Author: JOLT Page 7 of 10

By Annalisa Gobin

 

In the Spring of this year, Apple released its new AirTags, small tracking devices that emit Bluetooth signals so that users can locate lost items using Apple’s Find My network.[1] While they are advertised to help retrieve misplaced items like keys and wallets, consumers have found that the new product is more versatile than Apple likely anticipated.[2] AirTags are now being attached to cars, bikes, and bags as an efficient form of theft prevention.[3] With consumers finding various ways to utilize the new gadget, there has been a rise in recent discussions on whether AirTags are a nifty product to prevent theft or a dangerous tool that promotes stalking.[4]

Since their April release, there have been several reports of consumers using AirTags to combat several forms of crime.[5] One consumer used his AirTag to help the police locate and retrieve his stolen gaming computer.[6] In Oregon, a lawyer used AirTags to prove that city contractors were immediately dumping the belongings of homeless people after clearing out their campsites, instead of saving the property for a month as required by law.[7] Additionally, parents have been using AirTags to track their children (although Apple warns that the product is not a GPS tracker and that the location updates are too sporadic to track moving objects).[8] This is good news for those wanting to protect personal property, and to some extent, ward off potential kidnappers.

However, there is concern that AirTags and their tracking feature may aid stalkers and domestic abusers in harassing victims.[9]

Apple has made attempts to limit the use of the AirTags as a stalking tool.[10] If an iPhone detects that an AirTag is following it, it will display a notification.[11] In addition, if the tracker is away from its owner’s iPhone for more than three days, it will beep.[12] However, if a tracking victim owns a phone other than an iPhone, there is no way for that user to receive the same notification that they are being tracked.[13] There have also been reports that the 15-second beep is not loud enough to be heard over common household noises.[14] In June, Apple addressed these concerns by releasing an update to the devices to beep randomly between 8 and 24 hours if it is away from its owner’s iPhone.[15] Apple has planned to launch an app that will allow Android users to determine whether an AirTag is traveling with them.[16] Apple has also embedded a serial number into each AirTag, which they argue can be used as evidence in court to identify trackers and prosecute stalking crimes.[17]

Critics warn that these new safety features may not be enough to stop digital tracking, which has been linked to physical abuse and murder.[18] The coin-sized devices are so small that they can easily be buried into a car seat or under a carpet to muffle the sound of the notification beep.[19] Further, the notification beep does nothing for victims who live with their abusers who can prevent the sound from going off by periodically bringing their phone back into proximity with the AirTag. Furthermore, as of the time of this post, Apple has yet to release the app so that android users can be alerted when they are being tracked.[20]

Without implementing additional safety features, it is worth considering if the ability to find your keys in a split-second or recover a stolen bike is worth the risk of the crimes that AirTags may help perpetrators carry out.

 

[1] Heather Kelley, I found my stolen Honda Civic using a Bluetooth tracker. It’s the Latest Controversial Weapon Against Theft, Wash. Post (Oct. 28, 2021, 7:00 AM), https://www.washingtonpost.com/technology/2021/10/28/airtags-theft/.

[2] Id.

[3] Id.

[4] See id.

[5] See id.; Brianna Provenzano, Apple Airtags Used to Prove That Contractor Illegally Trashed Unhoused People’s Property, Gizmodo (Aug. 4, 2021, 11:20 AM), https://gizmodo.com/apple-airtags-used-to-prove-that-contractor-illegally-t-1847421031.

[6] Kelley, supra note 1.

[7] Provenzano, supra note 5.

[8] Morgan Brinlee, No, Apple Doesn’t Want Parents To Track Their Kids With AirTags, Romper (Apr. 22, 2021), https://www.romper.com/life/no-apple-doesnt-want-parents-using-airtags-to-track-their-kids.

[9] Albert Fox Cahn & Eva Galperin, Apple’s AirTags Are a Gift to Stalkers, Wired (May 13, 2021, 9:00 AM), https://www.wired.com/story/opinion-apples-air-tags-are-a-gift-to-stalkers.

[10] See Geoffrey A. Fowler, Apple’s AirTag Trackers Made It Frighteningly Easy to ‘Stalk’ Me in a Test, Wash. Post (May 5, 2021, 8:00 PM), https://www.washingtonpost.com/technology/2021/05/05/apple-airtags-stalking.

[11] See id.

[12] Id.

[13] Id.

[14] Apple Updates AirTags After Stalking Fears, BBC News (June 4, 2021), https://www.bbc.com/news/technology-57351554.

[15] Id.

[16] Id.

[17] Id.

[18] Fowler, supra note 10.

[19] Id.

[20] Id.

Image Source: https://www.macrumors.com/guide/airtags

By Hannah Ceriani

 

In 2019, journalist Kashmir Hill wrote a New York Times article about a company that was quietly aiding in privacy violations.[1] The company Clearview AI has developed a facial recognition app, which is essentially a database of billions of images copied from millions of websites like Facebook, YouTube, and Venmo.[2]

The app can potentially identify anyone since the “computer code underlying [the] app…includes programming language to pair it with augmented-reality glasses.”[3] A person could be anywhere in public doing anything, and the app could reveal that person’s name, home address, career, and any other information that is out there on the Internet.[4]

Six hundred police departments were using the app less than three years after it was released to help solve various types of crimes, including murders and kidnappings.[5] Those law enforcement agencies have since copied 10 billion photographs.[6] They have done so without consent from the individuals who uploaded the photos, without authorization from the companies behind the websites where the photos were originally uploaded, and without the knowledge of the general public.[7]

Obviously, the use of facial recognition technology could quickly become a major violation of First and and Fourth Amendment rights. When used in public, this technology has a high likelihood of halting unabridged free speech and peaceful assembly because it could be seen as a form of surveillance.[8] Viewing facial recognition technology in this light, it is plausible that people will begin to alter their behavior because of the feeling that they are always being watched, particularly by law enforcement.[9]

