Author: JOLT Page 2 of 9

By Danielle Taylor

 

As we have just recently passed the one-year anniversary of the global shutdown brought on by the Covid-19 virus, I believe we can confidently say that if it was not clear before, it is clear now that technology and the law are inextricably linked. From Zoom trials and Zoom classes to completely remote internships, lawyers and law students alike have been challenged to take on a new skill set many likely thought they could avoid. However, any contention – before Covid 19 or after – that technological fluency is a skill that can be avoided should be heavily reconsidered by all who intend to practice the law.

 

Research has highlighted a growing need and desire for lawyers who embrace technology.^[1] “Clients want bold, open-minded, and tech-savvy attorneys” and law schools are critical in the effort to meet that need.^[2] In recent years, a number of law schools have broken new ground in their attempts to prepare their students for the changing job market. In 2019, it was determined that at least 10% of law schools in the United States were offering resources for students to learn about the use of AI^[3] and countless others had begun offering technology and innovation courses for credit. In addition to understanding that knowledge regarding technology and innovation is a necessary means of remaining competitive in a rapidly changing field, many law students have embraced these resources and courses offered by their schools out of pure interest – and where they do not find these resources, they create them.

 

In the last few years, student-led technology clubs have grown in popularity at law schools. This Spring, The University of Richmond School of Law welcomed its very own Technology and Innovation Society, started by 2L, Rebecca Pinsky. I sat down with Rebecca to get some insight into her decision to start the club and her plans for its future and hopeful impact on Richmond Law.

 

What was your motivation behind creating the Richmond Law Technology and Innovation Society?

 

I’d like to go to practice with a technology- focused firm after graduation and I wanted to connect with like-minded students while I was here. When I went to join the club, I saw that there wasn’t one. It didn’t exist, so I made it myself!

 

What are your hopes for the club’s future?

 

I’d like to bring in speakers, host panels, and organize workshops. I think our speakers should be a mix of attorneys and technologists… I sent out a pulse survey to students who said they’d be interested in joining and some feedback I got was that people would even be interested in coding bootcamps. They want to learn about technology even if it is not directly related to law.

 

What other campus clubs and organizations would you like to partner with?

 

There are so many interesting crossovers worth exploring. I’d like to do a joint event with the Academic Success Program (“ASP”) about how you can use technology to help you study. I was really pleased to learn that a lot of productivity software is free for students.

 

I would also love to partner with some of the more politically leaning clubs to discuss technology and policy. I can appreciate that everyone may not want to work in tech law but it’s great to be informed about how policy surrounding tech regulation impacts our everyday lives.

 

What impact do you hope the Technology and Innovation Society will have on Richmond Law?

 

I was talking about this recently with our Faculty Sponsor, Professor Kubicki… I came to Richmond Law knowing that it did not have a super strong focus on my interests. I think there are students like me who pick their law school for very pragmatic reasons and then there are students who pick based on a school’s course offerings. Attracting students interested in tech is kind of a chicken-and-egg problem—there usually has to be enough infrastructure in place to draw them in.  The Technology and Innovation Society is one piece of a bigger picture.

 

Thanks, Rebecca!

 

Richmond Law students should be on the lookout for more on events and information coming from the new Technology and Innovation Society. Any student interested in joining or receiving emails should complete this survey.

 

“… proper education can change the course of your career, giving you the opportunity to keep up with the times.” – Valentine Pivovarov ^[4]

 

^[1] See INSIGHT: Tomorrow’s Lawyer Must Embrace Innovation, Bloomberg Law (Apr. 8, 2020) Technologyhttps://www.bloomberglaw.com/bloomberglawnews/us-law-week/X7DG3A08000000?bna_news_filter=us-law-week#jcite.

^[2] Id.

^[3] See Valentine Pivovarov, Future Law School. What Does It Look Like?, Forbes (Feb. 12, 2019) https://www.forbes.com/sites/valentinpivovarov/2019/02/12/futurelawschool/?sh=43e54f2a6a84.

^[4] Id.

Image Source: Rebecca Pinsky, L’22 and Ian McDowell, L’22

By Jacob Newton

 

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”[1] The question becomes, what constitutes confrontation? Face to face confrontation is undoubtedly what the founding fathers intended the Sixth Amendment to encompass. Face to face confrontation was the only possible method to satisfy the confrontation requirement at the time the Sixth Amendment was ratified. The United States Supreme Court has slowly expanded the strict face to face requirements of the Sixth Amendment.

 

In 1988, the Supreme Court held the right of confrontation requires literal face-to-face confrontation.[2] The Supreme Court went on to explain “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’”[3] The “look me in my eye” approach was taken to the confrontation clause. The Supreme Court noted any exception to the right “would surely be allowed only when necessary to further an important public policy.”[4]

 

In 1990, the Supreme Court backed down from this rigid confrontation clause requirement when it was necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant.[5] The child’s testimony still had to be viewed via one-way closed-circuit television, enabling the judge, jury, and defendant to observe the child’s demeanor during testimony.[6] The Court held that the defendant’s confrontation rights did not guarantee an absolute right to face-to-face confrontation at trial since the presence of three of the four confrontation elements (presence, cross-examination of witnesses, the administration of oath, and allowance for observation of witness demeanor by the trier of fact) in the one-way video procedure adequately assured reliability.[7] The Supreme Court has been to silent as to any other specific public policy exceptions to the face to face requirement of the confrontation clause.

