Author: JOLT Page 5 of 9

By Alexandra Tillman

 

The future is here. Artificial Intelligence (AI) is being used in virtually every aspect of our lives—smart phones, smart watches, smart cars, even smart refrigerators.

 

But the problem with the future is that you do not know what lies ahead.

 

And unfortunately, neither does AI.

 

AI is being used throughout the criminal justice system, from prediction to adjudication.[1]

 

But even the creators of AI algorithms will admit they often do not know how the algorithm makes its decisions. In fact, many studies have shown that AI is far from fair and impartial, as many hope and believe it to be.[2]

 

One study created an algorithm with a seemingly simple objective: to differentiate pictures of wolves from pictures of dogs.[3] From an output perspective, the algorithm seemed to have accomplished its goal, correctly identifying wolves and dogs. But upon analyzing what factors weighed most heavily in its determination, the study found that the algorithm’s most weighted factor was not at all similar to how a human would identify a wolf. The algorithm determined that the most likely indicator of whether the photo was of a wolf…was snow in the background.[4]

 

Now consider this example when applied to identifying a potential criminal. While we may know what the inputs and outputs are, e.g. years of datasets on criminal offenders, what if we do not know how the system makes its determination. The ultimate result may seem correct, but the truth is we do not fully understand how algorithms create their outputs—and we may not like what we find when we look deeper. What if the AI we already use in the criminal justice system is equally flawed? What is the criminal equivalent of snow = wolf?

 

One recent study looked at an algorithm used by judges to determine the likelihood of a convicted criminal being a repeat offender.[5] This study found that the algorithm was heavily biased against minorities in creating its output.[6](Smithsonian, id.) So how can we continue to use AI if it is so flawed?

 

The key to improving is understanding. To justify and bolster its continued use, here are few things the legal community needs to understand about AI:

 

1. Not All AI is created Equal

Several types of systems fall under what many think of as AI. “AI” has actually existed since the 1950s as a branch of computer science focused on performing specific tasks—there are inputs and outputs, but it does not learn on its own.[7]Then in the 1980s a new kind of AI came along called Machine Learning, which processes algorithms and analyzes the results to learn more and improve the algorithm on its own.[8] Finally, in the 2010s came the most recent development in AI, Deep Learning, which uses both machine learning and artificial intelligence “to break down tasks, analyze each subtask and [use] this information to solve new sets of problems.”[9] Each kind of AI serves a different purpose and function. And thanks to the technological advances of the last decade, such as our ability to store and analyze big data,each of these areas has recently grown in popularity and are being used as never before.[10] In other words, AI is not just one thing. It works in many ways with varying objectives, capabilities, and limitations.

 

 

2. Humans, Datasets, & Algorithms

Humans create algorithms as well as the datasets we plug into those algorithms. And as the myriad of polls and data we see in our daily lives show, data is not always the most accurate representation of the world as it truly is.[11] Data can be biased. So, when humans create datasets and algorithms, they may, often unintentionally, include those biases. This results in outputs that do not represent the world accurately, and those outputs are thus inherently biased.

 

 

3. AI Does Not Think as Humans Do –

As may be clear from the prior examples, AI has not yet reached the equivalent of human reasoning.[12] In fact, AI does not “reason” at all.[13] It takes the data presented to it, follows the rules of the algorithm, and creates an output. So, it is important for practitioners, policy-makers, and judges alike to be actively skeptical of the inputs and outputs of these systems, by questioning the data, the algorithms, and constantly asking how these systems can be improved. Even though some of these systems can learn, they learn based on the information they are fed, and learning is not equivalent to reasoning.[14]

 

In order for the pros to outweigh the cons when it comes to criminal justice and AI, its practitioners and judges must know the strengths and limitations inherent in AI. The more active we are in learning how AI works, the more we can use and improve this powerful technology to aid in the criminal justice system—making the system more fair, from investigation to adjudication.

 

The future may be here, but we still have a long way to go until the future is as fair as we want it to be.

 

[1] Randy Rieland, Artificial Intelligence Is Now Used to Predict Crime. But Is It Biased? Smithsonian Magazine, (Mar. 5, 2018), https://www.smithsonianmag.com/innovation/artificial-intelligence-is-now-used-predict-crime-is-it-biased-180968337/.

[2] Id.

[3] Marco Tulio Ribeiro et. al., “Why Should I Trust You?” Explaining the Predictions of Any Classifier (Aug. 9, 2016), https://arxiv.org/pdf/1602.04938.pdf.

[4] Cameron Boozarjomehri, Is This A Wolf? Understanding Bias in Machine Learning, Mitre (2018) https://kde.mitre.org/blog/2018/10/28/is-this-a-wolf-understanding-bias-in-machine-learning/.

[5] Reiland, supra.

[6] Reiland, supra.

[7] Ramdev Canadam Sunder Rao, “New Product Breakthroughs with Recent Advances in Deep Learning and Future Business Opportunities”, Stanford Management Science And Engineering 238 Blog, (July 6, 2017), https://mse238blog.stanford.edu/2017/07/ramdev10/new-product-breakthroughs-with-recent-advances-in-deep-learning-and-future-business-opportunities/.

[8] Id.

[9] Id.

[10] Id.

[11] Nate Silver, The Real Story of 2016, FiveThirtyEight (Jan. 19, 2017), https://fivethirtyeight.com/features/the-real-story-of-2016/.

[12] Brian Bergstein, What AI Still Can’t Do, MIT Technology Review (Feb. 19, 2020), https://www.technologyreview.com/2020/02/19/868178/what-ai-still-cant-do/.

[13] Id.

[14] Id.

Image Source: https://p0.pxfuel.com/preview/729/37/117/advanced-ai-anatomy-artificial.jpg

By Peyton Reed

 

Twitch is an online streaming platform owned by Amazon that allows creators to host watch parties. While creators can make a variety of content, from cooking classes to wildlife cameras, it is most popular for game streaming. Hundreds of thousands of viewers tune in to see top twitch streamers play popular games like Among Us or Minecraft. [1] Twitch’s popularity has seen a slow but consistent growth since the site’s creation in 2011.[2] In 2018, monthly broadcasters nearly doubled. [3] A survey by GlobalWebIndex shows that 42% of young adults have watched a twitch stream recently.[4]

 

Twitch is popular for both amateur and professional game streamers. After building a successful following, the creator can join the Twitch Affiliate Program.[5] To be eligible, Affiliates need at least 50 followers and to meet specific viewer milestones over a 30 day period. [6] The top-performing creators are able to become a Twitch Partner.[7] Both Affiliates and Partners can charge subscription prices and earn income from their streaming services.

