix/status/1270702290702184454.

[4] See id.

[5] Id.

[6] See id.

[7] See Strong Black Lead (@StrongBlackLead), Twitter (July 29, 2020, 11:00 AM), https://twitter.com/strongblacklead/status/1288489544770129920?s=20.

[8] See id.

[9] See Strong Black Lead (@StrongBlackLead), Twitter (July 29, 2020, 11:04 AM),https://twitter.com/strongblacklead/status/1288490705250213895?s=20.

[10] Moesha: Life Imitating Art (UPN Feb. 9, 1999).

[11] See id.

[12] See id.

Image Source: https://twitter.com/strongblacklead

By Megan Haugh

 

From the ashes of Big Tobacco, the “millennial Marlboro man”—Juul—is born.[1]  Compared to the height of the Big Tobacco industry, today’s advertisements by traditional cigarette manufacturers are nearly nonexistent.  Joe Camel may have died in 1997[2], but his legacy (and the legacy of Escort, Lucky Strike, Marlboro, Salem, and others) lives on.  The central themes of Big Tobacco’s advertising—”faux medical imagery and exaggerated health claims, posh cultural icons and celebrity endorsements, and the explicit targeting of youth populations”—have reemerged in advertising for e-cigarettes.[3]  With increasing health concerns over e-cigarettes, should Juul and other e-cigarette manufacturers be subject to the same advertising restrictions that Big Tobacco faces?

 

Dr. Robert Jackler (an ear, nose, and throat surgeon from Stanford University) is well-versed in these advertising themes.[4]  Dr. Jackler, who researches advertisements for both traditional cigarettes and e-cigarettes, has collected thousands advertisements.[5]  Based on his review, Dr. Jackler concluded that e-cigarette advertising parallels traditional cigarette advertising.[6]  Like Big Tobacco promoting the health benefits of cigarettes, Juul and other e-cigarette manufacturers have promoted vaping as a healthier alternative to smoking.[7]  In the past, Big Tobacco once advertised low-tar cigarettes and light cigarettes as a healthy alternative.  In fact, Lucky Strike once advertised “20,679 Physicians say ‘Luckies are less irritating’ . . . Your throat protection against irritation against cough.”[8]  Similarly, e-cigarette manufacturers have claimed that e-cigarette’s are either healthier than traditional cigarettes or, more simply, are healthy.[9]  By comparison, e-cigarette manufacturers have claimed that e-cigarette’s are either healthier than traditional cigarettes or, more simply, are healthy.[10]  Although Juul denies this, the company’s advertisements used language like “switch” and “alternative” which imply a health a benefit.[11]  However, like traditional cigarettes, there have been reported health problems associated with e-cigarettes.[12]  In 2019, the Center for Disease Control reported 380 cases of respiratory illness and six deaths related to e-cigarettes.[13]

 

The targeting of youth populations is another parallel between traditional cigarette advertising and e-cigarette advertising.  Big Tobacco used flavored cigarettes (such as cotton-candy or chocolate) to entice children into smoking.[14]  Because Big Tobacco’s strategy was so effective, the FDA banned “kid-friendly” flavors of cigarettes.[15]  Like traditional cigarettes, there are flavored e-cigarettes.[16]  The similarities don’t end there though.  Dr. Jackler also noted that Juul and other e-cigarette manufacturers have used “bright colors, sleek design and fashionable millennial models” to target children.[17]  Even traditional cigarette manufactures cannot ignore the parallels.[18]  Phillip-Morris, the manufacturer of Marlboro cigarettes, actually sued Juul because their advertising was too similar.[19]

 

Right now, there are several pending lawsuits filed against Juul and other e-cigarette manufacturers.[20]  These lawsuits allege that Juul and other e-cigarette manufacturers are doing exactly what Big Tobacco did—they have been deceptively advertising to children.  Today’s “millennial Marlboro man” is using the same, old tactics that Big Tobacco used.  E-cigarette advertisements highlight the product as a healthier alternative.  They also highlight “kid-friendly” flavors.  The issue is that e-cigarettes, like traditional cigarettes, are not healthy.  E-cigarette advertisements should be subjected to the same scrutiny and regulations that traditional cigarette advertisements face.

 

[1] See Nitasha Tiku, Juul’s Answer to Its PR Crisis?  The Millennial Marlboro Man, Wired (Jan. 8, 2019, 8:07 PM), https://www.wired.com/story/juuls-answer-pr-crisis-millennial-marlboro-man/.

