Author: JOLT Page 3 of 10

By Madison Blevins

 

As technology has expanded, so have the constitutional implications attached to it. Because technological changes tend to expose existing law as inadequate to address and manage changes that innovation creates, the Supreme Court and the legislature must work to both create new law and reinterpret previous constitutional law as it relates to technology.[1] A great example of the Supreme Court of the United States reinterpreting previous constitutional interpretation is the case of Carpenter v. United States.[2] In this case, the Supreme Court held that “law enforcement collection of cell-site location information for an extended period was a search under the Fourth Amendment and required a warrant.”[3] The court in this case adjusted constitutional law because of a piece of digital technology that was disrupting relationships between the “governed and the government.”[4]

In Carpenter, the police tried to access historical cell site information without a warrant.[5] Because the information was able to be tracked simply by having his cell phone on, the government was able to use data to get over 12,000 location points and through that were able to match Carpenter to four different robberies.[6] The government in this case was accessing cell-site location information (CSLI) from Carpenter’s cell phone.[7] This was a narrow decision on CSLI data, with the question being if someone was a reasonable expectation of privacy under the 4th amendment to his physical movements, and was this a search of his phone?[8]

The court held that yes, this extremely extensive access to someone’s physical movements through access to their technology was a search and as such, a warrant was required.[9] The rule of law coming out of the case is that the government must generally obtain a warrant that is supported by probable cause to access cell phone data of this kind, subject to exigent circumstances.[10]

This was a change for the Supreme Court based on the expanding accessibility that technology gives in regards to the most private aspects of a person’s life.[11] While the government may have thought that the Third Party Doctrine of the past covered the use of interfering with Carpenter’s physical movements, because of the intrusiveness of accessing someone’s every move through their technology, the Supreme Court declined to expand this doctrine to the present circumstance.[12] While there is still an exception for exigent circumstances, if the government is interfering with physical movements, via technological advances or otherwise, it is a search and a warrant based on probable cause is required.[13]

The Supreme Court stressed that although this was a narrow decision and did not obliterate the Third Party Doctrine for technology completely, but they did decline to “mechanically appl[y]” the doctrine to information about a person’s location generated automatically by cellphones, devices which have become indispensable in modern society.[14]

I think this shows a huge step in the right direction for how the Supreme Court will handle data privacy and the 4th amendment right to privacy in the future. As technology expands, we as citizens should not lose our right to privacy as a consequence. Both the legislature and the Supreme court should be aware of these issues and keep them in mind as they consider how new technological advances might have adverse constitutional implications.

 

[1] David P. Fidler, The Supreme Court Adapts Constitutional Law to Address Technological Change, Council on Foreign Relations (July 11, 2018, 11:05 AM), https://www.cfr.org/blog/supreme-court-adapts-constitutional-law-address-technological-change.

[2] See id.

[3] Id.

[4] Id.

[5] See generally Carpenter v. United States, 138 S. Ct. 2206 (2018).

[6] See id at 2212.

[7] Id. at 2216.

[8] See id.

[9] See id. at 2223.

[10] See Carpenter, 138 S. Ct. at 2223.

[11] Id. at 2217–18.

[12] Id. at 2217.

[13] See id. at 2223 (explaining how the CSLI access here was a search requiring a warrant, but if law enforcement is confronted with an urgent situation, fact-specific threats will likely justify the warrantless collection of CSLI).

[14] Fidler, supra note 1.

Image source: https://smallbiztrends.com/2019/12/history-of-cell-phones.html

By Sivaram Sajith

 

Introduction

The most important switch in the functioning of the global community during the Covid -19 crisis is the successful utilization of ITC and online resources. The seamless transformation of schools, colleges, and courts into the virtual world brings with it a few important takeaways. It is plain to see at this point in time, the advantages, disadvantages, and general features this transformation holds. Online education eliminates physical and distance-based barriers while bringing with it economic benefits as well. Online resources are easily accessible and more available now that the trend of using the internet is more widely used and accepted. While all of the aforementioned advantages can’t be reflected in online courts, aspects of dispute resolution could make positive strides by taking it online.

Understanding ODR and its potential

In today’s global scenario, with a sharp increase in cross-global transactions, the need for the resolution of disputes that arise from such transactions does not come as a surprise. ODR holds the key to resolving such disputes in a fast, flexible, and economically feasible manner.

ODR essentially means using technology to resolve disputes. Simply taking a dispute resolution issue online does not necessarily constitute ODR. It denotes the use of technology and ITC to completely resolve a dispute.[1] When the COVID-19 epidemic swept throughout the globe, the prospect of ODR was on the edge of being recognized globally. The ensuing lockdowns, which brought most of the courts of the world to a standstill, have only fuelled the ODR movement. The crisis has helped to dispel any remaining reservations that harnessing the actual power of technology to resolve disputes is the future of dispute resolution, both in India and abroad.

Essentially, ODR can be classified into three types based on the authority that runs it.

• Government-run ODR platforms
• Court Annexed ODR platforms
• Private run ODR platforms.

We would mostly discuss government-run and Court annexed ODR platforms comparing the ODR systems in place in the United States of America and India.

ODR in India

Describing India as a vast country would be an understatement. The necessity of dispute resolution mechanisms in India is better understood by analyzing the number of cases listed versus the number of cases heard. For example, in April 2020, the Supreme Court was able to schedule 357 cases for hearing, which is only 2.48 percent of the total number of cases in the Supreme Court’s docket.[2] The process of going through a court to resolve a dispute is taxing, lengthy, and often times resolved through simple arbitration. Technical issues like dawdles due to non-filing of documents, absence of witnesses and parties are all issues that could be fixed with ODR.

• Government Initiatives

The government of India has put forth many initiatives to support and grow the ADR framework in the country. Some of these commendable initiatives that involve ODR are, initiatives like The Department of Consumer Affairs’ National Consumer Helpline (NCH). It disseminates information on consumer issues and promotes consumer welfare. The Department of Consumer Affairs expanded this service in August 2016 when it launched the Integrated Consumer Grievance Redressal Mechanism (INGRAM) initiative, which provides a platform for consumers to have their complaints and grievances directly addressed by companies that have voluntarily partnered with NCH.[3] The Department of Justice kicked off the conversation about using ODR to resolve disputes involving government entities in 2017 by providing a list of ODR Platforms and encouraging government departments to resolve their disputes online.[4] While all of these initiatives are commendable, there is great untapped potential and moreover a necessity to utilize ODR.

• Potential and policy

The potential for ODR in India is summed up with this bold statement in the NITI Aayog report on the ODR policy plan in India which says that India can be at the forefront of the global ODR movement. To realize the potential of ODR in India NITI Aayog took several initiatives. The NITI Aayog took the first move in this direction on June 6, 2020, when it held a virtual consultation titled “Catalyzing Online Dispute Resolution in India” in partnership with civil society and other organizations.[5] On the 8th of August, the NITI Aayog convened another session on ‘Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’ in order to further the goal of broadening the base of ODR in India.[6] Following this, a committee was formed to discuss and form an action plan to popularize ODR and, as a response, benefit from it. The committee’s aims include amending existing laws, collaborating with the judiciary, studying global practices on ODR, and other initiatives that facilitate better ODR mechanisms in the country.[7]

• Challenges

The first and foremost necessity with respect to availing ODR is the knowledge of ODR in the first place. This is important provided India still has a relatively low literacy rate of 77.70% as of 2021.[8] Providing the knowledge of the arbitration mechanism and how to avail it would prove challenging but doable. Another challenge that would act as a corollary to the previous point would be the lack of infrastructure like computers, smartphones, etc.[9] Paranoia with respect to security and privacy could be another issue. Tampering with digital signatures or evidence, agreements, etc are very reasonable fears. Employing digital signatures[10] as well as encrypted documents could prove to help with building the trust and security of such processes.

