Author: JOLT Page 7 of 50

By: Derek Reigle

The Golden State Killer, also known as the East Area Rapist or the Original Night Stalker infamously murdered over a dozen people and raped more than fifty victims from 1976 to 1986.[1] Despite these horrible crimes, the identity of the Golden State Killer had eluded justice for decades.[2] However, on April 24th, 2018, investigators solved this cold-case and arrested Joseph DeAngelo, a 72-year-old man and former police officer, as the Golden State Killer.[3] The police broke open the case using the tactic controversial of familial DNA Testing.[4]

The actual science of familial DNA testing is complicated, but the concept is simple. Are you familiar with websites such as Ancestry.com or 23andme.com? These websites allow one to submit your DNA through a kit that can be sent to one’s house.[5] These kits only require a saliva sample.[6]After your DNA is collected and analyzed, these websites can reveal a staggering amount of information about oneself.[7] One can learn where your ancestors are from, whether one has certain genetic predispositions that can be passed onto one’s children, or even how one’s genes affect your caffeine consumption.[8] Furthermore, these DNA results can be uploaded to other websites such as GEDmatch.com that can reveal even more comprehensive information about one’s genealogy.[9]

An additional key aspect of these DNA tests is that they allow you to view family members that were known, or previously unknown.[10] This can be done by identifying certain genetic similarities in one’s genealogy.[11] Naturally, this ability to track down long lost family has amazing benefits that can allow one to learn more about their family.[12] However, the ability to track down forgotten relatives has opened the door for law enforcement to identify criminals.[13]

The Golden State Killer was caught because a member of his family had uploaded their genetic DNA results to GEDmatch.com.[14] Police had DNA from the crime scenes from the 1970 and 1980’s but had no way to identify whose it was.[15] Thus, they uploaded this DNA to GEDmatch.com and were able to find out who the great-great-great-grandparents were of the unidentified DNA.[16] After crafting 25 family trees, using incredibly detailed historical research, investigators were able to zero in on Joseph DeAngelo.[17] After identifying DeAngelo as a suspect, police recovered a discarded object by DeAngelo that has his DNA on it.[18] Law enforcement was then able to match the DNA between DeAngelo and the Golden State Killer.[19] DeAngelo now faces thirteen counts of murder.[20] Prosecutors have announced that they will be seeking the death penalty.[21]

This is an amazing story that testifies to the awesome power that familial DNA testing has to find and locate unknown criminals.[22] However, this case raises several additional questions that will have vast legal ramifications as genetic identification techniques only become more advanced because of technology’s unique ability to consistently improve over time.[23]

Across America, civil liberty groups like the ACLU have challenged familial DNA testing as invasive of an individual’s privacy rights.[24]  Should a family member consenting to have their genetics analyzed reveal information of a third party that has not consented? Further questions regarding the values of our criminal justice system such as fairness, equality and deterrence of such a futuristic law enforcement technique are now being raised. GEDmatch.com, Ancestry.com and 23andme.com have all responded to concerns about privacy and the use of genetic material to aid law enforcement by updating their standards of privacy and releasing a variety of statements.[25] Generally, search warrants are required to access this information on these websites.[26]

Familial DNA testing is not going away and will continue to be used by law enforcement.[27] In order to better assess the benefits and consequences of this unique crime-fighting technique, one should know the story of the Golden State Killer.

[1]  See Hilary Brueck, The Suspected Golden State Killer was Finally Caught Because his Relative’s DNA was Available on a Genealogy Website, Business Insider (Apr. 27, 2018), https://www.businessinsider.com/golden-state-killer-caught-because-relatives-dna-online-2018-4.

[2] See Id.

[3]See Id.

[4] See Associated Press, The Latest: Investigator: Free DNA Website Helped Crack Case, Business Insider (Apr. 27, 2018), https://www.businessinsider.com/ap-the-latest-investigator-free-dna-website-helped-crack-case-2018-4.

[5] See How does AncestryDNA Work? An Inside Look at The Process, Ancestry (last visited Oct. 20, 2019), https://www.ancestry.com/dna/lp/how-does-ancestrydna-work; 23andMe, 23andMe, How It Works!, Youtube (July 2, 2018), https://www.youtube.com/watch?time_continue=7&v=C6O9xKdCl9U.