 

In Virginia, a Defendant making a required or permitted appearance before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by personal appearance or the use of two-way electronic video and audio communication.[8] The two-way electronic video and audio communication system used for an appearance must meet the following standards: (1) The persons communicating must simultaneously see and speak to one another; (2) The signal transmission must be live, real time; (3) The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and (4) Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.[9]

 

COVID-19 has raised the question, can a judge require a criminal Defendant to appear by video without a waiver? The justification for requiring a Defendant to appear by video is due to the pandemic. It is important to consider the safety for the judge, clerk, attorneys, court security, the Defendant, and other jail population if the Defendant returns to the jail. A judge requiring a Defendant to appear by video eliminates multiple levels of person to person contact. While limiting person to person contact during a pandemic is essential, limiting traditional person to person confrontation in a criminal trial potentially violates the Defendant’s constitutional rights.

 

When looking to Coy v. Iowa, the best argument for requiring a Defendant to appear by two-way electronic video and audio communication is making another exception to the right furthers an important public policy.[10]The public policy argument is to stop the spread of COVID-19 and keep everybody, including the Defendant, safe from unnecessary contact. Three of the four elements of confrontation identified in Coy v. Iowa are present when the Defendant is appearing by two-way electronic video and audio communication. The Defendant’s attorney will still cross-examination witnesses, the Defendant can hear and see the administration of oath, and the trier of fact will still observe the witness’s demeanor. The only deficit is the Defendant’s presence in a traditional sense. The United States Supreme Court in Maryland v. Craig held three out of the four were enough to satisfy the confrontation, so the there is a good faith argument requiring criminal Defendant’s to appear by two-way electronic video and audio communication satisfies the confrontation clause.[11] The requirements set forth in Virginia Code § 19.2-3.1., further bolster the reliability of two-way electronic video and audio communication to satisfy the confrontation clause in Virginia.

 

[1] U.S. Const. amend. VI.

[2] Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801 (1988).

[3] See id. (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).

[4] See id. at 1225.

[5] Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).

[6] Id.

[7] See id. at 841; see also State v. Thomas, 25, 376 P.3d 184, 193 (N.M. 2016).

[8] Va. Code Ann. § 19.2-3.1.

[9] Id.

[10] See Coy, 487 U.S. at 1017, 108 S. Ct. at 2801.

[11] See Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).

Image Source: https://lawshelf.com/shortvideoscontentview/due-process-rights-in-criminal-case-the-right-to-counsel/

By Matt Romano

 

If you have gone to a gym in the last twenty years, you are probably familiar with “spin’ or “spinning” classes. If you are not familiar, they are just exercise classes that take place on a stationary bike. You probably haven’t heard of Mad Dogg Athletics (“MDA”) though, unless you have tried to offer a spinning class yourself. MDA is a stationary bike manufacturer who  has had trademarks on the terms “spin” and “spinning” within the fitness industry since the early 1990s.[1] For years, the company been spending hundreds of thousands of dollars per year on litigation to aggressively enforce these marks across the globe.[2]  This week, Peloton, stationary bike company you’ve actually heard of, filed a petition with the US Patent and Trademark Office’s Trademark Trial and Appeal Board claiming that these trademarked terms MDA has been “abusively enforcing” have now become generic terms within the fitness lexicon.[3] In the petition, Peloton urges “[e]nough is enough. It is time to put a stop to Mad Dogg’s tactic of profiting by threatening competitors, marketplaces and even journalists with enforcement of generic trademarks.”[4]

 

Peloton seems to have a point. Under 15 U.S.C.A § 1064, a petition to cancel the registration of a mark may be filed at any time on the grounds that the registered mark has become “a generic name for the goods or services for which it is registered.”[5] Whether a mark has become generic depends on how it is perceived by the relevant consuming public.[6]Different courts have different ways of doing this analysis, but I thought the Ninth Circuit’s “who-are-you/what-are-you” test explains it well.[7] Under this test, if the relevant public primarily understands a mark as describing “who” a particular good or service is, or where it comes from, then it is valid.[8] However, if the relevant consuming public primarily understand the mark as describing “what” the particular good or service is, then the mark has become generic.[9] Based on this test, I don’t see how MDA can possibly maintain these trademarks. As Peloton points out in the petition, “even five minutes of simple Google searching reveal[s] that everyone in the world — other than Mad Dogg — understands that ‘spin’ and ‘spinning’ are generic terms to describe a type of exercise bike and associated in-studio class.”[10] It’s hard to argue with Peloton there, but, just in case, I did some Google searching myself and it’s pretty undeniable. For example, I googled “spinning near me,” and the first result is Google Maps showing all of the nearest gyms and studios offering cycling classes. None of these places were affiliated with MDA. Moreover, I also stumbled upon the Wikipedia page for “indoor cycling,” where the first sentence reads “indoor cycling, often also called spinning…”, but it makes no mention of MDA in the article.[11]

 

In response Peloton’s petition, MDA called it “meritless” and claimed that it is “little more than retaliation for [MDA]’s patent infringement lawsuit filed against Peloton in December 2020 seeking relief for Peloton’s misuse of [MDA]’s patented technology.”[12] While it very well be a retaliation to the MDA’s suit, calling it meritless seems pretty, well meritless. And since MDA brought up retaliation, it is worth noting that MDA was forced to file Chapter 11 in 2019 due in part to its inability to compete with Peloton in the in-home indoor cycling market after investing in it heavily.[13] In addition, this patent suit comes on the heels of Peloton making over a billion dollars in the final quarter of 2020 alone doing exactly what MDA has failed at.[14]

 

[1] See Mike Masnick, ‘Spinning’ Trademarked; Gyms Being Threatened For Holding Spinning Classes Sans License, TechDirt (Dec. 29, 2010), https://www.techdirt.com/articles/20101227/17284312425/spinning-trademarked-gyms-being-threatened-holding-spinning-classes-sans-license.shtml.