ODR in the United States of America.

The United States is far more developed in ODR and providing ODR platforms. The most common forms of ODR disputes within the country are family disputes, small and commercial claims, mediation, case management, civil debts, and traffic violations. In the country, there are areas of 2019, 66 active sites of court-annexed ODR sites active.[11] The vast involvement of ODR in traffic violations, small taxes, and family courts helps the parties reach agreements quicker and surer. This is possible in an easier and more efficient way because almost 90% of the population has access to some type of computing device. This trumps several disadvantages that plague the Indian ODR scenario.[12] To understand and study how and why the country has a thriving ODR structure we have to analyze their ODR systems and their advantages.

• Court Annexed ODR platforms in the U.S.

The state of Utah saw a significant improvement in the number of people who appeared in court as well as the number of cases that reached agreements after the incorporation of ODR by the Utah Judicial Council. After seeing the significant amount of default judgments in small claims courts, Utah leaders decided to implement ODR. Their goal was to make it easier for defendants to participate in the process without having to appear in court in person.

In 2016 the Utah Judicial Council created an ODR Steerling Committee which focuses on ODR in small claims cases.[13] After the incorporation of the ODR program, there was a noticeable steep increase in cases that reached agreements. In the small claims/tax department alone, 93% of cases reached agreements while only 46% reached agreements without ODR.[14] In conjunction with Matterhorn, a private ODR provider, Michigan was one of the first states in the United States to start an ODR pilot program for settling traffic disputes.[15] The main crux of the program was to take the presentation of cases, submission of evidence, and provide explanations for defaults online and in a regulated ODR system. The American Bar Association has formed an ODR Task Force with the goal of increasing market transparency and user trust. Individuals from varied experiences and perspectives, including ICODR, American Arbitration Association, Self-Represented Litigants Network, American Law Institute, and others, make up the Task Force.[16]

Conclusion

ODR systems save the government, judiciary, and the citizens a lot of money and time. It creates a platform to be able to deliver justice more efficiently and if incorporated correctly would create interconnections even when physical interaction is not possible or necessary. ODR is easily one of the most innovative, brilliant, and efficient methods of delivering justice and should be incorporated in every legal, governmental and judicial system.

 

[1] U.N.C.I.T.R.A.L Technical Notes on Online Dispute Resolution, United Nations Commission on International Trade Law (Apr. 2017), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/v1700382_english_technical_notes_on_odr.pdf.

[2] Shreya Tripathy and Tarika Jain, ‘Caseload During COVID-19 (April 2020): A Look at the Numbers’, Vidhi Centre for Legal Policy (2020), https://vidhilegalpolicy.in/research/supreme-courts-caseload-during-covid-19-april-2020-a-look-at-the-numbers/.

[3] Annual Report 2019, Department of Consumer Affairs (2019), https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1596167686_Annual%20Report%202019-20.pdf.

[4] Online Dispute Resolution through Mediation, Arbitration and Negotiation, Department of Justice (2017), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[5] NITI Aayog, ‘Catalyzing Online Dispute Resolution in India’, Press Information Bureau (June 7, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1630080.

[6] Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’, NITI Aayog (Aug. 25, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1644465.

[7] Designing the Future of dispute resolution, The ODR policy plan for India, NITI Aayog (Oct. 2021), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[8] Literary Rate of India 2021, Find easy (Oct. 17, 2021), https://www.findeasy.in/indian-states-by-literacy-rate/#:~:text=Literary%20Rate%20of%20India%202021,As%20per%20the&text=According%20to%20National%20Statistical%20Office,female%20literacy%20stands%20at%2070.30%25.

[9] Joseph W. Goodman, ‘The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites’, Duke Law & Technology Review (2003), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr.

[10] Esther van der Heuvel, ‘Online Dispute Resolution as a Solution to Cross Border e-Disputes’ (2000), https://www.oecd.org/digital/consumer/1878940.pdf.

[11] Online Dispute Resolution in the United States, ABA Center for Innovation (Sept. 2020), https://www.americanbar.org/content/dam/aba/administrative/center-for-innovation/odrvisualizationreport.pdf.

[12] Id.

[13] Melisse Stiglich, Utah Online Dispute Resolution Pilot Project, NCSC (Dec. 2017), https://ncsc.contentdm.oclc.org/digital/api/collection/adr/id/63/download.

[14] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.

[15] Amy J. Schmitz, ‘Measuring “Access to Justice” in the rush to digitize’, https://fordhamlawreview.org/wp-content/uploads/2020/06/Schmitz_May_S_11.pdf.

[16] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.

By Miracle Amo

 

Last month, the Internal Revenue Service (IRS) announced that it will suspend the use of private facial-recognition technology, after receiving bipartisan criticism over privacy concerns.^[1] This decision came months after the IRS announced the launch of its “improved” identity verification and sign-in process last November.”^[2]

In a November 17^th press release, the agency had announced its plan to transition into a verification process that would eventually require all taxpayers utilizing certain online services to provide identification verification through ID.me software.[3]

ID.me is a private company that was formerly known as TroopSwap— a site that provided daily deals and retail discounts to veterans, service members, and their families.[4] As TroopSwap, the company launched Troop ID, an authentication tool that allowed military members and their families to access deals through the verification of military identification.[5] In 2013, the company changed its name to ID.me and started to market its verification services more broadly.[6] Last year, ID.me obtained a $86 million contract with the IRS.[7] This deal, in addition to the widespread use of their ID verification services to more than half of all state unemployment agencies, has allowed the company to experience growth during the pandemic.[8] According to ID.me, they serve “27 states, multiple federal agencies, and over 500 name brand retailers.”[9]

Both Republican and Democrat lawmakers have expressed concern about ID.me’s deal with IRS.[10] Last week, Senate Republicans sent a letter to IRS Commissioner Chuck Rettig. In it they wrote, “[w]hile we understand the IRS’s use of ID.me is intended to protect data and reduce fraud, we have serious concerns about how ID.me may affect confidential taxpayer information and fundamental civil liberties.”[11] This week, Democrats also wrote to Mr. Rettig, urging the agency to pause its use of facial-recognition technology for taxpayers logging into their IRS accounts, citing concerns over privacy, data security, and access for people without internet access.[12]

ID.me performs identification verification by asking users to upload their personal information, including their Social Security number, a selfie, and pictures of a government-issued ID.[13] It then uses facial recognition and “liveness detection” on the pictures, to compare the submitted information to data from “telecommunications networks, credit card bureaus, financial institutions,” and other sources, according to its privacy policy.[14] If there is a match, an account is created that uses image recognition for identification. If there are any errors or if a match is not found, users have the option of contacting a “trusted referee” who will help with the problem.[15]

