Author: JOLT Page 1 of 9

By Drew Apperson

 

Internet users may sometimes wish to browse private or sensitive content and keep their activity secret, such as when planning a vacation, reading political news, or assessing medical conditions. But is it possible to be online without websites tracking users’ activity and collecting their data? A private browsing feature like Google’s Incognito mode may come to mind. However, the U.S. District Court for the Northern District of California is considering claims that even in Incognito mode, Google has been collecting personal and identifying data, regardless of users’ internet browsers, search engines, or other cautionary steps taken to safeguard online privacy.[1] The plaintiffs in the case claim that Google does so for anyone who searches via Google, uses Google Chrome, or so much as views a website that has a Google advertising service, which allegedly includes over 70% of websites.[2]

 

The court found that the claims have weight, too: Judge Koh signed an order on March 12, 2021 denying Google’s motion to dismiss any of the plaintiffs’ allegations.[3] The court found that the plaintiffs have adequately alleged: (1) that neither users nor third-party websites consented to Google’s data collection;[4] (2) that Google’s actions constituted fraudulent concealment;[5] and (3) that Google’s actions violate the Wiretap Act, California Invasion of Privacy Act, and California Comprehensive Computer Data Access and Fraud Act (CDAFA).[6] Maybe the most noteworthy of the claims withstanding the motion to dismiss are those of intrusion upon seclusion and invasion of privacy,[7] especially given Facebook’s recent history.

 

In July of 2019, The Federal Trade Commission imposed a $5-billion penalty for Facebook implementing and monetizing deceptive data collection methods.[8] The FTC reported that the penalty “is the largest ever imposed on any company for violating consumers’ privacy and almost 20 times greater than the largest privacy or data security penalty ever imposed worldwide. It is one of the largest penalties ever assessed by the U.S. government for any violation.”[9] The FTC explained that “[t]he magnitude of this penalty resets the baseline for privacy cases . . . and sends a strong message to every company in America that collects consumers’ data:  where the FTC has the authority to seek penalties, it will use that authority aggressively.”[10] Then last April, the Ninth Circuit, which has appellate jurisdiction over this case, ruled against Facebook concerning its data collection program that continued tracking users’ activity after they had logged out of their accounts.[11]

 

One might think that every website within U.S. jurisdiction would have revised its data collection scheme accordingly. Yet, the court here found significant similarities between Google’s alleged data collection and that by Facebook, noting that Google’s “vast amount of data was collected secretly, without any notice to users,” and that “internal Google communications show that the company’s employees recognized that its privacy disclosures were problematic.”[12] Furthermore, the court highlighted Google’s concession to the significant similarity between the cases.”[13]

 

The court went further than just equating Google’s data to Facebook’s, though: Judge Koh stated that the “allegations regarding the sensitivity of the data collected are arguably even stronger in the instant case,” and that there is “an even stronger argument that Google’s intrusion was highly offensive because, at the time Google collected the data, [the plaintiffs] were using private browsing mode, which is often used to prevent others from learning the user’s most private and personal interests.”[14]

 

The order only denied a motion to dismiss, though, so Google still has a chance. However, the court’s attitude may be foreshadowing an enhanced burden on Google. Furthermore, the FTC will likely not be pleased that its penalties on Facebook apparently did not resonate as much as it had hoped.[15] So how should internet users proceed in the meantime when browsing private or sensitive content? They may well assume that Incognito mode or any other private browsing mode is not actually private at all.

 

[1] Brown v. Google LLC, No. 20-CV-03664, 2021 U.S. Dist. LEXIS 48380, at *3–9 (N.D. Cal. Mar. 12, 2021) (order denying motion to dismiss).

[2] Id.

[3] Id. at *67.

[4] Id. at *31, 34.

[5] Id. at *41.

[6] Id. at *47, 51, 53.

[7] Id. at *67.

[8] FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook, Fed. Trade Comm’n (July 24, 2019) https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions.

[9] Id.

[10] Fed. Trade Comm’n, Statement of Chairman Joe Simons and Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Matter of Facebook, Inc., at 2 (July 24, 2019), https://www.ftc.gov/system/files/documents/public_statements/1536946/092_3184_facebook_majority_statement_7-24-19.pdf.

[11] See Davis v. Facebook, Inc. (In re Facebook Inc. Internet Tracking Litig.), 956 F.3d 589 (9th Cir. 2020), cert. denied, 2021 U.S. LEXIS 1480 (U.S., Mar. 22, 2021) (No. 20-727).

[12] Brown, 2021 U.S. Dist. LEXIS 484380, at *60, 65–66.

[13] Id. at *59.

[14] Id. at *59–60, 65.

[15] See Fed. Trade Comm’n, supra note 10.

Image Source: “Is your boss spying on you” by topgold is licensed underCC BY 2.0

By Melisa Azak

 

In the past week, Zoom has received widespread backlash for paying $0 in federal income taxes despite making $670 million profits during the coronavirus pandemic.[1] An ubiquitous technology, Zoom has become a household name in the last year by providing video communications solutions to millions of users.[2] Zoom offers platforms for video and audio conferencing, as well as an reliable cloud platform to store content in real time.[3]

 

Well into social distancing and lockdowns, however, Zoom fatigue has become a real issue for students and employees alike who find themselves on the platform several hours each day.[4] There are several factors contributing to this Zoom fatigue.[5]

 

First, Zoom users take prolonged gazes at a close distance with colleagues, operating at close distances generally used for loved ones. This close gaze is not unlike being in an elevator, where people must stand in close quarters, “exceed[ing] the typical amount of intimacy people tend to display with others”. This can cause discomfort for many users, leading to fatigue.[6]

 

