Author: JOLT Page 4 of 50

By: Tabetha Soberdash

Once used purely in science fiction movies to portray a far-off, technological-advanced future, smart technology is now something that many individuals use daily in their homes, employment, cars, and so on.[1] Quickly, more and more smart devices are being created and placed into the market for consumers to purchase.[2] Examples of smart devices include: Google Assistant, Amazon Echo, smart lights, programable vacuums, and smart doorbells.[3] These devices allow individuals to do things like search the internet for a new recipe, purchase a book from Amazon, turn off all the lights in the house, or view what is front of a video-doorbell with just a simple voice command.[4] Further, through features, linking sensors, and the connection of the Internet of Things (IoT), smart devices can conveniently be monitored, controlled, or accessed even from a distance.[5]

Overall, the technology is created to be useful and respond to the needs of the users.[6] The devices have even offered new ways for individuals to protect their loved ones and their homes.[7]  An example of this is well demonstrated by the events of December 22, 2019 when an Amazon Alexa device notified the daughter of an elderly man that a theft was taking place in his assistant living facility in Florida.[8]  The device had a “check-in” feature which allowed the daughter to check on her father in Florida from her home in Alaska.[9]  Using that feature, the daughter was able to see the strange man who was going through her father’s wallet. Afterwards, the family was able to notify the police, who then proceeded to arrest a suspect.[10]

While there are many advantages to smart devices, they do come with the major risk of eliminating any realistic expectation of privacy, as many of the devices function by recording nearby interactions and storing the recordings or by providing a visual of what is near the device.[11] As such, there is a great need to protect the users of the devices from any unsolicited uses of the device and its data.[12] In recent years, manufactures of the device have began to provide some options to protect users and their data.[13] One such option is that many of the devices now provide access to the stored recorded data via the user’s account and allow the information to be deleted.[14] Additionally, many devices allow one to turn off the camera or microphone portions when the device is not being used.[15] However, the need for greater protection is clearly being demonstrated as manufacturers, such as Amazon’s home security company, Ring, are finding themselves in the position of firing employees for abusing their ability to view customers’ video feeds and responding to reports of hacking of the devices.[16] As smart devices can be placed in even the most intimate locations of one’s home, including the bedroom, these happenings are causing many to worry about potential intrusions from hackers and abusive employees.[17] Overall, while consumers are gaining many benefits from this new technology, they are also gaining new risks. As time and these concerns are causing manufacturers to alter what protections they provide to users, regulations and suits are sure to follow as policies change. Only time will tell how the law can best catch up to the increase of smart devices and protect the users.

[1] See Jessamyn Dahmen et al., Smart secure homes: a survey of smart home technologies that sense, assess, and respond to security threats, 3 J. Reliable Intelligent Env’ts 83, 83 (2017).

[2] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[3] See Gordon D. Cruse, The Trouble with Devices and the Data They Contain, 41 Fam. Advoc. 33, 34 (2019).

[4] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[5] See Heetae Yang et al., IoT Smart Home Adoption: The Importance of Proper Level Automation, 2018 J. Sensors 1 (2018).

[6] See Margaret Rouse, Smart home or building (home automation or domotics), IoT Agenda (July 2018), https://internetofthingsagenda.techtarget.com/definition/smart-home-or-building.

[7] See, e.g., Holly Bristow, Amazon Alexa device alerts family to man suspected of stealing from loved one at assisted living facility in Florida, Fox10 Phoenix (Jan. 09, 2020), https://www.fox10phoenix.com/news/amazon-alexa-device-alerts-family-to-man-suspected-of-stealing-from-loved-one-at-assisted-living-facility-in-florida.

[8] See id.

[9] See id.

[10] See id.

[11] See Tara Melancon, ARTICLE: “Alexa, Pick an Amendment”: A Comparison of First and First Amendment Protections of Echo Device Data, 45 S.U. L. Rev. 302, 314–15 (2018).

[12] See, e.g., Malena Carollo, Got a smart home device as a gift? Don’t forget to secure it, Tampa Bay Times (Dec. 26, 2019),  https://www.tampabay.com/news/business/2019/12/26/got-a-smart-home-device-as-a-gift-dont-forget-to-secure-it/.

[13] See, e.g., Amazon Privacy Notice, Amazon, https://www.amazon.com/gp/help/customer/display.html?nodeId= 468496.

[14] See, e.g., Amazon Help and Customer Service View Your Dialog History, Amazon, https://www.amazon.com/gp/help/customer/display.html/ref=help_search_17?ie=UTF8&nodeId=201602040&qid=1513968463&sr=1-7.

[15] See, e.g., Lauren Barack, Here’s how to make Alexa stop listening to your conversations, Mediafeed (Apr. 27, 2019),  https://mediafeed.org/heres-how-to-make-alexa-stop-listening-to-your-conversations/.

[16] See Audrey Conklin, Amazon’s Ring fired four members of staff for snooping on customers, Fox Business (Jan. 09, 2020), https://www.foxbusiness.com/technology/amazon-ring-fired-four-employees-video-footage.

[17] See id.

image source: https://dss.tcs.com/breaking-down-barriers-to-big-data-analytics-connected-intelligence-platform/

By: Merrin Overbeck

A rising issue in today’s society is that of deep fake videos, “. . . a portmanteau of ‘deep-learning’ and ‘fake,’ [deep fake videos] are audio or visual material digitally manipulated to make it appear that a person is saying or doing something that they have not really said or done.”[1] This technology uses algorithms to create incredibly realistic videos through the use of images or audio recordings of actual people.[2] These videos have been increasingly common on social media platforms, Facebook being one of the main locations where these videos are posted.[3]

These videos have become increasingly common because new technology allows average individuals to create deep fake videos without the need for specific experience or skill with technology. For example, in January 2018, a free user-friendly application was released that made deep fake technology available to the general public.[4] This application allowed any individual with access to the internet and images of a person’s face to create a deep fake video.[5] Not only has this technology become more easily accessible, but it also has grown so sophisticated in that “an average internet user by the 2020 election could create doctored videos so realistic forensic experts will have to verify whether the content is real.”[6]

While this technology can be used in harmless ways, individuals with access to this technology have unfortunately found illegal uses for it. One example is “deep-fake pornography,” which is related to nonconsensual pornography in which there is a disclosure of private, intimate images or videos of another person without that individual’s consent.[7] This illegal use of deep fake technology is harmful because individuals are turned into “objects of sexual entertainment against their will, causing intense distress, humiliation, and reputational injury.”[8] Another example is its use in white collar crime and financial crimes. This technology has been used by criminals to impersonate company executives to defraud businesses.[9] In order to understand how harmful this technology can be, consider a situation in which, right before a company’s Initial Public Offering:

a deepfake video . . . show[s] the company’s CEO soliciting a child prostitute or saying something he shouldn’t say in a way that upends the initial public offering. . . If released at a crucial time, a deep-fake video could destroy the marketplace’s faith in a CEO or company. Depending on the timing of the release, a deep-fake video can hijack people’s lives and companies’ fortunes.[10]