 

In June, Twitch began to crack down on copyright violations and issue Digital Millennium Copyright Act (DMCA) take down notifications.[8]  The most frequently tagged content for DMCA violations are clips. Clips are short, sixty second highlight reels for longer gaming sessions that contain the most exciting parts of the stream.[9]

 

A new wave of DMCA notices rolled out in late October, but this time Twitch has taken additional measures.[10] Typically, DMCA takedown notices give the recipient the ability to file a counter notice to keep up the flagged content. Rather than giving creators an opportunity to file a counternotice, Twitch decided to delete the content instead. Rod Breslau, an esports and gaming consultant, tweeted a portion of the email Twitch creators received after the content was deleted from their video archives.[11] The email reads “We recognize that by deleting this content, we are not giving you the option to file a counter-notification or seek a retraction from the rights holder. In consideration of this, we have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel.”

 

This new wave of DMCA crack downs has created a lot of fear and anger. Affiliates and Partners are concerned because the Twitch Terms of Service threaten to ban repeat copyright infringers.[12] Not only are creators losing their content, but their livelihoods are at stake for those who rely on their streaming income. One of the biggest complaints is that the email notifications do not specifically identify what content is in violation of copyright law. Devin Nash, the former CEO of CLG CEO and Twitch streamer, is highly critical of Twitch’s approach.[13] Nash call’s Twitch’s solution to DMCA “pure, gross negligence.”[14]

 

Twitch streamers are beginning to respond to the DMCA take downs in creative ways. In response to Twitch’s suggestion to mute in-game audio, one user posted a video on Twitter playing Skyrim using her own sound effects. She reads the lines, makes sound effect, and even sings the Skyrim theme song.[15] Her video has over 300,000 views.[16] In the coming months, it will be interesting to watch Twitch streamers adapt to the copyright crackdowns and watch how it effects content creation on the site.

 

[1] Twitch, https://www.twitch.tv/p/en/about/ (last visited Nov. 19, 2020).

[2] Mansoor Iqbal, Twitch Revenue and Usage Statistics (2020), Business of Apps (Last Updated Oct. 30, 2020), https://www.businessofapps.com/data/twitch-statistics/#1

[3] Id.

[4] Duncan Kavanagh, Watch and Learn: The Meteoric Rise of Twitch, GlobalWebIndex (Aug. 20, 2019), https://blog.globalwebindex.com/chart-of-the-week/the-rise-of-twitch/

[5] Twitch Affiliate Program, https://affiliate.twitch.tv/ (last visited Nov. 19, 2020).

[6] Id.

[7] Twitch Partner Program, https://www.twitch.tv/p/partners/ (last visited Nov. 19, 2020).

[8] Bijan Stephen, Twitch streamers are getting blindsided by years-old copyright notices, The Verge (Jun 8, 2020), https://www.theverge.com/21284287/twitch-dmca-copyright-takedowns-clips-controversy-broken-system

[9] Id.

[10] Bijan Stephen, Twitch streamers are getting DMCA takedown notices (again), The Verge (Oct. 20, 2020), https://www.theverge.com/2020/10/20/21525481/twitch-streamers-dmca-takedown-notices-riaa-copyright

[11] Rod Breslau (@Slasher), Twitter (Oct. 20, 2020, 2:26 PM), https://twitter.com/Slasher/status/1318619536191594502?s=20

[12] Twitch: Digital Millennium Copyright Act Notification Guidelines, https://www.twitch.tv/p/legal/dmca-guidelines/ (last visited Nov. 19, 2020).

[13] Alan Bernal, Twitch streamers outraged as new DMCA warning forces them to delete clips, Dexerto (Oct. 21, 2020), https://www.dexerto.com/entertainment/twitch-streamers-outraged-as-new-dmca-warning-forces-them-to-delete-clips-1436293/.

[14] Id.

[15] Jambo All The Way (@PlayWithJambo), Twitter (Nov. 12, 2020, 8:55 PM), https://twitter.com/PlayWithJambo/status/1327067580163645445.

[16] Id.

 

Image Source: https://search.creativecommons.org/photos/49d92f8a-2767-4325-97e4-95c626f4a414

By Christopher Vinson

 

2020 has been challenging for everyone. Social distancing, and the accompanying social isolation, exacerbate challenges for patients suffering through mental health illnesses. To combat increased feelings of isolation therapists began utilizing teletherapy.[1] Teletherapy has emerged as an online mental health resource to connect patients to therapists in a quicker, safer, and more convenient manner. A recent survey by the American Psychological Association reveals that nearly 75% of therapists around the country are providing remote services exclusively.[2] However helpful, the increased use of teletherapy also raised new concerns regarding privacy, insurance policies, and state-to-state licensing requirements.[3]

 

The privacy of patients is mostly governed through the Health Insurance Portability and Accountability Act (HIPAA). Any platform used to communicate between health provider and client must be HIPAA compliant.[4]Such a platform must enable the health professional to secure the client’s data and privacy.[5] Ensuring that the platform chosen has signed a HIPAA-compliant business associate agreement can alleviate these concerns.[6] Taking this step will fulfill the goal of patient privacy and prevent future legality issues concerning HIPAA compliance.[7]

 

Mental health professionals and clients have also experienced issues regarding individual insurance policies. The pandemic only heightened concerns over health insurance coverage for telemedicine and teletherapy.[8]Prior to the pandemic, the market had been slow to embrace this new form of medicine. The increased adoption of teletherapy during social isolation has led to rushed policy changes regarding this issue.[9]Patients are now unsure whether or not their current health insurance plan will actually cover this new method of treatment.[10]

 

The pandemic has renewed the focus on telehealth parity laws around the country. Mental health parity is the equal treatment of mental health conditions in insurance plans.[11] Parity was first passed in Congress in 2008 with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA).[12]However, this law only mandated certain health plans to follow parity laws which has left in a gap in coverage.[13]

 

Parity ensures that health providers are compensated equally for in-person and virtual visits.[14] The gap in coverage created by the MHPAEA has yet to be adequately filled through state telemedicine parity laws.[15] A state has the ability to adopt a stronger parity law that could ensure coverage for mental health conditions through telemedicine.[16] Passing additional telemedicine parity laws would reduce any stress associated with teletherapy by ensuring that those visits will be covered equally under individual’s insurance.[17]

 