The Supreme Court addressed Fourth Amendment privacy issues in the case Carpenter v. States.[10] Chief Justice Roberts noted that the ability of police to “secretly monitor and catalogue every single movement” of a person is unconstitutional and violates what society perceives law enforcement’s job to be.[11] The Court suggested that a person’s “privacies of life” should be protected.[12] The Court considered those privacies to include an individual’s “familial, political, professional, religious, and sexual associations,” which could be determined by using such technology.[13]

Large tech companies like Google and IBM have refrained from using similar technology in response to such concerns.[14] Only ten states have taken any sort of action to regulate the use of facial recognition by law enforcement.[15] Some cities, like Detroit, Chicago, and San Francisco have also enacted their own regulations and legislative bans.[16]

However, these statutes and regulations are not doing enough. There are two main issues: loopholes in the current legislation and regulation, and the lack of uniformity to address the violation of Constitutional rights. The most pressing concern with facial recognition technology is the lack of restrictions by the federal government.[17] In fact, many tech companies have advocated for federal regulation of this technology, but Congress has yet to pass any laws regulating police use of facial recognition.[18]

 

[1] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020) https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

[2] Id.

[3] Id.

[4] Id.

[5] Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N.C.L. (forthcoming 2022) (manuscript at 3).

[6] Id.

[7] Id.

[8] Clare Garvie & Laura M. Moy, America Under Watch: Face Surveillance in the United States, Geo. L. Ctr. for Priv. & Tech. (May 16, 2019), https://www.americaunderwatch.com/.

[9] See id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Hill, supra note 1.

[15] Levendowski, supra note 5 (manuscript at 24).

[16] Id. (manuscript at 20).

[17] See Garvie, supra note 8.

[18] Lauren Feiner & Annie Palmer, Rules Around Facial Recognition and Policing Remain Blurry, CNBC (June 12, 2021, 9:30 AM), https://www.cnbc.com/2021/06/12/a-year-later-tech-companies-calls-to-regulate-facial-recognition-met-with-little-progress.html.

Image Source: https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html

By Jeffrey Phaup

 

Automatic license plate readers are now being marketed to private parties. One example is a company called Flock Safety, which provides such plate readers to homeowners associations with the promise that they will provide peace of mind to residents, even if they already have nothing to be worried about.[1] The cameras give residents access to a wealth of plate and location data that is often shared with local law enforcement.[2]

Flock’s “safety-as-a-service” packages cost $2,500 a year per camera, with the scanners promoted for their crime-fighting powers.[3] The systems initially deployed mostly in gated communities, but recently the systems have now spread to practically all types of neighborhoods across the United States.[4] Flock Safety systems have been installed in more than 1,400 cities across 40 states and capture data from more than a billion cars and trucks each month.[5]

Photos captured by the scanners are placed in a neighborhood’s private Flock database and are made available for homeowners to search and scrutinize.[6] Machine-learning software categorizes each vehicle based on two dozen attributes, including its color, make and model; what state its plates came from; and whether it had bumper stickers or a roof rack.[7] Each scanned vehicle is then pinpointed on a map and is tracked based on how frequently it is scanned by the system.[8] Vehicle plates are compared to law enforcement records in order to check for abducted children, stolen cars, missing people and wanted fugitives.[9]

Flock cameras were installed in Dayton, Ohio, as part of a months-long trial for the local police, with a disproportionate number of the cameras placed in the heart of the city’s Latino community.[10] One camera was even placed outside a church where local immigrant families gathered and attended Mass.[11] These cameras were eventually removed after the community targeted by the surveillance complained.[12]

License plate scanners track individuals’ comings and goings with the data can showing both common and unique travel patterns; and because license plates are required by law, there is no obvious way to effectively remain anonymous.[13] Vendors of license plate scanners market their products using the idea that surveillance will reduce crime by either advertising the presence of surveillance in hopes it will be a deterrent or by using the technology to secure convictions of people that have allegedly committed crimes.[14] However, despite what vendors claim, there is no empirical evidence that shows the scanners actually reduce crime.[15]

 

[1] See generally Tim Cushing, The Newest Growth Market For License Plate Readers Is Those Assholes Running The Local Homeowners Association, TechDirt (July 26, 2021), https://www.techdirt.com/articles/20190724/17315042647/newest-growth-market-license-plate-readers-is-those-assholes-running-local-homeowners-association.shtml [https://perma.cc/6KFC-F5JJ].

[2] See generally Drew Harwell, License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart., Washington Post (Oct. 22, 2021), https://www.washingtonpost.com/technology/2021/10/22/crime-suburbs-license-plate-readers/ [https://perma.cc/LHP5-FTE4].

[3] See generally Introducing a better way to defeat crime., Flock Safety (last visited Oct, 22, 2021) https://www.flocksafety.com/ [https://perma.cc/H666-4MYY].

[4] Harwell, supra note 2.

[5] Id.

[6] Id.

[7] See generally Jason Kelly & Matthew Guariglia, Things to Know Before Your Neighborhood Installs an Automated License Plate Reader, Electronic Frontier Foundation (Sept. 14, 2021), https://www.eff.org/deeplinks/2020/09/flock-license-plate-reader-homeowners-association-safe-problems [https://perma.cc/QU7B-YZUB].

[8] Hartwell, supra note 2.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Kelly & Guariglia, supra note 7.

[14] Id.

[15] Id.