[2] See Timothy Geigner, Peloton Seeks To Invalidate ‘Spinning’ Trademark Held By Trademark Bully, TechDirt (Feb. 18, 2021), https://www.techdirt.com/articles/20210217/07425646259/peloton-seeks-to-invalidate-spinning-trademark-held-trademark-bully.shtml.

[3] See id.

[4] See Rob Lenihan, Peloton Spin-Trademark Argument Meritless, Mad Dogg Athletics Says, TheStreet (Feb. 23, 2021), https://www.thestreet.com/investing/peloton-spin-trademark-fight-meritless-mad-dogg-says.

[5] 15 U.S.C.A. § 1064 (2006).

[6] See, e.g., Threshold Enterprises Ltd. V. Pressed Juicery, Inc., 445 F.Supp.3d 139, 148 (2020).

[7] See id.

[8] Id.

[9] Id.

[10] Lenihan, supra note 4.

[11] Indoor Cycling, Wikipedia, https://en.wikipedia.org/wiki/Indoor_cycling.

[12] Lenihan, supra note 4.

[13] See Thomas J. Ryan, Mad Dogg Athletics Lands In Bankruptcy, SGB Media (Aug. 8, 2019), https://sgbonline.com/mad-dogg-athletics-lands-in-bankruptcy-court/.

[14] See Lauren Thomas, Peloton Quarterly Sales Top $1 billion, But Shares Fall as Cycle Maker Steps Up Further Supply Chain Investments, CNBC (Feb. 4, 2021), https://www.cnbc.com/2021/02/04/peloton-pton-reports-q2-2021-earnings.html.

Image Source: https://cdn11.bigcommerce.com/syn8q9n4bvw/product_images/uploaded_images/2/2017/01/Spinning-2017-Class-Experience.jpg

By Amanda Short

 

In early February you may recall a video of the infamous cat attorney spreading like wild-fire across social media platforms.[1] This video depicted exactly what lawyers and law students dread when using the Zoom platform. You set up your device in an area to ensure your background is professional, click the link to open the Zoom meeting, and then before you have a chance to make any last-minute changes you have an unplanned background or a filter covering your face. This accidental filter may lead to immediate embarrassment in a meeting, competition, interview, or better yet, during a hearing in front of a judge and opposing counsel.

 

Like any other day during in a pandemic world, Attorney Rod Ponton geared up for a civil forfeiture case hearing held over Zoom in Texas’ 394th Judicial District.[2] However, this case would not go as planned when Mr. Ponton joined the hearing only to see his screen portraying a filter of the cutest white kitten over his face.[3] In an interview with BBC, Mr. Ponton stated that before the hearing had started there was no cat filter over his face while in the waiting room, but once the case was called his face was replaced with the cat filter.[4]

 

The 394th Judicial District Court of Texas posted a clip of the hearing on its YouTube page.[5] This 42-second clip started with Judge Roy Ferguson stating “Mr. Ponton, I believe you have a filter turned on in the video settings.”[6] Mr. Ponton, still as a kitten, described that his assistant was trying to take off the filter and he was “prepared to go forward with it.”[7]The infamous line the legal community will remember from this video is “I’m here live. I’m not a cat.”[8] Mr. Ponton practiced as a cat attorney for about a minute before his team was able to remove the filter.[9]

 

Following the fame of the video clip, Judge Ferguson provided a piece of advice to attorneys practicing in a virtual setting.[10] Judge Ferguson stated that “YouTube hears all and never forgets,” so it is important that attorneys are aware that once a virtual hearing has ended the court is still able to see and hear the parties.[11] Judge Ferguson also applauded Mr. Ponton and the other attorneys for keeping a professional composure during the hearing.[12]

 

We can all appreciate the humor that arose from this filter mishap, but what can we do to ensure the same does not happen to us? A stable way to guarantee no virtual background or video filter appears when you are using Zoom is to turn off the settings that allow these functions. Follow these steps to disable the background and filter settings: (1) log into the Zoom platform; (2) access the settings option; (3) choose “In Meeting (Advanced Settings);” and (3) disable the function for virtual backgrounds and virtual filters.[13] Make sure your Zoom settings are set to “purrfection” before you enter any Zoom meetings!

 

[1] See 394th District Court of Texas – Live Stream, Kitten Zoom Filter Mishap, YouTube (Feb. 9, 2021), https://www.youtube.com/watch?v=KxlPGPupdd8.

[2] See Daniel Victor, ‘I’m Not a Cat,’ Says Lawyer Having Zoom Difficulties, N.Y. Times (Feb. 9, 2021), https://www.nytimes.com/2021/02/09/style/cat-lawyer-zoom.html.

[3] See id.

[4] See Cat Zoom: Lawyer Rod Ponton surprised to become internet star, BBC (Feb. 10, 2021) https://www.bbc.com/news/world-us-canada-56009062.

[5] See 394th District Court of Texas – Live Stream, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] See Victor, supra note 2.

[10] See Meryl Cornfield et al., At first, cat lawyer was embarrassed. Then he realized we could all use a laugh., Wash. Post (Feb. 9, 2021, 9:18 p.m.), https://www.washingtonpost.com/technology/2021/02/09/cat-lawyer-zoom-filter.

[11] Id.

[12] See id.

[13] See How to Remove Your Cat Filter, Zoom Help Ctr., https://support.zoom.us/hc/en-us/articles/360056477312-How-to-Remove-Your-Cat-Filter (explaining how to remove a video filter once a person is already in a Zoom meeting).