Another example of the illegal use of deep fake technology, and the example that the rest of this post is going to discuss, is its use to distribute false news and information by malicious groups. According to Europol, “little or no technical expertise is required to [create these videos], and recent developments in deep fake video and audio mimicking technology make it easier to spread disinformation and impersonate individuals.”[11] In this context, these videos are created in order to sway voters to prefer one political ideology over another.[12] This was a major issue in the 2016 presidential election, and the primary location where these videos were sent was Facebook.[13] Social media platforms such as Facebook is a popular platform for individuals to post these videos on because of the ability for individuals to post frequently about the topic of their choice.[14] The ease of posting these videos to Facebook has led to Facebook receiving criticism about its complacency in the issue of the spread of false information.[15]

After learning of the issues that deep fake videos have caused on its platform, Facebook recently implemented a new policy that bans some deep fake videos from its website.[16] In its official announcement regarding this new policy, Facebook noted that deep fake videos that were “meant for satire are still fine, along with any that have a more serious purpose.”[17] This means that videos that were edited to enhance the clarity or quality of the video are still allowed.[18] Facebook’s announcement is largely focused on just preventing videos that are part of “a misinformation campaign, what Facebook calls manipulated media.”[19] Facebook is able to do this because various technology companies have created means of detecting videos that are created using this technology. For example, one way of determining that a video is a deep fake is observing the lack of blinking in the subject of the videos.[20]

While this policy decision by Facebook helps to partially solve the issue of the harmful use and distribution of deep fake videos, there is still a wide variety of harm that these videos can cause. In order to be able to detect videos in which only a small portion is altered, technology companies are going to have to focus on the development of technology that keeps up with the fast-paced development of deep fake technology. This is an important consideration because circumvention “used to take years, [but] it can now occur in two- or three-months’ time.”[21] Unfortunately, this technology that was developed with the intention of helping to detect deep fake videos can also actually be used to create more convincing fakes.[22] An example of this occurred when German researchers created an algorithm that would be able to detect “face swaps”[23] in videos, but then discovered that this technology could actually be used to “improve the quality of face swaps in the first place- and that could make them harder to detect.”[24]

Therefore, while Facebook’s decision to start to ban harmful deep fake videos does help solve the problem partially on that specific platform, deep fake technology is a rising issue that technology companies, governments, law enforcement agencies, and society as a whole must be aware of. Facebook is just one example of entities becoming aware of this issue and responding.

 

[1] Mary Anne Franks & Ari Ezra Waldman, Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions, 78 md. l. Rev. 892, 893 (2019).

[2] See id. at 894.

[3] See Josh Brandon, Facebook Bans Deepfake Videos That Could Sway Voters, But Is It Enough?, Forbes, (Jan. 13, 2020) https://www.forbes.com/sites/johnbbrandon/2020/01/13/facebook-bans-deepfake-videos-that-could-sway-voters-but-is-it-enough/#4a6d6283476b.

[4] Nancy McKenna, Head to Head, 15 No. 7 Quinlan, Computer Crime and Technology in Law Enforcement, July 2019.

[5] See id.

[6] Olivia Beavers, House intel to take first major deep dive into threat of ‘deepfakes’, The Hill, (June 13, 2019) https://thehill.com/homenews/house/448278-house-intel-to-take-first-major-deep-dive-into-threat-of-deepfakes.

[7] Supra note 1, at 893.

[8] See id. at 893.

[9] Henry Kenyon, AI creates many new malicious opportunities for crime, Europol says, Congreessional Quarterly Roll call, 2019 WL 3244189 (July 19, 2019).

[10] Robert Chesney & Danielle Keats Citron, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security, 78 Md. L. Rev. 882, 887 (2019).

[11] Supra note 5.

[12] Supra note 3.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Supra note 5.

[21] See id.

[22] See id.

[23] See id.

[24] See id.

 

image source: https://pixabay.com/photos/twitter-facebook-together-292994/

 

By: Mariah L. Bayless Davis

The sport of baseball has forever been known as America’s Pastime. However, each year, less and less people are requesting to taken out to the ballgame.[1] In fact, from 2008 to 2018, the NFL, NBA, and NHL also experienced a steady decline in game attendance.[2] While “it is tough to know exactly what is stopping fans from coming to games,” the MLB proposed their solution: enhancing the fan experience, because happy fans come back.[3]

 

Enhancing the fan experience was an easy answer because “to survive as a major sport, baseball needs to be […] more accessible and entertaining to younger generations that might have different viewpoints on what is or isn’t fun.”[4]  The current commissioner, Rob Manfred commented on the attempt to evolve the fan experience saying, “stadiums have focused on creating more social spaces for fans to congregate and experience the game atmosphere without being glued to their seats for nine innings.”[5] For example, the Minnesota Twins opened their Bat & Barrel club in right field during the 2018 season.[6] Bat & Barrel was created as a social space that immersed fans in Twins history while giving fans a new way to watch the Twins play.[7] The new space did such a good job at enhancing the fan experience at Target Field that it was awarded the 2018 Ballpark Digest Award for Best MLB Renovation.[8] The Twins had stiff competition for this award as the Oakland A’s unveiled their Treehouse complex during the same season.[9] The “complex” comprised of “three spaces in one: A 10,000 square foot indoor bar, patio deck, and outdoor terraced bar and lounge where the left field bleachers used to be.”[10] Some clubs have gone further than unveiling social spaces. “What started as WiFi-enabled stadiums and electronic ticketing has morphed into deploying a variety of technology to create better fan experience, virtual reality and augmented reality tech posted on-field and on-court enables the broadcast of highlights and other content in VR and AR, and entire games in VR.”[11] All of these changes in the MLB stadiums were made with new, young fans in mind and are very important to the future of the game that is now competing with other entertainment.[12]

 

“With the inflow of new technologies every year and the many alternatives to experiencing games in-stadium, sports teams have found themselves in a constant race; desperately trying to improve attendance by pushing the limits of experiential marketing and fan engagement in your venue.”[13] In order to push the limits, MLB is currently partnering with CLEAR, a biometric identification company, to switch from paper and the once innovative electronic tickets to biometric identification.[14] The technology company has already partnered with the New York Yankees, Colorado Rockies, Seattle Mariners, New York Mets, Atlanta Braves, the Los Angeles Football Club, Oakland Athletics, San Jose Quakes, and Madison Square Garden to provide easy access.[15] In 2018, the Seattle Seahawks became the first NFL team to use CLEAR’s technology.[16] The technology is being marketed to patrons as a way to gain quick entry into the game via a fast pass lane and the ability to purchase food or alcohol by simply scanning a fingerprint.[17] Seems like steal, but do patrons know what they’re actually sacrificing for convenience?