[2] See Stuart Elliott, Joe Camel, a Giant in Tobacco Marketing, Is Dead at 23, The New York Times (Jul. 11, 1997), https://www.nytimes.com/1997/07/11/business/joe-camel-a-giant-in-tobacco-marketing-is-dead-at-23.html.

[3] Kate Keller, Ads for E-Cigarettes Today Harken Back to the Banned Tricks of Big Tobacco, Smithsonian Magaine(Apr. 11, 2018), https://www.smithsonianmag.com/history/electronic-cigarettes-millennial-appeal-ushers-next-generation-nicotine-addicts-180968747/.

[4] See id.

[5] See id.

[6] See Vaping and Cigarette Ads, NPR: Weekend Edition Sunday (Sept. 15, 2019, 7:45 AM), https://www.npr.org/2019/09/15/760936463/vaping-and-cigarette-ads.

[7] See id.

[8] See Keller, supra note 3.

[9] See NPR, supra note 6.

[10] See NPR, supra note 6.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See NPR, supra note 6..

[16] See id.

[17] See Keller, supra note 3.

[18] See id.

[19] See id.

[20] See Sara E. Teller, Lawsuits Allege Juul is Deceptively Marketing Products to Teens, Legal Reader (Aug. 10, 2018), https://www.legalreader.com/lawsuits-allege-juul-deceptively-marketing-teens/.

Image Source: https://www.vox.com/2019/1/25/18194953/vape-juul-e-cigarette-marketing

By Ian McDowell

 

The COVID-19 pandemic took the world by storm.  The effects on the economy and changes in everyday ways of life around the world can’t be understated.  The legal system is not immune from the virus and resulting pandemic- civil and criminal courts have been left to find ways to balance public health with the need to hold trials and other legal proceedings.  While some courts have began to conduct in-person proceedings (with ample safety precautions), this blog post will discuss a few of the issues faced by courts in utilizing technology to conduct virtual legal proceedings.

 

Legal proceedings in many parts of the country were halted as a result of the COVID-19 pandemic.  To illustrate, the Supreme Court of Virginia has issued ten judicial emergency extensions since March 2020, which have suspended both civil and criminal jury trials in most parts of the state. [1]  Placing a hold on in-person trials or other proceedings is sensible from a public health perspective: however, beyond concerns of creating an unmanageable backlog of both civil and criminal matters, indefinitely suspending criminal trials in particular raises obvious issues with regard to civil liberties and ensuring that defendants are afforded their 6th Amendment right to a speedy and public trial.  According to Senior U.S. District Court Judge (Western District of Washington) Marsha Pechman, “[t]he backlog is a big motivator (to conduct virtual trials or other proceedings) because we can’t have people sitting in custody for months and months on end and not offer them a way to have their criminal trials heard.” [2]

 

It was not until August 2020 that the first fully virtual criminal jury trial took place: a misdemeanor traffic case in Austin, Texas. [3]  This was viewed as an ideal case to try to conduct a live virtual jury trial because the defendant was not under any threat of a jail sentence, and merely faced a financial penalty. [4]  Technology was used extensively throughout this trial, including for uses beyond oral arguments: Zoom breakout rooms were utilized to allow the defendant to confer with counsel, and also to hold jury deliberations.  Further, Box (a file-sharing service) was used to allow the attorneys to post evidence for review. [5]

 

Though the court successfully concluded this case, it was not without issues- five potential jurors or jurors had to be dismissed due to technical issues.  In addition, audio and video feeds on Zoom occasionally froze, and jurors had to at times be admonished to remain focused on the trial, and not on any other distractions in their homes. [6]

 

Before conducting the trial, the Court purchased twenty iPads to lend to jurors that didn’t have access to a device at home, and ended up lending out four for use during the trial. [7]  Similarly, the Western District of Washington purchased laptops to lend out to jurors, and was prepared to train jurors on technology use if necessary. [8]  It is unsurprising that courts have had to purchase devices to lend out to jurors- a disproportionate number of low-income Americans do not own a computer or other device that will allow them to attend a proceeding virtually. [9]  Compounding on this issue is that temporary connection losses (or freezing) can be expected to continue in virtual legal proceedings due to the fact that tens of millions of Americans don’t have access to broadband (higher speed) Internet. [10]

 