Image Source: https://www.nytimes.com/2021/02/09/style/cat-lawyer-zoom.html

By Christopher Vinson

 

The guarantee of a trial by jury is a fundamental right protected in the United States Constitution.[1]Understandably, voir dire, also known as jury selection, is an essential part of this process.[2] During a normal proceeding, potential jurors were seated in the courtroom and asked a series of questions by the trial judge and each party’s lawyers.[3] However, a global pandemic has required those involved in the process to rethink how to successfully complete voir dire.[4]

 

In an effort to adapt to the times, some court have seen the implementation of virtual voir dire.[5] Texas was the first state to conduct a civil jury trial remotely during the middle of the pandemic.[6] Like every trial, the proceeding began with voir dire.[7] The process included two judges and three attorneys in the courtroom, and twenty-five potential jurors at home over Zoom.[8] Despite being in the comfort of their own homes, jurors were instructed to treat the exercise as if they were in the courtroom.[9] This meant no use of Google or their phones to research information.[10]

 

The twenty-five potential jurors were split into two groups – one group of twelve and one group of thirteen.[11]While one group was being questioned by the attorneys, the other group was placed in a break-out room.[12]When jurors were asked questions they were able to “raise their hands” over zoom to indicate where they stood on the issues.[13] After further questioning, twelve jurors were ultimately chosen with the process lasting forty-five minutes.[14]

 

Transitioning to virtual voir dire will create new wrinkles in the process. The most obvious difference is that jurors will appear in a small square over a computer screen.[15] Potential jurors will be dressed less professionally and will be providing a peak into their homes or offices.[16] The main benefit to this change is that their facial expressions will be clearer.[17] This is an opportunity for the questioning attorney to gain insight into this person’s views. An attorney may observe nervous tics or other actions that they may normally miss during in-person voir dire.[18]

 

Virtual voir dire is not without its’ drawbacks. Despite the benefits of being able to focus on an individual’s face, an element of observation is lost since the potential jurors are no longer in the room.[19] During normal proceedings, an attorney may capture a glimpse of the person’s body language or demeanor as they stand or walk in the courtroom.[20] They may be able to see if the individual crosses their arms during a specific question.[21] This observation is eliminated if someone logs on through Zoom. Attorneys also lose the opportunity to witness how the jurors react to the answers of their fellow jurors.[22] The reactions can reveal inner sentiment that may not be revealed during the individual’s question and answer.[23]

 

There is also the risk that an attorney’s persuasive capabilities will be diminished over the internet.[24]Whether it be through their attire or the professional environment of the courtroom, some rely on their physical presence to help engender themselves to potential jurors and bolster their credibility.[25] Over zoom, the attorney appears to just be a talking head. Physical charm becomes less important when the physical aspect of voir dire is eliminated.

 

Like most things in life, the voir dire process has been upended by the pandemic. To the credit of the judicial system, they managed to implement technology to face those challenges. The new medium of Zoom for voir dire has been accompanied by its own benefits and drawbacks. As courts continue to manage jury trials during a pandemic, attorneys will need to adapt and develop new strategies to ensure they take advantage of the technology.

 

[1] See U.S. Const. art. III, § 2, cl. 3 (explaining that all criminal trials shall be by jury); see U.S. Const. amend. VI (providing that in criminal trials the accused enjoys the right to a speedy and public jury trial).

[2] Chelsea Dal Corso & Marcus Sandifer, Voir Dire in the Time of COVID-19, DLA Piper (Jul. 16, 2020), https://www.dlapiper.com/en/us/insights/publications/2020/07/voir-dire-in-the-time-of-covid-19/.

[3] Sherilyn Streicker, Jury Selection in Criminal Cases, NOLO, https://www.nolo.com/legal-encyclopedia/jury-selection-criminal-cases.html (last visited Feb. 25, 2021).

[4] Federal Judges Reinventing the Jury Trial During Pandemic, U.S. Courts (Aug. 27, 2020), https://www.uscourts.gov/news/2020/08/27/federal-judges-reinventing-jury-trial-during-pandemic.

[5] COVID-19’s Next Victim? The Rights of the Accused, Nat’l Ass’n of Crim. Def. Law., https://www.nacdl.org/Article/COVID19sNextVictim202005-PD (last visited Feb. 25, 2021).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] U.S. Legal Support, Remote Voir Dire: How to Conduct Effective Voir Dire in the New “Courtroom”, JD Supra (Jan. 26, 2021),https://www.jdsupra.com/legalnews/remote-voir-dire-how-to-conduct-1111331/.

[16] Id.

[17] Id.

[18] See Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

Image Source: https://www.clarityjuryconsulting.com/blog/2020/04/15/what-should-be-the-purpose-of-voir-dire/

By Ken Kajihiro

 

Should hacking software be free and legal?  If you are reading this and thinking well, surely, hacking software is only available to cybersecurity professionals and is illegal for the public to own; you would be wrong!  Hacking software is free and legal for the public to own![1]  A simple Google search will result in many free and legal hacking software resources posted online for the public to download.[2]

 

How is this possible?!  It is illegal to knowingly access a computer without authorization from its owner.[3]  Thus, as long as you are given the authorization to hack into someone’s computer it is not illegal.[4]  In fact, many businesses, organizations, and even Federal government agencies authorize and pay ethical hackers to hack into their computer systems with the goal of identifying vulnerabilities in their cybersecurity defenses before bad actors have the opportunity to exploit them.[5]  An ethical hacker is one who uses their hacking skills “for good by helping [entities] protect themselves.”[6]  These ethical hackers may or may not be actively employed by said businesses, organizations, or Federal government agencies, but may operate through what is commonly called a “bug bounty program.”[7]

 

The idea behind the “bug bounty program” is to make ethical hacking more lucrative than illegal or malicious hacking by allowing hackers to report their successful hacks to an entity in exchange for rewards or, most commonly, monetary compensation.[8]  For example, Microsoft is offering numerous bounties in their Microsoft Bug Bounty Program, with a bounty award of up to $250,000 for a single ethical hack.[9]  Google, alone, has paid out more than $15 Million since the inception of Google’s Vulnerability Rewards Program in 2010, Google’s version of the bug bounty program.[10]  Many ethical hackers use free and legal hacking software resources posted online to participate in the various bug bounty programs.