ID.me collects a large amount of personal information. The company states in its privacy policy that it will “access, preserve and share” personal information with law enforcement if asked.[16] “We reserve the right to disclose your Personally Identifiable Information as required by law and when we believe that disclosure is necessary to protect you, our rights and/or comply with a judicial proceeding, court order, or legal process,” ID.me writes.[17] While the company claims to not part with most personal information, various information about user’s internet use and website visits is still sent to other partners. Critics warn that, without sufficient guardrails, information collected by one agency for a seemingly benign purpose could easily be re-used in other ways.[18]

In a recent press release, IRS Commissioner Chuck Rettig stated, “The IRS takes taxpayer privacy and security seriously, and we understand the concerns that have been raised. Everyone should feel comfortable with how their personal information is secured, and we are quickly pursuing short-term options that do not involve facial recognition.”^[19] While it is not clear what those short-term options may be, one thing remains true: whether you’re filing your taxes by hand, through mail or by a tax preparer, this year’s deadline to file taxes (for most) is April 18, 2022.[20]

 

[1] Richard Rubin, IRS Retreats from Facial Recognition to Verify Taxpayers’ Identities, Wall St. J. (Feb. 7, 2022, 3:51 PM), https://www.wsj.com/articles/irs-backs-away-from-facial-recognition-to-verify-taxpayers-identities-11644264843.

[2] IRS Unveils New Online Identity Verification Process for Accessing Self-Help Tools, IRS (Nov. 17, 2021), https://www.irs.gov/newsroom/irs-unveils-new-online-identity-verification-process-for-accessing-self-help-tools.

[3] Id.

[4] Rebecca Cooper, IRS to Halt Use of ID.me’s Facial Recognition Software for Identity Authentication, Bus. J. (Feb. 8, 2022), https://www.bizjournals.com/rhodeisland/news/2022/02/08/irs-to-halt-use-of-idme-s-facial-recognition.html.

[5] Gregory Ferenstein, Military ID Verification Service, Troop ID, Raises $2.1 Million, TechCrunch (March 18, 2013, 12:51 AM), https://techcrunch.com/2013/03/17/military-id-verification-service-troop-id-raises-2-1-million/.

[6] Cooper, supra note 4.

[7] Rachel Metz, The IRS Website Will Soon Require Facial Recognition to Log in to Your Account, CNN: Business (Jan. 28, 2022, 4:38 PM), https://www.cnn.com/2022/01/27/tech/facial-recognition-irs-idme/index.html.

[8] Id.

[9] About Us, ID.me, https://www.id.me/about (last visited Feb. 8, 2022).

[10] See Rubin, supra note 1.

[11] Under Pressure from Congress, the IRS Won’t Use Facial Recognition for Online Account Access, Thomson Reuters (Feb. 8, 2022), https://tax.thomsonreuters.com/news/under-pressure-from-congress-the-irs-wont-use-facial-recognition-for-online-account-access/.

[12] Aimee Picchi, IRS Says it Will Scrap Facial-Recognition ID.me Plan Following Backlash, CBS News (Feb. 8, 2022), https://www.cbsnews.com/news/irs-id-me-facial-recognition-tax-returns-backlash/.

[13] Caroline Haskins, When You Log in to Your IRS Account This Tax Season You’ll Likely Have to Use ID.me to Verify Your Identity, Bus. Insider (Feb. 4, 2022, 12:28 PM), https://www.businessinsider.com/irs-partner-idme-logs-inferred-citizenship-all-users-data-privacy-2022-2.

[14] Id.

[15] See Tim Cushing, Facial Recognition’s Latest Failure Is Keeping People from Accessing Their Unemployment Benefits, Techdirt (June 29, 2021), https://www.techdirt.com/articles/20210620/16473147029/facial-recognitions-latest-failure-is-keeping-people-accessing-their-unemployment-benefits.shtml.

[16] Privacy Policy, ID.me, https://www.id.me/privacy (last updated Feb. 4, 2022).

[17] Id.

[18] Ina Fried, IRS Face Recognition Program Raises Hackles, Axios (Jan. 24, 2022), https://www.axios.com/irs-face-recognition-hackles-id-me-0235a30d-8066-4664-82b2-383313bd1962.html.

[19] IRS Announces Transition Away from Use of Third-Party Verification Involving Facial Recognition, IRS (Feb. 7, 2022), https://www.irs.gov/newsroom/irs-announces-transition-away-from-use-of-third-party-verification-involving-facial-recognition.

[20] 2022 Tax Filing Season Begins Jan. 24, IRS (Jan. 10, 2022), https://www.irs.gov/newsroom/2022-tax-filing-season-begins-jan-24-irs-outlines-refund-timing-and-what-to-expect-in-advance-of-april-18-tax-deadline.

Image source: https://medium.com/@linhdanhanguyen/facial-recognition-the-latest-trend-in-user-authorization-and-social-control-c05d4d14395c

By Jeffrey A. Phaup

 

An American hacker says he singlehandedly took down the North Korean internet in January of 2022, according to a report from Wired.[1] Observers reported seeing apparent outages in North Korea’s internet and at times all of the country’s websites, which only amount to a few dozen, appeared to be down.[2] The outages occurred after North Korea carried out a series of missile tests, prompting some experts to wonder if the outages were caused by cyberattacks from a foreign country.[3]

The hacker, who goes by the name P4x, says he had been targeted by the hermit dictatorship’s spies who cyber-attacked Western security researchers in 2021.[4] P4x then launched repeated ‘distributed denial of service’ (DDoS) attacks against the communist state, crippling the country’s few government-operated public-access websites and slowing email traffic.[5] DDoS attacks flood a system with fake traffic, consuming available bandwidth, and limiting processing capacity of servers so that a website becomes unavailable.[6]

In North Korea only a small number of trusted officials and academics are permitted to use the World Wide Web.[7] At the same time, only a small number of North Korean websites are connected to the wider global internet, including the state airline Air Koryo and the official web portal of the North Korean government Naenara, which spreads state news and propaganda on behalf of the Communist Party and Kim Jong Un.[8]

P4x says he’s found numerous known but unpatched bugs in North Korean systems that have allowed him to launch denial-of-service attacks on the servers and routers on which the country’s few internet-connected networks depend.[9] He declined to reveal the specifics of the bugs but did give one example of a known vulnerability that could be exploited to knock servers offline.[10]

P4x told Wired that it was “pretty interesting how easy it was to actually have some effect in there”.[11] He further elaborated that “It felt like the right thing to do here.[12] If they don’t see we have teeth, it’s just going to keep coming,” he told the publication.[13] “I want them to understand that if you come at us, it means some of your infrastructure is going down for a while.”[14]

He explained that his cyber attacks on the state came after he himself was unsuccessfully targeted by Pyongyang, with DPK hackers attempting to break into his own personal network a year ago to get access to his hacking technology.[15] He was able to catch the breach, open the file the hackers used in an attempt to gain access to his network with a virtual computer (thus isolating the breach), and study it himself.[16] He found the hack had been launched, to his surprise, from North Korea.[17] He added that he reported the incident to American authorities such as the FBI, but was ignored.[18] ‘If no one’s going to help me, I’m going to help myself,’ he said.[19]

 

[1] Bree Fowler, American hacker says he took down North Korean internet Wired reports, CNET (Feb. 3, 2022) [https://perma.cc/5FUE-8RLD].