By Alexis Laundry

 

Last month, Dominion Energy announced a new project to re-develop 1,200 acres of formerly coal-mined land in Southwest Virginia into a 50-megawatt solar farm.[1] The project is in collaboration with the non-profit The Nature Conservancy, a global organization whose mission is “to conserve the lands and water on which all life depends” that owns the land where the project will be built.[2] In 2019, the Conservancy acquired 253,000 acres of Appalachian forest land across Southwest Virginia, Kentucky and Tennessee.[3] Within the parcel, about 13,000 acres is cleared former mine lands, much of which may potentially be used for solar development.[4] Over the past year, the organization has begun getting several projects off the ground by partnering with both independent developers and utility companies. In May, the Conservancy announced a partnership with the development firms SunTribe and Sol Systems to build 75 MW of capacity on around 550 acres of the cleared mine lands, most of which are located in Virginia.[5] Through these and the Dominion project, the Conservancy hopes to showcase the feasibility of re-purposing former coal mines into revenue generating renewable energy projects.[6]

The idea of repurposing coal mined land into renewable energy projects is nothing new, but it has been slow to take off in Virginia, despite the state hosting an estimated 100,000 acres of land impacted by coal mining.[7] In many ways, former mining sites are ideal for solar development. These sites typically suffer from various contamination or safety issues, which make them unsuitable for most industrial or commercial reuse opportunities; as a result, many sit vacant.[8] They have already been cleared and graded, which circumvents many problems that proposed solar sites on farm or forested land run into.[9] There is plenty of access to infrastructure nearby, including transmission lines and roads.[10] And most importantly, Southwest Virginia’s mining region gets ample sunlight. While there are certainly some challenges that accompany development on mine land, such as more extensive permitting processes, contamination control requirements, and potential liability for remediation efforts, these can usually be overcome by good planning processes and technological solutions.[11]

The payoff of supporting these projects is potentially huge. Redevelopment of abandoned mines is accompanied by a host of environmental and economic benefits that would otherwise go unrealized. First, interest in developing these areas will facilitate the cleanup of contaminated sites, which will cause a domino effect of positive ecological effects. In order to make the sites more attractive to developers, local governments will be more motivated to fund and execute cleanups; these remediation efforts in turn lead to removal of contamination sources, improvement of water quality, and restoration of local ecosystems.[12] Second, installing renewable energy projects will contribute to an overall reduction in greenhouse gas emissions in the region and promote the transition away from fossil fuel usage, which is of course vital to curbing the effects of climate change.[13] In terms of economic benefits, these projects will lead to local job creation, increased revenue, and the revitalization of the energy industry in the region.[14] In one of the state’s most economically distressed regions, these opportunities could prove invaluable.[15]

With much to gain and very little to lose, it seems counterintuitive that the mountains of Southwest Virginia aren’t yet covered in solar panels. Historically, a lack of funding was at least partially to blame for the state’s slow pace in implementing mine land solar projects.[16] The good news is that recent developments are making funding less of an issue; there are state and federal grant programs for abandoned mine land remediation[17], COVID-19 relief funding and the new federal infrastructure bill could be used to support development in the region[18], and the Virginia Clean Economy Act requires Dominion to invest in renewable projects on “previously developed sites.”[19] Hopefully, with new funding streams available and organizations like the Nature Conservancy willing to be the first to take the plunge, the next few years will prove promising for solar development in Virginia’s coal country.

 

[1] The Nature Conservancy, Dominion Energy Announce Innovative Collaboration for Solar Development on Former Coal Mine in Southwest Virginia, Dominion Energy (Sept. 13, 2021), https://news.dominionenergy.com/2021-09-13-The-Nature-Conservancy,-Dominion-Energy-Announce-Innovative-Collaboration-for-Solar-Development-on-Former-Coal-Mine-in-Southwest-Virginia [hereinafter Dominion Announcement].

[2] Id.

[3] Adam Bloom, The Cumberland Forest Project: 253,000 Acres of Preserved Land, Nature Conservancy (July 14, 2019), https://www.nature.org/en-us/what-we-do/our-priorities/protect-water-and-land/land-and-water-stories/cumberland-forest-project/.

[4] Elizabeth McGowan, Conservation group plots solar potential for retired Appalachian coal mine land, Energy News Network (May 18, 2020), https://energynews.us/2020/05/18/conservation-group-plots-solar-potential-for-retired-appalachian-coal-mine-land/.

[5] Elizabeth McGowan, Conservancy charts a solar showcase on the coalfields of Central Appalachia, Energy News Network (May 12, 2021), https://energynews.us/2021/05/12/conservancy-charts-a-solar-showcase-on-the-coalfields-of-central-appalachia/.

[6] Dominion Announcement, supra note 1.

[7] Sarah Vogelsong, Can Southwest Virginia remake itself as a laboratory for renewables?, VA Mercury (Sept. 20, 2021, 12:02 AM), https://www.virginiamercury.com/2021/09/20/can-southwest-virginia-remake-itself-as-a-laboratory-for-renewables/.

[8] U.S. EPA, Shining Light on a Bright Opportunity 1 (2011), https://semspub.epa.gov/work/HQ/176032.pdf

[9] Vogelsong, supra note 7.

[10] Id.

[11] See The Solar Foundation, Large-Scale Solar Development: A Playbook For Southwest Virginia

19–20 (2020), https://solsmart.org/wp-content/uploads/Solar_Playbook_SWVA-8c1.pdf; Steve Goodbody, Building Solar Projects on Brownfields Is Hard Work. But There’s Massive Upside to Getting It Right, Greentech Media (July 8, 2016), https://www.greentechmedia.com/articles/read/building-solar-projects-on-brownfields-is-hard-work.

[12] See U.S. EPA, supra note 8, at 9.

[13] Id.

[14] Id. at 9­–10.

[15] See Vogelsong, supra note 7.

[16] See id.

[17] Abandoned Mine Land, VA Dept. of Energy, https://energy.virginia.gov/coal/mined-land-repurposing/Abandoned-Mine-Land.shtml (last visited Oct. 22, 2021); see also The Solar Foundation, supra note 11, at 20.

[18] See Vogelsong, supra note 7.

[19] Elizabeth McGowan, Meet the Virginia conservationist trying to turn old coalfields into solar farms, Energy News Network (Sept. 29, 2021), https://energynews.us/2021/09/29/meet-the-virginia-conservationist-trying-to-turn-old-coalfields-into-solar-farms/.