There are concerns that commonplace issues such as temporary connection losses might have a significant effect on a legal proceeding.  According to Justin Bernstein, director of the A. Barry Cappello Program in Trial Advocacy at UCLA School of Law, “when you’re online, and someone (a juror) loses connection for 30 seconds or a minute or two minutes, what do we consider too much?  One answer can make the difference in a trial.” [11]

 

There were pre-pandemic concerns that conducting virtual hearings or trials may lead to detrimental outcomes for a defendant, as compared to if the same exact proceeding was conducted in person.  Studies have, for example, concluded that virtual bail hearings result in significantly higher bail amounts set than in-person hearings, ultimately resulting in the cessation of a video bail system in Cook County, Illinois (which includes Chicago). [12]  Further, “in-person testimony is seen as more believable than it’s virtual counterpart [for a number of reasons], including that video takes away the fact-finder’s ability to assess non-verbal cues; [and] conferencing technology can filter out voice frequencies associated with human emotion, which are critical to assessing credibility.” [13] These findings present clear and significant concerns as courts begin to contemplate conducting virtual trials where there is a possibility that the defendant may lose their liberty (as opposed to traffic cases where the defendant merely faces a fine).

 

To conclude, modern technology applications such as Zoom and Box (and their competitors) have made virtual legal proceedings possible.  However, conducting trials or other proceedings in a virtual setting brings new risks that Courts at all levels will need to comprehensively address and manage in order to ensure fairness to both civil litigants and defendants in criminal trials.  While issues such as screen freezing during a proceeding may not present significant civil liberties concerns in the context of a simple traffic case, it is incumbent on courts to find ways to conduct virtual legal proceedings in an equitable and fair manner if more serious criminal trials (such as for felonies) are to be conducted virtually.

 

[1] Neil Harvey, Judicial Emergency now Slated to Extend Into November, The Roanoke Times (Sep. 28, 2020), https://roanoke.com/news/local/judicial-emergency-now-slated-to-extend-into-november/article_f4a35b35-35f2-5885-8126-a4166d2494d2.html.

[2] Madison Alder, Loaner Laptops, Dry Runs: Virtual Federal Civil Trials on Tap, Bloomberg (Sep. 29, 2020),

https://www.bloomberglaw.com/document/X7L754JC000000?bna_news_filter=us-law-week&jcsearch=BNA%252000000174d560d941af7cff79a2b50001#jcite.

[3] Justin Jouvenal, Justice by Zoom: Frozen Video, a cat- and finally, a verdict.,  Washington Post: Legal Issues (Aug., 12, 2020), https://www.washingtonpost.com/local/legal-issues/justice-by-zoom-frozen-video-a-cat–and-finally-a-verdict/2020/08/12/3e073c56-dbd3-11ea-8051-d5f887d73381_story.html

[4] Id.

[5] Id.

[6] Id. 

[7] Id.

[8] Alder, supra note 2.

[9] Jason Tashea, The Legal and Technical Danger in Moving Criminal Courts Online, The Brookings Institution (Aug. 6, 2020), https://www.brookings.edu/techstream/the-legal-and-technical-danger-in-moving-criminal-courts-online/

[10] Id.

[11] Alder, supra note 2.

[12] Tashea, supra note 9. 

[13] Id.

Image Source: https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-videoconferencing-70825080

By Jeffrey Phaup

In October of 2020 Tesla, Inc. released a beta test of a “Full Self-Driving” (FSD) version of its Autopilot software.[1]However, despite the name of the upgrade, a Tesla using FSD mode is not capable of driving without driver oversight.[2]Tesla’s Support webpage confirms this, stating that, “The currently enabled features require active driver supervision and do not make the vehicle autonomous.”[3] In fact the National Highway Traffic Safety Administration (NHTSA) does not currently recognize any fully self-driving cars in the United States[4], asserting that, “[e]very vehicle currently for sale in the United States requires the full attention of the driver at all times for safe operation.”[5]

 

Tesla’s cars use a combination of cameras, radars, and ultrasonic sensors to allow its Autopilot software to drive, park and change lanes with minimal human interaction.[6] To this suite of skills the new FSD software allows the vehicle to stop at intersections, perform left and right-hand turns, and make lane change automatically. [7]

 

The dangers posed by the new system are embodied in its suggestive name, Full Self-Driving.[8] FSD is only considered a Level 2 “partially automated” system by the standards of the Society of Automotive Engineers.[9] The NHTSA characterizes FSD as “Autosteer on city streets,” using the terminology for Tesla’s lane-keeping assistance feature.[10]Alternatively Elon Musk has mischaracterized FSD as a Level 5 “Full Automation” system, despite no such system existing anywhere in the world right now.[11]

 

Tesla is testing their new technology by placing the software into the hands of consumers, allowing them to absorb the risk of any malfunctions.[12] Who then is liable when a Tesla operating under FSD Mode hurts or kills another driver or pedestrian?