Finally, state licensing regulations has threatened to derail the rise in teletherapy. These regulations typically prevent therapists from practicing in different jurisdictions from the one they are licensed in.[18] This obstacle was briefly avoided during the pandemic as many states exempted teletherapy providers from this requirement.[19] However, this was short-lived as many of these exemptions have been lifted with the expiration of public health orders around the country.[20]

 

This challenge has particularly affected universities and colleges who wish to provide care for their out-of-state students.[21] Some institutions, such as Johns Hopkins University, partnered with telehealth companies to increase access for treatment of its students.[22] This allows for students to maintain continuity of care without worrying about the limitations set by state licensing requirements.[23] Johns Hopkins saw substantial usage of this service and were satisfied that it was allowing them to provide care to more students.[24]

 

There are also efforts to pass a federal law that will allow telehealth visits from any state during the pandemic.[25] The TREAT Act was introduced to the Senate on August 4, but has seen little traction.[26] Passing this law would remove the volatility of state to state regulations and public health orders.[27] State laws are subject to change at any moment so passing a federal law would make providing care to out-of-state patients more reliable.[28]

 

Social distancing has impacted many who miss the daily interactions of pre-pandemic life. Providing care for those who are struggling during this time is of the utmost importance. These are the times where innovation is key. It is encouraging that most therapists have adopted the teletherapy methodology. Expansion of the teletherapy market can provide a great service to many, further enhancing and saving lives.

 

[1] Jeff Wisler, Teletherapy, Popular in the Pandemic, May Outlast It, N.Y. Times (July 9, 2020), https://www.nytimes.com/2020/07/09/well/mind/teletherapy-mental-health-coronavirus.html.

[2] Psychologists Embrace Telehealth to Prevent the Spread of COVID-19,  Am. Psychol. Ass’n (Jun. 5, 2020),https://www.apaservices.org/practice/legal/technology/psychologists-embrace-telehealth.

[3] Wisler, supra note 1.

[4] Platforms that are HIPAA Compliant, CPH & Associates, https://www.cphins.com/platforms-that-are-hipaa-compliant/ (last visited Nov. 12, 2020).

[5] Id.

[6] Id.

[7] Id.

[8] Sara Lindberg, Does Health Insurance Cover Online Therapy, Verywell Mind (May 8, 2020), https://www.verywellmind.com/does-my-health-insurance-cover-online-therapy-4842511.

[9] See id.

[10] Id.

[11] What is Mental Health Parity?, National Alliance of Mental Illness, https://www.nami.org/Your-Journey/Individuals-with-Mental-Illness/Understanding-Health-Insurance/What-is-Mental-Health-Parity (last visited Nov. 12, 2020).

[12] Id.

[13] See id.

[14] Kristen Fisher, New Survey Highlights Pros and Cons of Teletherapy for Mental Health, Verywell Health (Oct. 14, 2020). https://www.verywellhealth.com/telehealth-mental-health-5081863.

[15] Id.

[16] National Alliance of Mental Illness, supra note 11.

[17] Fisher, supra note 14.

[18] Greta Anderson, Extending the Reach of Mental Health Therapy, Inside Higher Ed (Oct. 1, 2020),https://www.insidehighered.com/news/2020/10/01/teletherapy-platforms-extend-reach-college-counseling-centers.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Livia Gimenes & Julia Grossman, Students Struggle with Navigating CAPS’ Resources Remotely, The Brown Daily Herald  (Oct. 20, 2020), https://www.browndailyherald.com/2020/10/20/students-struggle-navigating-caps-resources-remotely/.

[26] See id.

[27] Id.

[28] Id.

Image Source: https://www.nytimes.com/2020/07/09/well/mind/teletherapy-mental-health-coronavirus.html

By Kyle Durch

 

If a picture is worth a thousand words, then a video is priceless. In court, the fallibility of witness testimony favors the introduction of photographic or video evidence, when available, rather than a description of its content by a witness.[1]Video evidence is seen as so obviously reliable that it provides the foil against which witness testimony is compared.[2]

 

But just as Adobe Photoshop forever changed digital photography, “deep fake” processing threatens the reliability of video and audio recordings. Rather than simply pasting a photo on top of an underlying video,[3] a “deep fake” video is produced by training a machine learning algorithm with example images of a subject face, then digitally stitching the resulting model onto a target host.[4] The same technique applies to audio to produce convincing, though fake, recordings.[5] Complicating the issue further is the source of training data, which may be voluntarily-uploaded images scraped (automated extraction of data) from Facebook, LinkedIn, or YouTube, or actively collected by from across the entire internet by companies such as Clearview AI.[6] Because of their unapproachable cost, traditional Hollywood movie techniques have largely been ignored as a threat to “everyday” recordings.[7] “Deep fakes,” on the other hand, may be produced using free applications running on relatively low-cost, retail graphics processors installed in home computers.[8]Results vary depending on the available computing power, extent of training data, and time to process.[9]

 

“Deep fakes” present several issues, and although some uses may be benevolent, potential threats are substantial. For instance, one artist used this medium to produce synthetic videos of prominent people doing things that they have never done publicly, such as responding to sexual assault allegations or discussing the spread of conspiracy theories.[10]Similarly, others leveraged the technology to develop a satire news report placing various public figures in ironic situations.[11] Both of these sets of examples are acknowledged by their producers to be fake videos. But in 2019, videos went viral on Facebook depicting House Speaker Nancy Pelosi “drunkenly slurring her words.”[12] Though the editing technique was fairly rudimentary, these Speaker Pelosi videos illustrated how an anonymous producer can make a reasonably believable video with ease. People shared the videos without much thought, spreading doubt and sowing discord through the click of a mouse.[13] Ideologically opposed communities may be entrenched further through tactical use of skewed information.[14] Many public figures and celebrities have fallen victim to similar tactics; as the process proliferates, those most impacted will likely be women and marginalized communities.[15] As “deep fake” production software continues to metastasize and those who use it access more and more social media profiles, the likelihood of victimization of regular folks becomes more acute.[16]

 

While these developments present obvious concern over public discourse, safety, and the understanding of truth, what implications do they have on evidence presented in court? Assuming that an initial recording is itself considered reliable, any break in the chain of custody of video evidence could cast doubt on a video’s authenticity, especially as “deep fake” integration continues to improve.[17] Juries may “be swayed by arguments to not take certain evidence into their consideration” in the absence of authentication by qualified experts.[18] Indeed, this development is related to a phenomenon termed “reality apathy,” where “constant contact with misinformation compels people to stop trusting what they see and hear.”[19] This apathy spread quickly as Donald Trump allegedly coined the term “fake news” following the 2016 election and continued to repeat it over the ensuing years.[20] For these reasons, and to combat the rising presumption against accuracy, it is likely that video editing experts will be commonplace in courtroom protocol in the near future.[21]