[6] See Id.

[7] See Id.

[8] See Id.

[9] See GEDmatch.,Your DNA Guide, (last visited Oct. 20, 2019), https://www.yourdnaguide.com/upload-to-gedmatch.

[10] See Brueck, supra note 1.

[11] See Id.

[12] See Id.

[13] See James Rainey, Familial DNA puts Elusive Killers Behind Bars. But Only 12 states Use It., NBC News (Apr. 28th, 2018), https://www.nbcnews.com/news/us-news/familial-dna-puts-elusive-killers-behind-bars-only-12-states-n869711.

[14] See Brueck, supra note 1.

[15] See Justin Jouvenal, To Find Alleged Golden State Killer, Investigators First Found his Great-Great-Great-Grandparents, The Washington Post (Apr. 30, 2018), https://www.washingtonpost.com/local/public-safety/to-find-alleged-golden-state-killer-investigators-first-found-his-great-great-great-grandparents/2018/04/30/3c865fe7-dfcc-4a0e-b6b2-0bec548d501f_story.html.

[16] See Id.

[17] See Id.

[18] See Id.

[19] Breeanna Hare and Christo Taoushiani, What We Know About The Golden State Killer Case, One Year After A Suspect Was Arrested, CNN (Apr. 24, 2019), https://www.cnn.com/2019/04/24/us/golden-state-killer-one-year-later/index.html

[20] See DA Will Seek Death Penalty Against Golden State Killer Suspect Joseph DeAngelo, CBS Sacramento (Apr 10, 2019), https://sacramento.cbslocal.com/2019/04/10/joseph-deangelo-da-seeking-death-penalty/.

[21] See Rainey, supra note 13.

[22] See Id.

[23]See Alison E. Berman and Jason Dorrier, Technology Feels Like It’s Accelerating — Because It Actually Is, Singularity Hub (Mar. 22, 2016), https://singularityhub.com/2016/03/22/technology-feels-like-its-accelerating-because-it-actually-is/.

[24] See Shankar Narayan, Familial DNA Searching: Troubling Civil Liberties Challenges, NWSidebar (June 20, 2018), https://nwsidebar.wsba.org/2018/06/20/familial-dna-searching-troubling-civil-liberties-challenges/.

[25]See Eric Rosenbaum, 5 Biggest Risks of Sharing Your DNA with Consumer Genetic-Testing Companies, CNBC (June 16, 2018), https://www.cnbc.com/2018/06/16/5-biggest-risks-of-sharing-dna-with-consumer-genetic-testing-companies.html.

[26] See Colin McFerrin, DNA, Genetic Material, and A Look at Property Rights: Why You May Be Your Brother’s Keeper, 19 Tex. Wesleyan L. Rev. 967, 998 (2013).

[27] See Justin Poulsen, Your Relative’s DNA Could Turn You Into a Suspect, Wired (Oct. 13, 2015), https://www.wired.com/2015/10/familial-dna-evidence-turns-innocent-people-into-crime-suspects/.

image source: https://pixabay.com/illustrations/dna-biology-medicine-gene-163466/

By: Tabetha Soberdash

The technology of 3D printing is bringing to reality things that once were only viewed as possible in science fiction movies.[1] Simply put, 3D printing is “a manufacturing process for the rapid production of three-dimensional parts directly from computer models.”[2] It works by depositing layer upon layer of materials until the desirable three-dimensional object is created.[3] As such, by a simple input of a design and materials, the technology can print customizable, three-dimensional products at the push of a button.[4] The technology has shown to be beneficial in many aspects, from allowing for rapid prototyping to reducing transport costs.[5] Therefore, many industries have began to utilize the technology, such as aerospace, medicine, and education.[6] As the technology provides the convenience of creating fully customizable products in the privacy of one’s own homes, many private individuals have also started utilizing the technology as well. [7]