Second, users must constantly monitor their behavior in order to receive and send the correct nonverbal cues which would come naturally in in-person conversations.[7] People must “send cues to others that are intentionally generated” like “centering oneself in the camera’s field of view, nodding in an exaggerated way for a few extra seconds to signal agreement, or looking directly into the camera . . . .” Further, users receive fewer cues of encouragement than they do in in-person interactions, all contributing to a higher cognitive load on the platform.[8]

 

Third, using Zoom is similar to having someone hold up a mirror to your face “for every single task you did and every conversation you had” during the day.[9] Generally, people are more likely to critique themselves when presented with mirror images, which can be stressful to constantly view.[10] In addition, these views do not affect users equally. The mirror image effect has “a larger impact on women than men”, partly because “women are more likely than men to direct attention internally in response to seeing themselves via live video.”[11]

 

Reduced mobility is the last factor that contributes to Zoom fatigue. In regular face-to-face meetings, people “pace, stand up, and stretch, doodle on a notepad” and do any number of other small activities.[12] These movements, though seemingly inconsequential, often improve cognitive performance in meetings. On Zoom, users are limited to sitting or standing to show themselves in small squares on a screen, and do not enjoy any of the benefits of increased mental performance.[13]

 

Given these factors that contribute to Zoom fatigue, a number of solutions have been proposed to help those who use Zoom consistently.[14] One solution to avoid the mirror effect previously discussed is to use the hide-self-view feature.[15] To further reduce on-screen stimuli, many people also agree to use plain, virtual backgrounds on screen to reduce distractions or agree as a group to have only the speaker turn on their video.[16] Another possible solution is to not default to video communications for calls. Especially when communicating with external colleagues like clients and vendors, video call “is fairly intimate and can feel invasive in some situations”. Phone calls, which were the default for these interactions prior to Zoom, can be the less tiring choice.[17]

 

Although the world seems to be on the tail end of the coronavirus pandemic, Zoom, and its counterparts like Microsoft Teams and Cisco Webex look like they will continue to be regularly used in the future. Understanding the harms of video conferencing technologies and possible solutions for those harms can ensure users can enjoy the benefits of increased connection in sustainable ways.

 

[1] Stephen Gandel, Zoom’s Pandemic Profits Exceeded $670 Million. Its Federal Tax Payment? Zilch, CBS News (Mar. 24, 2021 1:45 PM), https://www.cbsnews.com/news/zoom-no-federal-taxes-2020/.

[2] Meetings, Zoom, https://explore.zoom.us/meetings.

[3] Id.

[4] Jeremy N. Bailenson, Nonverbal Overload: A Theoretical Argument for the Causes of Zoom Fatigue, Technology, Mind, and Behavior (Feb. 23, 2021), https://tmb.apaopen.org/pub/nonverbal-overload/release/1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Liz Fosslien & Mollie West Duffy, How to Combat Zoom Fatigue, Harvard Business Review (Apr. 29, 2020), https://hbr.org/2020/04/how-to-combat-zoom-fatigue.

[15] Id.

[16] Id.

[17] Id.

Image Source: https://kortschakcenter.usc.edu/wp-content/uploads/2020/11/Zoom-Fatigue.pdf

By Ryan Leonard

 

Advancements in the technology of DNA analysis have allowed for the vindication of claims of actual innocence.[1]  However, claims of actual innocence, even when supported by evidence, are not sufficient to trigger a federal habeas review.[2]  In Herrera v. Collins the Court grounded its decision to not grant federal habeas review in cases of actual innocence on two primary factors.[3]  The first reason the Court gave was tradition; the Court said, “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation….”[4]  The second reason given was the administrative hassle that could result if federal courts could review actual innocence cases.[5]  The Court explained that if such review were to be permitted, nothing “would be more disruptive of our federal system.”[6]  Both rationales, however, seem very weak relative to the magnitude of a potentially innocent person being executed.

 

Federal courts need not, and should not, retry a case any time a person found guilty alleges actual innocence.   Such a result would be unnecessary and burdensome on the court system.  Implementing a standard of review that requires some substantial evidence to support the claim of actual innocence seems like the very least that justice requires.   The Court argued that the rule that does and should apply is that “federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution – not to correct errors of fact.”[7]  The obvious problem is that errors of fact may lead to an individual’s constitutional rights being violated.  Imprisoning or executing an innocent person may result from an error in process or fact, but in either case is a violation of at least the Eighth Amendment; imprisoning and/or executing the innocent is certainly both cruel and unusual.[8]

 

The frequency of death penalty exonerations is 4.1%.[9]  Such an error rate begs the question of whether it is reasonable, or morally permissible, to impose the death penalty when 1 in 25 of those convicted will go on to be exonerated.  In his concurrence in Kansas v. Marsh, Justice Scalia appeals to the argument that there is no confirmed case of an innocent person being executed as part of his general defense of the constitutionality of state statutes that impose the death penalty.[10]  That style of argument strikes is something analogous to, “I’ve never been ejected from my car before, so why should I wear a seatbelt?”  However, Justice Scalia’s argument is actually slightly less powerful than that, because one can be definitively sure that one has not been ejected from a car in the past, while we are not definitively sure whether or not an innocent person has been executed.

 

Moreover, the implications of Justice Scalia’s argument are two-fold.  First, if the argument were that the death penalty is kosher because we have no known case of an innocent person being executed, then the inverse would likely follow – that the death penalty would not be kosher if there was such an example.  That inference would mean that we must wait until we execute an innocent person before arguments against the death penalty will be worth entertaining.  Again, as mentioned above, it is illogical reason to wait for tragedy to strike when preventative steps can be taken now.  The second implication of Justice Scalia’s line of reasoning is that the execution of an innocent person would be a sufficiently compelling argument to consider ending the death penalty.  Based on Justice Scalia’s tone in his opinion, at times saying in a disparaging manner that if there were a known execution of an innocent person, the people who oppose the death penalty would be screaming the person’s name from every rooftop in the country, he seems to be expressing the view that he would not have opposed the death penalty even if there were an example of an innocent person being executed[11].  If that is the case, there is no reason to bother even making the argument that no innocent person has been executed when it is a moot point to his sensibilities.