Image Source: https://mma.prnewswire.com/media/1624172/Dominion_Highlands_Solar.jpg?p=original

By Christopher Vinson

 

The buying and selling of real estate is an everyday occurrence. Even during the COVID-19 pandemic, the housing market thrived as homeowners saw large increases in the prices of their homes.[1] A perfect convergence of factors resulted in increased demand for homebuying during the pandemic.[2] The final step in completing such a transaction is the real estate closing process.[3] Historically, this process required in-person notarization.[4] However, over the last decade, and increasingly so during the pandemic, there has been legislation both proposed and adopted digitizing notarization to simplify the process of homebuying.

In 2012, Virginia was the first state to pass Remote Online Notarization (RON) legislation.[5] This law allows a signer, subject to certain requirements, to appear before a notary at the time of notarization using audio-visual technology over the internet instead of being in the same room.[6] The notary as the agent can now confirm your identity, witness your signature, and electronically notarize the document.[7]

Prior to the pandemic, RON legislation had been adopted in twenty-two states across the country.[8] States without RON laws quickly adopted remote notarization during the pandemic.[9] As of August, 2021 fourteen of these states proceeded to adopt permanent RON laws, while the rest allowed their states of emergency to lapse without permanent adoption.[10] Additionally, legislation in the United States Senate was reintroduced to permit RON nationwide.[11] The Securing and Enabling Commerce Using Remote and Electronic Notarization Act (SECURE) would require the use of tamper-evidence technology and calls for multifactor authentication to reduce the risk of fraud.[12] While not yet adopted, SECURE demonstrates the increased nationwide focus on RON legislation.

This widespread adoption of RON legislation amongst the state legislatures saw companies increasingly offer digital closing services to their clients. One survey conducted by the American Land Title Association found that number of companies offering digital closings increased by 228% in 2020.[13] In 2019, only sixteen percent of companies offered digital closings compared to forty-six percent of companies in 2021.[14] This widespread adoption of RON saw its use increase by 547% in 2020 compared to 2019.[15]

Consequently, there has been an increase in the amount of e-mortgages closed around the nation.[16] The first six months of 2020 saw the volume of e-mortgages being purchased by Fannie Mae and Freddie Mac increase compared to prior years.[17] This spike was directly attributed to companies increasing their digital closing capabilities during the pandemic.[18] This followed the modification of Fannie Mae and Freddie Mac policies that allowed those institutions to accept RON.[19]

Digital closings were especially popular with consumers. Most transactions over the last year required remote closings, and one survey found that ninety percent of those customers were satisfied.[20] Eighty-two percent of those respondents also stated that they would prefer e-signing documents prior to closing and roughly two-thirds stated that they would prefer remote closings in the future.[21]

Despite the perceived ease with which RON operates, there are still concerns over its increased implementation. States, such as California, have cited privacy and security concerns in their refusal to adopt RON legislation.[22] There is also the ever-present possibility of identity fraud. In-person verification is an effective safeguard against identity fraud but identification over the internet is slightly riskier.[23] There are also concerns with the execution of the necessary documents.[24] Any defect in the documents would eliminate any of the convenience factor associated with digital closings.[25] However, these issues are fixable, and the increased popularity and exposure of RON during the pandemic likely means that most states will inevitably adopt similar statutes.

 

[1] Jerusalem Demsas, COVID-19 Caused a Recession. So Why did the Housing Market Boom?, Vox  (Feb. 5, 2021, 9:00 AM ), https://www.vox.com/22264268/covid-19-housing-insecurity-housing-prices-mortgage-rates-pandemic-zoning-supply-demand.

[2] See id.

[3] Than Merrill, Everything There is to Know About a Real Estate Closing, Fortune Builders, https://www.fortunebuilders.com/real-estate-closing/ (last visited Oct. 20, 2021).

[4] James Kleimann, Notarize and Realogy Title Group See 200% Spike in RON Closings, Housing Wire (Sept. 9, 2020, 11:18 AM), https://www.housingwire.com/articles/notarize-and-realogy-title-group-see-200-spike-in-ron-closings/.

[5] Diana Sievers, Nearly 10 Years Later, The First State to Enact RON Legislation is Accelerating RON Adoption, Qulia Insight (June 11, 2021), https://blog.qualia.com/ron-adoption-va/.

[6] See Va. Code Ann. § 47.1-6.1 (2021).

[7] Audrey Barker, How Does eClosing with Remote Online Notarization Work?, Spruce (Apr. 1, 2020),  https://spruce.co/blog/how-does-eclosing-with-remote-online-notarization-work.

[8] Jeff Clabaugh, Home Sale Closings can be Done Remotely for Social Distancing, but There’s a Catch, WTOP News (Apr. 13, 2020, 10:45 AM), https://wtop.com/business-finance/2020/04/home-sale-closings-can-be-done-remotely-for-social-distancing-but-theres-one-catch/.

[9] DLA Piper, Remote Notarization is Here to Stay, Lexology (Aug. 4, 2021), https://www.lexology.com/library/detail.aspx?g=3f57867c-4d5f-4b03-8db5-b8f7dad71c2.

[10] Id.

[11] Tim Glaze, Digital Closing have Spiked 228% Since 2019, Housing Wire (July 8, 2021, 11:43 AM), https://www.housingwire.com/articles/digital-closings-have-spiked-228-since-2019/.

[12] Id.

[13] Id.

[14] Id.

[15] ALTA Vendor Survey Shows 547 Percent Spike in RON Use, American Land Title Association (Dec. 8, 2020), https://www.alta.org/news/news.cfm?20201208-ALTA-Vendor-Survey-Shows-547-Percent-Spike-in-RON-Use.

[16] Bill Burding, Remote Online Notarization is the Proper Path Forward for Digital Closings, Housing Wire (Nov. 9, 2020, 12:43 PM), https://www.housingwire.com/articles/remote-online-notarization-is-the-proper-path-forward-for-digital-closings/.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] See Kristina Sherry, Unmoved by COIVID-19, California Remains a Holdout on Remote Online Notarizations, Golden State Lawyer (May 11, 2021), https://www.goldenstatelawyer.com/2021/05/unmoved-by-covid-19-california-remains-a-holdout-on-remote-online-notarizations/.