With all of the benefits and advantages that come with the simple purchase of a 3D printer, one type of creatable product has found its way to becoming a high source of controversy and debate: firearms.[8] With a 3D printer, a design, and a filament, an individual can create a fully operational weapon without the need to pass a background check.[9] In addition, these firearms can be made out of plastic materials, making it harder to detect them.[10] Further, as they are home-made firearms, they do not contain genuine serial numbers, allowing for a cumulation of untraceable firearms in the country.[11] Many fear that criminals could take advantage of this to commit or attempt to commit additional crimes, and time is showing that fear to be more than just a mere possibility.[12] For example, a man was arrested in 2017 after officers heard three shots in woods in Texas.[13] Upon arrest, it was found that the man had 3D printed his firearm after he had failed the background check necessary to purchase one.[14] After making the firearm, he proceeded into the woods with “what federal attorneys called a ‘hit list’ of Democratic and Republican lawmakers, including their office and home addresses.”[15]

In response to this public safety risk, many legislative actions, both federal and state, have been presented in attempt to provide for more regulation to support gun safety.[16] One such action occurred on June 13, 2019 when the 3D Printed Gun Safety Act of 2019 was introduced in Congress.[17] If passed, the 3D Printed Gun Safety Act of 2019 would prohibit the distribution of 3D printer plans for the printing of firearms.[18] However, it is facing opposition by those who are concerned with how limiting distribution of 3D printer plans would affect individual liberties, particularly those given by the First Amendment.[19] Opponents against the bill argue that code and 3D planner blueprints should be a protected form of free speech under the First Amendment, as such limiting their distribution infringes upon the freedom of speech.[20] Stuck between upholding individual liberties and pursuing public safety, it has yet to be seen whether the substantial risk of crimes occurring with 3D printed firearms will be enough to promote Congressional votes in favor of the 3D Printed Gun Safety Act of

image source: https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years

[1]See Jeffrey T. Leslie, COMMENT: The Internet and Its Discontents: 3-D Printing, The Commerce Clause, And A Possible Solution to an Inevitable Problem, 17 S.M.U. Sci. & Tech. L. Rev. 195, 195 (2014).

[2]Emanuel Sachs et al., Three Dimensional Printing: Rapid Tooling and Prototypes Directly from CAD Representation, 39 CIRP Annals – Manufacturing Tech. 27, 28 (1990).

[3]See Jessica Berkowitz, ARTICLE: Computer-Aided Destruction: Regulating 3D-Printed Firearms Without Infringing on Individual Liberties, 33 Berkeley Tech. L.J. 53, 56 (2018).

[4]See id. at 58.

[5]See Emanuel Sachs et al., Three Dimensional Printing: Rapid Tooling and Prototypes Directly from CAD Representation, 39 CIRP Annals – Manufacturing Tech. 27, 28 (1990).

[6]See John F. Sargent, Jr., & R.X. Schwartz, Cong. Research Serv., R45852, 3D Printing: Overview, Impacts, and the

Federal Role 1 (2019).

[7] See Berkowitz, supra note 3 at 66.

[8]See Berkowitz, supra note 3 at 53–54.

[9]See id. at 56–57.

[10]See 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[11]See id.

[12]See id.

[13]See Matthew S. Schwartz, Texas Man With 3D-Printed Gun And ‘Hit List’ Of Lawmakers Sentenced To 8 Years, NPR (Feb. 14, 2019), https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years.

[14]See id.

[15]Id.

[16]See Matthew S. Schwartz, Texas Man With 3D-Printed Gun And ‘Hit List’ Of Lawmakers Sentenced To 8 Years, NPR (Feb. 14, 2019), https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years; 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[17]See 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[18]See id.

[19]See id.

[20]See Berkowitz, supra note 3 at 72–75.

By: Brandon Baker

People have been enjoying the outdoors since the beginning of time. Throughout history, people have interacted with nature through hunting, fishing, hiking, among other ways. Relatively recently though, many individuals in the United States have lost their connection to the outdoors.[1] The increase of technology in our everyday lives and our dependence on it has been a major factor in this disconnect.[2] This is a cause for alarm as being outside is not just a great way to spend your free time, but has major health benefits too. [3]  Being outside has been linked to improving mental, as well as, physical health. [4]In an ever-changing society, nature is more important than ever as it allows people to reconnect with the natural world and feel refreshed.[5]

