Author: JOLT Page 8 of 10

By Troy Fowler

 

Like the vast expanse beyond Earth’s atmosphere, the possibilities of what humanity might someday achieve in outer space are limitless. In 2021, three American corporations conducted private launches of civilians into space, breaking a decades long government monopoly on space travel.[1] These pioneers are already household names, from Virgin Galactic founder Richard Branson and Amazon’s Jeff Bezos to a SpaceX crew assembled by Elon Musk.[2] These recent launches constitute one small step for man, one giant leap for capitalism.[3] As billionaires plot humanity’s path to the stars, calls for tighter regulation of commercial “space tourism” aim to hobble the industry before it can get off the ground.[4]

Detractors urge the need for increased government intervention and control of the fledgling commercial space industry.[5] They categorize these private endeavors as benefitting only the ultra-rich, arguing that commercial space travel is, and will continue to be, prohibitively expensive for the average person unless government steps in to regulate and subsidize the industry.[6] “Very few individuals will benefit from what will be an uber-luxury segment of the travel market, with Virgin Galactic tickets predicted to cost $250,000” at the entry level.[7] But even $250K is a substantially lower price tag than the $20M the first civilian space tourist—Dennis Tito—forked out in 2001 to hitch a ride to the International Space Station.[8]

To date, space tourism has yet to scratch the surface of its potential. It was just 60 years ago that the first human being exited Earth’s atmosphere.[9] This happened before the invention of the internet, which has utterly exploded in its own lifetime.[10] Central to the internet’s unprecedented growth was the unfettered competition of the free market, which shaped it into the global phenomenon we know and love today.[11] Like the unrestricted regulatory environment which allowed the internet to expand so rapidly, the commercial space industry would benefit from an approach by which government can most effectively support the growth of the private sector by staying out of its way.[12]

Commendably, the federal approach has been deliberately hands-off.[13] The United States is a party to a 1967 treaty wherein Earth’s space-faring nations agreed to authorize and continuously supervise the activities of their country’s nongovernmental entities in outer space.[14] In 2017, the Obama Office of Science and Technology penned a report supporting “a narrowly tailored [domestic] authorization process for newly contemplated commercial space activities, with only such conditions as are necessary for compliance with the United States’ international obligations.”[15]

At present, domestic regulation of space tourism remains effectively nonexistent in accordance with the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015.[16] Although the industry at large has yet to adopt voluntary consensus standards, a 2019 FAA report indicated an enduring faith that “successful implementation of an industry-led framework could obviate the need for government involvement.”[17] Aside from basic informed consent, launch and reentry licensing, and mandatory insurance policies, the industry is largely entrusted to self-regulate.[18] Risks associated with launch and reentry must be presented in writing in a “manner that can be readily understood” by prospective space tourists.[19] Reentry regulations exist to protect the safety of innocent bystanders,[20] and in order to obtain a launch or reentry license, the licensee must obtain liability insurance to compensate for the maximum probable loss for any resulting injuries or deaths.[21]

Notwithstanding the scarce regulation on point, demand for private launches has risen significantly.[22] “[The SpaceX] mission will be looked at as the first mission of the opening of the second space age, where space travel became much more accessible to average men and women across the world.”[23] Space is the final frontier both scientifically and economically, and humanity cannot afford to let government bureaucracy impede its destiny. While space tourism may today seem like it is inaccessible for the common person, so too did the internet in the 1980s.[24] Thus, while some critics urge regulation or taxation of the commercial space industry, the exact opposite must occur if we wish to keep shooting for the sky.[25]

 

[1] Matthew Weinzierl, Space, the Final Economic Frontier, 32 J. Econ. Persps. 173, 173 (2018).

[2] Devin Coldewey, Virgin Galactic and Richard Branson Celebrate Launch of First Passengers into Space, TechCrunch (July 11, 2021), https://techcrunch.com/2021/07/11/virgin-galactic-and-richard-branson-celebrate-launch-of-first-passengers-into-space/; Aria Alamlhodaei, Blue Origin’s New Shepard Carries Jeff Bezos and Three Crew Members to Space and Back, TechCrunch (July 20, 2021), https://techcrunch.com/2021/07/20/blue-origins-new-shepard-carries-jeff-bezos-and-three-crew-members-to-space-and-back/; Aria Alamalhodaei, Inspiration4’s Successful Splashdown is Just the Beginning of Private Spaceflight for SpaceX, TechCrunch (Sept. 20, 2021), https://techcrunch.com/2021/09/20/inspiration4s-successful-splashdown-is-just-the-beginning-of-private-spaceflight-for-spacex/.