[23] See Paul Centopani, RON Use Went up in 2020. Here’s Why More Lenders Won’t Adopt it, American Banker (Dec. 30, 2020, 2:02 PM), https://www.americanbanker.com/list/ron-use-went-up-in-2020-heres-why-more-lenders-wont-adopt-it.

[24] Id.

[25] Id.

Image Source: https://www.thompsoncoburn.com/insights/publications/item/2020-03-30/electronic-signatures-and-remote-online-notarizations-during-covid-19

By Madison Blevins

 

As the world has worked on adapting to the many ever-changing adjustments from the world-wide pandemic of 2020, COVID-19, many have had to switch to remote work in order to have continued success and efficiency in a socially-distanced world.[1] And civil and criminal attorneys are no different. In a change that seemed to happen almost overnight, the legal profession was thrust into what was arguably the biggest change in procedure it had seen in decades.[2] Due to necessity, the previous rules that judges had for likely their whole careers about in person conferences and hearings were thrown out the window.[3] In addition to courtroom changes, interactions with clients saw a large transformation as well.[4] Attorneys practice remotely, are now able to meet with clients virtually, and can notarize and review important documents online, as well as argue important cases via platforms like Zoom.[5] But as the world has slowly started to return to a new “normal,” the question has become what the practice of law will look like going forward.[6]

In what seems to be a move of efficiency, lawyers can expect courts to continue with virtual proceedings even after the pandemic, according to a recent survey by Thomson Reuters.[7] After surveying more than 238 judges and other court staff and officials in state, county, and municipal courts in June about the continuing impact of COVID-19 on court proceedings, the overwhelming response was that respondents were involved in remote proceedings both last year and this year.[8] With so many proceedings being held remotely last year, it is unsurprising that the hybrid-model will be here to stay.[9] Gina Jurva, who authored the report, wrote that “[t]he next phase of hybrid hearings will require courts to deploy a platform of optimized, seamless technology to avoid more backlogs and disruptions. Court administrators will need to find the right technology that allows lawyers and litigants to focus on the substance of proceedings, not the procedural, audio, and visual aspects of it.”[10] Despite these potential technological challenges that lie ahead, lawyers seemed to have adapted well to the rapid change going on in the industry.[11] Nearly half of all firms surveyed by MyCase in 2020 were able to move from office to home in less than one day, and 80% of those surveyed have transitioned to working remotely some or all of the time.[12] This seems to suggest that despite being able to work remotely in the past, a majority of firms have had the ability to work from home, but simply lacked the desire to do so.[13]

While efficiency and morale may be up for some remote workers, there are certainly disadvantages to having to work from home.[14] Among other things, main factors that will be heavily impacted are practice management, work culture, productivity, clients, and security of important files.[15] Not everyone works well in a remote culture, and so it will be up to attorneys and their firms to ensure that work product and client relationships do not suffer as a result of the transition to remote work.[16]

Despite the above addressed advantages and disadvantages, remote work is here to stay. Whether it is a hybrid model or fully remote, almost all firms and jurisdictions have found a way to make proceedings and client interactions in both the civil and criminal field work remotely when necessary.[17] Therefore, attorneys, judges, and firms need to either adapt or fail, since these technological industry changes are ones that the law practice simply cannot afford to ignore.[18]

 

[1] See Laura LaBerge et al., How COVID-19 Has Pushed Companies Over the Technology Tipping Point – and Transformed Bus. Forever, McKinsey & Company (Oct. 21, 2021, 3:39 PM), https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-insights/how-covid-19-has-pushed-companies-over-the-technology-tipping-point-and-transformed-business-forever.

[2] Adapt or Fail: Industry Changes Law Firms Can’t Afford to Ignore, ABA TechReport 2020, (Oct. 21, 2021, 3:43 PM), https://www.americanbar.org/groups/law_practice/publications/techreport/2020/sponsored-mycase/ [herein after “Adapt or Fail”].

[3] See id.

[4] See id.

[5] See id.

[6] See generally Adapt or Fail, supra note 2 (discussing how law firms are generally adapting to the pandemic related technological changes); Jacqueline Thomsen, Virtual Court Hearings Are Here to Stay Post-Pandemic, Survey Finds, LAW.COM (Oct. 21, 2021, 3:51 PM) https://www.law.com/nationallawjournal/2021/08/18/virtual-court-hearings-are-here-to-stay-post-pandemic-survey-finds/?slreturn=20210921150011 (discussing how remote work for attorneys is here to stay) [herein after “Virtual Court”].

[7] See Virtual Court, supra note 6.

[8] Id.

[9] Id.

[10] Id.

[11] See Adapt or Fail, supra note 2.

[12] Id.

[13] Id.

[14] See Surprising Working From Home Productivity Statistics (2021), Apollo Technical (Oct. 21, 2021 4:01 PM) https://www.apollotechnical.com/working-from-home-productivity-statistics/.

[15] See Adapt or Fail, supra note 2.

[16] See id.

[17] See generally id. (discussing the implications on the law practice of working remotely due to COVID).

[18] See id.

Image Source: https://www.pexels.com/search/zoom%20call

By Michael Millstein

 

As law students around the country embark on their respective journeys in the legal world, one of the first pitstops along the way is in the world of civil procedure. Civil procedure is a course taught in the first year (“1L”) of law school which “consists of the [federal] rules by which courts conduct civil trials.”[1] One major question which frequently arises in civil procedure, is that of where you can sue someone. In order to sue someone in federal court, the rules provide that the court in which the complainant has filed must have subject matter jurisdiction, personal jurisdiction, and proper venue for the respondent.[2] The element of personal jurisdiction, has, for decades, been frequently litigated, leading to several landmark decisions.[3]