 

The incidents of false convictions is enough to make one wonder whether it is possible in the abstract for a judge or juror to know someone is guilty, absent an authentic video recording of the defendant committing the crime for which he is accused.  If such knowledge is possible, then the argument for abolishing the death penalty due to incidents of actual innocence would likely fall apart when it is known that the defendant did what he did.  A burden of proof that required actual knowledge would, however, be so onerous as to never, or almost never, be met.  If a burden of actual knowledge is unattainable, then the reasonableness of keeping the death penalty seems to crumble; executing people because they probably, or most likely, did something is sure to result in judges and juries getting it wrong some percentage of the time.

 

[1] Gerald LaPorte, Wrongful Convictions and DNA Exonerations: Understanding the Role of Forensic Science, Nat’l Inst. of Justice (Sept. 7, 2017), https://nij.ojp.gov/topics/articles/wrongful-convictions-and-dna-exonerations-understanding-role-forensic-science.

[2] Herrera v. Collins, 506 U.S. 390, 404 (1993).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] U.S. Const. amend. VIII.

[9] Samuel Gross et al., Rate of False Conviction of Criminal Defendants who are Sentenced to Death, PNAS (May 20, 2014), https://www.pnas.org/content/111/20/7230.

[10] Kansas v. Marsh, 548 U.S. 163, 182 (J. Scalia concurring).

[11] See id.

Image Source: https://www.abajournal.com/news/article/prosecutor-misconduct-in-dna-exoneration-cases-makes-it-less-likely-real-perpetrator-will-be-found-study-says.

By Sophia Studer

 

One of my all-time favorite things to do in pre-covid-19 times was going to a movie with friends. But as the world sits homebound with our options reduced to streaming for new content, we are witnessing a revolution in the way movies are being created, premiered, and released.

 

During the past year, we have witnessed the distress of movie theaters as they were forced to close their doors in the midst of the pandemic.[1] Some major Hollywood movie production houses have been delaying big screen releases in the hopes of potential profits pending the return of brick and mortar box offices.

 

This lull in the market is where streaming services have swooped in. Warner Bros., unwilling to wait out theaters, made the decision to premiere films originally intended for the big screen on the streaming service HBO Max.[2] Disney also went a similar route with releasing movies like “Mulan” and “Onward” on its streaming app, Disney Plus.[3] These films would have been qualified as theater-worthy in pre-covid-19 times, but without theaters open, the movie industry has been forced to adapt.[4] With in-person restrictions staying put, streaming services have happily obliged at filling the movie premiere void.

 

Not only have streaming services jumped at the chance of premiering traditional Hollywood blockbusters, but they have begun trying their hand at producing original content. Their efforts have been increasingly more successful. This year, Netflix swept up a record-breaking thirty-five Oscar nominations in a wide range of categories.[5] Disney Plus and Hulu also fared well at the Oscars, with Disney Plus earning its first Oscar and Hulu receiving a nomination.[6] This trend is only likely to grow as Americans grow more accustomed to viewing new movies in the comfort of their own home.

 

The fun of viewing movies from home is compounded by the low cost of streaming services to consumers. Going to the movies was not a cheap experience; tickets, popcorn, candy, and drinks would undoubtedly rack up a hefty toll. This is the price that theater goers have always paid to enjoy the experience of watching an exclusive new movie on a giant screen. But with covid-19 pushing us into a new normal, people have come to enjoy the thrill of watching a new movie at home on their favorite streaming service. Even if the movie costs extra—as Disney Plus charged a $30 fee to watch “Raya and the Last Dragon”—consumers are willing and excited to pay it to watch the new movie at home.[7] Couple the influx of low-cost streaming services with the ever-growing size of the average American television set and movie theaters are facing a big problem.[8]

 

As theaters across the country prepare to reopen with covid-19 restrictions, there will be major hurdles for them to overcome. Many in Hollywood worry that there is not enough content coming down the production pipeline to support a successful return to the in-person box office.[9] Since production has been paused due to the pandemic, Hollywood producers do not feel confident in the likelihood of getting many new movies out in time.[10] The lack of new movies being shown in theaters is likely to deter pandemic-weary customers from venturing out of the comfort of their home. But with that being said, every industry is learning to change and retool processes to operate in the new normal; movie producers, streaming services, and theaters are no different.

 

[1] R.T. Watson, Movie Theaters Are Finally Reopening: Will You Go?, Wall Street J. (Mar. 5, 2021, 4:25 PM), https://www.wsj.com/articles/hollywood-eyes-recovery-as-movie-theaters-reopen-in-new-york-city-and-san-francisco-11614959313.

[2] Benjamin Svetkey, COVID-19 Has Changed How We See Movies—and There’s No Going Back, L.A. Mag. (Jan. 22, 2021), https://www.lamag.com/culturefiles/covid-19-movie-theaters/.

[3] Id.; Brent Lang, Netflix Dominates 2021 Oscar Nominations, Disney Plus and Apple Score First Nods, Variety (Mar. 15, 2021, 7:37 AM), https://variety.com/2021/film/awards/netflix-oscar-nominations-2021-disney-plus-hulu-1234930905/.

[4] Lang, supra note 3.

[5] Ryan Faughnder, Oscars 2021: Netflix Leads Studios With 35 Nominations in Streaming’s Big Year, L.A. Times (Mar. 15, 2021, 8:57 AM), https://www.latimes.com/entertainment-arts/business/story/2021-03-15/2021-oscars-nominations-netflix-mank-nominations-studios.