[2] Andy Greenberg, North Korea Hacked Him. So He Took Down Its Internet, WIRED (Feb. 2, 2022) [https://perma.cc/VS38-Z3MC].

[3] Fowler, supra note 1.

[4] Graeme Massie, AMERICAN HACKER SAYS HE KEEPS TURNING OFF INTERNET IN NORTH KOREA, INDEPENENT (Feb. 3, 2022) [https://perma.cc/L4RK-QC6C].

[5] Chris Jewers, US hacker ‘in his pyjamas’ takes down North Korea’s internet in revenge for cyber attack carried out against him by Pyongyang, Daily Mail (Feb. 3, 2022) [https://perma.cc/R3G2-E8RX].

[6] Id.

[7] Id.

[8] Id.

[9] Fowler, supra note 1.

[10] Id.

[11] Massie, supra note 4.

[12] Jewers, supra note 5.

[13] Id.

[14] Id.

[15] Greenberg, supra note 2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

By Hannah Ceriani

 

Companies have been utilizing non-compete agreements for years, prohibiting employees from working for a rival company for a period after leaving their current position.[1] Between 27.8% and 46.5% of private-sector workers in the US are bound by non-compete agreements.[2] There has been much debate over the use of such agreements among tech companies in particular.

Historically, tech companies have favored using non-competes, which has led to fierce battles in the industry.[3] Big tech companies like IBM, Microsoft, Amazon, and Google have aggressively tried to enforce non-competes against former employees in court.[4] These companies and other proponents are for non-competes because the agreements serve to protect their business interests.[5]

In Washington, New York, and other states where non-compete agreements are legal, some tech companies utilize these agreements to ensure that former employees don’t spill their trade secrets.[6] Companies also have an incentive to implement these agreements because it’s an industry standard – competitors will almost certainly utilize these agreements.[7]

On the other hand, the enforcement of non-competes is illegal in states like California. Therefore, it’s easier for former employees to take trade secrets to other companies or to form start-ups in those states.[8] But some argue that process has also led to innovation, which could be the reason that Silicon Valley became “the world’s tech Mecca”.[9] Indeed, opponents of non-competes say that the agreements “stifle innovation and hinder startup activity.”[10]

Additionally, non-competes can keep employees in less-than-ideal employment situations.[11] For example, an Amazon worker claimed that her non-compete agreement “kept her in an abusive and harmful environment”, subjecting her to harassment and discrimination.[12] Non-competes have a lock-in effect, which can prevent workers from leaving toxic workplaces.[13] The employee’s choices are to either stay in such an environment or to try their hand at a new career, shadowed by the terms of the non-compete.[14]

Another reason opponents argue against non-compete agreements is that their use discourages innovative prospects by refusing to see a potential employee’s perspective – “[i]mposing limits on innovators won’t entice them, it will send them searching for greener pastures.”[15] Similarly, an employee who understands that their future job prospects are limited due to a non-compete agreement may feel uneasy, unmotivated, or unhappy – possibly even “fearful of the consequences should they choose to leave.”[16] Disgruntled employees may turn to social media to vent, or to their friends and family – either way, a bad reputation is hard for even a big tech company to overcome.[17]

Opponents also argue that companies don’t need to utilize a non-compete to protect their trade secrets.[18] Companies could obtain such protection through non-disclosure agreements, confidentiality agreements, and the Trade Secrets Protections Act.[19]

President Biden is an opponent of non-compete agreements, which has led to speculation that 2022 may be the year that federal restrictions are implemented.[20] Last year, President Biden issued an executive order that specifically asked the FTC to consider restricting non-competes.[21] However, federal courts have historically frowned upon federal agencies exerting powers like those proposed by President Biden’s order.[22]

 

[1] Brad Stone, Biden Executive Order on Non-Competes Could Roil Tech, Bloomberg (July 12, 2021, 6:45 A.M.), https://www.bloomberg.com/news/newsletters/2021-07-12/biden-executive-order-on-non-competes-could-roil-tech.

[2] Megan Rose Dickey, Tech’s Non-compete Agreements Hurt Workers and Anger Some Lawmakers, Protocol (May 13, 2021), https://www.protocol.com/policy/tech-non-compete.

[3] Stone, supra note 1.

[4] Id.

[5] 4 IT Legal Issues You Need to Pay Attention to Now, Tul. Univ. SoPa Blog, https://sopa.tulane.edu/blog/it-legal-issues-need-attention.

[6] Dickey, supra note 2.

[7] Id.

[8] Stone, supra note 1; Dickey, supra note 2.

[9] Stone, supra note 1.

[10] 4 IT Legal Issues You Need to Pay Attention to Now, supra note 5.

[11] Dickey, supra note 2.

[12] Id.

[13] Id.

[14] Id.

[15] Katy Imhoff, Why Tech Companies Should Avoid Non-Compete Agreements, Camden Kelly, https://camdenkelly.com/why-tech-companies-should-steer-clear-of-non-compete-agreements/.

[16] Id.

[17] Id.

[18] Dickey, supra note 2.

[19] Id.

[20] Kristen Senz, How Eliminating Non-Competes Could Reshape Tech, Harv. Bus. Sch.: Working Knowledge (Jan. 18, 2022), https://hbswk.hbs.edu/item/how-the-end-of-noncompetes-could-reshape-tech.

[21] Id.

[22] Stone, supra note 1.

Image source: https://news.law.fordham.edu/jcfl/2017/09/23/a-bad-breakup-non-compete-agreements/

By Sophie Thornton

 

Elizabeth Holmes founded her company, Theranos, with one principle idea backing her: having your blood drawn and tested is painful and expensive.[1] So Holmes decided to create a solution to the problem by founding Theranos. Theranos was put forward as a laboratory sporting brand new technology in which a patient would give a few drops of blood, no more than a finger prick, and an onsite testing machine would run over 240 diagnostics tests.[2] This solution was supposed to make patients less reluctant to get blood tests, lead to earlier diagnoses, and ultimately save lives.[3] Investors loved the idea and over the years, Holmes raised over $945 million to fund her venture.[4] However, by January 3^rd, 2022, Holmes was convicted of four federal counts of wire fraud.[5] What was the missing ingredient in what should have been a great success for Holmes? The technology.