 

To answer the initial question, should hacking software be free and legal, we must first answer the question, do bug bounty programs actually work?  In 2014, Google was hacked, despite having a bug bounty program; approximately 5 million Gmail passwords were leaked.[11]  In 2016, Uber was hacked, despite having a bug bounty program; approximately 57 million riders and drivers had their data stolen.[12]  In 2020, Twitter was hacked, despite having a bug bounty program; approximately 130 high-profile Twitter accounts and $121,000 in Bitcoin were stolen.[13]  Also, in 2020, Microsoft was hacked, despite having a bug bounty program; Microsoft’s source code was viewed by hackers.[14]  These incidents may indicate that bug bounty programs do not work.

 

However, before concluding, let us take a look at some hacks where companies did not have a bug bounty program.  In 2017, Equifax was hacked; more than 148 million people had their personally identifiable information stolen – that is more than 40 percent of the population of the United States – costing Equifax in total more than $4 Billion.[15]  In 2018, Marriot was hacked; approximately 500 million worldwide travelers had their hotel reservation data stolen.[16]  In 2019, MGM Resorts was hacked; more than 142 million worldwide travelers had their hotel reservation data stolen.[17]

 

Do bug bounty programs actually work?  Unfortunately, the answer is an inevitable “maybe.”[18]  That’s kind of how security works; you just do not know whether your security is working because either a breach in security has not occurred, or hackers do not even try to breach your security because they know it has already been screened for vulnerabilities, or the hack that did occur was just unavoidable.[19]

 

This being said, back to the initial question: should hacking software be free and legal?  Congress could simply ban and make hacking software resources illegal to the public – forcing all websites to remove their free, public hacking software resources.  However, we must think about how, or more so, where computer software can be developed.  Answer: anywhere; including at home.  Apple Inc. was created in Steve Jobs’ grandma’s house.[20]  Facebook was created in Mark Zuckerberg’s college dorm room.[21]  The same can be said of hacking software: if it’s not publicly available, bad actors would make the hacking software themselves.[22]  In addition, some countries have seen a reverse impact of the laws created to regulate hacking software and increase public safety – overall cybersecurity awareness and innovation have decreased, leaving the public more vulnerable with the laws than without the laws.[23]

 

In conclusion, a ban on hacking software resources may do nothing but shift the power from the public to the bad actors.  Although it is unclear whether the bug bounty programs work, at least the safety of the public is in the hands of the public.

 

[1] Silvia Mazzetta, Top 15 Free Hacking Tools for Ethical Hackers, Ma-No Web Design (June 19, 2020), https://www.ma-no.org/en/security/top-15-free-hacking-tools-for-ethical-hackers.

[2] Id.; Henry HMFIC, Best Hacker Tools of 2021, Concise AC, https://www.concise-courses.com/hacking-tools/top-ten (last visited Feb. 19, 2021).

[3] 18 U.S.C. § 1030(a)(1) (2021).

[4] See id.

[5] Roger Grimes, What is Ethical Hacking?  How to Get Paid to Break into Computers, IDG Communications, Inc. (Feb. 27, 2019), https://www.csoonline.com/article/3238128/what-is-ethical-hacking-and-how-to-become-an-ethical-hacker.html.

[6] Katie Brigham, How Hackers are Making Millions – Legally, CNBC LLC (Jan. 18, 2020), https://www.cnbc.com/2020/01/17/why-companies-like-google-facebook-and-uber-pay-hackers-millions.html.

[7] Id.

[8] Id.; Megan Kaczanowski, What is a Bug Bounty Program?  How Bug Bounties Work and Who Should Use Them, FreeCodeCamp (Dec. 7, 2020), https://www.freecodecamp.org/news/whats-a-bug-bounty-program/#:~:text=Bug%20bounty%20programs%20allow%20independent,hardware%20flaws%2C%20and%20so%20on.

[9] Microsoft Bug Bounty Program, Microsoft, https://www.microsoft.com/en-us/msrc/bounty?rtc=1 (last visited Feb. 19, 2021).

[10] Eric Griffith & Kyle Kucharski, 7 Huge Bug Bounty Payouts, PC Mag Digital Group (May 14, 2019), https://www.pcmag.com/news/7-huge-bug-bounty-payouts#:~:text=The%20largest%20single%20payout%20last,in%20Google’s%20Cloud%20Platform%20console.

[11] Kashmir Hill, Google Says Not to Worry About 5 Million ‘Gmail Passwords’ Leaked, Forbes (Sept. 11, 2014), https://www.forbes.com/sites/kashmirhill/2014/09/11/google-says-not-to-worry-about-5-million-gmail-passwords-leaked/?sh=658dc3617a8d; Griffith & Kucharski, supra note 10.

[12] Uber Fined $148m for Failing to Notify Drivers they had been Hacked, Guardian News (Sept. 26, 2018), https://www.theguardian.com/technology/2018/sep/26/uber-hack-fine-driver-data-breach; Uber Bug Bounty Program, HackerOne, https://hackerone.com/uber?type=team (last updated Feb. 12, 2021).