A major factor that is playing a role in society’s disconnect with nature is access. [6] Even if someone does desire to get outside and explore nature, they may not have anywhere to go. [7] In addition, someone may have an idea of where to go, but is unsure of whether the land is public or private. Instead of trespassing on someone’s land, for many it would be easier to just never go out. Lack of access has a major impact on one’s ability to experience nature, whether it be through hunting or hiking. [8] Though, the problems associated with lack of access go further than just someone deciding to stay inside. Many states use funds from hunting and fishing licenses to help conserve precious habitat for wildlife. [9] Additionally, federal legislation places a tax on the sale of firearms and other hunting related goods in which the money is distributed to states for wildlife conservation. [10]  If hunters cannot hunt due to lack of access, then the federal government has less money to distribute to the states to aide in conservation projects. [11] This would be a major blow to conservation efforts across the United States as around 59% percent of funding to State wildlife agencies comes from hunting and fishing related activities. [12]

To summarize, as a society, we are more disconnected with the outdoors than ever before and are failing to reap the mental and physical health benefits that nature gives us. [13] In addition, even if someone wanted to get outside, lack of access could be a roadblock that leads them to stay inside. [14] So how do we, as a society, fix this?

A handful of companies have attempted to tackle the access issue, and thus, play a role in getting more people outside. One such company is Montana-based onX, which provides outdoorsmen with access to hundreds of maps showing what land is public and what land is private. [15] While this may seem like a minor breakthrough, it is not. These maps can be accessed on your smartphone and not only tell the user what land is public or private, but also includes private landowner names. [16] These maps help users by showing them where they can legally go and as a result, can play a role in not only getting people outside, but also by lowering the chances that they are trespassing on someone’s land. If someone is able to see where they can and cannot go, then the chances of them heading outside are increased.

The effects of these maps are that people are aware of what land they are able to access. By having people know what land they can legally be on, they will be more likely to head outside and experience nature.  If more people are outside and experiencing nature, they can reconnect with the outdoors and reap the endless benefits that our natural environment provides.

[1] See U.S. study shows widening disconnect with nature, and potential solution, Yale Env’t 360 (Apr. 27, 2017), https://e360.yale.edu/digest/u-s-study-shows-widening-disconnect-with-nature-and-potential-solutions.

[2] Id.

[3]See Kevin Loria, Being outside can improve memory, fight depression, and lower blood pressure—

here are 12 science-backed reasons to spend more time outdoors, Bus. Insider (Apr. 22, 2018), https://www.businessinsider.com/why-spending-more-time-outside-is-healthy-2017-7.

[4] Id.

[5] Id.

[6] See Public access to private lands, Cong. Sportsmen’s Found. http://congressionalsportsmen.org/policies/state/public-access-to-private-lands.

[7] Id.

[8] Id.

[9] See Nathan Rott, Decline in hunters threatens how U.S. pays for conservation, NPR (Mar. 20, 2018), https://www.npr.org/2018/03/20/593001800/decline-in-hunters-threatens-how-u-s-pays-for-conservation.

[10] See Sam Schipani, Did you know that gun sales fund state wildlife programs?, Sierra Club (Apr. 12, 2018), https://www.sierraclub.org/sierra/pittman-robertson-wildlife-conservation-fund.

[11] Id.

[12] Rott, supra note 9.

[13]Loria, supra note 3.

[14] Supra note 6.

[15] See The #1 GPS Hunting App, onX, https://www.onxmaps.com/.

[16] Id.

image source: http://montanawildlife.org/public-land-debate/

By: Cassidy Crockett-Verba

If you allow a person to record a concert, and trade that recording with others, it is less likely that those who obtained the music for free will buy your band’s music. So how would a transaction that you do not make money on ultimately increase your profits? Two bands have figured out how to do just that and build a cult following along the way.

The  Grateful Dead, (also known as “the Dead”) began in the 1960s, and by the 1980s they were one of the highest grossing concert acts.[1] A large part of their draw was their improvisation or “jams” during concerts that made each show inherently unique.[2] This improvisation led groups of fans, known as “deadheads” to follow the Dead across the country on tours, creating their own community.[3] However, a hallmark of Grateful Dead concerts was the ability to tape them to listen later or trade with friends who had attended different performances.[4] This tape trading allowed fans to appreciate the improvisation in each show long past the night it was recorded. However, it is a long-standing rule that recording concerts is a form of copyright infringement.[5] It is therefore hard to imagine why the band members would actively allow taping, going so far as to sell “tapers tickets” for the section of seats behind the soundboard.[6] The Grateful Dead’s motto of sorts was “When we’re finished with it, they can have it,” in response to allowing tapers the opportunity to share the unique-ness of the shows with others.[7] Lyricist Perry Barlow directly attributes their success to tape trading as it created a culture around the band and provided a way for their music to spread.[8] Their music was spreading to a wider audience with little cost to them which in turn led to a wider audience to purchase tickets to concerts.