In theory, the Theranos technology was supposed to be simple.[6] The Theranos machine, Edison,[7] would accept a sample of blood and analyze it on the site of a local clinic, like Walmart or Walgreens.[8] What was remarkable about the proposed technology was that it purported to be capable of doing such a blood analysis within minutes and with only a finger prick worth of blood.[9] Investors poured in, wowed by the media coverage of Holmes’ vision and Theranos’ revolutionary technology.[10] By 2014, Theranos’ board of directors contained two former secretary of states and two United States senators. Theranos’ technology was rarely questioned at the start of the company despite Holmes being a college dropout herself[11] because she hired scientists and claimed they could actuate her vision.[12]

In practice, it is nearly impossible for the Theranos technology to work.[13] One problem was that in order to run tests, the Edison machine would have needed a specific volume of blood.[14] But Holmes was set on a single finger prick, and that small volume of blood would create a need to dilute the blood and diluted blood would “skew the data on analysis.”[15] There also simply was not enough blood to run this many tests because some tests require chemical reactions that alter the blood to the point that it cannot be reused.[16] This small amount of blood would also lack a common concentration of molecules like lipids and proteins like what would exist in a blood sample drawn from a vein.[17] This too would further distort the data.[18] Finally, one of the biggest hurdles was that even if Theranos had this technology, each one of the tests would have needed FDA approval because blood is a bodily fluid.[19] The only Theranos test that ever received FDA approval was a Herpes test.[20] The other 240 claimed diagnostics tests never got any approval.[21]

Not only did the science behind the blood tests not work, neither did Theranos’ Edison machine.[22] The Edison was designed to mimic the work of a chemist by using a robotic arm to “take samples, dilute them, add antibodies, and a reagent, and reveal a result.”[23] However, the Edison was extremely flawed.[24] “Pieces of the machine would fall off, doors wouldn’t close, and the device couldn’t properly regulate its temperature.”[25]

Ultimately, flawed technology is not what caused Holmes to face federal criminal charges. What got Holmes in trouble was lying about that technology and subsequently defrauding investors.[26] Holmes lied to investors and told them that the Edison was working, gave excuses as to why it wasn’t working when she made demonstrations,[27] and fervently denied media reports that the technology did not do what Holmes claimed.[28]  All the while, she was aware of the issues with the technology because her employees raised those red flags and in response, Holmes fired them.[29] Holmes additionally told investors that the Edison and Theranos’ technology had been used on the U.S. battlefield and that it had been validated by many big pharmaceutical companies.[30] But none of this was true.[31] In 2022, a jury determined that Holmes “intentionally misled investors” and found her guilty of “ten counts of wire fraud in violation of 18 U.S.C. § 1343.” [32]

In a post-pandemic world where new medical technology is much needed, Holmes’ actions have been taken very seriously. Holmes could face up to 80 years in federal prison because of her lies.[33] Although Holmes’ fraud was an insult to investors, the promise of new and groundbreaking medical technology was perhaps an even greater insult to the public in light of recent health concerns. The government may have pursued such harsh remedies against Holmes in light of such concerns. Even though Holmes was charged pre-pandemic, the jury announced their verdict in the post-pandemic landscape.[34] Some of those jurors or their family members may have even benefitted from Theranos’ technology had it been real. The sting of Holmes’ actions in lying about the nature of Thernos’ technology has never been more personal to the public and she is facing the consequences.

 

[1] John Carreyou, Hot Startup Theranos Has Struggled With Its Blood-Test Technology, Wall Street Journal (Oct. 16, 2015), https://www.wsj.com/articles/theranos-has-struggled-with-blood-tests-1444881901 [https://perma.cc/DT5W-AYBP].

[2] Id.

[3] Id.

[4] Erin Griffith & Erin Woo, How Elizabeth Holmes Soured the Media on Silicon Valley, New York Times (Nov. 23, 2021), https://www.nytimes.com/2021/11/18/technology/elizabeth-holmes-theranos-trial.html [https://perma.cc/K9X9-NMJN].

[5] Sara Randazzo & Heather Somerville, Elizabeth Holmes Found Guilty on Four Counts, Wall Street Journal (Jan. 3, 2022), https://www.wsj.com/livecoverage/elizabeth-holmes-trial-theranos [https://perma.cc/6P5D-F5HE].

[6] Neil Jurkiewicz, What Went Wrong with Theranos?, eCampus Ontario (2019), https://ecampusontario.pressbooks.pub/bio16610w18/chapter/what-went-wrong-with-theranos/#:~:text=One%20of%20the%20big%20problems,data%20on%20analysis(6) [https://perma.cc/FA58-7NXL].

[7] Carreyou, supra note 1.

[8] Jurkiewicz, supra note 6.

[9] Id.

[10] Griffith & Woo, supra note 4.

[11] Id.

[12] Carreyou, supra note 1.

[13] Jurkiewicz, supra note 6.

[14] Id.

[15] Id.

[16] Nicole Wetsman, Thernos Promised a Blood Testing Revolution- Here’s What’s Really Possible, The Verge (Dec. 15, 2021), https://www.theverge.com/22834348/theranos-blood-testing-innovation-drop-holmes [https://perma.cc/QM87-9U3A].

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.; Carreyou, supra note 1.

[22] Cory Stieg, What Exactly Was The Theranos Edison Machine Supposed To Do?, Refinery 29 (Mar. 12, 2019), https://www.refinery29.com/en-us/2019/03/224904/theranos-edison-machine-blood-test-technology-explained [https://perma.cc/55NU-674X].

[23] Id.

[24] Id.

[25] Id.

[26] Theranos Founder Elizabeth Holmes Found Guilty of Investor Fraud, U.S. Dep’t of Just. (Jan. 4, 2022), https://www.justice.gov/usao-ndca/pr/theranos-founder-elizabeth-holmes-found-guilty-investor-fraud#:~:text=Holmes%20was%20initially%20charged%20on,%C2%A7%201343 [https://perma.cc/H768-QAXP].

[27] Stieg, supra note 22.

[28] Griffith & Woo, supra note 4.

[29] Stieg, supra note 22.

[30] Theranos Founder Elizabeth Holmes Found Guilty of Investor Fraud, supra note 26.

[31] Id.

[32] Id.

[33] Randazzo & Somerville, supra note 5.

[34] Theranos Founder Elizabeth Holmes Found Guilty of Investor Fraud, supra note 26.

 

Image source: https://www.dallasnews.com/business/health-care/2021/10/24/dallas-companys-recording-of-theranos-founder-elizabeth-holmes-emerges-as-prosecution-jackpot/

By Sarthak Gupta

*Sarthak Gupta is a fourth-year law student at the Institute of Law, Nirma University.

 

Introduction

Buy Now Pay Later (BNPL) refers to a point-of-sale financial product where a borrower is allowed to purchase products on a deferred payment basis and pays in a predetermined number of installments. At present BNPL industry is booming and set to surge over ten-fold as tens of millions of online shoppers get lured by it.[1] However, BNPL has also raised certain fundamental concerns globally[2] from the consumer perspective including in India. Recently, the Reserve Bank of India sought data from BNPL providers regarding their working, reflecting a growing regulatory interest in the BNPL market in India.[3] Through this article, the author would like to discuss consumer concerns and the legal regulatory gap that exist today with reference to BNPL market in India.

Consumer and Risk Involved

BNPL is surely one of the most talked about financial services trends in recent times.  More and more consumers are embracing its ease and convenience, and retailers are benefiting from higher conversion rates. It is a new cost-free way to access credit easily and simply.  However, every side has two stories, the same is the case here. Although there are numerous benefits to BNPL, there are certain harms and risks involved also. In this part, the author will try to decipher those risks and harms, especially from the consumer perspective.