 

This CLEAR technology will surely provide a seamless experience for fans, as it has “reduced hour-long wait times to a matter of minutes” at the airports it is installed in.[18] However, what is the cost fans are paying for lesser waiting times for a hot dog and a Coors Light? The CLEAR program is free for anyone at any of the partnered ballparks.[19] Patrons simply register by “submitting biometric data – like fingerprints and a retina scan – and once approved, merely have to be scanned through much quicker security line.”[20] What is stored in our fingerprints and retina scan is not just biometric data, but our identity. The want for less friction makes patrons vulnerable. Jay Stanley, a senior policy analyst for the American Civil Liberties Union, said, “the sort of intimate data that biometric tools collect becomes a honeypot for hackers and the unique identifiers can be used to track people and merge information about various parts of their lives into broader visions of how they live.”[21] Patrons do not understand that by submitting six total fingerprints, their ID, an email address and phone number, they are handing over their privacy.[22] By making convenience so alluring in an instant gratification society, patrons are left to choose between convenience and privacy – because they cannot have both.

 

The biggest issue with this technology is that it is a legal Wild West, as there is no federal law regulating the collection, use, and protection of biometric data.[23] “The collection of details related to someone’s face is classified as ‘biometric’ information, which requires specific forms of notice and consent in live with the laws of certain states.”[24] Seattle Seahawks and Seattle Mariners fans are protected, as Washington is one of three states that regulates biometric data.[25] However, fans in other states “need to be informed and they need to understand what information is being collected and how it’s being used.”[26] Although fans still have the the power to decide whether they are treated like another data point, “facial identification is becoming too convenient to avoid – even if laws or public pressure continues to make it voluntary.”[27] The availability of convience incentivizes patrons to just give in.[28]

 

The only way for patrons to choose between convenience and privacy is to first be informed, because “once you’ve lost your privacy, you’ve lost an extremely valuable thing.”[29] Biometric data could save lives or ruin them, depending on how its managed.[30] “Unlike a username and password, people can’t change their fingerprints or retinas” if they are compromised in a breach.[31] So what will it be: skipping the line to buy a beer or your privacy?

[1] See Danielle Allentuck and Kevin Draper, Baseball Saw a Million More Empty Seats. Does It Matter?, NY Times (Oct. 1, 2019), http://www.nytimes.com/2019/09/29/sports/baseball/mlb-attendance.html.

[2] See Grant Suneson, These Pro Sports Teams Are Running Out of Fans, usa today (Jul. 20, 2019), https://www.usatoday.com/story/money/2019/07/15/nfl-nba/nhl-mlb-sports-teams-running-out-of-fans/39667999/

[3] Id.

[4] Dave Sheinin, In Seeking New Fans Without Offending Current Ones, MLB Faces Its Toughest Call, Wash. Post (Jul. 20, 2018), https://www.washingtonpost.com/news/sports/wp/2018/07/20/in-seeking-new-fans-without-offending-current-ones-mlb-faces-its-toughest-call/

[5] Chris Hine, Major League Baseball Fans Turning Gray While Millennials Tunring Out, Star Tribune (Jul. 16, 2018), www.startribune.com/major-league-baseball-fans-turning-gray-while-millennials-turning-out/488240861/?refresh=true

[6] See id.

[7] See Target Field Bat & Barrel Named Best MLB Renovation for 2018, Populous (Nov. 21, 2018), https://populous/com/target-field-bat-barrel-named-best-mlb-renovation-2018

[8] See id.

[9] See Bill Frijoles, A’s Announce New “Treehouse” Complex in Left Field, Athletics Nation (Feb. 28, 2018), https://www.athleticsnation/com/2018/2/28/17064134/as-announce-new-treehouse-complex-in-left-field-coliseum

[10] Id.

[11] Douglas N. Masters, How Technology is Improving the Fan Experience – And Creating Legal Challenges for Clubs and Leagues, Law In Sport (Feb. 22, 2019), https://www.lawinsport.com/topics/sports/items/how-technology-is-improving-the-fan-experience-and-creating-legal-challenges-for-clubs-and-leagues

[12] See Allentuck and Draper, supra note 1.

[13] Team Brizi, 3 Reasons Why Improving the Fan Experience Will Drive Revenue, Brizi (Mar. 18, 2018), https://brizicam.com/insights/3-reasons-why-improving-the-fan-experience-will-drive-revenue/

[14] See Logan Huff, MLB Partnership Could Change the Way Fans Access Stadiums, GlobalSport Matters (Mar. 27, 2019), https://globalsportmatters.com/business/2019/03/27/mlb-targets-bioetric-identification-nationwide/

[15] See id.

[16] See Taylor Sopher, Scan Your Fingerprint, Get a Beer: Testing CLEAR’s Biometric Tech at A Seahawks Game, Geek Wire (Nov. 10, 2018), https://www.geekwire.com/2018/scan-your-fingerprint-get-beer-testing-clears-biometric-techology-seattle-seahawks-game/

[17] See id.

[18] Brandi Vincent, Biometrics Offer Travelers a Deal: Convenience and Security in Exchange for Personal Info, NBC News (Dec. 21, 2018), https://www.nbcnews.com/tech/security/biometrics-offer-travelers-deal-convenience-security-exchange-your-info-n950966

[19] See Geoff Baker, Registering Your Biometric Data Will Get You Into Safeco Faster, But At What Cost?, Seattle Times (Apr. 9, 2018), https://www.seattletimes.com/sports/mariners/registering-your-biometric-data-will-get-you-into-safeco-faster-but-theres-reason-for-concern/

[20] Id.

[21] Vincent, supra note 18.

[22] See Sopher, supra note 16.

[23] See Kevin Draper, Madison Square Garden Has Used Face-Scanning Technology on Customers, Ny Times (Mar. 13, 2018), https://www.nytimes.com/2018/03/13/sports/facial-recognition-madison-square-garden.html

[24] Richard L. Brand and Eva Pulliam, Faces in The Crowd: Legal Considerations for Use of Facial Recognition Technology at Sports Arenas, Law In Sport (Aug. 29, 2018), https://www.lawinsport.com/topics/sports/item/faces-in-the-crowd-legal-considerations-for-use-of-facial-recognition-technology-at-sports-arenas

[25] See Biometric Data and Data Protection Regulations, Gemalto (Sept. 4, 2019), https://www.gemalto.com/govt/biometrics/biometric-data

[26] Huff, supra note 14.

[27] Geoffrey A. Fowler, Don’t Smile for Surveillance: Why Airport Face Scans Are a Privacy Trap, Wash. Post (Jun. 10, 2019), https://www.washingtonpost.com/technology/2019/06/10/your-face-is-now-your-boarding-pass-thats-problems/

[28] See Vincent, supra note 18.