[6] Id.

[7] Watson, supra note 1.

[8] Id.

[9] Brent Lang, Elaine Low & Gene Maddaus, Post-Pandemic Hollywood: Why Working in Entertainment Will Never Be the Same, Variety https://variety.com/2021/film/entertainment-industry/working-in-hollywood-after-covid-19-1234932406/ (last visited Mar. 19, 2021).

[10] Id.

Image Source: https://www.flickr.com/photos/121483302@N02/14375317064.

By Jeffrey Phaup

 

Customers who signed up for a beta test of SpaceX’s Starlink satellite internet service have had to agree, under section nine of the services terms and conditions, that Mars is a “free planet”.[1] The provision states:

 

“For services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith at the time of the Martian settlement.”[2]

 

If this language is taken literally Starlink users are agree that Mars is a “free planet” and that any disputes concerning Starlink services provided on Mars, or while travelling to Mars on a SpaceX Starship will be settled through self regulation.[3] This adherence to a set of “self governing principles” attempts to sidestep international law.[4]

 

Elon Must has plans to create a self-sustaining city on Mars that is entirely self-sufficient and not dependent on links to Earth for its survival.[5] Any future colony on Mars created by SpaceX would use constellations of Starlink satellites orbiting the planet to provide internet connectivity to the colonists and machinery on the planet’s surface.[6]

 

While states have no sovereignty on Mars, this does not leave Mars a “free planet” up for grabs by SpaceX, as it also has no sovereignty.[7] International law deals with this issue through Articles II, VI, and VIII of the 1967 Outer Space Treaty (OST).[8]

 

Article II states that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.[9] Article VI states that nation states bear international responsibility for national activities in outer space, which includes Mars, and includes activities conducted by “non-governmental entities”.[10] Article VIII states that all parties on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.[11]

 

Essentially, each country is responsible for all objects and people they send into space and each country also retains jurisdiction over those objects and people when they go into space.[12] The Unites States thus bears the fault-based liability for any injury or damage that SpaceX’s space bound objects cause to other states’ persons or property as they are SpaceX’s launch state.[13] Additionally, the United States is the sole state that retains jurisdiction and control over SpaceX objects as it is SpaceX’s state of registry.[14]

 

From a legal viewpoint, Clause 9 of Starlink’s terms of service should be regarded as void.[15] Declaring that Mars is a “free planet” and refusing any Earth-based authority over SpaceX’s activities on Mars conflicts with the international obligations of the United States under the Outer Space Treaty, which takes precedence over any contractual terms of services presented by Starlink to its customers.[16] As a company SpaceX can declare anything that it wants; what remains to be seen is how the nations of the world will react to its declarations as it moves forward with its goal to colonize Mars.[17]

 

[1] Mike Brown, SPACEX MARS CITY: LEGAL EXPERTS RESPOND TO ‘GIBBERISH’ FREE PLANET CLAIM, Inverse (Nov. 3, 2020 2:00 PM), https://www.inverse.com/innovation/spacex-mars-city-legal.

[2] Id.

[3] Antonio Salmeri, No, Mars is not a free planet, no matter what SpaceX says, space news (Dec. 5, 2020), https://spacenews.com/op-ed-no-mars-is-not-a-free-planet-no-matter-what-spacex-says/.

[4] See Anthony Cuthbertson, ELON MUSK’S SPACEX WILL ‘MAKE ITS OWN LAWS ON MARS’, INDEPENDENT (Oct. 28, 2020), https://www.independent.co.uk/life-style/gadgets-and-tech/elon-musk-spacex-mars-laws-starlink-b1396023.html.

[5] Id.

[6] Id.

[7] Brown, supra note 1.

[8] Id.

[9] See Cristian van Eijk, Sorry, Elon: Mars is not a legal vacuum – and it’s not yours either, Völkerrechtsblog (Nov. 5, 2020), https://voelkerrechtsblog.org/sorry-elon-mars-is-not-a-legal-vacuum-and-its-not-yours-either/.

[10] Id.

[11] Brown, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Salmeri, supra note 2

[16] See id.

[17] See Brown, supra note 1.

Image Source: “Mars” by Kevin M. Gill is licensed under CC BY 2.0.

By Emma Phillips

 

Musicians around the world have vocalized their disdain for streaming services, stating that platforms like Spotify cater to the labels and the consumers, but not the artists themselves.[1]  As things currently stand, for example, after taking their share, Spotify sends the remainder of the profits from streaming directly to the labels, and it is up to the discretion of the label executives to determine how much its artists receive as compensation.[2] Major labels tend to be less generous than indie labels- they traditionally give their artists 15%-20% of the profits from streaming services, while indie labels have been known to go as far as making it a 50/50 split -but either way, these streaming services serve as just another party that takes funds from the musicians themselves.[3]

 

As a result, artists have attempted to develop creative ways of generating revenue.  In 2014, Michigan-based band named Vulfpeck released an album titled “Sleepify,” which was quite literally just a few minutes of silence.[4]  They uploaded it to Spotify in hopes of generating more revenue- by encouraging listeners to stream the album on repeat while they were sleeping (since it had no noise, and therefore would not interrupt one’s sleep schedule), they generated over $20,000 in streaming revenue without even actively recording music.[5] Spotify later pulled the album without citing a reason as to why- it was not in violation of the terms and conditions Vulfpeck agreed to when they uploaded their music to the service -but no album of a similar nature has been uploaded to the platform since.[6]

 

Since then, bands have been searching for ways to circumvent streaming platforms like Spotify, and as of 2021, there are new possibilities arriving for them to do so.  Linking the purchase of music with cryptocurrency has long been alluring to musicians, since it operates on a blockchain (a form of digital ledger that eliminates the possibility of copying the cryptocurrency and using the copy to purchase something else, which, to frame it more accessibly, is a comparable process to copying a dollar bill and then attempting to spend that copy).[7]  Because of this, instead of being able to freely copy and distribute digital files, those purchasing music by way of cryptocurrency would be held accountable to their transaction since they would not be able to distribute the files freely.