I.  Affordability

The Revenue Model of Buy Now Pay Later providers mainly depend upon three sources i.e., Merchant Transaction Fee, Late Payment Fee, and App Monetization Charge.[4] Among these sources also, it is the Merchant Transaction Fee that is the primary source of revenue for the BNPL provider.[5] It reflects that in the real sense, the target customers of BNPL providers are not borrowers, but the merchants with whom they engage They market themselves to retailers on the basis that consumers spend more when they use BNPL offers than they would be paying by traditional methods. As a result, merchants are ready to pay a charge to BNPL providers to cover the cost of lending. When this works, all three parties benefit, the consumer, the merchant, and the BNPL provider. However, there is a risk that a close relationship between the BNPL provider and the merchant would harm the customer. It is possible that the presentation of BNPL offerings and the whole customer journey will be geared to push sales without regard for affordability commitment, a prime consideration before granting any kind of credit.

II.  Ambiguity

BNPL offers are often presented as just one of the payment methods in a long list of almost indistinguishable options, as a result, consumers don’t necessarily view BNPL offers as credit, but just as another payment/financial service method.[6] It puts customers at risk because they may not apply the same amount of scrutiny to their decision-making as they would for other credit products, such as taking into account the possible implications of failing to repay. The E-Commerce Payments Bill in Sweden, which went into effect in July 2020 recognized this problem and hence provided credit alternatives from being provided before debit options on online retail platforms.[7] As a result, BNPL offerings cannot be promoted as the “first choice” above the lowest cost direct payment alternative.

III.  High-Levels of Indebtedness

The Regulatory bodies around the globe are concerned regarding the risk of financial distress posed by the BNPL services.[8] As discussed above, one of the key sources of revenue for the BNPL provider is the Late Payment Fee which keeps on getting compounded with each passing day hence the risk of consumers falling into a vicious cycle of debt, also keeps on rising. It may be argued that even a similar risk is also possessed by the Credit Card and it is one of the most widely used products for the purpose of credit. However, it has to be understood that most BNPL providers complete a very basic credit assessment, usually through a combination of soft credit searches and previous repayment history, which makes the cost of switching between the platform for consumers almost nil. An analysis by Financial Conduct Authority in the UK  revealed even though the average amount borrowed per BNPL platform is comparatively quite small (almost between £65 and £75) however multiple outstanding transactions across different providers and almost a nil switching cost between the platforms makes it relatively easy for a consumer to amass around £1000 of BNPL credit using multiple lenders, and this when the focus of BNPL provider at present is predominantly on fashion and accessories when this focus shift to higher-value item, this can become a big headache for both the regulators and the consumer.[9]

Legal Lacuna in India

Some of the world’s largest and most renowned BNPL markets, including the United States[10], the United Kingdom[11], Australia[12], etc have recently come under regulatory scrutiny. India has been slightly behind the curve with respect to the regulations, only recently Reserve Bank of India has specifically sought relevant data from BNPL providers with respect to their working and other aspects.[13] A few months back Reserve Bank of India has also published a detailed 150 plus page report on Digital Lending[14], however, the prime focus of the report was on Online Instant Loan platforms.

Entities engaged in BNPL services are broadly divided into two categories – Balance Sheet Lenders (BSLs) and Lending Service Providers (LSPs).[15] BSLs are entities in the business of lending that carry the credit risk in their balance sheet/provide capital for associated credit risk. These are often RBI-regulated enterprises (RE), like banks, non-banking financial firms (NBFCs), or other businesses registered to conduct out lending operations under State Money Lenders Acts, Chit Funds Act, 1982, etc. LSPs are essentially technology-centric entities that act as ancillary lending service providers. They are not in ‘business of a financial institution’ as defined under the Reserve Bank of India (RBI) Act, 1934, and the loans, which are sourced, appraised, or serviced by them, are not their assets. They are a marketplace that helps to connect the lender and the borrower. In India majority of BNPL providers fall under the latter category i.e., they act as LSPs. These platforms act in partnership with BSLs for example one of the leading BNPL providers in India, named LazyPay (LSP) has partnered with an NBFC named PayU Finance India Private Limited (BSL) to conduct its lending operations smoothly.

When LSPs act in partnership with regulated BSLs entities such as Bank and NBFC, their activities are governed by certain detailed guidelines, for instance in the case of partnership with Banks, 2006 RBI issued Guidelines on Managing Risks and Code of Conduct in Outsourcing of Financial Services[16] are applicable. These guidelines take into consideration various risks including strategic risk, reputation risk, compliance risk, operational risk, etc., and provide detailed direction with respect to important subjects such as Confidentiality, Security, Responsibilities of Recovery Agents, etc. However, there are no similar guidelines on outsourced activities by other BSLs (which are not regulated), thus precluding the LSPs from partnering with them from compliance to any rules and regulations.

Further, these transactions are not reported to the Credit Information Company as they do not fall under the definition of ‘credit’ as there is no interest charged on these transactions.[17] In India, there are 4 Credit Information companies named The Credit Information Bureau Limited, Equifax, Experian Credit Information Company, and High Mark Credit Information Services, and they are governed by Credit Information Companies Regulation Act, 2005. As per Section 15 read Section 17 of the Act, it is mandatory for credit institutions to join any of the credit information companies and provide details to that company with respect to the credit facilities granted or to be granted, by a credit institution to any borrower, however, these transactions remain not affected by these provisions. This creates a blind spot in lending[18] and an environment of lack of transparency where a regulated credit provider never gets a complete picture of a customer’s financial position when assessing affordability, creating a clear recipe for some serious financial crisis in the long run. There are further various other issues associated with BNPL like first loss default guarantee, grievance redressal measure, etc of which also there is no clear answer at present.

Conclusion

Even though BNPL platforms have a lot of benefits like the ease of credit access, no interest charges, etc., however, there are certain detrimental harms and risks associated with it also as discussed aforesaid. Hence in the view of the author, there is an urgent need to regulate the BNPL platform in India on various aspects like a clear guideline on outsourcing by Balance Sheet Lenders, reporting of transactions to credit bureau, first loss default guarantee aspect, etc.

 

[1] BNPL Industry Set to Surge Over Ten-Fold in India, BW BUSINESSWORLD (Nov. 09, 2021), http://www.businessworld.in/article/BNPL-Industry-Set-To-Surge-Over-Ten-Fold-In-India/09-11-2021-411290/.

[2] Brian Murphy, Rapid Growth of Buy Now Pay Later Market Raises Global Consumer Protection Concerns as CFPB Watches and Waits (For Now), JD SUPRA (Oct. 25, 2021), https://www.jdsupra.com/legalnews/rapid-growth-of-buy-now-pay-later-8246896/.

[3] Raghu Mohan, RBI seeks details of NBFCs’ ‘buy now, pay later’ deals with e-tailers, BUISNESS STANDARD (Jan. 19, 2022), https://www.business-standard.com/article/finance/rbi-seeks-details-of-nbfcs-buy-now-pay-later-deals-with-e-tailers-122011900037_1.html.

[4] Warikoo, Buy-Now-Pay-Later Explained, YOUTUBE (Jan. 04, 2022), https://www.youtube.com/watch?v=9vUuxP4QzGM.

[5] India Fintech Diaries, BNPL – A deep dive into the world of BNPL, YOUTUBE (July 16 ,2021), https://www.youtube.com/watch?v=9vtJKB1KW8U.