[29] Nancy Gibbs and Michael Duffy, A New Book Reveals What Graham Learned – and What He Regretted – In His 50-Year Ministry to U.S. Presidents, Time (Aug. 9, 2007), content.time.com/time/subscriber/article/0,33009,1651625-2,00.html

[30] See Lisa Joy Rosner, How Biometric Data Will Shift the Privacy Conversation, Forbes (Jul. 2, 2019), https://www.forbes.com/sites/forbescommunicationscouncil/2019/07/02/how-biometric-data-will-shift-the-privacy-conversation/#46f194113f4c

[31] Rosner, supra note 30.

image source: https://www.mobilesportsreport.com/2018/10/paying-for-beer-with-a-fingerprint-gets-thumbs-up-at-seattles-centurylink-field/

 

By: Cam Kollar

One of the latest innovations in food is the trend of ‘Ghost Kitchens.’[1] Also known as dark kitchens, cloud kitchens, and virtual restaurants, they are an extension of the gig economy.[2] A Ghost Kitchen is a restaurant that has been created only for delivery or take-out.[3] A growing market, online food ordering had $26.8 billion in sales last year with a growth of about 20% each year.[4] Some restaurants are sharing their kitchens with these virtual restaurants, while other business models are where the physical kitchen is for online ordering and delivery only.[5] Although often used interchangeably, there are differences between a ghost kitchen and a virtual kitchen. One key difference between a virtual restaurant and a ghost kitchen is that virtual restaurants do not sublet kitchen space and instead use their own established brick and mortar locations or food trucks to create specialty menus filled with items available exclusively online and for delivery.[6]

It is easy to see the appeal to businesses, there is a decreased overhead because you do not require waitresses, or tables, you see a decrease in dishes used (because they limited to what was cooked with -not the dishes for each patron), and you have the flexibility to easily modify a menu based on interest and fresh ingredients, and there is minimal need for expensive aesthetics or large volumes of square footage.[7] Driving the opportunities are the various food delivery apps that many rely on such as UberEats, DoorDash, Grubhub, or Postmates.[8] In one business model, the brick and mortar ghost kitchen operates for new restaurants or menu concepts in a similar way to how business incubators help tech startups.[9] The shared fixed expenses between several new entities, thus decreasing start up costs, can inspire new creativity into a chef’s work of art, but also has the potential to go drastically wrong. In a kitchen that is simultaneously shared by three or four entities, who is responsible for the licensure? The maintenance of the equipment? And where a third party contractor is delivering food, who is responsible for food poisoning? The restaurant industry has safety standards that need to be accounted for when planning to start a Ghost Kitchen.[10] For instance in California, ghost kitchen operators must still comply with the state’s business licensing and commercial kitchen requirements.[11] Additionally, each person involved in food prep and handling has to obtain a California Food Handler Card.[12]The best time to plan for these contingencies is in the beginning-such as when beginning negotiations with third-party delivery services, and/or the licensed kitchen.

As someone who enjoys food, and has little time to cook between law school classes, having access to new menus has significant appeal. Growing up, my options (way back when) were limited to pizza and Chinese food but now delivery competition can be fierce, exciting, and invigorating. With the potential for hundreds of virtual restaurants available on Uber Eats[13], the convenience of delivery makes this a great option during finals when you are glued to your study spot.

[1] See Jimmy Bui & Mark R. Vowell, Ghost Kitchens: Considerations in Negotiating Agreements with Third Party Delivery Services, Hunton Andrews Kurth: Tech. & E-Commerce (Mar. 21, 2019), https://www.huntonretailindustryblog.com/2019/03/articles/technology-e-commerce/ghost-kitchens-considerations-in-negotiating-agreements-with-third-party-delivery-services/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original.

[2] See id.

[3] See Alexandra Olson, The Rise of ‘Ghost Kitchens’: Here’s What the Online Food Ordering Boom has Produced, USA Today (Oct. 21, 2019), https://www.usatoday.com/story/tech/2019/10/21/ghost-kitchen-virtual-restaurant-heres-how-works/4053659002/.

[4] See id.

[5] See Bui & Vowell, supra note 1.

[6] See Guide to Ghost Kitchens (2019): All You Need to Know, Roaming Hunger (Sept. 27, 2019), https://roaminghunger.com/blog/15623/ghost-kitchens-everything-you-must-know.

[7] See Bui & Vowell, supra note 1.

[8] See id.

[9] See Olson, supra note 3; see also Maggie Hennessy, Are Ghost Kitchens the Future?, QSR (July 2019), https://www.qsrmagazine.com/technology/are-ghost-kitchens-future.

[10] E.g., Bui & Vowell, supra note 1.

[11] See Thompson Coburn, Ghost Kitchens: A Scary-good Real Estate Opportunity in California, Lexology (Oct. 7, 2019), https://www.lexology.com/library/detail.aspx?g=4e1257e2-33a0-407a-ab63-3b526a57a917.

[12] See id.

[13] See Shannon Bond, Delivery Only: The Rise of Restaurants with No Diners as Apps Take Orders, NPR (Dec. 5, 2019), https://www.npr.org/2019/12/05/783164944/delivery-only-the-rise-of-restaurants-with-no-diners-as-apps-take-orders.

image source: http://www.ticketdfw.com/whats-on/2019/from-the-table-a-celebration/

By: Garrett Kelly

If you ask Andy Williams, it’s the “most wonderful time of the year.”[1] The holiday season is upon us. According to Forbes, in 2018, Cyber Monday recorded total sales of $7.9 billion.[2] This week Cyber Monday broke the record for total sales of $9.4 billion, $2 billion more sales than Black Friday.[3] Of the $9.4 billion in sales, 33% were via smartphones, which is a 46% increase from last year.[4] These sales differences highlights a significant trend in the shopping habits of consumers. In an age where consumers are incentivized to shop online instead of in person, why are consumers punished at the checkout by surcharges and convenience fees?

When you make a purchase using a credit or debit card, online or by phone, we have been convinced that the company is doing us a favor by providing the consumer with the convenience of using a credit or debit card.[5] But who is this convenience truly benefiting? At the end of the day, the convenience is bestowed on the company who is able to reach a much larger market by offering online shopping and credit or debit payment methods.[6] Yet the consumer is the one paying the company for the ability to buy their product.[7] This fallacy defies economics and makes me nauseous.

Luckily, I am not the only one. In 2011, Bank of America planned to implement a $5 monthly charge to customers who used debit cards.[8] Wait, it costs $5 dollars for a consumer to spend their money? The Bank’s plan came to a holt when a courageous customer, Molly Katchpole, petitioned the fee and fostered 306,000 signatures.[9] Weeks later the $5 fee was abandoned. Moreover, Verizon Wireless learned a similar lesson months later when it planned to charge customers $2 for making one-time credit or debit card payments.[10] Again, Katchpole petitioned the fee and again the fee was abandoned, this time only days after it was proposed.[11] These petitions highlight yet another issue surrounding the implementation of convenience fees and surcharges by merchants. Are these charges constitutional?