 

A Tesla vehicle was involved in the first known death involving a self-driving car.[13] Joshua Brown died after his Tesla hit the side of a semi-truck while in Autopilot mode.[14] Tesla stated that it was difficult for Autopilot to distinguish between the truck’s white trailer and the bright Florida sky.[15]

 

The NTSB’s final report on the incident they concluded that the truck driver was at fault, but also assigned some of the blame to the Tesla driver and Tesla for using a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[16]

 

If an auto accident is due to a lack of appropriate maintenance, for example, and that maintenance was the responsibility of the owner, then the owner could be liable.[17] Similarly, if the operator of a self-driving vehicle fails to follow proper operating instructions, which was the case during the first Tesla autopilot fatality accident in May 2016, it may be difficult to hold the manufacturer liable for the accident and the resulting injuries or deaths.[18] In fact, the NTSB investigation into this incident found that human error was mostly to blame for the crash.[19] The NTSB final report concluded the truck driver was at fault but also assigned some of the blame to the Tesla driver and to Tesla for utilizing a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[20]

 

Tesla’s Full Self-Driving version of Autopilot is problematic because it promises functionality to the end user, via Tesla’s marketing, that does not actually exist and could put the vehicle’s operator and those around them in danger.

 

The important liability-determining factor here is the expectation set by Tesla. Does Tesla advertise their products in a way that gives drivers the expectation that they can put the car on Autopilot and then cease to pay attention? If Tesla has either overtly or through implication sent the message to their customers that their vehicles are safe to use on Autopilot without supervision, and it turns out they’re not, then Tesla could be held liable for the injuries or deaths that result.

 

[1] See Faiz Siddiqui, Tesla is putting ‘self-driving’ in the hands of drivers amid criticism the tech is not ready, Washington Post (Oct. 22, 2020, 3:18 PM), https://www.washingtonpost.com/technology/2020/10/21/tesla-self-driving/.

[2] See Paul Eisenstein, Tesla’s beta test of “full self-driving” system worries drivers, pedestrians — and even owners, NBC News (Oct. 26, 2020, 3:25 PM),

https://www.nbcnews.com/business/autos/tesla-beta-testing-full-self-driving-system-worries-drivers-pedestrians-n1244787.

[3] Tesla Support,  https://www.tesla.com/support/autopilot (last visited October 27, 2020).

[4] See Automated Vehicles for Safety, https://www.nhtsa.gov/technology-innovation/automated-vehicles#faq-30706 (last visited October 27, 2020).

[5] Id.

[6] Full Self-Driving Hardware on All Cars, https://www.tesla.com/autopilot (last visited October 27, 2020).

[7] Andrew Hawkins, Tesla’s ‘Full Self-Driving’ beta test has caught the attention of federal safety regulators, The Verge (Oct. 23, 2020), https://www.theverge.com/2020/10/23/21530411/teslas-full-self-driving-beta-test-nhtsa.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Siddiqui, supra note 1.

[13] Barbara Liston and Bernie Woodal, DVD player found in Tesla car in fatal May crash, Reuters (Jul 1, 2016, 11:49 AM), https://www.reuters.com/article/idUSKCN0ZH5BW?mod=related&channelName.

[14] Id.

[15]Id.

[16] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

[17]  Baum v. Fox Chrysler, Plymouth, Dodge, Inc., 517 N.Y.S.2d (App. Div. 3rd Dept. 1987) (where a motorist continued to drive her car despite her realization that there was a problem with the brakes, which had just been repaired).

[18] See Nicky Woolf, Tesla fatal autopilot crash: family may have grounds to sue, legal experts say, The Guardian (Jul 6, 2016, 7:00 AM) https://www.theguardian.com/technology/2016/jul/06/tesla-autopilot-crash-joshua-brown-family-potential-lawsuit.