[6] FINANCIAL CONDUCT AUTHORITY, THE WOOLARD REVIEW – A REVIEW OF CHANGE AND INNOVATION IN THE UNSECURED CREDIT MARKET, 47 (2021), https://www.fca.org.uk/publication/corporate/woolard-review-report.pdf.

[7] New rules in Sweden to discourage online shoppers from paying with credit, NORDEA (June 29, 2020), https://insights.nordea.com/en/business/new-rules-in-sweden-to-discourage-online-shoppers-from-paying-with-credit/.

[8]BNPL Under Global Regulatory Scrutiny, With UK as Likely Frontrunner, PYMNTS (Dec.09, 2021), https://www.pymnts.com/buy-now-pay-later/2021/bnpl-under-global-regulatory-scrutiny-with-uk-as-likely-frontrunner/.

[9] FINANCIAL CONDUCT AUTHORITY, THE WOOLARD REVIEW – A REVIEW OF CHANGE AND INNOVATION IN THE UNSECURED CREDIT MARKET, 47 (2021), https://www.fca.org.uk/publication/corporate/woolard-review-report.pdf.

[10] CFPB Begins Scrutinizing Companies Using ‘Buy Now, Pay Later’ Credit, THE NATIONAL LAW REVIEW (Dec. 20, 2021), https://www.natlawreview.com/article/cfpb-begins-scrutinizing-companies-using-buy-now-pay-later-credit.

[11] UK government sets out regulation of Buy Now Pay Later (BNPL), LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=2f09844a-5a0b-43f7-af2b-7cc11ca27dab.

[12] Australia Takes the Lead in Buy Now Pay Later Regulation, PAYMENTS JOURNAL (Apr. 07, 2021), https://www.paymentsjournal.com/australia-takes-the-lead-in-buy-now-pay-later-regulation/.

[13] Raghu Mohan, RBI seeks details of NBFCs’ ‘buy now, pay later’ deals with e-tailers, BUISNESS STANDARD (Jan. 19, 2022), https://www.business-standard.com/article/finance/rbi-seeks-details-of-nbfcs-buy-now-pay-later-deals-with-e-tailers-122011900037_1.html.

[14] RESERVE BANK OF INDIA, REPORT OF THE WORKING GROUP ON DIGITAL LENDING INCLUDING LENDING THROUGH ONLINE PLATFORMS AND MOBILE APPS (2021), https://rbidocs.rbi.org.in/rdocs/PressRelease/PDFs/PR124479A17DED84DD4CCDAE790BCAC26F072C.PDF.

[15] India Fintech Diaries, BNPL – A deep dive into the world of BNPL, YOUTUBE (July 16, 2021), https://www.youtube.com/watch?v=9vtJKB1KW8U.

[16] Reserve Bank of India, Guidelines on Managing Risks and Code of Conduct in Outsourcing of Financial Services by banks (Issued on Nov. 03, 2006), https://rbi.org.in/scripts/NotificationUser.aspx?Id=3148&Mode=0.

[17] Sunainaa Chadha, How to make ‘buy now pay later’ work for you, THE TIMES OF INDIA (Jan. 07, 2022, 07:40 PM), https://timesofindia.indiatimes.com/india/how-to-make-buy-now-pay-later-work-for-      you/articleshow/88737863.cms#:~:text=%E2%80%9CBNPL%20transactions%20are%20not%20reported,may%20be%20converted%20into%20EMI.

[18] Ridhima Saxena, Popularity of ‘Buy Now, Pay Later’ Creates A Blind Spot in Lending, BLOOMBERG QUINT (Jan. 19, 2021, 08:41 AM), https://www.bloombergquint.com/bq-blue-exclusive/popularity-of-buy-now-pay-later-creates-a-blind-spot-in-lending.

By Mimi Perka

 

Covid-19 has undoubtedly affected the world on a massive scale for almost two years now. As employees return to a sense of normalcy in the workplace, a new set of privacy concerns have risen due to the increased use of biometric systems, aimed at combating the spread of the virus.^[1]

To mitigate the immediate risks and concerns as employees return to work, many employers have turned to biometrics devices such as facial recognition technology, non-contact infrared thermometers, thermal imaging, and wearable radiometric thermometry systems.^[2] While these systems could protect their workplaces from potential outbreaks of Covid-19, these systems could also lead to legal implications for those businesses that assume the risks of employing biometric systems in the workplace.^[3]

Biometric-enabled devices have become ubiquitous in the workplace due to the accurate, reliable, and facile methods of collecting and storing employee information.^[4] In recent years, many employers replaced the traditional paper-based time cards with biometric fingerprint readers.^[5] However, as these devices were among the most heavily touched devices in the workplace, many employers looked to facial recognition time and timekeeping systems to provide a contactless time and attendance solution.^[6]

As many helpful aspects that biometrics systems might have in the workplace, especially throughout the pandemic, these systems have caused widespread concern among employees whose data is being used, collected, and stored. Notably, employees worry about the transaction, lack of disclosure, and destruction of such biometric data.^[7]

As concerns rise, a few states have taken the lead on protecting individual rights and restricting the collection and use of biometric information by requiring notice and consent from individuals.^[8]

The Illinois Biometric Information Privacy Act (BIPA) has been the forerunner of modern biometric information privacy laws in the United States.^[9] BIPA prohibits private entities from collecting, using, storing, or disclosing biometric data without providing notice and obtaining a written release from individuals before collecting such information.^[10] In a recent decision in Cothron v. White Castle System, Inc., a federal court interpreting Illinois law found that employers could be liable for in excess of $1,000 per day, per employee, for each day that biometric information was collected, stored, or used improperly.^[11]

In this case, the named plaintiff was asked to use her fingerprint to access the computer system each time she needed access to the system. As the plaintiff was the manager, she frequently needed access in this capacity.[12] After several years of having her biometric data scanned and collected without written release, the plaintiff filed a class action lawsuit against her employer in violation of BIPA.[13]

The most notable aspect of BIPA is that the law does not require an “injury in fact” for legal standing– the person bringing an action under BIPA need not have sustained actual damage beyond the violation of the person’s rights under BIPA.^[14] The Seventh Circuit held in Fox v. Dakkota Integrated Systems, LLC that an employer who fails to adhere to restrictions on biometric data retention imparts as a concrete injury, as does a violation of restrictions on biometric data collection.^[15]

While BIPA is the most well-known law of this type, other states–such as Texas, California, Washington, and Arkansas–have enacted legislation to regulate biometrics.^[16] Additionally, many other states–including Arizona, Florida, and Massachusetts– have all proposed bills to protect biometric data.^[17]

Thus, as the country continues to face the challenges associated with Covid-19, and as more states enact legislation on biometric data, employers will undoubtedly continue to struggle with the dichotomy between using data to keep employees safe and to comply with biometric data legislation.

 

^[1] David Oberly, Biometric Data and COVID-19 in the Workplace, JDSUPRA Legal News (Nov. 23, 2020), https://www.jdsupra.com/legalnews/biometric-data-and-covid-19-in-the-86112/.

^[2] Mary Margaret Moore, Patrick DePoy, & Lauren J. Caisman, U.S. Covid-19: Biometrics and Business Re-Opening, BCLP At Work (May 14, 2020), https://www.bclplaw.com/en-US/insights/blogs/bclp-at-work/u-s-covid-19-biometrics-and-business-re-opening.html.