The Supreme Court first addressed the constitutionality of restrictions on commercial advertising in the form of surcharges in Central Hudson Gas & Electric Corp. v. Public Service Commission.[12] Applying a four-part test, the Court created a standard for determining the constitutionality of governmental regulations on commercial speech.[13] The first consideration is whether the speech in question constitutes false or misleading advertising that is unprotected by the First Amendment.[14] Second, the Court considered whether the legislative restriction on the speech would serve to further any substantial governmental interest.[15] Third, the Court considered how closely the applicable law purported to advance that interest.[16] Finally, the Court questioned the effectiveness of the regulation at achieving the government’s interest.[17] The four factor test set out in Central Hudson provided a key frame work from which states can base their legislation.[18]

Since Central Hudson, a total of 11 states have enacted new laws prohibiting sellers from charging buyers with surcharges on credit card transactions.[19] These states include California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas.[20] According to Section 518 of the New York General Business Law: “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.”[21] In the 2016 U.S. Supreme Court case Expressions Hair Design v. Schneiderman, the Court held that § 518 regulated free speech under the First Amendment.[22] Petitioners in the case were the owners of five New York businesses that challenged the constitutionality of § 518 under the First Amendment.[23] Similar to Bank of America and Verizon Wireless, the owners planned to implement surcharges on customers that used credit cards because of the 3% transaction fees the owners were charged by the credit card companies.[24] The owners planned to offer “single-sticker” pricing that would communicate to customers the surcharge amount for using a credit card as opposed to cash.[25] The petitioners claimed § 518 regulated the way that sellers communicate their prices to buyers and therefore the statute unconstitutionally regulated the sellers’ First Amendment right.[26] The Supreme Court agreed that the statute regulates speech rather than conduct, because § 518 does not regulate all sellers, rather, the statue targets the ways sellers communicate their charges to buyers who use credit card instead of cash.[27] However, the Court choose not to conclude whether § 518 was fundamentally unconstitutional under the First Amendment.[28]

The Court’s conclusion in Expressions Hair Design is unsatisfying for the fact that it failed to address whether § 518 is constitutional under the First Amendment. The result of the Court’s ambivalence leaves both consumers and merchants without guidance. In the wake of such uncertainty, the consumer can only assume that business will continue to use their First Amendment right of “commercial speech,” afforded to them by common law, to hold consumers hostage to the unconscionable convenience and surcharge fees. Fortunately, the First Amendment is not an exclusive right of businesses. Overtime, I am optimistic that our Judicial System will embrace the challenge of determining the constitutionality of these fees and will recognize the demand forced upon the consumer. But until then, just throw it on my tab.

 

 

 

 

[1] Andy Williams, It’s the Most Wonderful Time of the Year (Columbia Records 1963).

[2] Sergei Klebnikov, Cyber Monday 2019 By The Numbers: A Record $9.4 Billion Haul, Forbes (Dec. 3, 2019, 9:01 AM), https://www.forbes.com/sites/sergeiklebnikov/2019/12/03/cyber-monday-2019-by-the-numbers-a-record-94-billion-haul/#39af49be2ef0.

[3] Id.

[4] Id.

[5] See generally Tamara R. Holmes, Convenience Fees: When is it OK to charge extra to use a credit card?, CreditCards.com, (Apr. 13, 2017), https://www.creditcards.com/credit-card-news/credit-card-convenience-fees-cost-surcharges-1280.php.

[6] Id.

[7] Id.

[8] See Minda Zetlin, Meet-fee fighting vigilante Molly Katchpole, CreditCards.com, (Jan. 18, 2012), https://www.creditcards.com/credit-card-news/qa-molly-katchpole-bank-of-america-verizon-fees-1278.php.

[9] Id.

[10] Id.

[11]Id.

[12] See Leading Case, Expressions Hair Design v. Schneiderman, 131 Harv. L. Rev. 223 (Nov. 10, 2017); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980); Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017).

[13] See Central, 447 U.S. at 564.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] See supra note 4.

[19] Id.

[20] Id.

[21] Id.; N.Y. Gen. Bus. Law. §518 (McKinney 2016).

[22] See Wayne Streibich & Jonathan M. Robbin, U.S. Supreme Court Rules That New York General Business Law § 518 Regulates Free Speech Provided for in the First Amendment, Blanke Rome: Alert (Mar. 2017). https://www.blankrome.com/publications/us-supreme-court-rules-new-york-general-business-law-ss-518-regulates-free-speech. See also Expressions Hair Design v. Schneiderman, supra note 11.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

image source: https://www.creditcards.com/credit-card-news/how-contactless-cards-work.php

By: Sheridan Maxey

The advent of the telephone brought about a new age of communication that many individuals would never have fathomed. As time has gone on telephones, specifically cellular phones, have become an almost required accessory to live a functional life.[1] It is not all that surprising that children are beginning to receive phones so they can easily remain in contact with their parents.[2] Phones have become incredibly beneficial and while there is some speculation that it may eventually be replaced, it is unlikely that they will fall out of favor anytime soon.[3]

Of course, not all great things come without their drawbacks. Almost any person with a cell phone, whether it be a flip phone or a smart phone, can claim that they have been called by robotic spam calls.[4] These calls come in the form of telemarketers seeking to gain money for a product or service, scammers seeking to relinquish individuals of their earnings, or even calls that seemingly have no purpose other than to bother you.[5] One company reports that there were as many as 5.3 billion spam calls made in March alone.[6] Earlier this year, the Federal Communications Commission (FCC) ruled that it will allow telephone service providers to block these unwanted calls by default.[7] This means that many owners of cell phones who previously used third-party apps to block spam calls may be able to do so through their service provider. One concern with the FCC’s ruling is that although companies are now allowed to block spam calls by default, there is no regulation that would stop them from charging customers to do so.[8] In addition to the FCC’s regulations, the House passed a bill in July named the Stopping Bad Robocalls Act which is intended to protect consumers from unwanted and malicious spam calls.[9] Just this past Wednesday the 4th, the House voted in favor of the Pallone-Thune TRACED Act which is a follow-up measure from the one passed earlier in July.[10] Supporting Representatives’ statements indicate that the purpose of the bill is to allow for spam calls to be consistently blocked, and to allow for the FCC and law enforcement to punish scammers.[11]

Although laws are in the works, it is not evident whether they will truly be effective in heavily reducing the number of calls that consumers receive on a daily basis. To avoid having to rely solely on service providers to block all of the spam calls coming in, there are steps that people can take to mitigate them. Social media and online forums have quickly become popular among many individuals. These outlets often require that individuals divulge their email addresses and phone numbers to participate on their websites.[12] Although it may be difficult, refraining from participating in social media and forums, or at least refusing to provide sensitive information whenever possible, can help prevent unwanted calls.[13] Phone owners should not have to worry about being called by people or programs who are not supposed to have their phone numbers, but until effective progress is made in limiting those calls we will have to remain strong and endure.

 

[1] See Andrew D. Selbst & Julia Ticona, Supreme Court Must Understand: Cell Phones Aren’t Optional, Wired (Nov. 29, 2017), https://www.wired.com/story/supreme-court-must-understand-cell-phones-arent-optional/.

[2] See Jacqueline Howard, When Kids Get Their First Cell Phones Around The World, CNN Health (Dec. 11, 2017), https://www.cnn.com/2017/12/11/health/cell-phones-for-kids-parenting-without-borders-explainer-intl/index.html.