[3] Andrew Follett, A Tale of Two Spaceflights, National Review (Sept. 25, 2021, 5:00 AM).

[4] Joshua Jahani, We Must Subsidize and Regulate Space Exploration, TechCrunch (Sept. 8, 2021), https://techcrunch.com/2021/09/08/we-must-subsidize-and-regulate-space-exploration/.

[5] Id.

[6] Id.

[7] Id.

[8] Francesca Street, First Space Tourist Dennis Tito: ‘It Was the Greatest Moment of My Life,’ CNN (July 20, 2021), https://www.cnn.com/travel/article/space-tourism-20-year-anniversary-scn/index.html.

[9] April 1961 – First Human Entered Space, NASA (Sept. 7, 2018), https://www.nasa.gov/directorates/heo/scan/images/history/April1961.html.

[10] Dennis Wingo, Zero G, Zero Tax: Enabling Private Space Enterprise Through Tax Incentives, 19 Ad Astra, no. 1, 2007, at 24 (2007).

[11] Jahani, supra note 4; Wingo, supra note 10.

[12] Mark Whittington, Now Someone Wants to Slap a SPACE Tax on Jeff Bezos, Elon Musk, et al, The Hill (Aug. 8, 2021, 11:00 AM), https://thehill.com/opinion/technology/566865-now-someone-wants-to-slap-a-space-tax-on-jeff-bezos-elon-musk-et-al.

[13] Alyssa K. King, Cong. Rsch. Serv., R46500, The Future of Space Tourism (2020).

[14] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies Art. VI, Oct. 10, 1967, 18 UST 2410; 610 UNTS 205.

[15] Letter from John P. Holdren, Director and Assistant to the President for Science and Technology, to Chairman Thune and Chairman Smith, Office of Science and Technology Policy (Apr. 4, 2016), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/csla_report_4-4-16_final.pdf.

[16] Commercial Space Launch Amendments Act of 2004, Pub. L. No. 108-492, 118 Stat. 3979; Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704.

[17] Federal Aviation Administration, FAA Evaluation of Commercial Human Space Flight Safety Frameworks and Key Industry Indicators 36 (2017).

[18] 51 U.S.C. § 50901 et seq.; 64 F.R. 19614, 19614–21 (1999).

[19] 14 C.F.R. § 460.45.

[20] King, supra note 13.

[21] 51 U.S.C. § 50914.

[22] Jeff Foust, Crew Dragon Splashes Down to Conclude Inspiration4 Mission, SpaceNews (Sept. 18, 2021).

[23] Id.

[24] Wingo, supra note 10.

[25] Whittington, supra note 12.

Image Source: https://www.gulftoday.ae/-/media/gulf-today/images/articles/opinion/2021/7/20/space.ashx?h=450&la=en&w=750&hash=986D3CC0B8644149B2C793966B7E40F2

By Hannah Ceriani

 

Amazon has just announced the launch of its newest voice-activated digital assistant, Astro.[1] Astro is a mobile robot that does everything that Amazon Alexa can and more.[2] It’s primary purpose is to patrol a home or check on pets and people.[3] Astro can be controlled remotely and has been programmed to express personality through a range of movements and expressions.[4]

With this launch, Amazon has attempted to pre-empt privacy concerns that emerged around its previous voice-activated digital assistants.[5] Astro owners can set “out of bounds zones” and turn off microphones and cameras.[6] An LED light located on a periscope turns green to notify the owner when it is streaming video or audio to the cloud.[7]

Voice-activated digital assistants keep a record of information such as personal doings, habits, whereabouts, interactions, and search history.[8] The information is available to the user anywhere, so long as they have a smartphone, tablet, or computer. It is tricky to delete information stored by these devices because although the device will delete the specific text, it will still maintain a record that a person ordered or searched for a particular good or service.[9]

Privacy concerns have been raised in the past because of the nature of how information is gathered and stored by these devices. Voice-activated digital assistants are virtually always listening for specific words – such as “Hey Google” – which then trigger recording.[10] A recording of the spoken phrase is then sent to a service platform, where it is translated into text.[11] The text is sent to a cloud storage, where the information is kept.[12]