[19] Uber’s self-driving operator charged over fatal crash, BBC News (Sep 16, 2020) https://www.bbc.com/news/technology-54175359.

[20] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

Image Source: https://pixabay.com/images/id-4343635/

By Alexandra Hathaway Tillman

Think about how your digital footprint has grown since the pandemic began.

 

Have you used a restaurant delivery app?

 

Signed up for delivery groceries?

 

Done a little more online shopping than usual?

 

The internet has undoubtedly brought us greater convenience, but at a potentially dangerous cost that many do not fully understand. Each click of the “buy” button sends your data to a new place on the internet. And each new place your data is stored increases the chances of your data being leaked or exposed.[1]

 

In the US, several data privacy laws regulate specific sectors rather than a single, overarching data protection law.[2] The US argument for these weaker policies typically centers around the First Amendment and freedom of speech. The “code” of the internet, at its core, is inherently American[3]—open and First Amendment-centric—and any act to regulate the internet is seen as an attack on free speech, one of the many reasons US policymakers are hesitant to create an all-encompassing data privacy act.[4]

 

The White House released a report in June 2018 on “How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World”, but little has been done policy-wise to strengthen US data protection laws and regulations.[5]

 

The European Union (EU) has taken a broader approach, with data protection laws that cover all sectors in a comprehensive rather than piecemeal manner. In the EU, Data protection laws were enacted as early as 1995, with its strongest legislation, the General Data Protection Regulation (GDPR) coming into effect in 2018. The GDPR made data protection a fundamental right that requires strong protections in all member states.[6]

 

China started small, passing legislation that protected user data in specific sectors as the US had done.[7] But in recent years, China has amped up its policymaking in this area, and has quickly developed broad, EU-style data privacy policies.[8]

 

But these laws differ greatly from the EU in what and how they protect users’ data.[9] These new laws allow individuals to take legal action against a company or organization that fails to protect their data, but not against the government when it fails to do so.[10] They also require “data sovereignty” or “data localization” in which any company wanting to do business in China must store its data in China.[11] This requirement comes with huge risks since China is known for its heavy surveillance and data collection; companies could very well find their data misused and leaked by the government.[12]

 

In other words, China’s policies force data to be stored within its borders, and will protect individuals in China from data intrusions by other private individuals and companies—but never from leaks or misuse by the government.

 

Certainly, the world is in need of strong data privacy laws in the digital age, but the Chinese model is not the answer. Its policies heavily limit not just the freedom of the internet, but who can be held responsible when data leaks and breaches occur.

 

If the US does not quickly bolster its data privacy policies, it will not only lose influence in the global conversation on data protection, but risk allowing an authoritarian regime (or a surveillance state?) to set the standard for where and how data is protected worldwide.

 

To keep the internet as open as it was created, the US must develop a strong data protection policy that covers all markets and sectors. Picking and choosing which sectors need data privacy, with a breach in hindsight,[13] is not enough.

 

As the US falls behind in data privacy policy, it gives countries like China the opportunity to lead. In the midst of a pandemic, we are sharing information online more than ever. Whose policies do we want controlling the future of the internet and our privacy?

 

[1] See Have I Been Pwned? http://haveibeenpwned.com (showing the number of recorded websites and accounts that have been the subject of data breaches.

[2] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[3] Lawrence Lessig, Code Version 2.0 33 (2006).

[4] Eugene Volokh, Freedom Of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking about You, 52 Stan. L. Rev., 1, 2 (2000)(stating that broader information privacy rules are not easily defensible under existing free speech law.)

[5]  White House Office of Trade and Manufacturing Policy, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World (June 2018).

[6] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[7] Huizhong Wu, In land of big data, China sets individual privacy rights, Reuters, May 26, 2020. https://www.reuters.com/article/us-china-parliament-lawmaking-privacy/in-land-of-big-data-china-sets-individual-privacy-rights-idUSKBN2320EF

[8] Id.

[9] Samm Sacks, New China Data Privacy Standard Looks More Far-Reaching than GDPR, CSIS, Jan. 29, 2018, https://www.csis.org/analysis/new-china-data-privacy-standard-looks-more-far-reaching-gdpr.

[10] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[11] White House Office of Trade and Manufacturing Policy, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World (June 2018).

[12] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[13] Lydia Beyoud and Daniel R. Stoller, Equifax Target of Data-Breach Bill Allowing Consumer Lawsuits, Bloomberg Law, Aug. 15, 2019, https://news.bloomberglaw.com/banking-law/porter-taking-aim-at-equifax-with-new-data-security-proposal.