[3] See Damien McFerran, When Will The Smartphone Die?, Techradar (Sept. 26, 2018), https://www.techradar.com/news/when-will-the-smartphone-die.

[4] See Ajit Pai, FCC Should Block Robocalls By Default, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/opinion/2019/06/06/fcc-proposal-help-stop-robocalls-vote-column/1355299001/.

[5] Id.

[6] See Mike Snider, Robocall Ruling By FCC Will Let Phone Companies Block Unwanted Calls By Default, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/tech/news/2019/06/06/robocall-rule-fcc-phone-companies-block-unwanted-calls/1366898001/.

[7] Id.

[8] Id.

[9] See Octavia Blanco, Robocall Bill Wins Approval In The House, Consumer reports (Jul. 24, 2019), https://www.consumerreports.org/robocalls/robocall-bill-wins-approval/.

[10] See Victor Reklaitis, Robocalls Bill Looks On Track To Become Law, But Lacks Bite of Earlier House Measure, Marketwatch (Dec. 4, 2019), https://www.marketwatch.com/story/compromise-robocalls-bill-that-appears-headed-for-passage-lacks-bite-of-earlier-house-measure-2019-12-03.

[11] Id.

[12] See Madeline Purdue, How Do They Have My Number? 5 Ways To Avoid Being Put On Robocall Lists, USA Today (Jun. 6, 2019), https://www.usatoday.com/story/tech/2019/06/06/stop-robocalls-before-they-dial-your-number/1346212001/.

[13] Id.

 

image source: https://consumerfinancialserviceslawmonitor.lexblogplatform.com/wp-content/uploads/sites/501/2014/07/Grayscale-Robot.jpg

By: Ryan Leonard

A majority of Americans report being concerned about gun violence and support stricter gun laws.[1]  However, part of the quandary facing state and federal policymakers regarding prospective gun regulation is the desire to reduce gun violence without infringing on the Second Amendment of the Constitution which protects “…the right of the people to keep and bear arms.”[2] While handguns are involved in more fatalities than rifles or shotguns,[3] the right to own a handgun is specifically given Constitutional protection.[4]

 

One possible solution for making guns safer but still fully available is the implementation of smart-gun technology.[5]  One style of smart-gun is a firearm that is embedded with a sensor.[6] The sensor then controls whether the firearm is operational.[7]  The owner or other authorized user may render the firearm operational by bringing a corresponding sensor within range of the firearm (the corresponding sensor may be located in a watch, ring, or other wearable accessory near the hand).[8]  Another style of smart-gun is fingerprint operated.[9]  In such a model, only users with authorized fingerprints would be able to operate the gun.[10]

 

A primary rationale for putting forth smart-gun technology is the avoidance of gun accidents, as opposed to the prevention of mass shootings.[11]  If a child, for example, came into possession of a smart-gun it would not be operational, thus greatly reducing the threat of an accidental discharge.[12]  According to the Harvard Injury Control Research Center, “the majority of people killed in firearm accidents are under age 24, and most of these young people are being shot by someone else, usually someone their own age.”[13]

 

In 1986 Congress passed the Firearm Owners Protection Act which states that in the United States “…it shall be unlawful for any person to transfer or possess a machinegun.”[14]  The prohibition, however, did not render all machineguns illegal.  Rather, an exception is made for machineguns “lawfully possessed” before the law goes into effect.[15]  Effectively, no new machineguns could be produced.[16]  Likewise, Congress could pass legislation requiring that all firearms henceforth produced be equipped with smart-gun technology.

 

New Jersey has in fact already become the first state to pass legislation regarding the sale of smart-guns.[17]  The New Jersey law requires that “licensed firearm retail dealers make available for purchase at least one personalized handgun within 60 days of the first personalized handgun being included on a state roster of approved personalized handguns.”[18]

 

Handguns without sensor or biometric technology typically range in price $250-$1000.[19]  However, at approximately $1,800 each, smart-guns are currently prohibitively expensive.[20]  It remains to be seen whether a cost-effective smart-gun design could be feasibly produced.  If and when such technology is more made more affordable, state legislatures and the United States Congress may find themselves in the position of being asked to craft legislation that will effectively change the nature of modern civilian firearms.

[1] See Giffords Law Center, https://lawcenter.giffords.org/facts/polling/ (last visited Dec. 5, 2019).

[2] U.S. Const. amend. II.

[3] See Peter Dujardin, ‘Assault’ Rifles vs. Handguns: Which Are the Bigger Problem?, (Mar. 21, 2018, 8:42 AM), https://www.dailypress.com/news/crime/dp-nws-assault-rifles-handgun-violence-20180312-story.html.

[4] See District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

[5] See Sam Levin, Smart Guns: Could Fingerprint Technology Solve America’s Shooting Deaths?, Guardian (Feb. 24, 2016, 3:13 PM), https://www.theguardian.com/technology/2016/feb/24/personalized-smart-guns-biometric-access-fingerprints-gun-control.

[6] See Nicole Nguyen, Here’s What’s Up With “Smart Guns” and Why You Can’t Buy One in the US, BuzzFeed News (Mar. 13, 2018, 5:02 PM), https://www.buzzfeednews.com/article/nicolenguyen/what-is-smart-gun-technology.

[7] See id.

[8] See id.

[9] See Levin, supra note 5.

[10] See Levin, supra note 5.

[11] See Nguyen, supra note 6.

[12] See Giffords Law Center, https://lawcenter.giffords.org/gun-laws/policy-areas/child-consumer-safety/smart-guns/ (last visited Dec. 5, 2019).

[13] Harvard Injury Control Research Center, https://www.hsph.harvard.edu/hicrc/firearms-research/gun-threats-and-self-defense-gun-use/ (last visited Dec. 5, 2019).

[14] 18 U.S.C.A. § 922 (1986).

[15] See id.

[16] See id.

[17] See Giffords Law Center, https://lawcenter.giffords.org/gun-laws/policy-areas/child-consumer-safety/smart-guns/ (last visited Dec. 5, 2019).

[18] Id.

[19] See Nguyen, supra note 6.

[20] See Nguyen, supra note 6.