One big issue is that the information gathered is no longer in the owner’s possession because it is stored at a facility rather than with the robot.[13] This was highlighted five years ago in State v. Bates, No. CR-2016-370-2 (Ark. Cir. 2016), where police officers believed that Amazon Echo had been used to play music on the night of the homicide in the alleged murderer’s home.[14] The officers wanted to access the data, so they served Amazon with two warrants requesting it, and Amazon eventually agreed to turn it over.[15] In fact, just in the first half of 2021, law enforcement around the world filed 30,000 similar information requests with Amazon.[16]

Some people feel that subpoenas and warrants for such information violate the owners’ Fourth Amendment rights.[17] However, case law has suggested that data collected by devices like Astro would not be protected because the owners’ information is disclosed to third parties and “there is no reasonable expectation of privacy in information disclosed to a third party.”[18]

The relatively new California Consumer Protection Act (“CCPA”) could help mitigate such privacy concerns. Even though it was passed in California, the CCPA has been adopted by several national and international companies, like Amazon, Netflix, Microsoft, Starbucks, and UPS.[19] Even people who are not residents of California may be protected by this law.[20] The CCPA gives people three rights if they take some action: (1) they can find out exactly what data has been collected about them; (2) they can instruct companies not to sell their data; and (3) they can ask companies to delete data provided that it is not restricting someone else’s rights.[21]

Even given the potential rights conferred on Astro owners under the CCPA, it is unclear whether Amazon has properly mitigated data privacy concerns. Are customers satisfied that they will not be recorded simply because the LED light isn’t green? If a subpoena or warrant covers Astro just like it does Alexa, would that essentially make it a surveillance device for law enforcement? If cybercriminals hack Astro, is there a greater capacity of data that can be stolen?

The controversy over data privacy in voice-activated digital assistants will likely become more widespread as technology advances. Legislation and regulation will continue to develop as technology such as Amazon Astro makes life easier for individuals, but also brings a slew of new privacy issues.

 

[1] Charlie Tritschler, Meet Astro, A Home Robot Unlike Any Other, Amazon (Sept. 28, 2021), https://www.aboutamazon.com/news/devices/meet-astro-a-home-robot-unlike-any-other.

[2] David Molloy, Amazon Announces Astro the Home Robot, BBC (Sept. 28, 2021), https://www.bbc.com/news/technology-58727057.

[3] Tritschler, supra note 1.

[4] Id.

[5] Molloy, supra note 2.

[6] Tritschler, supra note 1.

[7] Id.

[8] Eric Boughman et al., “Alexa, Do You Have Rights?”: Legal Issues Posed by Voice-Controlled Devices and the Data They Create, Am. Bar Ass’n (July 20, 2017), https://www.americanbar.org/groups/business_law/publications/blt/2017/07/05_boughman/.

[9] Bree Fowler, Amazon’s Astro May Be Cute, but Security Experts Warn of Privacy Concerns, CNET (Oct. 2, 2021, 5:23 A.M.), https://www.cnet.com/tech/amazons-astro-may-be-cute-but-security-experts-warn-of-privacy-concerns/.

[10] Boughman, supra note 8.

[11] Tom Bolton et al., On the Security and Privacy Challenges of Virtual Assistants, MDPI 2–3 (Mar. 26, 2021) https://www.mdpi.com/1424-8220/21/7/2312.

[12] Id.

[13] Boughman, supra note 8.

[14] Anne Pfeifle, Alexa, What Should We Do About Privacy? Protecting Privacy for Users of Voice-Activated Devices, 93 Wash. L. Rev. 421, 422 (2018) (referring to State v. Bates, No. CR-2016-370-2 (Ark. Cir. 2016)).

[15] Id.

[16] Fowler, supra note 9.

[17] Boughman, supra note 8.

[18] Id.

[19] Geoffrey A. Fowler, Don’t Sell My Data! We Finally Have a Law for That, Washington Post (Feb. 19, 2020), https://www.washingtonpost.com/technology/2020/02/06/ccpa-faq/.

[20] Id.

[21] Id.