Image Source: https://p1.pxfuel.com/preview/613/409/272/data-protection-security-important-information.jpg

By Walker Upchurch

 

On Tuesday, October 20, 2020, shockwaves were felt throughout the tech law community as the tech hegemon Google had an antitrust suit brought against it by the Justice Department.[1] The states of Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas also joined the suit.[2] The suit alleges that Google had abused its dominance in online search and advertising.[3]

 

The suit further alleges that Google violates section 2 of the Sherman Act, 15 U.S.C. § 2. The Act states: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding ten years, or by both said punishments, in the discretion of the court.”[4]The Department of Justice alleges that Google violates this statute as it has unlawfully maintained monopolies in the markets for general search services, search advertising, and general search text advertising through anticompetitive and exclusionary practices.[5]

 

The case has been filed in federal court in Washington, D.C., and it alleged that google uses money that has been collected from advertisers to payphone manufacturers, such as Apple, for a monopoly. Examples of this look to the average person in practice is how the Iphone’s search from the Safari Application is a google search; the android employs a Google search, and so does the Galaxy s10.[6] Likewise, all Apple products, such as the Macbook, use Google as the primary search engine on their default Safari Browser.[7]

 

Likewise, Google’s revenue-sharing agreements with Apple and its other partners will likely be a significant issue as it significantly limits competition.[8] Additionally, the case will hinge on the ideology that General Search Services is a Relevant Antitrust Market.[9] The Department of Justice argues that Google has monopoly power within the general search service market. Additionally, through these exclusionary agreements, the suit alleges that Google has harmed the competition by substantially foreclosing competition in general search services by impeading other potential distribution paths for general search service rivals.[10]

 

It will be quite interesting to see how the antitrust suit will affect Silicon Valley. Companies like Oracle, Amazon, Apple, and Facebook will be watching with bated breath and there are certainly no shortage of new players within the tech space praying for the downfall of these giants. This will most likely be the most important lawsuit as it relates to how we the American people consume our technology that has taken place thus far. While it seems like this suit will be on a crash course with the Supreme court, it will be an extremely important one to watch. Will the behemoth still stand, or will it be picked apart the same way that Standard Oil was? Time will tell, and the American consumer will feel the repercussions.

 

[1] See Michael Balsamo & Marcy Gordon, Justice Dept. files landmark antitrust case against Google, (Oct. 23, 2020, 10:03 A.M.), https://apnews.com/article/google-justice-department-antitrust-0510e8f9047956254455ec5d4db06044.

[2] See Id.

[3] See Id.

[4] Sherman Antitrust Act of 1890, 15 U.S.C. § 2.

[5] See Complaint at 2, Department of Justice Et. Al. v. Google LLC, No. 03010 (D. D. C. filed Oct. 20, 2020).

[6] See Id at 16.

[7] See Id.

[8] See Id. at 25.

[9] See Id. at 28.

[10]See id. at 55.

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By Logan Childress

 

Unless you are living off the grid, you likely use, or at least encounter, artificial intelligence (“AI”) daily, whether you realize it or not.[1] A 2017 global survey revealed that only “34 percent of respondents thought they had directly experienced AI; however, when asked about the technologies in their lives, the survey found 84 percent actually use at least one AI-powered service or device – such as virtual home assistants, intelligent chatbots, or predictive product suggestions.”[2] And, like our personal lives, AI is dramatically impacting how businesses of all sizes operate.[3]

 

Traditionally, AI is thought to be reserved for large, wealthy corporations.[4] But, thanks to its rapid innovation, AI is available to nearly everyone and every business.[5] At this point, AI is developed for nearly every task and offers benefits including: Reduced time spent on tasks, lower costs, increasing results, improving flexibility and responsiveness, and reducing risk.[6]

 

What does this all mean for small business owners? How can AI help make a small business more efficient? Microsoft offers this helpful example:

 

Imagine you own a florist shop, which also has a website [paired with AI]. If a customer searches your site for “red flowers,” you [can] teach your website how to respond. You can train it to show the customer roses, tulips, and Gerbera daisies. What if it’s the holidays? You could tell it in November or December to also show your customers Poinsettias, Christmas cacti, and Christmas Lilies. You could also teach it to show the customer that you make custom Christmas wreaths.[7]