^[3] Christopher Jevsevar, The Legal Minefield Surrounding Biometrics In The Workplace, Fisher Phillips Insights (Oct. 2, 2020), https://www.fisherphillips.com/news-insights/the-legal-minefield-surrounding-biometrics-in-the-workplace.html.

^[4] Id.

^[5] Oberly, supra note 1.

^[6] Id.

^[7] Susan Gross Sholinsky, Shawndra G. Jones, & Brian G. Cesaratto, Updates on Biometrics in the Workplace: Scanning the Legal Landscape in New York and Beyond, Epstein Becker Green Insights (Aug. 19, 2021), https://www.ebglaw.com/insights/updates-on-biometrics-in-the-workplace-scanning-the-legal-landscape-in-new-york-and-beyond/.

^[8] Id.

^[9] Jevsevar, supra note 3.

^[10] Oberly, supra note 1.

^[11] Joel W. Rice & Franklin Z. Wolf, The Illinois Biometrical Landscape Gets Even Tougher for Employers, Fisher Phillips Insights (Sep. 17, 2020), https://www.fisherphillips.com/news-insights/the-illinois-biometric-landscape-gets-even-tougher-for-employers.html.

[12] Id.

[13] Id.

^[14] Sholinsky, Jones, & Cesaratto, supra note 7.

^[15] Id.

^[16] Natalie A. Prescott, The Anatomy of Biometric Laws: What U.S. Companies Need to Know in 2020, Nat’l L. Rev. (Jan. 15, 2020), https://www.natlawreview.com/article/anatomy-biometric-laws-what-us-companies-need-to-know-2020.

^[17] Jevsevar, supra note 3.

Image source: https://www.jonesday.com/en/insights/2017/11/biometric-data-in-the-workplace-could-trigger-privacy-litigation-wave

By Christopher Vinson

 

Internet giants such as Facebook, Twitter, and Google have found themselves the subjects of increased political scrutiny. While much of the focus is on content moderation, the latest efforts from Congress aim to address a perceived lack of competition in the tech industry.[1] Large companies like Yelp have equally lamented the barriers to competition currently in the tech industry.[2] In a bipartisan effort on January 20, 2022, the Senate Judiciary Committee advanced the American Innovation and Choice Online Act.[3] Experts view this bill as the best opportunity for substantial legal reform in this area.[4] The advancement by the Senate Judiciary Committee will see the bill move to the full Senate for debate.[5]

The bill is designed to prevent self-preferencing by dominant platforms.[6] Self-preferencing occurs when platforms on their sites place or rate their products above similar third-party products.[7] Eliminating this tactic will prevent Amazon from placing their products at the top of search results or Google from rating their apps higher than similar third-party apps.[8]

Naturally, this effort has been met with stiff opposition from both industry leaders and commentators.[9] Critics of the legislation claim that Congress is moving too quickly without considering the ramifications of this bill.[10] Advocacy groups working for these large tech platforms believe additional hearings are necessary to gather more information.[11] In response, proponents have noted that this bill has been debated, researched, and marked-up extensively.[12] This is a delay tactic being implemented by large tech companies to prevent a vote on the bill.[13] The advancement of the bill out of committee demonstrates the Senate’s desire to enact meaningful antitrust tech legislation. Whether rushed or not, Congress should move quickly on issues they deem of major importance, especially considering the ever-present criticism that Congress moves too slow to enact legislation.

The CEOs of Apple and Alphabet, Tim Cook and Sundar Pichai, have worked tirelessly to convince Senators to vote against the bill.[14] For example, Tim Cook made direct phone calls to Senator Ted Cruz to lobby against the bill.[15] The main argument is that this bill may decrease consumer data privacy.[16] Apple’s Senior Director of Public Affairs, Timothy Powderly, claimed that the bill would open up serious risks of privacy due to security breaches.[17]

This is a legitimate concern and one that Senators shared during the debates in the Committee.[18] However, Senators Amy Klobuchar and Chuck Grassley pushed back against these claims saying that they distort the intention of the bill.[19] The bill requires changes to these platforms’ marketplaces, but Senators believe it will not have a serious impact on data privacy.[20] It will not make it more difficult for Apple to let consumers opt out of monitoring from apps.[21]

While increased competition is a worthwhile goal, commentators are concerned that antitrust policy in the tech industry may lead to the fracturing of services and increased costs for services that are currently low-cost or free.[22] There is also concern that it will disincentivize innovation and start-up companies by lowering potential acquisition costs.[23] These concerns preview a debate that may make the passage of this legislation difficult.

Additionally, several senators that ultimately voted to advance the bill expressed concerns about its language and potential effects.[24] It is very possible that these individuals will vote “no” if their concerns are not assuaged.[25] Furthermore, Senate leaders would need to make this legislation a priority.[26] This is no guarantee as the current focus has been on national voting legislation and filibuster reform. Nevertheless, this bill enjoys bipartisan support which bodes well in its quest for adoption.[27]

 

[1] Mark Sullivan, U.S. Senators Are Parroting Big Tech’s Anti-trust Talking Points, Fast Company (Jan. 21, 2022), https://www.fastcompany.com/90714797/big-tech-antitrust-objections-senators-klobuchar-grassley-bill.

[2] Lauren Feiner, Senate Committee Votes to Advance Major Tech Antitrust Bill, CNBC (Jan. 20, 2022, 12:54 PM), https://www.cnbc.com/2022/01/20/senate-committee-votes-to-advance-major-tech-antitrust-bill.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Cristiano Lima & Aaron Schaffer, Tech Giants Say Antitrust Legislation is Being ‘Rushed.’ History Suggests Otherwise., MSN (Jan. 20, 2022), https://www.msn.com/en-us/news/politics/tech-giants-say-antitrust-legislation-is-being-e2-80-98rushed-e2-80-99-history-suggests-otherwise/ar-AASYeWe?ocid=BingNewsSearch.

[11] Id.

[12] Id.

[13] Id.

[14] Breck Dumas, Apple’s Tim Cook and Google’s Sundar Pichai Working Capitol Hill Together to Stop Big Tech Bill, Fox Business (Jan. 21, 2022), https://www.foxbusiness.com/politics/apple-tim-cook-google-sundar-pichai-working-capitol-hill-big-tech-bill

[15] Sullivan, supra note 1.

[16] Id.

[17] Id.

[18] Id.

[19] Sullivan, supra note 1; Lima and Schaffer, supra note 10.

[20] Lima and Schaffer, supra note 10.

[21] Dumas, supra note 14; Lima and Schaffer, supra note 10.

[22] Tracy Hernandez & Ahmad Thomas, Federal Antitrust Bills Threaten California Businesses Big and Small, OC Register (Jan. 24, 2022, 3:25 PM), https://www.ocregister.com/2022/01/24/federal-antitrust-bills-threaten-california-businesses-big-and-small/.

[23] Id.

[24] Feiner, supra note 2; Lima and Schaffer, supra note 10.

[25] Lima and Schaffer, supra note 10.

[26] Feiner, supra note 2.

[27] Lima and Schaffer, supra note 10.

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