 

However, it will not be long until “deep fake” production transcends the so-called “uncanny valley,” the point at which it will be nearly indistinguishable from reality.[22] Detection will become more important than ever, but technology to conclusively detect and block “deep faked” media may be decades away.[23] Use of “defensive artificial intelligence” may eventually become commonplace to provide requisite expertise on the question of authenticity.[24] Of course, such a protocol raises critical access to justice questions, especially when parties are unable to bear the cost of expert testimony, let alone the additional use of complex computer analysis.[25] And in spite of the assurance of experts, reality apathy could erode trust and negatively affect the basic assumptions made by jurors even before entering the courtroom.[26]

 

Federal and state efforts have attempted to address cybercrimes, but these efforts failed to directly target the spread of “deep fakes” and did nothing to address evidentiary concerns. California, Texas, Florida, and New York each attempted to address “revenge porn” and cyberstalking.[27] Existing federal law chews around the edges, while efforts to pass reform have all died in committee.[28] A cohesive federal strategy is likely required to address the threat of “deep fakes,” the effects of which respect no border, are instigated by actors from behind layers of anonymity and encryption, and against which requires expensive and complex litigation.[29]

 

As for evidence at trial, the federal rules are written to afford judges’ discretion.[30] Similar to the way courts, in many cases, defer to agency expertise to resolve statutory ambiguities rather than substitute their own interpretation,[31] the flexible nature of the evidence rules may leave too much ambiguity for judges to effectively rule when faced with a possible “deep fake.” Realizing that the absence of qualified expert testimony could become commonplace, it may be necessary to build presumptions into the rules to guide judges in their rulings. Regardless, the rapid advance of “deep fake” technology will continue to challenge courts and society for years to come.

 

[1] Fed. R. Evid. 1002.

[2] See generally Stephen L. Chew, Myth: Eyewitness Testimony is the Best Kind of Evidence, Psych. Sci. (Aug. 20, 2018), https://www.psychologicalscience.org/teaching/myth-eyewitness-testimony-is-the-best-kind-of-evidence.html (comparing the unreliability of witness testimony with the completeness of a video recording).

[3] See, e.g., JibJab (2020), https://www.jibjab.com/ (providing a service with which consumers may send greeting cards featuring friends and family in humorous videos).

[4] See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Calif. L. Rev. 1753, 1759 (2019).

[5] 3 Computer Contracts § 15.02(2)(p) (2020).

[6] See Angela Morris, Don’t Roll That Tape: Deepfakes Creating Litigation Nightmares, Tex. Law. (Feb. 10, 2020, 11:40 AM), https://www.law.com/texaslawyer/2020/02/10/dont-roll-that-tape-deepfakes-creating-litigation-nightmares/.

[7] See 6 Best Deepfake Apps and Tools in 2020, RankRed (Mar. 1, 2020), https://www.rankred.com/6-best-deepfake-apps-and-tools-in-2020/#:~:text=DeepFaceLab.

[8] See id.

[9] See id.

[10] About, Deep Reckonings, http://www.deepreckonings.com/about.html (last visited Nov. 9, 2020) (depicting the likenesses of Mark Zuckerberg, Justice Brett Kavanaugh, and Alex Jones).

[11] Sassy Justice, YouTube (Oct. 26, 2020), https://youtu.be/9WfZuNceFDM; Dave Itzkoff, The ‘South Park’ Guys Break Down Their Viral Deepfake Video, N.Y. Times (Oct. 29, 2020), https://www.nytimes.com/2020/10/29/arts/television/sassy-justice-south-park-deepfake.html.

[12] Corinne Reichert, Congress Investigating Deepfakes After Doctored Pelosi Video, Report Says, CNet (June 4, 2019, 3:35 PM), https://www.cnet.com/news/congress-investigating-deepfakes-after-doctored-pelosi-video-report-says/.

[13] See Wallace Baine, Welcome to Deepfake Hell, Good Times (Nov. 26, 2019), https://goodtimes.sc/cover-stories/deepfake/.

[14] See Oscar Schwartz, You Thought Fake News was Bad? Deep Fakes are Where Truth Goes to Die, Guardian (Nov. 12, 2018, 5:00 AM), https://www.theguardian.com/technology/2018/nov/12/deep-fakes-fake-news-truth.

[15] Symposium, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security, 78 Md. L. Rev. 882, 885–86 (2019).

[16] See Baine, supra note 12.

[17] See David Notowitz, Deepfakes and the Growing Trend of Fabricated Video Evidence, Recorder (May 2, 2019, 11:50 AM), https://www.law.com/therecorder/2019/05/02/deepfakes-and-the-growing-trend-of-fabricated-video-evidence/.

[18] Id.

[19] Schwartz, supra note 14.

[20] See Andrew Beaujon, Trump Claims He Inveneted the Term “Fake News”—Here’s an Interview with the Guy Who Actually Helped Popularize It, Washingtonian (Oct. 2, 2019), https://www.washingtonian.com/2019/10/02/trump-claims-he-invented-the-term-fake-news-an-interview-with-the-guy-who-actually-helped-popularize-it/.

[21] Notowitz, supra note 16.

[22] Baine, supra note 13 (explaining that “the ‘uncanny valley effect’ . . . [defines that] the closer technology got to reality, the more dissonant small differences would appear to a sophisticated viewer”).

[23] Chesney & Citron, supra 4, at 1788.

[24] 3 Computer Contracts § 15.02(2)(p) (2020).

[25] See generally David Medine, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 Hastings L.J. 281, 303 (1990) (arguing that the Supreme Court should develop a “right to expert assistance based upon equal protection principles”).

[26] Chesney & Citron, supra note 4, at 1779.

[27] Rebecca Delfino, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn’s Next Tragic Act, 88 Fordham L. Rev. 887, 909–17 (2019).

[28] See id. at 904–10.

[29] See Chesney & Citron, supra note 4, at 1792–93.

[30] See, e.g., Fed. R. Evid. 1008 (instructing that “the court determines whether the proponent has fulfilled the factual conditions for admitting” evidence, rather than specifying very particular lists of requirements for each type of evidence).

[31] See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984).