As the Grateful Dead gained popularity, groups of fans began congregating in parking lots before the show, possibly hoping to find a spare ticket. The parking lot scene, called “Shakedown Street” was a place to buy anything from clothing to stickers and even food such as grilled cheese sandwiches.[9] Often found here was unauthorized merchandise as well.[10] This merchandise, typically t-shirts, usually parodied popular culture icons (such as Nike) with lyrics or imagery.[11] While a shirt with a Nike swoosh with the words “Just Dew It” (a reference to the song “Morning Dew”) would be considered a parody, the lyrics and name of the song are protected by copyright.[12]  For a long time, the band ignored the unlicensed merchandise, but eventually decided that they would begin enforcing their rights.[13] They exercised their trademark rights over the iconic “Steal Your Face” design as well as the “Dancing Bears”, and “Skull and Roses” designs.[14]  Rather than suing their own fans, the Dead decided to license their copyrights to select fans in order to obtain royalties but still allow this lot culture to thrive.[15] However, their relaxed approach to enforcing their copyright not only created a subculture in itself but allowed the Grateful Dead to skyrocket in both popularity and wealth.

The Grateful Dead was not the only band to embrace tapers and a parking lot scene. Phish is another notable band that took a slightly different approach. Phish does not tacitly allow taping, but rather they post their taping policy online and make the rules and regulations clear to anyone who cares to look.[16] Their clear and concise taping policy being open and available on the internet is likely a product of its time as the internet was not available to the Grateful Dead. However, also due in part to the boom of technology, Phish does explicitly prohibit live-streaming of any kind (visual or audio) as well as soundboard patches.[17]  They release live-streamed video and audio as well as live recordings themselves and this allows for a controlled level of reciprocity with fans (or phans as they call themselves).[18] It can be said that while the Grateful Dead laid the framework for taping, Phish innovated and perfected it.[19]

As for “Shakedown Street” at Phish concerts, they have the same general concept as at Grateful Dead concerts. One can buy almost anything they would want, including shirts with lyrics or song titles creatively placed or parodying famous logos.[20] This “scene” has become its own culture and is considered symbiotic with the band.[21] Like the Dead, Phish mostly allows the scene to police themselves, aside from a few exceptions.[22] Provided that sellers do not use the band’s name or likeness, the word “Gamehendge” (a fictional world in which several songs take place), or videos and recordings of the show, the band allows sellers to create unlicensed merchandise.[23] These “lot designs” as they are known in the community often inspire official merchandise or other creations and improvisations from the band.[24]

This reciprocal relationship is a large part of the success enjoyed by Phish and other jam bands. Without the Grateful Dead allowing taping of their shows, it is unlikely that they would have seen such widespread success and recognition. It is also less likely that Phish would have set the stage for modern jam bands as they began after the members obtained traded Grateful Dead tapes. Had the bands to cracked down on creation of unlicensed works with their copyrighted lyrics, it is unlikely that the culture seen in the parking lots surrounding shows would have existed. The culture outside of the show influences the bands to keep creating and sharing the music which contributes to the band’s ticket sales and widespread recognition. Jam bands have figured out a way to profit off of transactions that do not directly involve them and in doing so, have managed to create their own culture and wealth.

image source: https://commons.wikimedia.org/wiki/File:Shakedown_St_-_GD50_-_Fare_Thee_Well_-Grateful_Dead_-_Chicago_2015.jpg

[1] See David L. Pelovitz, “No but I’ve Been to Shows”: Accepting the Dead and Rejecting the Deadheads in Perspectives on the Grateful Dead: Critical Writing 55-56 (Robert G. Weiner ed., 1999).

[2] See

[3] See generally, Dennis McNally, Long Strange Trip: The Inside History of the Grateful Dead 385-88 (1st ed. 2003) (describing the dedication of the fans of the Grateful Dead).