 

In this way, AI allows small businesses to become more efficient by learning how to lead customers to what they want, making interactions and transactions simpler. But, all of these benefits are not just confined to florists, any small business owner can implement AI to help with:

 

1. Email marketing. As mentioned above, there is AI for nearly every task. And, every small business owner knows it is difficult to stay on top of sending emails to customers. Thankfully, AI can solve that issue by collecting data.[8] This data allows AI to (a) optimize send times to maximize engagement, (b) learn buying behaviors to send relevant products and services to customers, (c) increase personalization, (d) optimize the email subject line, and (e) create engaging content.[9]
2. Cybersecurity. Even low tech-businesses could be at risk of digital threats.[10] AI powered cybersecurity actively looks for unusual activity instead of waiting until after a loss to deal with the threat.[11] This feature helps save small businesses from the heartache of a security breach.
3. Engaging with customers. AI can further help customers by: (1) giving them help after hours and provide help 24/7, (2) talking to them, and (3) answering common questions.[12] This kind of AI is normally called a “chatbot.”[13]

 

Ultimately, AI is here to stay.[14] The good news is that it is accessible to any business and will give small businesses the ability to operate and compete more efficiently.[15] You know the saying… If you can’t beat them, join them!

 

[1] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

[2] Press Release, Pegasystems Inc., New Research Reveals Deep Confusion About Artificial Intelligence: Global Consumer Study Shows Hesitancy to Use AI Technology Even Though Most Unwittingly Already Are (Apr. 4, 2017), https://www.pega.com/about/news/press-releases/new-research-reveals-deep-confusion-about-artificial-intelligence.

[3] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

[4] See id.

[5] See Prajwal Paudyal, Cheaper AI, Electricity, and the New Data Scientist, towards data science (May 8, 2019), https://towardsdatascience.com/electricity-cheap-ai-and-the-role-of-the-new-data-scientist-e1e23d1e6910.

[6] Chad Otar, Four Ways Artificial Intelligence Can Help Your Small Business, Forbes (Apr. 9, 2019, 8:00 AM), https://www.forbes.com/sites/forbesfinancecouncil/2019/04/09/four-ways-artificial-intelligence-can-help-your-small-business/#50204dd44a1a.

[7] Lisa Steinmann, How to Use AI for Small Business, Microsoft (Oct. 23, 2019), https://www.microsoft.com/en-us/microsoft-365/business-insights-ideas/resources/how-ai-help-small-business.

[8] See Josh Biggs, Ways Big Data And AI Are Changing Email Marketing, Meldium (Mar. 12, 2019), https://www.meldium.com/ways-big-data-and-ai-are-changing-email-marketing/.

[9] Josh Biggs, Ways Big Data And AI Are Changing Email Marketing, Meldium (Mar. 12, 2019), https://www.meldium.com/ways-big-data-and-ai-are-changing-email-marketing/.

[10] Lisa Steinmann, How to Use AI for Small Business, Microsoft (Oct. 23, 2019), https://www.microsoft.com/en-us/microsoft-365/business-insights-ideas/resources/how-ai-help-small-business.

[11] Id.

[12] Id.

[13] Adrienne Morgan, What is a Chatbot?, discover.bot (Sept. 29, 2020), https://discover.bot/bot-talk/what-is-a-chatbot/.

[14] Nikolas Kairnios, AI Is Here to Stay – Here’s Why, Towards AI (May 22, 2020), https://towards.ai/ai-is-here-to-stay-heres-why/.

[15] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

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By Mike Marciano

 

In recent years, music streaming services have maintained strong and promising upward trajectories in terms of popularity and usage statistics.[1] For instance, Spotify, “the world’s biggest music streaming platform by number of subscribers,”[2]reported 286 million monthly active users in its Q1 2020 report, up significantly from the 217 million the company reported in its Q1 2019 report.[3] Such an increase in users has been relatively consistent, as Spotify reported its usership at 131 million in Q1 of 2017, and 96 million in Q1 of 2016.[4]

 

As the popularity of streaming platforms such as Spotify continued on such a consistently positive trend, it became abundantly clear that the copyright law protecting music needed reform.[5] Indeed, lawmakers considered it necessary to curate a law to, “reflect modern consumer preferences and technological developments in the music marketplace.”[6]

 