The policy decision behind personal jurisdiction is to only haul a respondent into court to such an extent that is fair to him/her.[4] In the crucial case of International Shoe, the Supreme Court held that an individual’s minimum contacts with the forum State, subsequently provided that State with personal jurisdiction over the respondent.[5] Since this holding, several court cases have expounded upon the definition of “minimum contacts” and have further refined the rule itself.[6] In addition to minimum contacts, if a respondent is either served with process in the State where suit is filed, or resides there, personal jurisdiction is appropriate.[7] Now, in the modern pandemic-era, the question arises of whether or not platforms such as Zoom may eliminate the stringencies of proving that a court does have personal jurisdiction over a respondent.[8]

Several key advantages may arise from allowing Zoom to supplement the traditional personal jurisdiction rules. One such advantage is the ability to open the court’s doors to more people by reducing both the time and monetary costs of litigation.[9] In just the past 12 months, an astounding 432 challenges of personal jurisdiction have reached the appellate level, guaranteeing a lengthier trial.[10] Providing an incentive to not challenge personal jurisdiction may assist in reducing this number over the next 12 months. Furthermore, in situations where personal jurisdiction is appropriate, the opportunity to participate via zoom may reduce travel costs for the respondent.[11] In Justice Breyer’s famous opinion in McIntyre, he opined the Appalachian potter to a corporate machine, reasoning that it is not fair to anticipate that both entities have equal opportunity to travel in order to defend themselves.[12] Furthermore, with the potential reduction in the frequency of litigation involving disputes over personal jurisdiction, this may help speed up the process of ongoing cases, which may otherwise take several years to resolve.[13]

In spite of the plethora of exciting opportunities which integrating Zoom into our legal system presents, such opportunities are nevertheless met with potential downsides. Three key questions to consider when assessing how greatly we aspire to have our legal system rely on Zoom, or any technology for that matter, are: (1) how fair a zoom trial is; (2) if it would phase out the older generations of attorneys, complainants, and respondents; and (3) if this disadvantages those who come from a less well-off socioeconomic standing. After a year of Zoom trial results to analyze, studies show that Zoom trials are linked with higher bail amounts; limited effects on the use of video evidence; and harsher outcomes for defendants/respondents in general.[14] Although Zoom increases “access and accountability,” its inability to guaranteeably do so for the elderly, and the homeless communities, coupled with its harsher outcomes, may cut against its implementation for personal jurisdiction purposes since it does not inherently promote equity.[15]

Regardless of whether or not the advantages of Zoom supplementing personal jurisdiction outweigh the potential costs, the primary issue left to analyze is whether or not one may waive one’s right to a zoom trial in order to enforce a court to require the traditional personal jurisdiction standard.[16] If so, does this really solve anything, and how should courts handle this? Though a legal standard on waiver is far down the road, as this entire dilemma is nothing more than a mere hypothetical for now, courts may choose to say that a waiver of the right to a zoom trial at any point is an irrevocable waiver.[17] In doing so, the court effectively says that if one opts to challenge whether or not the court has personal jurisdiction over oneself, that this challenge (1) acts a waiver of the right to a zoom trial, and (2) if the court rules against the challenger, this waiver may not be revoked.[18] In essence, this leaves the potential challenger with the decision to either risk paying travel costs via waiver and a challenge of personal jurisdiction, or to simply choose to consent to a zoom trial. Lately, American society has demanded changes to what many refer to as a “broken system.”[19] Whether that same crowd will soon demand the implementation of zoom to remedy the legal system poses a question to potentially be answered in the very near future.

 

[1] Cornell Law School Legal Info. Instit., Civil Proc., https://www.law.cornell.edu/wex/civil_procedure (last visited Oct. 20, 2021).

[2] See Fed. R. Civ. P. 12 (requiring that a complaint state that a court has the requisite subject matter jurisdiction, personal jurisdiction, and venue necessary in order to hear a case).

[3] See, e.g., Pennoyer v. Neff, 95 U.S. 714, 735 (1878); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 487 (1985).

[4] Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1019 (2021).

[5] International Shoe Co., 326 U.S. at 316.

[6] See, e.g., Id.; Pennoyer, 95 U.S. at 735; Hanson v. Denckla, 357 U.S. 235, 256 (1958).

[7] See Burger King, Corp., 471 U.S. at 487 (further refining the rule of what contacts and actions taken by a company can subject it to personal jurisdiction in the forum state); Pennoyer, 95 U.S. at 735 (holding that a state has personal jurisdiction over the citizens residing within it).

[8] William Antonelli, What is Zoom? A Comprehensive Guide to the Wildly Popular Video-Chatting Service For Computers and Smartphones, Business Insider (Nov. 18, 2020, 2:52PM), https://www.businessinsider.com/what-is-zoom-guide.

[9] Lauren Kirchner, How Fair Is Zoom Justice, The Markup (June 9, 2020, 10:00AM), https://themarkup.org/coronavirus/2020/06/09/how-fair-is-zoom-justice.

[10] See Westlaw, Cases (last visited Oct. 21, 2021), https://1.next.westlaw.com/Search/Results.html?query=personal%20jurisdiction&jurisdiction=ALLCASES&contentType=CASE&querySubmissionGuid=i0ad62aef0000017ca3be81896c444160&searchId=i0ad62aef0000017ca3be15cc8fdc3549&transitionType=ListViewType&contextData=(sc.Search) (searching “personal jurisdiction” in the search bar).

[11] See Scott McCartney, The Covid Pandemic Could Cut Business Travel By 36% — Permanently, WSJ (Dec. 1, 2020, 8:48AM), https://www.wsj.com/articles/the-covid-pandemic-could-cut-business-travel-by-36permanently-11606830490 (noting how the pandemic, and new telecommunication platforms, have intertwined to limit the frequency of business trips, and subsequently the costs of travel for those businesses).

[12] J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 891 (2011) (Breyer, J., concurring) (highlighting that “[w]hat might appear fair in the case of a large manufacturer which specifically seeks, or expects, an equal-sized distributor to sell its products in a distant State might seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his products . . . to a buyer from a distant state”).