 

image source: https://img.buzzfeed.com/buzzfeed-static/static/2018-03/5/21/asset/buzzfeed-prod-fastlane-01/sub-buzz-21528-1520303162-1.jpg?downsize=700%3A%2A&output-quality=auto&output-format=auto

By: Rebecca Meadows

The agriculture industry loses money every year due to significant food waste caused by inefficiencies in maintaining crops, predicting of consumer demand, and packaging products, among other factors.[1] Over the past decade, the data industry has been moving into agriculture, in an effort to solve some of these problems and make the entire farm to table chain more efficient.[2] Since 2012, the world of agriculture technology has seen annual increases of over 80% in venture capital investments.[3] Some of these investments are aimed at enabling the consumer to make more informed choices, while others are aimed at making farming and processing more efficient.[4] It is suggested that implementation of new technologies in agriculture could create a level of growth in productivity and efficiency that has not been seen since agriculture was first mechanized.[5]

 

One company aiming to use data technology to revolutionize the agriculture industry is Agri Stats, Inc..[6] For years, they have operated by gathering data from farmers and meat processors, and organizing that data into confidential and highly-detailed reports that are sent weekly to their paying subscribers.[7] Most important for legal purposes, they collect data that estimates future production, for example by showing the number of hens at a farm, which suggests the number of eggs that they are capable of producing.[8]

 

Agri Stats insists that they are in full compliance with antitrust laws and that this data does not amount to price-fixing.[9] However, Agri Stats has lately been the subject of many lawsuits alleging that by providing this historical data, which food companies use to predict future production of their competitors, Agri Stats is acting as a co-conspirator in a plot of the country’s largest agriculture companies to fix their prices.[10] According to these complaints, this hurts the wholesalers and consumers who end up paying more than necessary, because the large food companies have worked together to inflate prices.[11] Although accusations of price-fixing have been around since Agri Stats first started collecting data, they have increased momentum in recent years as a result of mergers that have made the industry concentrated in a few large companies.[12]

 

Many of these cases have been dismissed for the class-action plaintiffs’ failure to meet heightened pleading standards, because they have been unable to plead with particularity that Agri Stats and the various food companies are participating in antitrust conspiracy.[13]

 

In 2016, a class of Tyson shareholders brought a class action suit, claiming that the company’s success was due to antitrust conspiracy.[14] They pointed to information shared through Agri Stats, coordinated efforts to change business practices, and a drop in stock price when the alleged conspiracy was exposed, in order to suggest the existence of a conspiracy.[15] However, this case was dismissed in 2017 because plaintiffs did not plead with enough particularity to show conspiracy.[16]

 

Another leading poultry provider, Sanderson Farms, was granted a motion to dismiss in a case that the courts recognized was very similar to the Tyson case.[17] Again, the class action plaintiffs alleged that Sanderson Farms engaged in unlawful antitrust conspiracies with other major poultry companies.[18] They claim that the companies fixed their prices by cooperating to reduce supply, increase prices, and not disclose these conspiracies in their public statements.[19] Once again, the large company defendant was granted a motion to dismiss.[20]

 

These lawsuits have been increasingly common, and all appear to look to each other for guidance on how to handle this influx of agriculture antitrust cases. As the agriculture industry has become concentrated in the hands of a few major companies, there has been an understandable growth in the number of antitrust cases faced by each of these large companies.[21] Just a few weeks ago, Agri Stats was named in another antitrust lawsuit, this time involving the pork industry.[22] It again has been alleged that large companies are using Agri Stats reports to access standardized data and conspire to increase their prices.[23] This case certainly won’t be the last of its kind, because the food industry’s desire to implement technology to reduce inefficiencies combined with frequent mergers creates the perfect environm

[1] See Tim Sparapani, How Big Data and Tech Will Improve Agriculture, From Farm to Table, Forbes (Mar. 23, 2017, 8:00AM), https://www.forbes.com/sites/timsparapani/2017/03/23/how-big-data-and-tech-will-improve-agriculture-from-farm-to-table/#527238145989.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See Christopher Leonard, Is the Chicken Industry Rigged?, Bloomberg Businessweek (Feb. 15, 2017, 5:30PM), https://www.bloomberg.com/news/features/2017-02-15/is-the-chicken-industry-rigged.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See supra, note 6 (discussing the allegations made by Maplevale Farms and other wholesalers).

[12] See Victoria Graham, Turkey Remains Rare Meat Not Embroiled in Antitrust Probes, Bloomberg Law (Nov. 26, 2019, 6:01AM), https://news.bloomberglaw.com/mergers-and-antitrust/turkey-remains-rare-meat-not-embroiled-in-antitrust-probes.

[13] See, e.g., In re Tyson Foods, Inc. Securities Litigation, 275 F. Supp. 3d 970 (W.D. Ark. 2017); Gamm v. Sanderson Farms, Inc., No. 16-Cv-8420, 2018 WL 1319157 (S.D. N.Y. 2018).

[14] See Tyson, 275 F. Supp. 3d at 976–979.

[15] See id. at 978.

[16] See id. at 981–985.

[17] See Gamm, 2018 WL 1319157 at *1, *6.

[18] See id. at *1.

[19] See id.

[20] See id. at *6.

[21] See Graham, supra note 11.

[22] See Leah Douglas, More Antitrust Lawsuits Hit the Meat Industry. This Time, It’s Pork., The Fern (Nov. 7, 2019), https://thefern.org/ag_insider/more-antitrust-lawsuits-hit-the-meat-industry-this-time-its-pork/.

[23] See id.

image source: https://s3-eu-west-1.amazonaws.com/proagrica-assets-live/sites/1/2018/07/Agr-Workflows-6.jpg

By: Rachel Whalen

In the time of emails and texting, phone calls are become less and less appealing.[1] One reason for this change is the dramatic increase in spam and robocalls.[2] At this point, an estimated 70 percent of people no longer answer phone calls from numbers that they do not recognize.[3] Alas, when people stop answering the phone, they can miss important calls.[4] Several industries and business that relied on phone calls are also suffering.[5] Doctors cannot contact their patients, small businesses are struggling to network, and non-profit organization are receiving fewer donations.[6] Consumers have lost faith in the phone industry.[7]

Unfortunately, scam and robocalls are on the rise and show no sign of stopping. In 2017, 3.7 percent of total calls were spam callers.[8] That percentage jumped up to 29.2 percent in 2018, and is expected to pass 50 percent by the end of 2019.[9] In total, there were more than 30 billion robocalls in 2017 costing consumers 350 million dollars.[10] The amount of robocalls has been estimated at 167.3 million calls per day with an average of over 15 calls per person.[11]

The increase in scam and robocalls can be attributed to the low costs of entry.[12] The technology used to make these robocalls is cheap and easy to make, costing a speculated price of only one penny per call placed.[13] Scam calling can also be quite lucrative, making an average of 430 dollars for each successful call[14] and costing consumers an estimated 10.5 billion dollars in 2018.[15] However, these spam calls are difficult to stop, sending millions of calls at the press of a button.[16]

Scam and robocalls are the number one consumer complaint and a top priority for the Federal Communications Commission (FCC).[17] Over 200,000 complaints are received each year regarding spam calls, forming about 60 percent of the total complaints received.[18] The FCC received 63,000 complaints per month in 2009 which increased almost sixfold to 375,000 complaints per month in 2017.[19] In 2016, the FCC created a Robocall Strike Force as an industry-led initiative to “prevent, detect, and filter unwanted robocalls.”[20] The FCC also adopted new rules allowing phone companies to block illegal or unwanted calls by default using reasonable call analytics, and the FCC is working to implement a caller ID authentication to prevent “neighborhood spoofing” where fake phone numbers are used to appear local.[21] Additional consumer options have also been allowed to block calls that do not appear in the customer’s contact list or “white list.”[22] Furthermore, the FCC has issued “hundreds of millions of dollars in enforcement actions” against spammers.[23]