Image Source: https://www.aboutamazon.com/news/devices/meet-astro-a-home-robot-unlike-any-other

By Seely Kaufmann

 

Last month, following a N.Y. Times investigation, the Pentagon acknowledged that a drone strike in Afghanistan mistakenly killed ten civilians, seven of whom were children.[1] U.S. Central Command (CENTCOM) military officials did not know the identity of the intended target, the driver of a white Toyota Corolla, but had deemed him suspicious because of an apparent stop at an ISIS safe house and the materials loaded in the vehicle appeared to be explosives.[2] The intended target turned out to be Mr. Zemari Ahmadi, a longtime worker for a U.S. aid group, who regularly loaded canisters of water into his trunk to bring home to his family.[3] CENTCOM Commander General Frank McKenzie, in his statement to the press, acknowledged that even though the targeting team deliberately followed and observed the intended target for eight hours, the team was unable to develop sufficient pattern-of-life activities.[4] Ultimately, the imminence of the threat and the lack of available surveillance resources lead to the mistaken identity and ten unintended deaths.[5]

While this most recent incident occurred with the U.S. MQ-9 Reapers, other countries have their own drone programs.[6] While the first phase of drone warfare was dominated by the U.S., the UK, and Israel, drones have rapidly proliferated over the past seven years to Pakistan, Turkey, U.A.E., and many others.[7] With weapon proliferation comes new warfare methodology. While drone swarms seem like something out of science fiction,[8] these systems are already being used. On September 14, 2019, a swarm of drones and cruise missiles flew past Saudi Arabia’s missile defense system and struck some of its most important oil infrastructure.[9] Saudi Arabia had attempted to protect against the rise of these cheap, low-tech threats by using the U.S. Patriot surface-to-air missiles batteries, which are designed to shoot down high-flying targets such as jets or ballistic missiles; however, drones and cruise missiles fly too low to be detected by the Patriot’s ground-based radar.[10] Luckily, there were no casualties and emergency crews had the fires under control within hours.[11]

The ethical and legal issues with drone warfare are already complicated even with a single lethal drone in the field, as illustrated by the most recent civilian casualties. Approximately one in five strikes results in civilian death, according to an investigation analyzing 150 strikes between April 2016 and June 2017 across northern Iraq.[12] Even though the United States has officially withdrawn from Afghanistan, the drone strikes continue albeit in different countries.[13] These issues surrounding drone strikes will compound if left unresolved, as drone warfare technologies proliferate and evolve. While truly autonomous drone swarm technology is still nascent, the countries using drone warfare must find a better way to resolve these issues.

One such mechanism is judicial review to safeguard against the erroneous deprivation of life, either pre- or post-strike.[14] A preemptive, ex ante judicial check, analogous to the surveillance courts, would review classified information and evaluate whether the proposed use of lethal force against an enemy combatant would be justified.[15] On the other hand, an ex post review would provide an adversarial hearing to review evidence after a drone strike has occurred.[16] While the merits of these approaches must be reviewed to determine how best to implement a judicial check on drone warfare, the dawning of the age of drones requires something more than the current, inadequate policies.[17]

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of Defense or its components.

 

[1] Eric Schmitt & Helen Cooper, Pentagon acknowledges Aug. 29 drone strike in Afghanistan was a tragic mistake that killed 10 civilians, N.Y. Times (Sept. 17, 2021), https://www.nytimes.com/2021/09/17/us/politics/pentagon-drone-strike-afghanistan.html.

[2] Id.

[3] Id.

[4] Press Briefing of General Kenneth F. McKenzie Jr. Commander of U.S. Central Command and Pentagon Press Secretary John F. Kirby (U.S. Dep’t of Defense broadcast Sept. 17, 2021) (transcript on file with U.S. Dep’t of Defense), https://www.defense.gov/News/Transcripts/Transcript/Article/2780738/general-kenneth-f-mckenzie-jr-commander-of-us-central-command-and-pentagon-pres/.

[5] Id.

[6] Dan Sabbagh, Killer drones: how many are there and who do they target?, Guardian, (Nov. 18, 2019), https://www.theguardian.com/news/2019/nov/18/killer-drones-how-many-uav-predator-reaper.

[7] Id.

[8] See, e.g., Black Mirror: Hated in the Nation (Netflix Oct. 21, 2016) (showing autonomous drone insects (ADI) targeting humans based on the most mentioned person in a hashtag).

[9] Michael Safi & Julian Borger, How did oil attack breach Saudi defences and what will happen next?, Guardian (Sept. 18, 2019), https://www.theguardian.com/world/2019/sep/19/how-did-attack-breach-saudi-defences-and-what-will-happen-next.

[10] Id.

[11] Natasha Turak, Detailed satellite photos show extent of ‘surgical’ attack damage to Saudi Aramco oil facilities, CNBC (Sept. 17, 2019), https://www.cnbc.com/2019/09/17/satellite-photos-show-extent-of-damage-to-saudi-aramco-plants.html.