[13] See Taylor Dalton, Federal Civil Cases Are Resolved in a Year On Average, But Obtaining a Judgment Through Trial Adds an Extra Year, The Juris Lab (May 26, 2021) (highlighting that the average civil trial lasts 364 days, which allows us to infer that an intervening dispute over personal jurisdiction can prolong the outcome of a court case for well over a year).

[14] Kirchner, supra note 9.

[15] Id.

[16] See generally Restatement (Second) of Conts. § 84 (Am. L. Inst. 1979) (detailing how waivers work in contract law).

[17] Id.

[18] Id.

[19] Clark Nelly, Our Broken Justice System, Cato Institute (June 2019), https://www.cato.org/policy-report/mayjune-2019/our-broken-justice-system.

Image Source: https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392

By Michaela Fuller

 

To say that big tech, the collection of major American technology companies, plays a critical role in today’s society[1] is almost an understatement. Companies like the “big five,” i.e., Amazon, Apple, Facebook, Google, and Microsoft, dominate both the marketplace and social lives of most of the world, yet the mega industry has developed free from significant federal regulation.[2] Instead, the industry functions on a system of self-governance—a system that is often heavily criticized for reasons such as corporate accountability and overall societal safety and wellbeing.[3]

The call for Congressional regulation over tech giants and their products is not a novel one, yet many hurdles stand in the way of reaching meaningful results. One such hurdle was brought to light again recently when Senator Richard Blumenthal showed his misunderstanding of social media colloquialisms during a Senate subcommittee hearing on protecting children on the internet.

In an attempt to press Facebook’s global head of security, Antigone Davis, on how the tech giant is aiming to address child exploitation and mental health on its apps (including Instagram), Sen. Blumenthal asked her, “Will you commit to ending finsta?”[4]

Although asked in earnest, what Sen. Blumenthal seemed unable to grasp during the interaction was what the term “finsta” actually means. Finsta is a slang word for a secret, alternative Instagram account many social media users create under a fake name, often solely for use amongst their closest circle of friends.[5] The term combines the word “fake” with the shorthand name for Instagram, “Insta.”[6]

“Finsta is one of your products or services,” the senator continued.[7] “We’re not talking about Google, or Apple – it’s Facebook, correct?”[8] Davis responded explaining that a finsta is a type of social media account, not a product.[9] Blumenthal pushed, “OK, will you end that type of account?”[10] Davis then replied, “I’m not sure I understand exactly what you’re asking.”[11]

Some of those who understand the term have opined the exchange between the 75-year-old Congressman and the tech giant’s representative as bizarre, cringeworthy, and “comedic farce.”[12] However, to some, it exemplifies a much larger problem of how out of touch much of Congress may actually be to the technology it is tasked with regulating.[13]

Critics have claimed the finsta disconnect symbolizes the schism between everyday social media users and their elected representatives.[14] As technology giants like Facebook continue to amass in societal dependency, we depend more and more on Congress to regulate the industry in a meaningful way. Though suggestions for a wide variety of social media and other tech regulations are oft proposed from politicians to scholars to the tech giants themselves, all these policy pitches are faced with various legal issues including First Amendment, data privacy and protection, and antitrust challenges.[15] These issues must be evaluated on a Congressional level,[16] so critics are asking: how can Congress regulate an industry it does not understand?

It is, of course, fair to question if Sen. Blumenthal’s finsta flub is representative of such a grand lack of Congressional understanding. After all, the confused interaction “was just one moment in a relatively productive hearing focused on the mental health effects Instagram has on its young users,”[17] demonstrating that an older Congress does not categorically prevent meaningful tech policy changes.

However, as noted by one critique of the exchange, the argument is not one to say that older people like Sen. Blumenthal should not hold governmental seats, but one that pushes for a standard that “they shouldn’t be the only ones in the room.”[18] Meaningful regulation depends on informed, involved regulators. Thus, meaningful regulation on social media and tech giants must depend on regulators who know the ins and outs of the platforms they are regulating. Is our current Congress representative of this mission? Is it willing or able to understand the importance of the argument?

 

[1] Valerie C. Brannon, Regulating Big Tech: Legal Implications, Congressional Research Service (Sept. 11, 2019), https://sgp.fas.org/crs/misc/LSB10309.pdf.

[2] Id.

[3] See, e.g., Arisha Hatch, Big Tech Companies Cannot be Trusted to Self-Regulate: We Need Congress to Act, Tech Crunch (Mar. 12, 2021, 9:26 AM), https://techcrunch.com/2021/03/12/big-tech-companies-cannot-be-trusted-to-self-regulate-we-need-congress-to-act/.

[4] Eric Morrow (@morroweric), Twitter (Sept. 30, 2021, 1:27 PM), https://twitter.com/morroweric/status/1443628623576109065?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1443628623576109065%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.npr.org%2F2021%2F10%2F04%2F1043150167%2Fsen-blumenthals-finsta-flub-renews-questions-about-congress-grasp-of-big-tech.

[5] Alana Wise, What Sen. Blumenthal’s ‘Finsta’ Flub Says About Congress’ Grasp of Big Tech, NPR (Oct. 4, 2021, 5:52 PM), https://www.npr.org/2021/10/04/1043150167/sen-blumenthals-finsta-flub-renews-questions-about-congress-grasp-of-big-tech.

[6] Id.

[7] Morrow, supra note 4.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Brandon Choe, ‘Last Week Tonight’: John Oliver Drags Senator Richard Blumenthal Over “Finsta” Flub, Deadline (Oct. 3, 2021, 9:48 PM), https://deadline.com/2021/10/john-oliver-finsta-blumenthal-1234848955/.

[13] Wise, supra note 5.

[14] Id.

[15] Brannon, supra note 1.

[16] Hatch, supra note 3.

[17] Makena Kelly, Sen. Blumenthal’s ‘Finsta’ Quote Wasn’t That Bad, The Verge (Oct. 1, 2021, 11:51 AM), https://www.theverge.com/2021/10/1/22704308/finsta-instagram-facebook-privacy-kids-safety-richard-blumenthal-blackburn.

[18] Wise, supra note 5.