The FCC has also been working with several technology companies to find solutions to the plethora of robocalls.[24] In fact, spam calls are such a big problem that a sub-industry has been created to combat it.[25] Many phone providers offer screening services to block probable scammers.[26] Cellphone carriers recognize the need to fight spammers and are heavily investing in new technologies in a sort of “arms race.”[27] Despite this investment, telephone networks are so interconnected that they must work together to flag spam calls and block them.[28] Additionally, third-party applications, such as Nomorobo, Hiya, YouMail, Mr. Number, RoboKiller, and Truecaller, have sprung up to help screen calls, but the services are still spotty.[29]

Due to the ineffective solutions to spam calls and the growing problem of consumers losing faith in phone calls, Congress has pushed a bipartisan effort for anti-robocall legislation.[30] The House recently approved the Stopping Bad Robocalls Act in July, building on the TRACED Act which was passed by the Senate in May.[31] The Stopping Bad Robocalls Act was sent to the Senate in July to reconcile the two bills before being sent to the President.[32]

The Stopping Bad Robocalls Act would require phone carriers to offer spam screening by default for no additional costs,[33] applying an opt out program instead of the current option for screening. [34] However, the act also shields phone carriers from liability for blocking calls based on reasonable call analytics.[35] The screening is intended to resemble “the way email providers filter messages into spam folders.”[36] Phone carriers would also be required to implement call identification technology to verify the origin of calls and prevent “spoofing.”[37]

The FCC also has additional obligations under the Stopping Bad Robocalls Act. The FCC would be required to submit an annual report to Congress including the amount of complaints, enforcement citations, forfeiture penalties, and total fines collected regarding robocalls.[38] The FCC will also maintain a database of phone number changes to avoid calls to old numbers.[39] Finally, the Stopping Bad Robocalls Act increases the one year statute of limitation to allow three years to report robocalling violations.[40]

The bill has been met with overwhelming support from Congress, consumer protection advocates, and the industry. The Stopping Bad Robocalls Act passed the House with a staggering 429 to 3 vote after a comparable anti-robocall bill passed the Senate with similar support.[41] Representative Frank Pallone Jr., Democrat of New Jersey and chairman of the House Energy and Commerce Committee, stated his optimism that the bill will ultimately be passed into law.[42] In addition, 80 consumer rights groups have sent a letter to Congress expressing their support including Consumer Reports and the National Consumer Law Center.[43] Furthermore, the wireless industry trade group CTIA has thanked the House committee for promoting this bill and “look[s] forward to working on getting robocall legislation enacted.”[44] The phone carrier Verizon Wireless also supports anti-robocall legislation stating, “[t]he key here is to restore trust in voice calls.”[45] Hopefully this bill can indeed deliver the “peace of mind that [consumers

[1] See Yuki Noguchi, ‘Do I Know You?’ And Other Spam Phone Calls We Can’t Get Rid Of, NPR, June 6, 2019, https://www.npr.org/2019/06/06/727711432/do-i-know-you-and-other-spam-phone-calls-we-can-t-get-rid-of.

[2] See Neil Vigdor, Want the Robocalls to Stop? Congress Does, Too, N.Y. Times, June 20, 2019, https://www.nytimes.com/2019/06/20/us/politics/stopping-robocalls.html.

[3] See Tim Harper, Why Robocalls Are Even Worse Than You Thought, Consumer Reports, May 15, 2019, https://www.consumerreports.org/robocalls/why-robocalls-are-even-worse-than-you-thought/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See Nearly 50 percent of U.S. Mobile Traffic Will Be Scam Calls by 2019, First Orion, Sep. 12, 2018. https://firstorion.com/nearly-50-of-u-s-mobile-traffic-will-be-scam-calls-by-2019/

[9] See id.

[10] See Nicole Lyn Pesce, Here’s Why You’re Getting so Many Spam Phone Calls, Mkt. Watch, Feb. 12, 2019, https://www.marketwatch.com/story/heres-why-youre-getting-so-many-spam-phone-calls-2018-10-12.

[11] Robocall Index, YouMail, https://robocallindex.com/ (last visited Dec. 2, 2019).

[12] See Pesce, supra note 10.

[13] See id.

[14] See id.

[15] See Noguchi, supra note 1 (citing Kim Fai Kok, Phone Scams Cause Americans to Lose $10.5 Billion in Last 12 Months Alone, Truecaller Insights, Apr. 17, 2019, https://truecaller.blog/2019/04/17/truecaller-insights-2019-us-spam-phone-scam-report/#more-6066).

[16] See id.

[17] See Stop Unwanted Robocalls and Texts, Fed. Commc’ns Comm’n, Aug. 2, 2019, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts#call-blocking-resources.

[18] See The FCC’s Push to Combat Robocalls & Spoofing, Fed. Commc’ns Comm’n, https://www.fcc.gov/about-fcc/fcc-initiatives/fccs-push-combat-robocalls-spoofing (last visited Dec. 2, 2019).

[19] See Pesce, supra note 10.

[20] Stop Unwanted, supra note 16; see also Pesce, supra note 10.

[21] See Stop Unwanted, supra note 16; Pesce, supra note 10.

[22] See Stop Unwanted, supra note 16

[23] Id.

[24] See Nearly, supra note 8.

[25] See Noguchi, supra note 1.

[26] See Harper, supra note 3.

[27] See Noguchi, supra note 1 (quoting Chris Oatway, the associate general counsel for Verizon Wireless).

[28] See id.; see also Harper, supra note 3; Pesce, supra note 10.

[29] See Harper, supra note 3; see also Pesce, supra note 10.

[30] See Vigdor, supra note 2.

[31] See Octavio Blanco, Robocall Bill Wins Approval in the House, Consumer Reports, July 24, 2019, https://www.consumerreports.org/robocalls/robocall-bill-wins-approval/.

[32] See id.

[33] See Vigdor, supra note 2.

[34] See Merrit Kennedy, FCC Wants Phone Companies To Start Blocking Robocalls By Default, NPR, May 15, 2019, https://www.npr.org/2019/05/15/723569324/fcc-wants-phone-companies-to-start-blocking-robocalls-by-default.

[35] See id.

[36] Id. (citing FCC Chairman Ajit Pai).

[37] See Blanco, supra note 30; Kennedy, supra note 33.

[38] See Blanco, supra note 30.

[39] See id.; Vigdor, supra note 2.

[40] See Blanco, supra note 30.

[41] See id.; Vigdor, supra note 2.

[42] See Vigdor, supra note 2.

[43] See Blanco, supra note 30.

[44] Vigdor, supra note 2 (quoting Kelly Cole, the senior vice president for government affairs at the wireless industry trade group CTIA based in Washington); see also Blanco, supra note 30.

[45] Noguchi, supra note 1 (quoting Chris Oatway, the associate general counsel for Verizon Wireless).

image source: https://www.npr.org/2018/05/10/609117134/chinese-robocalls-bombarding-the-u-s-are-part-of-an-international-phone-scam