[13] Rob Sobers, 134 Cybersecurity Statistics and Trends for 2021, Inside Out Security, https://www.varonis.com/blog/cybersecurity-statistics (last updated Feb. 1, 2021); Twitter Bug Bounty Program, HackerOne, https://hackerone.com/twitter?type=team (last updated May 30, 2019).

[14] Microsoft Internal Solorigate Investigation, Microsoft (Dec. 31, 2020), https://msrc-blog.microsoft.com/2020/12/31/microsoft-internal-solorigate-investigation-update; Microsoft Bug Bounty Program, supra note 9.

[15] Josh Fruhlinger, Equifax Data Breach FAQ: What Happened, Who was Affected, What was the Impact?, IDG Communications, Inc. (Feb. 12, 2020), https://www.csoonline.com/article/3444488/equifax-data-breach-faq-what-happened-who-was-affected-what-was-the-impact.html; Sobers, supra note 13.

[16] Lily Hay Newman, The Worst Hacks of 2018, Wired (Dec. 31, 2018), https://www.wired.com/story/worst-hacks-2018-facebook-marriott-quora.

[17] Catalin Cimpanu, A Hacker is Selling Details of 142 Million MGM Hotel Guests on the Dark Web, ZD Net (July 14, 2020), https://www.zdnet.com/article/a-hacker-is-selling-details-of-142-million-mgm-hotel-guests-on-the-dark-web.

[18] See George Hulme, Metasploit Review: Ten Years Later, Are We Any More Secure?, TechTarget, https://searchsecurity.techtarget.com/feature/Metasploit-Review-Ten-Years-Later-Are-We-Any-More-Secure (last updated Oct. 2012).

[19] Mike Elgan, How to Know if Your Cybersecurity Tools are Actually Working, Security Intelligence (Aug. 30, 2019), https://securityintelligence.com/articles/how-to-know-if-your-cybersecurity-tools-are-actually-working.

[20] Megan Chovanec, My Grandma’s Los Altos Garage is Where Apple was Created, Insider Inc. (Jan. 31, 2015), https://www.businessinsider.com/my-grandmas-los-altos-garage-is-where-apple-was-created-2015-1.

[21] Marguerite Ward, Mark Zuckerberg Returns to the Harvard Dorm Room Where Facebook was Born, CNBC LLC (May 25, 2017), https://www.cnbc.com/2017/05/25/mark-zuckerberg-returns-to-the-harvard-dorm-where-facebook-was-born.html.

[22] Hulme, supra note 18.

[23] Id.

Image Source: https://www.itpro.co.uk/hacking/30282/what-is-ethical-hacking-white-hat-hackers-explained

By Noah Holman

 

Sports betting has at long last been introduced to the Commonwealth, as nationwide fervent for the industry that was taboo not too long ago has reached a tipping point.[1] The bills to legalize sports betting were approved in April of last year; the Virginia Lottery then accepted applications from 25 sportsbook operators in October.[2] As the DraftKings and FanDuels of the world roll on the momentum, those interested in the sports betting space noticed something somewhat peculiar about the Virginia market in its inception roughly a month ago. FanDuel was granted a license from the Virginia Lottery, the state-appointed gatekeepers of the industry, before anyone else.[3] Although other companies like DraftKings, BetMGM, BetRivers, and others were not far behind in joining the competition,[4] the head start that FanDuel was fortunately granted is an advantage that will likely benefit the sportsbook for years to come. With a huge market of eager-to-wager individuals in Virginia,[5] exerting a monopoly over the opportunity to vie for their business, albeit for a short window, is tremendously valuable even if only a fraction of people downloading the app in its debuting days remain loyal to FanDuel and FanDuel alone.

 

So, how was FanDuel able to hit the market before anyone else? It all stems from their partnership with the Washington Football Team who has their team facilities and front office in the Commonwealth of Virginia, despite playing games in Landover, Maryland.[6] That relationship gave FanDuel the edge over its competition because the Virginia statute grants “substantial and preferred consideration” to sportsbooks that have a partnership with a regional professional sports team.[7]

 

The Commonwealth has an interest in catering to professional sports franchises operating in Virginia, which all bring in millions of dollars in commerce and taxes.[8] There is an even more particular focus on currying favor with the Washington Football Team which has been openly discussing its plans to build a new stadium in coming years.[9]Virginia is enticing the historic NFL franchise to build that new stadium in the state through its preferred treatment of FanDuel.[10]

 

There are of course intersecting issues of technology and law that have come with the emerging gaming industry. While there are plans to build physical casinos and sportsbooks going forward,[11] right now all of the sports betting is taking place through the electronic apps like FanDuel and DraftKings.[12] These apps use geotracking location checks to verify their users are in states like Virginia where sports betting is legalized.[13] As many people are familiar, Virtual Private Networks (VPNs) can be used to disguise one’s location and even designate the location to be tunneled to a server in a particular location.[14] While many people use this to access content available in some countries but not others, people could also use the technology for placing bets in states where it is legal from states where it is not.[15] Because the gaming industry is so highly regulated, however, these sportsbooks are employing the most sophisticated software engineers to detect when computers or mobile devices are using such software in an attempt to circumvent the location checks.[16] Of course, as with anything, there will always be people trying to stay one step ahead of the game and find ways around this, a simple Google search or visit to Reddit will show the demand for finding such workarounds,[17] but the sportsbooks are doing what they can to ensure compliance with applicable state law.