Image Source:  “Security Cameras” by JeepersMedia is licensed under CC BY 2.0

By Sophia Studer

 

The creation of third-party real estate listing services like Zillow are undoubtedly valuable to consumers of real estate. These sites allow for remote consumers to catch a glimpse into the real estate market of any location and grant free and transparent access to available real estate listings.[1] These are objectively beneficial things in the eyes of a consumer, but what effect does this have on real estate agents and brokers?

 

A core pillar of a realtor’s job is creating real estate listings. Courts have recognized listing information as important realtor work product by “entitling copyright protection for the following contents: photographs, virtual tours, artistic renderings, floor plans, list price, architectural drawings, [and] listing descriptions that include creativity.”[2] While it is great that these protections are in place, these entitlements alone are not enough to keep third party websites–like­ Zillow–from taking realtor-created listing information and publishing it to their own website.[3] This concept is called data scraping and it happens when “websites . . . pull information without permission from . . .  the [Multiple Listing Service].”[4] Thus, realtors are putting in all the work, and third-party sites are reaping the benefits.[5]

 

The National Association of Realtors (“NAR”) attempts to combat the takings of listing information by calling on courts and legislatures for “intellectual property-based right[s] to prevent portals like Zillow . . . from accessing . . . listing data.”[6] This call for intellectual property rights is based on the fact that the listings are created from the time, resources, and know-how invested by real estate brokers and agents doing their jobs each day.[7]This is why home buyers are required to pay for access to the Multiple Listing Service (“MLS”) or hire a realtor to access it for them. The MLS consolidates realtor-created listings for homes on the market in a specific  geographic locality.[8] The small scope of an individual MLS, however, has forced brokerages to combine their active listings and send them out to be viewed on other MLSs or on third party websites like Zillow.[9] This practice is where data scraping became most prevalent, and why the courts and legislatures are being called upon to entitle further copyright protections to real estate listings.[10]

 

Placing listing data on third party sites is helpful for consumers in their home-buying search; usually it is the first thing a buyer will look to.[11] But protecting real estate agents and brokers is a key component to keeping the real estate market healthy. Real estate brokers and agents do more than just create listing data; they help buyers navigate the daunting task of purchasing a home. Without the reliable listing information cultivated by real estate agents and brokers, the real estate market would not be nearly as trustworthy.[12] Realtors provide verified and accurate information, as required of them by law, which creates the valuable data that companies like Zillow are currently scraping without repercussions.[13] As technology and the real estate market progress, real estate brokers and agents must not be left behind. Protecting realtors through listing copyrights would be a step toward making the market work for all.[14]

 

[1] James S. Bradbury, Revenge of the Realtors: The Procompetitive Case for Consolidating Multiple Listing Services, 90 U. Colo. L. Rev. 267, 270 (2019).

[2] Kathryn S. Robinson, Providing Copyright Protection to Real Estate Listings: Protecting Brokers, Sellers, and Consumers, 15 J. Marshall Rev. Intell. Prop. L. 318, 328 (2016) (internal quotations omitted).

[3] Id.

[4] Id. at 323-24.

[5] Id.

[6] Bradbury, supra note 1, at 312.

[7] Id.

[8] Robinson, supra note 2, at 324.

[9] Id.

[10] Id. at 331.

[11] Id. at 329.

[12] Id. at 332.

[13] Id.

[14] See id.

Source: “3D Realty Handshake” by lumaxart is licensed with CC BY-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/2.0/

By Danielle M. Taylor

 

In August of 2017, Netflix launched a campaign entitled #FirstTimeISawMe. In a number of short, yet poignant videos, various artists, entertainers, and creatives – including renowned directors, Spike Lee and Ava DuVernay – opened up about the first time they saw an on-screen character who looked like them.[1] The hashtag quickly grew, inspiring people from communities and demographics that are typically rejected or type-casted by mainstream media, myself included, to take to the internet and tell the stories of their “first time.” Though part of a much more expansive conversation about creating characters and telling stories that reflect diversity across race, gender, sexuality, and ability,[2] the campaign was also representative of Netflix’s specific commitment to Black storytelling.[3]

 

This past June, Netflix announced via Twitter that it had curated a Black Lives Matter Collection.[4] The company stated, “[w]ith an understanding that our commitment to true, systemic change will take time – we’re starting by highlighting powerful and complex narratives about the Black experience.”[5] Separate from their already existing “Strong Black Lead” collection, these carefully extracted titles tell various stories of the Black experience in America and the battles against racial injustice.[6] Popular titles found in the collection include, but are far from limited to: Ava DuVernay’s 13^th; Barry Jenkins’s Oscar Award winner, Moonlight; Spike Lee’s Malcolm X; and forever first lady, Michelle Obama’s documentary, Becoming. This was a captivating move by the streaming giant, at a time when Black art served as not only a method of expression for those who sometimes struggle to find the words, but also a therapeutic escape from reality in the throes of a very trying summer. Netflix’s next announcement further substantiated their commitment to bringing Black characters to our screens and has resurfaced my thoughts about the #FirstTimeISawMe.

 

In August, Netflix announced, again via Twitter, this time from their “Strong Black Lead” account, that they had acquired the rights to seven of the most beloved and classic Black sitcoms from the 1990s and 2000s.[7] Beginning August 1, Netflix released one series almost every two week, and now that all seven are available, Netflix is the new home to Moesha, The Game (seasons 1-3), Sister Sister, Girlfriends, The Parkers, Half & Half, and One on One.[8] These shows are cultural favorites and per Netflix’s twitter account, have been in demand from subscribers for quite some time.[9] I am one of those subscribers, and I am thrilled that Netflix delivered.

 

Though I have missed them during the years they were not in syndication, I am fortunate enough to have grown up while these shows were on the air. Their revival not only brings about fond memories but has led me to give thought to the first time I saw a television character who I could see myself in. In 1996, Moesha aired on UPN and it was 1999 when I saw my first episode. Starring famed singer, Brandy Norwood (“Brandy”) as the show’s namesake character, Moesha, in its six seasons, chronicled the life of a young Black girl navigating life in her upper-middle class family. While figuring out friendships, dating, high school, and eventually college, in the years following her mother’s death, Moesha was a regular teenager, but also – somehow – a daughter, a big sister, an activist, and a trendsetter. Moesha wore braids, challenged issues of racial and gender equality, was an impassioned journalist, and had her choice between several of the best colleges in the country – ivy league schools and historically Black colleges. Moesha confronted social norms, broke rules, and created her own. To me, she was iconic.