[4] See Casey Lowdermilk, Improvisation and Reciprocity: An Analysis of the Jam Band Community and Its Unique Business Model, 7 J. Music & Ent. industry Educators Ass’n 159, 161 (2007).

[5] See Copyright Act of 1976, 17 U.S.C. §1101 (2018).

[6] See, e.g., Mark F. Schultz, Fear and Norms and Rock & Roll: What Jam Bands Can Teach Us About Persuading People to Obey Copyright Law, 21 Berkeley Tech. L.J. 653, 670 (2006).

[7] David Fraser & Vaughan Black, Legally Dead: The Grateful Dead and American Legal Culture in Perspectives on the Grateful Dead: Critical Writing 33 (Robert G. Weiner ed., 1999).

[8] See Id.

[9] See Jacob A. Epstein, Note, Molly and the Crack House Statute: Vulnerabilities of a Recuperating Music Industry, 23 U. Miami Bus. L. Rev. 95, 120 (2014) (noting the popularity of “Shakedown Street”).

[10] See Brian C. Drobnik, Truckin’ In Style Along the Avenue: How the Grateful Dead Turned Alternative Business and Legal Strategies Into a Great American Success Story, 2 Vand. J. Ent. L. & Prac. 242, 255 (2000). See also Fraser & Vaughan supra note 7, at 29-30 (describing the parking lot culture at Grateful Dead concerts).

[11] See, e.g., Fraser & Vaughan, supra note 7, at 30.

[12] See id.

[13] See Drobnik, supra note 10, at 255.

[14] See id.

[15]  See id. at 255-56.

[16] See FAQ: Taping Policy, Phish, https://phish.com/faq/.

[17] See id.

[18]  See Lowdermilk, supra note 4, at 161-62.

[19] See, e.g., id.

[20] See Lowdermilk, supra note 4, at 162. See generally Phunky Threads, https://www.phunkythreads.com/ (providing examples of the kinds of shirts and goods found on “Shakedown Street”).

[21] See id.

[22] See, e.g., Pete Mason, Smart Art in the Phish Community, PhanArt (Jan. 17, 2012) http://www.phanart.net/smart-art-in-the-phish-community/.

[23] See id.

[24] See Lowdermilk, supra note 4, at 161-62.

By: William Nash

With an increasing amount of state’s legislatures legalizing and decriminalizing recreational marijuana usage, there have been a multitude of secondhand legal issues that have arisen from such legislation. One of these secondhand issues is the enforcement and prevention of persons driving a motor vehicle while under the influence of marijuana. Until recently, the issue of driving under the influence of marijuana, while a concern, wasn’t as much of a critical issue because driving under the influence of marijuana fell under the broader category of possessing or being under the influence of an illicit drug.[1]

The issue of marijuana consumers driving under the influence is particularly concerning because of the popularity of the drug within the younger generation, a generation that accounts for a “disproportion share of traffic accidents” in the United States.[2] Marijuana has adverse effects on concentration as well as motor skills, which poses an obvious threat to one’s ability to drive while under the influence of marijuana.[3] While studies have not arrived at some of the specifics regarding motor vehicles and marijuana, there has been conclusive evidence that being under the influence of marijuana while driving increases your risk of being in an accident, specifically fatal ones.[4]

Studies have been conducted on states that have legalized recreational marijuana usage and its effect on motor vehicle accidents, but the studies have been relatively inconclusive.[5] Regardless of legalization’s effect, the issue poses a new question: detection. The legalization of marijuana has been a heavily debated topic in the state of New Jersey recently, one of the main arguments against being the lack of means for enforcement as well as an upkeep of safety.[6] New Jersey Senator Gerald Cardinale, who opposes legalization, claimed enforcement would be difficult because “there is no Breathalyzer for marijuana.”[7]

What Cardinale is unaware of is that Hound Labs, a breath technology company from Oakland, California, as well as other companies and researchers, have released just that: a marijuana breathalyzer.[8] Hound Lab’s breathalyzer can detect if a person has used marijuana in any form within the past 2 hours, as well as being able to conduct the standard alcohol detection that regular breathalyzers perform.[9] This two hour window the breathalyzer detects is representative of a person’s “peak window of impairment” after using marijuana.[10]