[12] Azmat Khan & Anand Gopal, The Uncounted, N.Y. Times (Nov. 6, 2017), https://www.nytimes.com/interactive/2017/11/16/magazine/uncounted-civilian-casualties-iraq-airstrikes.html.

[13] See, e.g., Daniel Villarreal, Drone Strike Kills Senior Al Qaeda Leader in Syria, Pentagon Says, Newsweek (Sept. 30, 2021), https://www.newsweek.com/drone-strike-kills-senior-al-qaeda-leader-syria-pentagon-says-1634531.

[14] Jonathan G. D’Errico, Executive Power, Drone Executions, and the Due Process Rights of American Citizens, 87 Fordham L. Rev. 1185, 1211 (2018).

[15] Id.

[16] Joshua Andersen, Due Process of War in the Age of Drones, 41 Yale J. Int’l L. 55, 183 (2016).

[17] David W. Opderbeck, Drone Courts, 44 Rutgers L.J. 413 (2014).

Image Source: https://www.army.mil/article/237978/army_advances_learning_capabilities_of_drone_swarms

By Madison Blevins

 

With a world ever changing with new technological advances and breakthroughs, it comes as no surprise that with these advances come new security concerns and challenges.[1] Important work product, information, and confidential client data are now available at many firms in a convenient digital location.[2] Clients and attorneys alike want to be able to have quick access to their information and be able to work efficiently from anywhere necessary.[3] Additionally, with the COVID-19 pandemic, Zoom and digital copies of important and secure files became prevalent nationwide. However, with the ease and upsides of the ability to access most hard files online also comes serious security and privacy implications.[4] Over the years, law firms have become “prime targets for cybercriminals seeking to steal, expose, sell, or otherwise extort confidential information.  Both the digitalization of law firms’ sensitive documents and the increase in means available to perpetrate an online crime exacerbate these risks.”[5]

These privacy issues can be troubling for law firms, since there is often not a wide regulatory scheme within a private firm like there might be in a government agency, and these data breaches can be committed by both internal and external actors.[6] Examples of issues that law firms should be specifically aware of include data breaches, ransomware, phishing, cyberthreats, and encryption issues.[7] Despite these concerns, there are concrete steps firms are able to take to combat data security breaches.[8]

These data security breaches, as noted above, became increasingly concerning with the rise of COVID and remote work over the last year and a half.[9] Heightened security risks came with the move to virtual work as many law firms completely went remote, and confidential client data moved online with them.[10] Although it was, in many cases, completely necessary that these client files and other secure and confidential information be moved to the virtual space instead of only physically in offices, a majority of firms in late 2020 were not using all of the prevention measures available to them.[11]  While there are many safety measures available such as file encryption, email encryption, whole/full disk encryption, two-factor authentication, intrusion prevention, intrusion detection, remote device management and wiping, device recovery, web filtering, employee monitoring, and biometric login, there is a rather poor showing across the board for these measures.[12] In short, less than half of the respondents in the 2020 ABA Legal Technology Survey Report used the above precautions, with use greatly declining as the list goes on.[13]

Moreover, there are ethical concerns associated with cybersecurity.[14] Lawyers must take reasonable efforts to ensure that a data breach has not occurred or to detect an intrusion, and a lack of this reasonable effort constitutes an ethical violation.[15] To reflect preparation and best practices, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach.[16]

While it may be burdensome and take more time, effort, and money to implement these procedures, client security and data privacy should be a key concern of all firms. As the law firm Grubman Shire Meiselas & Sacks has seen, when there are confidential data breaches (especially with high profile clients), there is a price to pay, and law firms can feel the repercussions firsthand.[17]

In conclusion, the world of technology brings many advantageous results to law firms and clients alike, but the ethical and practical concerns of these technological advances need to be taken seriously in private practice.[18] Without a common regulatory scheme or participation in accessible prevention techniques, law firms could find themselves in hot water over data security and privacy concerns.[19]

 

[1] See generally Teresa Matich, 2021 L. Firm Security Guide: How to Keep Your L. Firm Secure, Clio (Oct. 1, 2021, 9:38 AM), https://www.clio.com/blog/data-security-law-firms/ (discussing how technological concerns relate to private firms).

[2] See id.

[3] See id.