 

Regardless of how you feel about sports betting, some things are for sure. It is here and it is not going anywhere. Demand for it is perhaps higher than ever before with so many people isolated in their homes because of the ongoing COVID pandemic. It is undeniable that this new industry is creating new jobs in both technology and legal sectors. Rising young attorneys should look at this as an opportunity not to be overlooked as firms are racing to establish practices in the booming industry and without any precedent in this new industry, more senior and established attorneys do not have the same advantage they would typically have over young attorneys fresh out of law school. Life is too short to bet the under, but I would be reluctant to take the over on the average age of attorneys that will come to dominate this new area of law in the next decade.

 

[1] See Matt Bonesteel, Sports Betting Kicks Off in Virginia After State Awards Permit to FanDuel, Wash. Post. (Jan. 21, 2021, 2:56 PM), https://www.washingtonpost.com/sports/2021/01/21/fanduel-virginia-sports-betting/.

[2] SportsHandle, Virginia Sports Betting – Where to Play, Online Sportsbooks and Bonus Offers, https://sportshandle.com/virginia/.

[3] See, e.g., Matthew Water, Secretive Virginia Sports Betting Rollout Trickles on With BetMGM Launch, Legal Sports Report (Jan. 26, 2021), https://www.legalsportsreport.com/47571/virginia-sports-betting-betmgm-launch/.

[4] See SportsHandle, Virginia Sports Betting – Where to Play, Online Sportsbooks and Bonus Offers, https://sportshandle.com/virginia/.

[5] Bonesteel, supra note 1 (“With the 12th-largest population in the United States, Virginia is seen as a lucrative market for sports gambling . . . .”).

[6] See, e.g., Adam Candee, Surprise: Virginia Sports Betting Live After Thursday Launch, Legal Sports Report (Jan. 21, 2021), https://www.legalsportsreport.com/47387/virginia-sports-betting-launch-date/; Dann Stupp, FanDuel Sportsbook Live and Taking Wagers in Virginia, Play Virginia (Jan. 21, 2021), https://www.playvirginia.com/fanduel-sportsbook-jan-21-launch/.

[7] See, e.g., Candee, supra note 6; Stupp, supra note 6; Bonesteel, supra note 1.

[8] See Michael Phillips, FanDuel Launches Virginia Sports Betting in Partnership with Washington Football Team; Move Is Seen as Enticement for a New Stadium, Richmond Times Dispatch (Jan. 21, 2021), https://richmond.com/news/state-and-regional/fanduel-launches-virginia-sports-betting-in-partnership-with-washington-football-team-move-is-seen-as/article_acef416b-76ea-56c1-a752-7cee9eb2e156.html.

[9] Id.

[10] Id.

[11] Matthew Waters, New Virginia Sports Betting Bill Adds Items It Meant to Add Last Year, Legal Sports Report (Jan. 19, 2021), https://www.legalsportsreport.com/47278/new-virginia-sports-betting-bill-licenses/.

[12] Phillips, supra note 8.

[13] Jill R. Dorson, The Total Dummy’s Guide to Sports Betting Geolocation Technology, SportsHandle (Apr. 1, 2019), https://sportshandle.com/geolocation-mobile-sports-betting/.

[14] Aimee O’Driscoll, Best VPNs for Gambling: How to Access Betting Websites Abroad, Comparitech (Nov. 27, 2020), https://www.comparitech.com/blog/vpn-privacy/vpn-betting-gambling-abroad/.

[15] Id.

[16] Id.

[17] See, e.g., u/throwawayyyy9828, [Serious] VPN for betting without letting betting sites know, Reddit (Dec. 14, 2020, 6:45 PM), https://www.reddit.com/r/sportsbook/comments/kd9q54/serious_vpn_for_betting_without_letting_betting/; u/Peepsalicious, Using FanDuel w/ a VPN, Reddit (Aug. 13, 2018, 5:47 PM), https://www.reddit.com/r/dfsports/comments/972io0/using_fanduel_w_a_vpn/.

Image Source: https://novacapsfans.com/2021/01/21/report-sports-betting-to-launch-in-virginia-on-thursday/.

By Joleen Traynor

 

Launched on July 30, 2020 and touching down on the surface of Mars on February 18, 2021, NASA’s Perseverance Rover reaches its destination.[1] The purpose of this rover’s mission is to “[s]eek signs of ancient life and collect samples of rock and regolith (broken rock and soil) for possible return to Earth.”[2] This is the first time since the 1970’s that a NASA mission has specifically searched for signs of life on Mars.[3] The rover will collect rock samples that will eventually be brought back to Earth for testing.[4] In addition to geological samples, the atmosphere on Mars will also be tested, to gather information for eventual future trips to Mars, including missions potentially carrying astronauts.[5]

 

Cameras on the rover were able to capture images of the rover in midair just before landing on the planet, where it landed in Jezero Crater.[6] In order to land in the Jezero Crater, the Perseverance Rover entered the atmosphere of Mars at 12,000 miles per hour, and it was aided by a parachute in order to make a safe landing.[7] This region of the planet was chosen for landing because it was believed that this area used to be a river delta, and that this crater was filled with water many years ago.[8]

 

The Perseverance rover is the largest vehicle NASA has ever attempted to land on Mars, coming in at a whopping weight of over a metric ton.[9] This is due, in part, to the added technology that has been included with the rover, featuring a number of new technological innovations that were unavailable for other rovers in past missions.[10]

 

The rover has travelled 300 million miles to reach the surface of Mars.[11] It takes 11 minutes for messages to be sent and received between the rover and Earth.[12] The rover is equipped with cameras to be able to capture images and video of the planet’s surface.[13] This mission opens up a whole new world of science and exploration on a distant planet. This is a scientific feat that has only scratched the surface of the knowledge and understanding scientists hope to be able to gain through this mission. The lifespan of this mission is intended to last one Martian year, which is 687 Earth days.[14] You can check out the images the Perseverance rover has already sent back to Earth here: https://www.nasa.gov/perseverance/images.