 

The Nashville-based band Kings of Leon is one of the first bands to take concrete steps to make this system of distributing music a reality.  On March 3, 2021, the band announced that their newest album would be released as a non-fungible token (hereafter referred to as an NFT).[8]  An NFT is simply another type of cryptocurrency, once again housed on the blockchain.[9]  The difference between monetary cryptocurrencies like Bitcoin and NFTs, however, is that NFTs house assets like art and music instead of money.[10]  As a result, consumers of Kings of Leon’s new album would exchange their money for an NFT that houses the music on the album itself. Although the album will also be released on streaming platforms such as Spotify and Apple music, Kings of Leon will be attempting to incentivize purchase of the NFT edition of the album by including unique perks within it, such as concert tickets and digital art.[11]  Their hope with this album is to introduce their audience to the idea of integrating cryptocurrency into the process of music consumption.[12]  If they’re successful, and if other bands follow their lead, the way the world consumes music could be completely transformed, and artists could see a dramatic increase in the revenue they generate for their hard work.

 

[1] David Byrne, David Byrne: “The Internet Will Such All Creative Content Out of the World”, The Guardian, (Oct. 11, 2013, 10:53 AM), https://www.theguardian.com/music/2013/oct/11/david-byrne-internet-content-world

[2] Id.

[3] Id.

[4] Hugh McIntire, How a Band Made $20,000 on Spotify from 5 Minutes of Silence, Forbes, (Jul. 28, 2014, 9:00 AM) https://www.forbes.com/sites/hughmcintyre/2014/07/28/how-a-band-made-20000-on-spotify-from-5-minutes-of-silence/?sh=454b0cb418ed

[5] Id.

[6] Id.

[7] Samantha Hissong, A Field Guide to Music’s Potential Crypto Boom, Rolling Stone, (Feb. 4 2021, 12:36 PM), https://www.rollingstone.com/pro/features/music-crypto-blockchain-nfts-guide-1116327/

[8] Samantha Hissong, Kings of Leon Will Be the First Band to Release an Album as an NFT, Rolling Stone, (Mar. 3, 2021, 8:00 AM), https://www.rollingstone.com/pro/news/kings-of-leon-when-you-see-yourself-album-nft-crypto-1135192/

[9] Id.

[10] Id.

[11] Id.

[12] Id.

Image Source: “Bitcoin, bitcoin coin, physical bitcoin, bitcoin photo” by antanacoins is licensed under CC BY-SA 2.0.

By Peyton Reed

 

Reliance and the expansion of technology has changed the way many small business owners operate. Increasingly, small business owners have turned to online marketplaces as a way to sell their products. In 2005 Etsy was founded, giving creators a platform to sell handmade and vintage items across the globe.^[1] Etsy shops have popped up at a consistent rate—and from 2019 to 2020, the number of sellers operating Etsy shops nearly doubled.^[2] Etsy sellers offer a variety of goods, a few particular categories of products available on Etsy shops is a cause of concern—gun accessories and parts.

 

Selling guns, firearm parts, and accessories for assault weapons is generally prohibited on Etsy.^[3] However, Etsy allows the sale of some gun accessories as long as they are either “not affixed to the gun, or are purely cosmetic or decorative in nature.”^[4] This includes products like gun cases, holsters, scopes and stocks. Etsy also bans the sale of toy guns that resemble real firearms.^[5] Fake guns are allowed to be sold “if it is unlikely to be mistaken for a real firing weapon by an average person.”^[6] Etsy’s weapons policy tasks the seller with ensuring they comply with the state’s weapons laws.^[7]This policy, without any real enforcement, is essentially just a safeguard to shield Etsy from liability if and when an Etsy seller ignores state law.

 

On Etsy, there were at least 17 shops selling either high-capacity magazines or couplers in early February.^[8] Magazines feed ammunition into the fire arm, and high-capacity magazines have more than 10 rounds of ammunition.^[9] Couplers are attachment parts for guns, usually used with semi-automatic and automatic assault rifles, that connect multiple magazines together.^[10] They allow the users to reload bullets faster.^[11] It seems like Etsy is taking some measures to prevent these listings. If you directly search the term “coupler,” Etsy shows no results. However, if you search terms like “mag” or “ar-15,” couplers start to pop up after some scrolling. After pressure from TheMarkup, a non-profit news source that specifically investigates technology, Etsy removed some of the listings for magazines, but left up the couplers.^[12]

 

One Etsy shop, FlexCoupler, sells three different coupler options that are 3D printed. ^[13]  Quite a few Etsy shops sell imitation guns, but most of them seem to have an orange tip to signal they are fake. Etsy’s Weapons policy requires all imitation guns to adhere to 15 CFR § 272.3—which requires a permanent blaze orange cap on the guns.^[14] The shop YourCustomStuff sells cosplay guns with removable orange safety caps.^[15] These removable caps seem to directly conflict the Etsy Weapons policy. Even several of the review photos have pictures of the replica guns with the safety caps removed.^[16]

 

Etsy is not the only platform struggling to enforce their own policies. Google, Facebook and Amazon have all faced similar issues recently.^[17] In response to the insurrection at the Capitol, Etsy posted a blog condemning the acts and reaffirming their commitment to providing a safe marketplace.^[18] The blog also stressed the importance of community reporting to alert Etsy about any violations.^[19] It will be interesting to watch how Esty continues to attempt to enforce their policies as their platform continues to grow.