Image Source: https://washingtonnewsday.com/us-politics/richard-blumenthals-finsta-remarks-have-been-seen-over-6-million-times-on-youtube/#prettyPhoto/0/

By J. Merritt Francis

 

On May 1, 2007, Mike Winkelmann created a piece of digital art, and posted it online.[1]  The Charleston, South Carolina-based artist, known as Beeple, did this every day for the next five-thousand days, and combined them to make, “Everydays: The First 5000 Days” (Everydays). [2]

February 16, 2021, Beeple “minted” the massive jpeg file (21,069 x 21,069 pixels) using blockchain technology, which allows for secure record of ownership.[3]  This exclusively digital work, and the corresponding “immutable” record of ownership, is a non-fungible token (NFT).[4]

On March 11, 2021, Everydays sold for $69,346,250 in an online auction.[5]  It was the first purely digital artwork ever sold by Christie’s Auction Company, resulting in the third-highest price paid at auction for a living artist’s work.[6]  The purchaser: Metapurse, a crypto-exclusive fund headquartered in Singapore.[7]  So—what is Metapurse permitted to do with its $69.3 million jpeg file, and what is Beeple allowed to do?

As a prefatory matter, NFTs can be programmed in an almost limitless variety of ways, using “smart contract” technology.[8]  This technology could incorporate contractual rights into NFTs, providing the original artist a commission on all future sales.[9]  Most NFTs, though, are programmed similar to deeds for property: You have legal ownership of the work with your deed, but the title stays with the artist.[10]  This is how Beeple programmed Everydays.

Metapurse’s ownership of Everydays amounts to a non-exclusive, non-transferrable license of the work.[11]  Under a non-exclusive license, the NFT artist remains free to exploit the same intellectual property and to allow any number of other licensees to also exploit the same property.[12]  But, a non-transferrable license prevents Beeple from transferring ownership rights to the NFT to anyone else.[13]  As Winkelman explained in an interview, “If you buy a painting, you bought the painting, you did not buy the copyright to that picture.”[14]

Beeple proved his ability to profit off Everydays’ intellectual property just days after the auction, as he auctioned off one of the five-thousand squares of the $69.3 million work.[15]  The runner-up bidder for Everydays won the auction, spending $6 million on the piece.[16]

In short, Metapurse is entitled to sell its ownership rights to the work, and bragging rights.  They’ll receive “essentially a long string of numbers and letters,” which represents “a code that exists on the Ethereum blockchain.  It is a block in the chain that will be [sent to them].”[17]

These limited rights did not concern its purchaser, however, as he believes its “going to be a billion-dollar piece someday.”[18]  The company began collecting NFTs, which they consider “virtual real estate,” because “the fact you could own land and that ownership is immutable,” appealed to them.[19]

On top of the long list of code and ownership rights, Metapurse will also receive a “gigantic JPEG.  A massive, high-resolution JPEG.  It’s hundred[s] of megabytes[.]”[20]  Evidently, Metapurse is more concerned with the tax implications of buying the piece, rather than the underlying intellectual property.

 

[1] Beeple’s Opus, Christie’s, https://www.christies.com/features/Monumental-collage-by-Beeple-is-first-purely-digital-artwork-NFT-to-come-to-auction-11510-7.aspx.

[2] Id.

[3] Sebastian Smee, Beeple’s digital ‘artwork’ sold for more than any painting by Titian or Raphael.  But as art, it’s a great big zero., Washington Post (Mar. 16, 2021, 7:00 AM), https://www.washingtonpost.com/entertainment/museums/beeple-digital-artwork-sale-perspective/2021/03/15/6afc1540-8369-11eb-81db-b02f0398f49a_story.html.

[4] Id.

[5] Beeple’s Opus, supra note 1.

[6] Smee, supra note 3.

[7] Id.

[8] Daniel Barsky, Non-fungible Tokens and Intellectual Property Law: Key Considerations, HK Law, July 2021, at 1.

[9] Id.

[10] Id. at 2.

[11] Ned Sackman, NFTs and intellectual property: How do you assess the value of an intangible, non-fungible asset?, NH Bus. Rev. (Aug. 12, 2021), https://www.nhbr.com/nfts-and-intellectual-property/.

[12] Copyright law explained, Copyright Alliance (Oct. 14, 2021, 10:56 PM), https://copyrightalliance.org/education/copyright-law-explained/copyright-transfers/exclusive-vs-non-exclusive-licenses/.

[13] Id.

[14] Taylor Locke, Millionaire artist Beeple: This is the very important thing ‘I think people don’t understand’ about buying NFTs, CNBC: Next Gen Investing (Mar. 26, 2021, 11:22 AM), https://www.cnbc.com/2021/03/26/digital-artist-beeple-common-misunderstanding-about-nfts.html.

[15] Id.

[16] Grace Kay, Beeple’s latest crypto art just sold for $6 million to the same tech executive who was outbid at the last minute for the record-breaking $69 million auction, Bus. Insider (Mar. 23, 2021, 2:43 PM), https://www.businessinsider.com/beeple-sells-latest-nft-runner-up-bidder-record-crypto-art-2021-3.

[17] Kevin Stankiewicz, Here’s what the buyer of Beeple’s NFT digital art actually gets for $69 million, CNBC: Art & Culture (Mar. 11, 2021, 6:12 PM), https://www.cnbc.com/2021/03/11/beeple-is-a-rich-man-after-nft-sale-christies-art-specialist-noah-davis.html.

[18] Eileen Kinsella, ‘This Is Going to Be a Billion-Dollar Piece Someday’: The Buyer of the $69 Million Beeple NFT on Why It’s the Greatest Artwork in a Generation, Artnet News (Mar. 12, 2021), https://news.artnet.com/market/the-buyer-of-the-69-million-beeple-nft-metapurse-1951561.

[19] Id.

[20] Locke, supra note 14.

Image Source: https://www.christies.com/features/Monumental-collage-by-Beeple-is-first-purely-digital-artwork-NFT-to-come-to-auction-11510-7.aspx