[4] See Dr. Nick Oberheiden, 5 Cybersecurity Risks and 3 Obligations for Law Firms, XI Nat. L. Rev. 274 (2021).

[5] Id.

[6] Id.

[7] Id.

[8] John G. Loughnane, 2020 Cybersecurity, ABA Techreport 2020, (Oct. 1, 2021, 9:46 AM), https://www.americanbar.org/groups/law_practice/publications/techreport/2020/cybersecurity/.

[9] Experts Warn Lawyers of Cyber Risks to Remote Work, American Bar Association, (Oct. 1, 2021, 9:48 AM), https://www.americanbar.org/news/abanews/aba-news-archives/2020/03/cyber-risks-to-working-remote-b/.

[10] Id.

[11] See Loughnane, supra note 8.  

[12] See id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] See Loughnane, supra note 8; Vincent Mislos, REvil Hackers Threaten to Expose Secrets of LeBron James, Nicki Minaj in Crypto Ransom, International Business Times, (Oct. 1, 2021, 9:53 AM), https://www.ibtimes.com/revil-hackers-threaten-expose-secrets-lebron-james-nicki-minaj-crypto-ransom-3000366.

[18] See Oberhedien, supra note 4.

[19] See id.

Image Source: https://www.managedsolution.com/wp-content/uploads/2018/09/Data-Security-vs.-Data-Privacy-Why-it-Matters.jpg

By Eleni Poulos

 

Attorneys adhere to a strict level of moral, ethical, and legal competency, as required by the Model Rules of Professional Conduct.[1] As technology use and knowledge evolved, so did the Model Rules.[2] As of August 2012, the American Bar Association modified the rules as the direct result of technology’s influence on the practice of the law.[3] Since its adoption more than half the states—including Virginia—have implemented this rule into their own state rules, especially as the influence of technology only increases.[4] In these states, licensed attorneys are required to maintain a basic level of competence in technology use in the field of law.[5] This knowledge is particularly important because “by remaining technologically incompetent, lawyers are knowingly wasting clients’ time and money due to a lack of computer skills.”[6]

First, it’s important to know what exactly the change that was made is. While Rule 1.1 itself remains unmoved, the comment attached to it “makes it clear that lawyers authorized to practice in a state…have an affirmative obligation to acquire and maintain an awareness and understanding of developments in technology.”[7] Technology competency includes basic knowledge is several areas, such as cybersecurity, e-discovery, internet-based investigations, and a basic understanding of technology usage by clients.[8]

So how can attorneys ensure that they are up caught up on the latest technology and are competent in their field of work? For starters, attorneys are generally required to complete some variance of continued legal education to remain in good standing with the state’s bar association in which they are licensed.[9] In Virginia, continued legal education is required—and this now includes continued legal education targeted specifically to technology training.[10]

In 2017, the Supreme Court of Florida not only required the duty of technology, but also mandated training through at least three hours of CLE training dedicated to technology every three years.[11] John Stewart, the chair of the Technology Subgroup of the Florida Bar’s Vision 2016 commission was a strong proponent of this change and believes “if you are going to be competent in the practice of law, you have to understand technology related to your practice area.”[12]

Other options include the Legal Technology Assessment, which was created to evaluate a firm or legal department’s abilities with basic technology and provide the necessary training, online training, and more concrete training for students while attending law school.[13] Law librarians might also be a useful resource.[14]

It is important that attorneys put in the time and effort to remain competent not just in their legal knowledge, but also their knowledge with technology, especially as the legal field continues to implement technology further into the basic function of practice.

 

[1] Don Macaulay, What Is a Lawyer’s Duty Of Technology Competence, SmartLawyer (Feb. 2, 2018), https://www.nationaljurist.com/smartlawyer/what-lawyers-duty-technology-competence.

[2] Darla W. Jackson, Lawyers Can’t Be Luddites Anymore: Do Law Librarians Have a Role in Helping Lawyers Adjust to the New Ethics Rules Involving Technology?, 105 L. Library J. 395, 395 (2013).

[3] Id.

[4] Tech Competence, LawSites, https://www.lawsitesblog.com/tech-competence.

[5] Id.

[6] Macaulay, supra note 1.

[7] Id.; Jackson, supra note 2.

[8] Macaulay, supra note 1.

[9] Id.

[10] Tech Competence, supra note 4.

[11] Robert Ambrogi, Florida Becomes First State To Mandate Tech CLE, LawSites (Oct. 3, 2016), https://www.lawsitesblog.com/2016/10/florida-becomes-first-state-mandate-tech-cle.html.