 

[1] NASA Science Mars 2020 Mission Perseverance Rover, https://mars.nasa.gov/mars2020/ (last visited Feb. 20, 2021).

[2] Id.

[3] Paul Rincon, Nasa Mars rover: Key questions about Perseverance, BBC (Feb. 19, 2021), https://www.bbc.com/news/science-environment-53129281.

[4] Id.

[5] Id.

[6] Ashley Strickland, Incredible new images shared by Perseverance rover after Mars landing, CNN World (Feb. 19, 2021, 4:00 PM), https://www.cnn.com/2021/02/19/world/mars-rover-new-images-scn-trnd/index.html.

[7] Sophie Lewis, How NASA’s Mars Perseverance rover will make the most difficult landing ever attempted on the red planet, CBS News (Feb. 18, 2021, 7:25 PM), https://www.cbsnews.com/news/mars-landing-nasa-perseverance-rover/.

[8] Id.

[9] Id.

[10] Id.

[11] Morgan McFall-Johnsen, NASA’s Perseverance rover is about to attempt a supersonic plunge to Mars, complete with a jetpack landing, Business Insider (Feb. 17, 2021 1:48 PM), https://www.businessinsider.com/how-nasa-perseverance-rover-will-land-on-mars-2021-2.

[12] Id.

[13] See NASA Science Mars 2020 Mission Perseverance Rover, https://mars.nasa.gov/mars2020/ (last visited Feb. 20, 2021).

[14] Mars 2020 Rover Depot Caching Strategy, https://mars.nasa.gov/mars2020/timeline/surface-operations/ (last visited Feb. 20, 2021).

Image Source: https://www.nasa.gov/image-feature/perservence-gets-ready-to-touch-down.

By Chloe Hillard

 

Social determinants of health are a hot topic in the health care industry. Increasingly, providers and policymakers realize that in order to provide quality care, you need to treat the whole person. That means taking social determinants of health into account in patient care. Social determinants of health (SDOH) are the “conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life.”[1] They include factors such as income, education, food insecurity, housing, access to care, and so much more.[2] These factors can positively or negatively impact a person’s health. Research shows that SDOH may impact a person’s health more than health care or their lifestyle choices.[3] Some studies show that SDOH control as much as 30-55% of health outcomes.[4]

 

There have been numerous initiatives to improve a person’s health by focusing on social determinants of health. For example, in 2016 the Center for Medicare and Medicaid Innovation (CMMI) introduced the Accountable Health Communities model.[5] This model focused on connecting Medicare and Medicaid beneficiaries to community resources to serve their health-related social needs (i.e., housing instability, food insecurity, utility needs, interpersonal violence, and transportation needs).[6] Various state Medicaid programs have also worked to address the social determinants of health. For example, Oregon provides Medicaid funding that can be used for “health-related services”, which can target SDOH.[7] Oregon has used this funding to provide Meals on Wheels to Medicaid beneficiaries who are recently discharged from the hospital and need food assistance.[8] They have also used this funding to connect pregnant women with social services, including housing, food, and income assistance.[9]

 

Despite the numerous initiatives to address social determinants of health in patient care, providers still struggle to incorporate SDOH into care because they lack the necessary data capabilities. One problem providers face is data standardization. When a patient presents at a hospital, the provider may note various SDOH in free-form notes in the patient file. Alternatively, they may use a specific code to document a SDOH. The problem is lack of consistency across points of care, or even necessarily within the same care facility. As a result, it is difficult to accurately document a patient’s SDOH and treat them accordingly. Lack of standardization makes both data collection and data sharing difficult. “The differences in how providers collect housing data, for example, can include different definitions, metadata, and measurement. Moreover, a wide variety of screening tools are currently used in clinical settings to capture data about the social determinants of health.”[10] Without that consistency, it is difficult to accurately and appropriately treat patients, taking SDOH into account.

 

In examining this issue, CODE recommended that HHS should develop a SDOH data strategy, which should, among other things, define and standardize SDOH data.[11] “This can include improving and aligning open-source assessment tools, adopting data standards and definitions, and developing a data governance body.”[12] Once there is data standardization, providers and policymakers can better track SDOH data and implement programs that incentivize treatment of the whole person.

 

[1] Social Determinants of Health, World Health Org., https://www.who.int/health-topics/social-determinants-of-health#tab=tab_1.

[2] Id.

[3] Id.

[4] Id.

[5] Accountable Health Communities Model, Centers for Medicare & Medicaid Serv., https://innovation.cms.gov/innovation-models/ahcm (Dec. 18, 2020).

[6] Id.

[7] Chris DeMars, Oregon Bridges the Gap Between Health Care and Community-Based Health, HealthAffairs,https://healthaffairs.org/blog/2015/02/12/oregon-bridges-the-gap-between-health-care-and-community-based-health/ (Feb. 12, 2015).

[8] Id.

[9] Id.

[10] CODE, Leveraging Data on the Social Determinants of Health (Dec. 2019).

[11] Id.

[12] Id.

Image Source: “File:Pre-Existing Condition – The Noun Project.svg” by CO. Department of Health Care Policy and Financing is marked with CC0 1.0, https://search.creativecommons.org/photos/9bc3f9b1-ecc8-41d0-bb4f-fda96d8bc67a.