 

The first episode I ever saw aired February 9, 1999 and was titled “Life Imitating Art”.[10] I was not even four years old. I, of course only, remembered bits and pieces of the episode but in re-watching it multiply times since then, I have grown to understand it better over the years. In this very distinct episode, racial tensions had arisen in Moesha’s high school between Black and Latinx students after a mural of Latino American civil rights activist, Cesar Chavez was painted in the school cafeteria during Black History Month. During the morning broadcast that Moesha hosted, she called out the school for allowing the mural to be painted during the month of February and not including any prominent Black figures.[11]This was flame that ignited the tension between, not only students, but Moesha and her good friend, Antonio, who painted the mural. As the episode progresses, Moesha is forced to open her eyes to the plight of another racial minority[12] in a way that I believe had to be unprecedented for a show about a teenager. Admittedly, this is a lesson that I am still exercising to this day. Although we live in a time of intense racial disparities and glaring anti-Black racism and violence, I would be insensible if I refused to see the plight of other marginalized groups – Moesha taught us that in 1999 and reminds us of it today.

 

As I think back to the first time I saw me in a television character, in the image of complex, yet down to earth high schooler, I have to acknowledge Moesha as one of the only shows that I have been able to grow up with. At four, I chose to be Brandy for Halloween. At five, I ran around with a Brandy doll. At 15, I figured getting braids would be cool because Moesha rocked them. At 16, I decided that being a debutant could not possibly be that bad if Moesha had done it. At 17, getting into Spelman College was even cooler because Moesha was accepted there too. At 25, I get to reflect on the first time I saw myself in a television character and recall the lessons I did not know I would still value more than twenty years later. These recent additions have turned Netflix’s Strong Black Lead into a time capsule – one that will undoubtedly allow another young Black girl to see herself for the first time – and opening up its contents will prove valuable for the future.

 

[1] Eric King, Ava DuVernay, Spike Lee, more talk representation for powerful new Netflix campaign, Entertainment (Aug. 1, 2017), https://ew.com/tv/2017/08/01/netflix-first-time-i-saw-me-campaign/.

[2] See id.

[3] See Netflix (@Netflix), Twitter (June 10, 2020, 9:00 AM), https://twitter.com/netflix/status/1270702290702184454.

[4] See id.

[5] Id.

[6] See id.

[7] See Strong Black Lead (@StrongBlackLead), Twitter (July 29, 2020, 11:00 AM), https://twitter.com/strongblacklead/status/1288489544770129920?s=20.

[8] See id.

[9] See Strong Black Lead (@StrongBlackLead), Twitter (July 29, 2020, 11:04 AM),https://twitter.com/strongblacklead/status/1288490705250213895?s=20.

[10] Moesha: Life Imitating Art (UPN Feb. 9, 1999).

[11] See id.

[12] See id.

Image Source: https://twitter.com/strongblacklead

By Megan Haugh

 

From the ashes of Big Tobacco, the “millennial Marlboro man”—Juul—is born.[1]  Compared to the height of the Big Tobacco industry, today’s advertisements by traditional cigarette manufacturers are nearly nonexistent.  Joe Camel may have died in 1997[2], but his legacy (and the legacy of Escort, Lucky Strike, Marlboro, Salem, and others) lives on.  The central themes of Big Tobacco’s advertising—”faux medical imagery and exaggerated health claims, posh cultural icons and celebrity endorsements, and the explicit targeting of youth populations”—have reemerged in advertising for e-cigarettes.[3]  With increasing health concerns over e-cigarettes, should Juul and other e-cigarette manufacturers be subject to the same advertising restrictions that Big Tobacco faces?

 

Dr. Robert Jackler (an ear, nose, and throat surgeon from Stanford University) is well-versed in these advertising themes.[4]  Dr. Jackler, who researches advertisements for both traditional cigarettes and e-cigarettes, has collected thousands advertisements.[5]  Based on his review, Dr. Jackler concluded that e-cigarette advertising parallels traditional cigarette advertising.[6]  Like Big Tobacco promoting the health benefits of cigarettes, Juul and other e-cigarette manufacturers have promoted vaping as a healthier alternative to smoking.[7]  In the past, Big Tobacco once advertised low-tar cigarettes and light cigarettes as a healthy alternative.  In fact, Lucky Strike once advertised “20,679 Physicians say ‘Luckies are less irritating’ . . . Your throat protection against irritation against cough.”[8]  Similarly, e-cigarette manufacturers have claimed that e-cigarette’s are either healthier than traditional cigarettes or, more simply, are healthy.[9]  By comparison, e-cigarette manufacturers have claimed that e-cigarette’s are either healthier than traditional cigarettes or, more simply, are healthy.[10]  Although Juul denies this, the company’s advertisements used language like “switch” and “alternative” which imply a health a benefit.[11]  However, like traditional cigarettes, there have been reported health problems associated with e-cigarettes.[12]  In 2019, the Center for Disease Control reported 380 cases of respiratory illness and six deaths related to e-cigarettes.[13]

 

The targeting of youth populations is another parallel between traditional cigarette advertising and e-cigarette advertising.  Big Tobacco used flavored cigarettes (such as cotton-candy or chocolate) to entice children into smoking.[14]  Because Big Tobacco’s strategy was so effective, the FDA banned “kid-friendly” flavors of cigarettes.[15]  Like traditional cigarettes, there are flavored e-cigarettes.[16]  The similarities don’t end there though.  Dr. Jackler also noted that Juul and other e-cigarette manufacturers have used “bright colors, sleek design and fashionable millennial models” to target children.[17]  Even traditional cigarette manufactures cannot ignore the parallels.[18]  Phillip-Morris, the manufacturer of Marlboro cigarettes, actually sued Juul because their advertising was too similar.[19]

 

Right now, there are several pending lawsuits filed against Juul and other e-cigarette manufacturers.[20]  These lawsuits allege that Juul and other e-cigarette manufacturers are doing exactly what Big Tobacco did—they have been deceptively advertising to children.  Today’s “millennial Marlboro man” is using the same, old tactics that Big Tobacco used.  E-cigarette advertisements highlight the product as a healthier alternative.  They also highlight “kid-friendly” flavors.  The issue is that e-cigarettes, like traditional cigarettes, are not healthy.  E-cigarette advertisements should be subjected to the same scrutiny and regulations that traditional cigarette advertisements face.

 

[1] See Nitasha Tiku, Juul’s Answer to Its PR Crisis?  The Millennial Marlboro Man, Wired (Jan. 8, 2019, 8:07 PM), https://www.wired.com/story/juuls-answer-pr-crisis-millennial-marlboro-man/.