[12] Id.

[13] Robert Ambrogi, OK, We Get Technology Competence, But How Do We Get Technologically Competent?, Above The Law (Nov. 6, 2017), https://abovethelaw.com/2017/11/ok-we-get-technology-competence-but-how-do-we-get-technologically-competent/?rf=1.

[14] Jackson, supra note 2.

Image Source: https://search.creativecommons.org/photos/06f7b1de-f958-404f-b397-3e8ae8481257

By Annalisa Gobin

 

It is no surprise that the pandemic has paved way for numerous advancements in medicine and technology. However, it may be surprising that much of this progress has been spearheaded by the new technology itself.[1] Artificial Intelligence is reported to have played a role in numerous inventions throughout the pandemic, including having a hand in the development of Covid-19 vaccines.[2] Artificial intelligence’s new role in developing materials, manufacturing processes, pharmaceutical drugs, and software has sparked debate in the legal community on several points: (1) whether AI can be considered an inventor under patent doctrine, (2) if so, should AI be able to obtain patents on the products and technology it created, and (3) whether granting AI patents would eventually lead to the extinction of patent law.[3]

AI has been credited with the development of various products with an uptick of innovation occurring during the pandemic, especially in the medical field.[4] Artificial Intelligence can now read chest X-rays at the level of a doctor and has developed sophisticated algorithms that can collect global data for the purpose of Covid-19 contact tracing.[5] Notably, AI technology and machine learning helped to gather data necessary to produce the Johnson and Johnson Covid-19 vaccine.[6]

However, the idea that AI technology should be able to obtain patents for its work was rebuffed in the recent case, Thaler v. Hirshfeld, which was heard in the U.S. District Court for the Eastern District of Virginia.[7] In Thaler, a federal judge ruled that only a human can be an inventor under U.S. law.[8] The judge reasoned that patent applicants are required to take an oath and that patent doctrine refers to inventors as “individuals,” which is defined in dictionaries as a natural person.[9]

Critics argue that the creations made by AI technology would easily qualify for patents if they had been made by humans and that other countries have already begun to patent AI inventions.[10] They argue that refusal by the USPTO to grant AI patents could lead companies to develop groundbreaking AI technology overseas, rather than in the United States.[11]

If the debate were ever to finish in the favor of AIs being suitable patent applicants, it could lead to a decline of human-made inventions, and as result, diminished need for the majority of current patent law.[12] Further, the refusal to acknowledge AI as inventors may itself lead to the breakdown of present patent law, if it leads to the rise of inventions that cannot be patented.[13] However, it is unlikely that patent law would become entirely extinct, instead the need to fill in these new silences in the law on AI inventions would lead to a dramatic reform of patent law.[14]

With appeals to Thaler v. Hirshfeld pending, we may soon have an answer to whether AI has secured its new gig as inventor. Pending the reform of current law, patent lawyers may want to follow its lead on trying their hand at something new.

 

[1] AI, COVID-19 and the long haul, Nat. Mach. Intell. (Mar. 18, 2021), https://www.nature.com/articles/s42256-021-00328-9.

[2] Id.

[3] Ryan Abbott, I Think, Therefore I Invent: Creative Computers and the Future of Patent Law, 57 B.C.L. REV. 1079, 1091 (2016).

[4] Tanveer Syeda-Mahmood, IBM AI algorithms can read chest X-rays at resident radiologist levels, IBM RESEARCH BLOG (Nov. 4, 2020), https://www.ibm.com/blogs/research/2020/11/ai-x-rays-for-radiologists/.

[5] Stephanie A. Harmon et. al., Artificial intelligence for the detection of COVID-19 pneumonia on chest CT using multinational datasets, 11 Nat. Comm. 1, 2 (2020).

[6] Terri Park, Behind Covid-19 vaccine development, M.I.T. News (May 18, 2021), https://news.mit.edu/2021/behind-covid-19-vaccine-development-0518.

[7] Thaler v. Hirshfield, 2021 WL 3934803 (E.D. Va. Sep. 2, 2021).

[8] Id.

[9] Id.

[10] Tim W. Dornis, Artificial Intelligence and Innovation: The End of Patent Law as We Know It, 23 Yale L.J. 97, 150 (2020).

[11] Id. at 97.

[12] Id.

[13] Id. at 103.

[14] Id.

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