 

[1] Etsy, https://www.etsy.com/about (last visited Mar. 10, 2021).

[2] Craig Smith, 70 Etsy Stats and Facts (2021) | By the Number, DMR (Mar. 2, 2021), https://expandedramblings.com/index.php/etsy-statistics/#:~:text=Number%20of%20active%20Etsy%20users,2018%3A%2039.4%20million.

[3] Our House Rules: Weapons, Etsy, https://www.etsy.com/legal/policy/weapons/207958817249 (last updated Nov. 20, 2020).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Maddy Varner, For Sale on Etsy: Greeting Cards and … Gun Parts?, The Markup (Feb. 2, 2021),  https://themarkup.org/news/2021/02/02/for-sale-greeting-cards-and-gun-parts.

[9] Assault Weapons and Large Capacity Magazines, EFSGV, https://efsgv.org/learn/policies/assault-weapons-and-large-capacity-magazines/#:~:text=buy%20back%20programs.-,A%20large%20capacity%20magazine%20is%20a%20magazine%20used%20in%20any,100%20%E2%80%94without%20having%20to%20reload (last updated July 2020).

[10] Magpul, https://magpul.com/maglinkcoupler-pmag30genm2moe-genm3.html?mp_global_color=118 (last visited Mar. 10, 2021).

[11] Id.

[12] Varner, supra note 8.

[13] FlexCoupler, Etsy, https://www.etsy.com/shop/FlexCoupler (last visited Mar. 10, 2021).

[14] Etsy, supra note 3; Approved Markings, 15 CFR § 272.3 (2020).

[15] YourCustomStuff, Etsy, https://www.etsy.com/shop/YourCustomStuff (last visited Mar. 10, 2021).

[16] Id.

[17] Jeremy B. Merrill, Tech Firms Profited from Far-Right Militia Content Despite Ban on “ThreePercenters,” The Markup (Jan. 21, 2021), https://themarkup.org/news/2021/01/21/tech-firms-profited-from-far-right-militia-content-despite-ban-on-three-percenters.

[18] Josh Silverman, Zero Tolerance for Hate, Etsy (Jan. 12, 2021), https://blog.etsy.com/news/2021/zero-tolerance-for-hate/?ref=press_blog_title.

[19] Id.

Image Source: “FN SCAR Assault Rifle (Light) 5.56 NATO” by brian.ch is licensed under CC BY 2.0

 

By Kyle Durch

 

Think back to the last time you drove on a freeway. The vehicles around you were all driven by people. Were any of those drivers distracted? Were there any speeders. Were you speeding? Assuming the best intentions, people just want to get from point A to point B in the quickest, most convenient way possible. To make transportation safer for everyone, shifting the driving burden from people to autonomous vehicles (AVs) is now feasible, and the transition must happen as quickly as possible with the guidance of smart regulation.

 

Poor decision-making on the road is one of the leading causes of injury and death. The National Highway Traffic Safety Administration (NHTSA) reported that over 36,000 people were killed in motor vehicle crashes in 2018.[1] And although traffic decreased by forty-one percent nationwide thanks to the COVID-19 pandemic—including a decrease of more than sixty percent in urban areas—the remaining drivers made riskier decisions, contributing to a spike of over thirteen percent in traffic fatalities during the summer of 2020.[2] AVs strike at the core of this problem, allowing drivers to safely engage in non-driving activities. Although critics argue that current systems have difficulty dealing with unusual driving circumstances, they acknowledge that driver assistance/replacement systems show great promise in preventing accidents that result from common situations like fatigue and distraction.[3] But how does this “sci-fi” technology work?

 

AVs are functionally the same as any other vehicle on the road, differing only in the use of advanced sensing and control technology. Self-driving technology can be built into electric cars, gas cars, and even into tractor trailers.[4] AVs are equipped with sensors that feed data to an onboard computer, which in turn controls the vehicle. Different kinds of sensors are currently in use, including radio range finders, or radar; light detection and ranging, or lidar; and suites of cameras and ultrasonic obstacle sensors.[5] Combined with Global Positioning System (GPS) location awareness, the computer analyzes the sensor data to produce a simulated representation of the world.[6] The computer then uses that representation to react to the world by sending control signals to the vehicle’s steering, acceleration, and braking systems.[7]

 

But the vast amount of data collected outstrips the computing power available in each vehicle, requiring the use of off-board processing. For example, Tesla uses a data center to run a centralized neural net—a type of artificial intelligence program—that processes data sent to it by its global fleet of cars.[8] The learning produced is then transmitted to every vehicle on the network. In this way, a single Tesla encountering a new stretch of road shares its experience with every other Tesla. Like the Borg in Star Trek, AVs operating on a neural net share a “hive mind” that proactively adapts to the world.[9] Given enough time and experience, these systems have the potential to far exceed the capability of any human driver. That said, connection to the “mothership” is essential.

 

Consistent secure communications enable the neural net to function. Cellular networks provide the bulk of this connectivity.[10] Like any other use of wireless communication, or network connections in general, these networks may be exposed to attack. Hackers may jam signals, insert false inputs, or even directly control vehicles.[11] Preventing these attacks will require standardization, based on an intelligent approach to cybersecurity.