[2] See Stuart Elliott, Joe Camel, a Giant in Tobacco Marketing, Is Dead at 23, The New York Times (Jul. 11, 1997), https://www.nytimes.com/1997/07/11/business/joe-camel-a-giant-in-tobacco-marketing-is-dead-at-23.html.

[3] Kate Keller, Ads for E-Cigarettes Today Harken Back to the Banned Tricks of Big Tobacco, Smithsonian Magaine(Apr. 11, 2018), https://www.smithsonianmag.com/history/electronic-cigarettes-millennial-appeal-ushers-next-generation-nicotine-addicts-180968747/.

[4] See id.

[5] See id.

[6] See Vaping and Cigarette Ads, NPR: Weekend Edition Sunday (Sept. 15, 2019, 7:45 AM), https://www.npr.org/2019/09/15/760936463/vaping-and-cigarette-ads.

[7] See id.

[8] See Keller, supra note 3.

[9] See NPR, supra note 6.

[10] See NPR, supra note 6.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See NPR, supra note 6..

[16] See id.

[17] See Keller, supra note 3.

[18] See id.

[19] See id.

[20] See Sara E. Teller, Lawsuits Allege Juul is Deceptively Marketing Products to Teens, Legal Reader (Aug. 10, 2018), https://www.legalreader.com/lawsuits-allege-juul-deceptively-marketing-teens/.

Image Source: https://www.vox.com/2019/1/25/18194953/vape-juul-e-cigarette-marketing

By Ian McDowell

 

The COVID-19 pandemic took the world by storm.  The effects on the economy and changes in everyday ways of life around the world can’t be understated.  The legal system is not immune from the virus and resulting pandemic- civil and criminal courts have been left to find ways to balance public health with the need to hold trials and other legal proceedings.  While some courts have began to conduct in-person proceedings (with ample safety precautions), this blog post will discuss a few of the issues faced by courts in utilizing technology to conduct virtual legal proceedings.

 

Legal proceedings in many parts of the country were halted as a result of the COVID-19 pandemic.  To illustrate, the Supreme Court of Virginia has issued ten judicial emergency extensions since March 2020, which have suspended both civil and criminal jury trials in most parts of the state. [1]  Placing a hold on in-person trials or other proceedings is sensible from a public health perspective: however, beyond concerns of creating an unmanageable backlog of both civil and criminal matters, indefinitely suspending criminal trials in particular raises obvious issues with regard to civil liberties and ensuring that defendants are afforded their 6th Amendment right to a speedy and public trial.  According to Senior U.S. District Court Judge (Western District of Washington) Marsha Pechman, “[t]he backlog is a big motivator (to conduct virtual trials or other proceedings) because we can’t have people sitting in custody for months and months on end and not offer them a way to have their criminal trials heard.” [2]

 

It was not until August 2020 that the first fully virtual criminal jury trial took place: a misdemeanor traffic case in Austin, Texas. [3]  This was viewed as an ideal case to try to conduct a live virtual jury trial because the defendant was not under any threat of a jail sentence, and merely faced a financial penalty. [4]  Technology was used extensively throughout this trial, including for uses beyond oral arguments: Zoom breakout rooms were utilized to allow the defendant to confer with counsel, and also to hold jury deliberations.  Further, Box (a file-sharing service) was used to allow the attorneys to post evidence for review. [5]

 

Though the court successfully concluded this case, it was not without issues- five potential jurors or jurors had to be dismissed due to technical issues.  In addition, audio and video feeds on Zoom occasionally froze, and jurors had to at times be admonished to remain focused on the trial, and not on any other distractions in their homes. [6]

 

Before conducting the trial, the Court purchased twenty iPads to lend to jurors that didn’t have access to a device at home, and ended up lending out four for use during the trial. [7]  Similarly, the Western District of Washington purchased laptops to lend out to jurors, and was prepared to train jurors on technology use if necessary. [8]  It is unsurprising that courts have had to purchase devices to lend out to jurors- a disproportionate number of low-income Americans do not own a computer or other device that will allow them to attend a proceeding virtually. [9]  Compounding on this issue is that temporary connection losses (or freezing) can be expected to continue in virtual legal proceedings due to the fact that tens of millions of Americans don’t have access to broadband (higher speed) Internet. [10]

 

There are concerns that commonplace issues such as temporary connection losses might have a significant effect on a legal proceeding.  According to Justin Bernstein, director of the A. Barry Cappello Program in Trial Advocacy at UCLA School of Law, “when you’re online, and someone (a juror) loses connection for 30 seconds or a minute or two minutes, what do we consider too much?  One answer can make the difference in a trial.” [11]

 

There were pre-pandemic concerns that conducting virtual hearings or trials may lead to detrimental outcomes for a defendant, as compared to if the same exact proceeding was conducted in person.  Studies have, for example, concluded that virtual bail hearings result in significantly higher bail amounts set than in-person hearings, ultimately resulting in the cessation of a video bail system in Cook County, Illinois (which includes Chicago). [12]  Further, “in-person testimony is seen as more believable than it’s virtual counterpart [for a number of reasons], including that video takes away the fact-finder’s ability to assess non-verbal cues; [and] conferencing technology can filter out voice frequencies associated with human emotion, which are critical to assessing credibility.” [13] These findings present clear and significant concerns as courts begin to contemplate conducting virtual trials where there is a possibility that the defendant may lose their liberty (as opposed to traffic cases where the defendant merely faces a fine).

 

To conclude, modern technology applications such as Zoom and Box (and their competitors) have made virtual legal proceedings possible.  However, conducting trials or other proceedings in a virtual setting brings new risks that Courts at all levels will need to comprehensively address and manage in order to ensure fairness to both civil litigants and defendants in criminal trials.  While issues such as screen freezing during a proceeding may not present significant civil liberties concerns in the context of a simple traffic case, it is incumbent on courts to find ways to conduct virtual legal proceedings in an equitable and fair manner if more serious criminal trials (such as for felonies) are to be conducted virtually.

 

[1] Neil Harvey, Judicial Emergency now Slated to Extend Into November, The Roanoke Times (Sep. 28, 2020), https://roanoke.com/news/local/judicial-emergency-now-slated-to-extend-into-november/article_f4a35b35-35f2-5885-8126-a4166d2494d2.html.

[2] Madison Alder, Loaner Laptops, Dry Runs: Virtual Federal Civil Trials on Tap, Bloomberg (Sep. 29, 2020),

https://www.bloomberglaw.com/document/X7L754JC000000?bna_news_filter=us-law-week&jcsearch=BNA%252000000174d560d941af7cff79a2b50001#jcite.