On October 11, 2018, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (hereinafter “the MMA”) was enacted.[7] Broadly speaking, the MMA, “updates U.S. copyright law to make music licensing fairer for creators and more efficient for music providers.”[8] While the MMA provides redress for various important music copyright issues, such as the incorporation of pre-1972 sound recordings into the federal copyright system,[9] and the streamlined allocation of royalties to music producers,[10] the MMA importantly creates an entirely new framework for licensing music distributed on streaming services like Spotify.[11]

 

Specifically, the MMA begins with Title I: Musical Works Modernization Act.[12] Title I, “replaces the existing song-by-song compulsory licensing structure for making and distributing musical works with a blanket licensing system for digital music providers,”[13] such as Spotify, “to make and distribute digital phonorecord deliveries . . . .”[14] To make such a marked change, the MMA establishes the creation of the Mechanical Licensing Collective (hereinafter “the MLC”).[15] A nonprofit organization, one important purpose of the MLC will be to establish this blanket licensing system pursuant to the MMA, in part by playing the role of, “administer[ing] blanket mechanical licenses to eligible streaming and download services (digital service providers or DSPs) in the United States,”[16] starting in January of next year.[17] The MLC can then store user data in The MLC Portal, which, “puts songwriters and publishers in a position to manage and control their data to ensure they get paid properly.”[18] In short, after one has registered for one of these licenses, “[t]he MLC will then collect the royalties due under those licenses from the DSPs and pay songwriters, composers, lyricists, and music publishers.”[19]

 

The MMA was born out of a recognized need to remedy the chaos and arbitrariness that defined music law.[20] Virginia Representative Bob Goodlatte, in speaking about the MMA, noted that in taking a “comprehensive review” of copyright laws, “ . . . the most complicated area, and the most contentious, but also by far the most in need of reform, was the area of music copyright law.”[21] “The [MMA],” according to Rep. Goodlatte, “treats various sectors of the music industry – our creative artists and songwriters, and others – in a much more fair way in terms of sharing the rewards for the creativity that takes place in that industry.”[22]

 

This month, the MLC confirmed the location of its new headquarters in Nashville, Tennessee, and expects to be operational in that location by the Spring of next year.[23] With the location set, and the new year around the corner, it will be interesting to see the effect of the MMA and the MLC on the music industry in the years to come.

 

[1] See Mansoor Iqbal, Spotify Usage and Revenue Statistics, Business of Apps (Oct. 2, 2020), https://www.businessofapps.com/data/spotify-statistics/#2.

[2] Id.

[3] Id.

[4] Id.

[5] See The Music Modernization Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/.

[6] Id.

[7] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018).

[8] U.S. Copyright Office, The Music Modernization Act in 2 Minutes, YouTube (Apr. 13, 2020), https://www.youtube.com/watch?v=sjBpQ7_Pl5Q.

[9] See Classics Protection and Access Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/pre1972-soundrecordings/.

[10] See Allocation for Music Producers, U.S. Copyright Off., https://www.copyright.gov/music-modernization/amp/.

[11] See Musical Works Modernization Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/115/.

[12] U.S. Copyright Off., supra note 5.

[13] U.S. Copyright Off., supra note 11.

[14] Id.

[15] Id.

[16] Mechanical Licensing Collective, About the MLC, The MLC, Themlc.com/our-story.

[17] Id.

[18] Jessica Nicholson, Mechanical Licensing Collective Offers Early Look into the MLC Portal, Music Row (Sept. 30, 2020), https://musicrow.com/2020/09/mechanical-licensing-collective-offers-early-look-into-the-mlc-portal/ (statement of Mechanical Licensing Collective CEO Kris Ahrend).

[19] Mechanical Licensing Collective, supra note 16.

[20] U.S. Copyright Office, The Creation of the Music Modernization Act, YouTube (Mar. 18, 2020) https://www.youtube.com/watch?v=rzGaaKRy93o (Statement of Rep. Jerrold L. Nadler) (“Well, before the MMA, music law was chaotic, and arbitrary, arbitrary in the sense that it was unfair.”).

[21] Id. (statement of Rep. Bob Goodlatte).

[22] Id. (statement of Rep. Bob Goodlatte).

[23] Jessica Nicholson, The Mechanical Licensing Collective Sets Nashville Headquarters Location, Music Row (Oct. 6, 2020), https://musicrow.com/2020/10/the-mechanical-licensing-collective-sets-nashville-headquarters-location/.

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