 

Unfortunately, the current regulatory framework is woefully unprepared for this new paradigm. The NHTSA has regulatory authority over all highway vehicles, but no authority over cybersecurity.[12] Lacking the requisite authority and expertise, the agency must rely on the Federal Communications Commission (FCC).[13] The FCC in turn approaches cybersecurity more generally, with efforts such as spectrum availability for transportation and internet of things devices.[14] Without a single entity focused on the best application of cybersecurity to AVs, there is a strong likelihood that uncoordinated implementations by different manufacturers will result in a fragmented, less-secure mess.[15]

 

On the bright side, the NHTSA is aware of its lack of expertise in cybersecurity and is taking initial steps to address the problem. Currently, the agency seeks comments in an advanced notice of proposed rulemaking on Automated Driving System (ADS) safety, now extended to Apr. 1, 2021.[16] Although early in the process, this rulemaking is a critical opportunity to ensure that the NHTSA sets proper benchmarks and limits for the industry. Technology-specific rules based on current capabilities would stifle innovation. On the other hand, overly broad technology-neutral rules may fail to guide industry into safe and secure AV development. The agency needs to adopt a middle-ground approach, requiring industry to use best-practice security measures while incentivizing implementation of any AV system with proven effectiveness. In fact, any manufacturer who fails to implement AV systems in its vehicles should be held accountable for failing to take steps to protect the public health and welfare.

 

Between the NHTSA and vehicle manufacturers, there are many entities who play a role in highway safety, and they all have a responsibility to the public. The development of the autonomous vehicle is arguably the most important highway safety innovation since the seatbelt and the airbag. And like those innovations, the implementation of AVs will see a long, bitter policy battle.[17] But in the end, a minimum baseline of “responsibility to implement,” along with security guidelines and standards, would go a long way toward reducing suffering on America’s roads.

 

[1] Automated Vehicles for Safety, NHTSA, https://www.nhtsa.gov/technology-innovation/automated-vehicles (last visited Feb. 26, 2021).

[2] Jacob Baumgart, Pandemic Revs Up Bad Driver Behavior in Maryland, Patch (Feb 12, 2021, 8:33 PM), https://patch.com/maryland/annapolis/pandemic-revs-bad-driver-behavior-Maryland.

[3] See Peter Hancock, Are Autonomous Cars Really Safer than Human Drivers?, Sci. Am. (Feb. 3, 2018), https://www.scientificamerican.com/article/are-autonomous-cars-really-safer-than-human-drivers/.

[4] See Michael Hicks & Michelle Fitzsimmons, Self-Driving Cars: Your Complete Guide to Autonomous Vehicles, TechRadar (June 7, 2019), https://www.techradar.com/news/self-driving-cars; Semi, Tesla (2021), https://www.tesla.com/semi.

[5] See What is an Autonomous Car?, Synopsys (2021), https://www.synopsys.com/automotive/what-is-autonomous-car.html.

[6] See, e.g., Future of Driving, Tesla (2021), https://www.tesla.com/autopilot (visualizing the car’s recognition of objects in the world, as compared to the driver’s view).

[7] Id.; see also Dirty Tesla, FSD Beta Gets Updated with V8.2 Software–First Impressions Downtown | 2021.4.11.1, YouTube (Mar. 5, 2021), https://youtu.be/EPg_mi15mls (demonstrating capability of the most-recent Tesla beta release of autonomous driving software, including many examples of reactions to poor human driving and degraded road infrastructure).

[8] See Maarten Vinkhuyzen, Tesla Dojo Supercomputer Explained—How to Make Full Self-Driving AI, CleanTechnica (Nov. 21, 2020), https://cleantechnica.com/2020/11/21/tesla-dojo-supercomputer-explained-how-to-make-full-self-driving-ai/.

[9] See Borg, Star Trek (2021), https://www.startrek.com/database_article/borg.

[10] Shusuke Morimoto et al., Cybersecurity in Autonomous Vehicles, Intro. to Applied Informatics, May 2017, at 1–8.

[11] See id.; Rahul Razdan, Tesla Decepticons? Is Automotive Cybersecurity a National Defense Issue?, Forbes (May 2, 2020, 7:33 AM), https://www.forbes.com/sites/rahulrazdan/2020/05/02/is-automotive-cybersecurity-a-national-defense-issue-/?sh=245c3aea1b75 (recounting demonstration of hacker control of a Jeep through its telematics system).

[12] Framework for Automated Driving System Safety, 85 Fed. Reg. 78,058, 78,064 n. 31 (proposed Dec. 3, 2020) (to be codified at 49 C.F.R. pt. 571).

[13] Id.

[14] See Jennifer Johnson & Thomas Parisi, IoT Update: FCC Proposes New Spectrum Plan for Vehicle Safety and Unlicensed Uses, Inside Tech Media (Dec. 4, 2019), https://www.insidetechmedia.com/2019/12/04/iot-update-fcc-proposes-new-spectrum-plan-for-vehicle-safety-and-unlicensed-uses/.

[15] See Jemima Meyers, Self-Driving Cars: How Automakers Can Overcome Cybersecurity Issues, Tripwire (Dec. 30, 2018), https://www.tripwire.com/state-of-security/featured/self-driving-cars-cybersecurity-issues/.

[16] Framework for Automated Driving System Safety; Extension of Comment Period, 86 Fed. Reg. 7523 (proposed Jan. 29, 2021) (to be codified at 49 C.F.R. pt. 571); see also 85 Fed. Reg. at 78,058.

[17] See generally Anthony Branch, National Traffic and Motor Vehicle Safety Act, Britannica, https://www.britannica.com/topic/National-Traffic-and-Motor-Vehicle-Safety-Act (Mar. 16, 2018).