[3] Justin Jouvenal, Justice by Zoom: Frozen Video, a cat- and finally, a verdict.,  Washington Post: Legal Issues (Aug., 12, 2020), https://www.washingtonpost.com/local/legal-issues/justice-by-zoom-frozen-video-a-cat–and-finally-a-verdict/2020/08/12/3e073c56-dbd3-11ea-8051-d5f887d73381_story.html

[4] Id.

[5] Id.

[6] Id. 

[7] Id.

[8] Alder, supra note 2.

[9] Jason Tashea, The Legal and Technical Danger in Moving Criminal Courts Online, The Brookings Institution (Aug. 6, 2020), https://www.brookings.edu/techstream/the-legal-and-technical-danger-in-moving-criminal-courts-online/

[10] Id.

[11] Alder, supra note 2.

[12] Tashea, supra note 9. 

[13] Id.

Image Source: https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-videoconferencing-70825080

By Jeffrey Phaup

In October of 2020 Tesla, Inc. released a beta test of a “Full Self-Driving” (FSD) version of its Autopilot software.[1]However, despite the name of the upgrade, a Tesla using FSD mode is not capable of driving without driver oversight.[2]Tesla’s Support webpage confirms this, stating that, “The currently enabled features require active driver supervision and do not make the vehicle autonomous.”[3] In fact the National Highway Traffic Safety Administration (NHTSA) does not currently recognize any fully self-driving cars in the United States[4], asserting that, “[e]very vehicle currently for sale in the United States requires the full attention of the driver at all times for safe operation.”[5]

 

Tesla’s cars use a combination of cameras, radars, and ultrasonic sensors to allow its Autopilot software to drive, park and change lanes with minimal human interaction.[6] To this suite of skills the new FSD software allows the vehicle to stop at intersections, perform left and right-hand turns, and make lane change automatically. [7]

 

The dangers posed by the new system are embodied in its suggestive name, Full Self-Driving.[8] FSD is only considered a Level 2 “partially automated” system by the standards of the Society of Automotive Engineers.[9] The NHTSA characterizes FSD as “Autosteer on city streets,” using the terminology for Tesla’s lane-keeping assistance feature.[10]Alternatively Elon Musk has mischaracterized FSD as a Level 5 “Full Automation” system, despite no such system existing anywhere in the world right now.[11]

 

Tesla is testing their new technology by placing the software into the hands of consumers, allowing them to absorb the risk of any malfunctions.[12] Who then is liable when a Tesla operating under FSD Mode hurts or kills another driver or pedestrian?

 

A Tesla vehicle was involved in the first known death involving a self-driving car.[13] Joshua Brown died after his Tesla hit the side of a semi-truck while in Autopilot mode.[14] Tesla stated that it was difficult for Autopilot to distinguish between the truck’s white trailer and the bright Florida sky.[15]

 

The NTSB’s final report on the incident they concluded that the truck driver was at fault, but also assigned some of the blame to the Tesla driver and Tesla for using a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[16]

 

If an auto accident is due to a lack of appropriate maintenance, for example, and that maintenance was the responsibility of the owner, then the owner could be liable.[17] Similarly, if the operator of a self-driving vehicle fails to follow proper operating instructions, which was the case during the first Tesla autopilot fatality accident in May 2016, it may be difficult to hold the manufacturer liable for the accident and the resulting injuries or deaths.[18] In fact, the NTSB investigation into this incident found that human error was mostly to blame for the crash.[19] The NTSB final report concluded the truck driver was at fault but also assigned some of the blame to the Tesla driver and to Tesla for utilizing a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[20]

 

Tesla’s Full Self-Driving version of Autopilot is problematic because it promises functionality to the end user, via Tesla’s marketing, that does not actually exist and could put the vehicle’s operator and those around them in danger.

 

The important liability-determining factor here is the expectation set by Tesla. Does Tesla advertise their products in a way that gives drivers the expectation that they can put the car on Autopilot and then cease to pay attention? If Tesla has either overtly or through implication sent the message to their customers that their vehicles are safe to use on Autopilot without supervision, and it turns out they’re not, then Tesla could be held liable for the injuries or deaths that result.

 

[1] See Faiz Siddiqui, Tesla is putting ‘self-driving’ in the hands of drivers amid criticism the tech is not ready, Washington Post (Oct. 22, 2020, 3:18 PM), https://www.washingtonpost.com/technology/2020/10/21/tesla-self-driving/.

[2] See Paul Eisenstein, Tesla’s beta test of “full self-driving” system worries drivers, pedestrians — and even owners, NBC News (Oct. 26, 2020, 3:25 PM),

https://www.nbcnews.com/business/autos/tesla-beta-testing-full-self-driving-system-worries-drivers-pedestrians-n1244787.

[3] Tesla Support,  https://www.tesla.com/support/autopilot (last visited October 27, 2020).

[4] See Automated Vehicles for Safety, https://www.nhtsa.gov/technology-innovation/automated-vehicles#faq-30706 (last visited October 27, 2020).

[5] Id.

[6] Full Self-Driving Hardware on All Cars, https://www.tesla.com/autopilot (last visited October 27, 2020).

[7] Andrew Hawkins, Tesla’s ‘Full Self-Driving’ beta test has caught the attention of federal safety regulators, The Verge (Oct. 23, 2020), https://www.theverge.com/2020/10/23/21530411/teslas-full-self-driving-beta-test-nhtsa.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Siddiqui, supra note 1.

[13] Barbara Liston and Bernie Woodal, DVD player found in Tesla car in fatal May crash, Reuters (Jul 1, 2016, 11:49 AM), https://www.reuters.com/article/idUSKCN0ZH5BW?mod=related&channelName.

[14] Id.

[15]Id.

[16] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

[17]  Baum v. Fox Chrysler, Plymouth, Dodge, Inc., 517 N.Y.S.2d (App. Div. 3rd Dept. 1987) (where a motorist continued to drive her car despite her realization that there was a problem with the brakes, which had just been repaired).

[18] See Nicky Woolf, Tesla fatal autopilot crash: family may have grounds to sue, legal experts say, The Guardian (Jul 6, 2016, 7:00 AM) https://www.theguardian.com/technology/2016/jul/06/tesla-autopilot-crash-joshua-brown-family-potential-lawsuit.

[19] Uber’s self-driving operator charged over fatal crash, BBC News (Sep 16, 2020) https://www.bbc.com/news/technology-54175359.

[20] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

Image Source: https://pixabay.com/images/id-4343635/