Image Source: https://upload.wikimedia.org/wikipedia/commons/1/13/Uber_Self_Driving_Volvo_at_Harrison_at_4th.jpg

By Mike Marciano

 

In recent years, there has been heightened focus on the health and fitness of athletes in professional sports leagues.[1] For example, star National Basketball Association player LeBron James reportedly commits close to $1.5 million a year to the maintenance of his body through specific dieting plans and workout routines with the goal of ensuring that he continues to maximize his athleticism as he enters the final years of his career.[2] Seven-time Super Bowl Champion Tom Brady, who most recently won a Super Bowl with the Tampa Bay Buccaneers this February, adheres to an extremely strict and unorthodox diet, even eliminating from his diet certain foods that are traditionally considered healthy, in an attempt to precisely target certain dietary considerations.[3]

 

However, while strict dieting and focused training regimes are undoubtedly important to preserving athlete health, one particular technological advancement has been a massive asset to tracking the health of athletes. Specifically, wearable technology used to monitor athlete health and performance has proven to be an effective benefit to various sports leagues.[4]

 

Body-worn technology helps athletes, coaches, and teams in a variety of important ways. Consider Zephyr, a company that creates advanced body-worn performance systems.[5] Zephyr makes wearable compression shirts and sports bras that, “directly measure six key inputs including heart rate, breathing rate, heart rate variability, posture and impact.”[6]These metrics are helpful to teams monitoring the in-game health of athletes, but also to coaches making roster selections.[7]

 

The Zephyr product, in one instance, forewarned of an athlete’s oncoming heat exhaustion.[8] Specifically, the system implemented into the Zephyr product indicated a “student’s rising core temperature – before he showed physical signs of illness.”[9] Based on that information, the athlete was, “immediately cool[ed] and hydrate[d],” resulting in a “full recovery.”[10]

 

Additionally, some professional athletes have indicated a decline in their health as a result of contracting the COVID-19 virus.[11] Wearable technology, like that offered by Zephyr and other companies, such as STATSports, a Northern Ireland-based company, can offer important information to teams and coaches as they navigate through such trying times for their athletes, and the world.[12]

 

Despite the many positive effects that wearable technology has had on athletes and professional sports as a whole, the technology does not come without apprehension. Specifically, such advanced technology has raised privacy concerns with respect to such intimate data about one’s health.[13] For example, “the NFL is unique in that it allows teams to use the [wearable technology] data during contract negotiations,” but, “players do not have full access to this information, unless specifically granted by individual teams.”[14] Similarly, there are more broad concerns as to who exactly is granted access to this information, and the sensitivity level of the information that is collected, as, “data may reveal more sensitive personal information relating to the athlete’s identity, location, or health status, information that cannot be obtained just by closely observing the individual.”[15]

 

These concerns have been met with at least some response and consideration. For example, Major League Baseball has made an effort to address some of the apprehensions brought about by such personal technology as it is used on professional baseball players.[16] In the European Union, “[t]he GDPR regulates the processing of personal data in the EU and imposes harsh penalties for non-compliance,” a standard which applies to the types of data collected by wearable technology.[17]

 

Despite such important concerns, there can be no doubt as to the importance of this technology. If professional sports leagues are genuinely taking athlete health and safety seriously, then it seems silly to not thoroughly explore advanced wearable technology as a means of supporting such a goal. However, so long as the legitimate privacy concerns of athletes are not offended, wearable technology will hopefully continue to be a contributor to the health and safety of athletes worldwide.

 

[1] See Devika Pawar, LeBron James Spends $1.5 Million on Body Care to Keep Up with Growing Competition: Report, Republic (Apr. 13, 2020), https://www.republicworld.com/sports-news/basketball-news/lebron-james-spends-1-half-million-on-body-care-growing-competition.html.

[2] Id.

[3] Alana Mazzoni, How to Eat Like the G.O.A.T: Tom Brady’s Insane Diet That Keeps Him at the Top of the World’s Most Brutal Football Code at an Age-Defying 43, DailyMail (Feb. 7, 2021), https://www.dailymail.co.uk/news/article-9234625/Tom-Bradys-insane-diet-keeps-worlds-brutal-football-code-43.html.

[4] See Sandy Thin, How Wearable Tech Helped Elite Athletes Through the Pandemic, CNN Business (Mar. 5, 2021), https://www.cnn.com/2021/03/05/tech/statsports-performance-tracking-spt-spc-intl/index.html.

[5] See Shourjya Sanyal, How Are Wearables Changing Athlete Performance Monitoring?, Forbes (Nov. 30, 2018), https://www.forbes.com/sites/shourjyasanyal/2018/11/30/how-are-wearables-changing-athlete-performance-monitoring/?sh=730d8fc2ae09; See generally Medtronic, https://www.zephyranywhere.com/ (last visited Mar. 5, 2021).

[6] Sanyal, supra note 5.

[7] See id.

[8] Id.

[9] Id. (quoting Daniel K. Bellamy, Director of Sports Performance, Howard University Bison Athletics).

[10] Id.

[11] See Jackson Thompson, Some Professional Athletes Have Suffered Steep Performance Declines After Contracting COVID-19, Insider (Mar. 4, 2021), https://www.insider.com/these-athletes-suffered-a-steep-decline-after-contracting-covid-19-2021-3.

[12] See Thin, supra note 4.

[13] See Joseph J. Lazzarotti et al., As Wearable Technology Booms, Sports and Athletic Organizations at All Levels Face Privacy Concerns, JacksonLewis (Apr. 5, 2019), https://www.workplaceprivacyreport.com/2019/04/articles/health-information-technology/as-wearable-technology-booms-sports-and-athletic-organizations-at-all-levels-face-privacy-concerns/.

[14] Id.

[15] Id.

[16] Id. (noting that, “Major League Baseball and the Players Association added Attachment 56 to the 2017-2021 Collective Bargaining Agreement to address some of these concerns.”).

[17] Andy Nolan & Lauren Steele, Sports Technology and the GDPR: Data Privacy Concerns in Sports Analysis, Lexology (June 24, 2020), https://www.lexology.com/library/detail.aspx?g=38355c57-547b-4e76-b575-e600d9519d2a.

Image Source: https://www.sporttechie.com/tennis-technology-usta-kinexon-catapult-sports/