Hound Labs has raised over 30 million dollars dedicated to achieving their goal of creating this breathalyzer.[11] Creating this kind of technology has not been an easy feat for any company. Creating the necessary sensitivity to detect THC, the main compound in marijuana, is far more difficult than detecting alcohol.[12] Putting things in perspective, it takes approximately a billion times the sensitivity needed to detect alcohol to detect THC.[13]

While Hound Labs testifies that their “two hour” approach is beneficial because it detects how recently a patron has used marijuana, this approach also has multiple critiques.[14] The device reacts to a low use the same way it responds to a large amount of use, it only works in detecting if marijuana has been used within 2 hours regardless the quantity.[15] Without a quantitative measurement, there’s an immediate risk of someone receiving a driving while impaired charge for smoking the equivalent of “half a beer.” [16]

This “half a beer” issue is especially concerning regarding the increased amount of patrons who use marijuana for medical reasons.[17] Frequently, people who are prescribed or instructed to use marijuana for medical treatment take very small doses for their medical conditions.[18] Being criminally liable for using a relatively low amount of marijuana, which would have little to no effect on one’s cognitive or physical ability, would pose concerns of justice and public policy in the medical industry.[19]

Hound Labs has released the results of their own relatively limited field tests which have proved in favor of the device, but outside sources are more skeptical.[20] As a whole we are still waiting on more released data and outside tests on Hound Lab’s device, as well as other devices similar to it.[21] Before such devices become a part of law enforcement, Kevin Davis, the assistant chief of the California Highway Patrol Enforcement and Planning Division claims that the device needs to be “more accepted in the scientific community.”[22]

 

 

[1] See Paul J. Larkin, Jr., Article: Medical or Recreational Marijuana and Drugged Driving, 52 Am. Crim. L. Rev. 453, 457 (2015).

[2] Id.

[3] Id. at 474-76.

[4] Id. at 477.

[5] Id. at 471.

[6] See Matthew Nesto, NJ Dems Reach Deal On Pot Bill; Vote May Come In Weeks, law360 (Mar. 12, 2019, 6:00 PM), https://www.law360.com/tax-authority/articles/1137838/nj-dems-reach-deal-on-pot-bill-vote-may-come-in-weeks.

[7] Id.

[8] See Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006; see also Ashley May, Stanford Engineers Develop Roadside Marijuana Test, USA Today (Sep. 9, 2016, 9:44 AM), https://www.usatoday.com/story/news/nation-now/2016/09/09/stanford-engineers-develop-roadside-marijuana-test/90043312/.

[9] See Lilly Price, Marijuana Breathalyzer Aims to Detect High Drivers ‘Without Unjustly Accusing’, USA Today (Aug. 7, 2019, 8:22 AM), https://www.usatoday.com/story/news/nation-now/2018/08/07/pot-breathalyzers-hound-labs-marijuana/912705002/.

[10] Id.

[11] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html.

[12] Id.

[13] Id.

[14] Id.; Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[15] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html;

Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[21] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[22] Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006.

 

image source: https://www.axios.com/marijuana-weed-legalization-new-york-illinois-48f0c827-a734-4c0d-9acd-81bfc51740df.html

By: Katie Snyder

Have you ever feared you might be replaced by a robot? With the evolution of technology, the use of artificial intelligence in the workplace is increasing. Various studies have been conducted to determine the level at which artificial intelligence is infiltrating the workplace. According to a 2018 report made by the U.S. Bureau of Labor Statistics, “a startling 1.4 million jobs in the U.S. will be gone in just eight years.”[1]

Artificial intelligence is changing the environment of the job market, specifically the process of hiring candidates. The development of artificial intelligence provides companies with the ability to use algorithms to cut costs and improve efficiency.[2] The use of artificial intelligence in hiring removes recruiters.[3] The algorithms are written to highlight specific traits wanted by the employer for the available job.[4] The algorithms then find candidates that share those specific traits as persons currently working in the field.[5]

Companies such as Amazon have created algorithms to recruit and sort potential employees.[6] The algorithm tested by Amazon was designed to rank employees’ applications and then present employers with a limited number of resumes that the algorithm found to be the “best” potential candidates.[7] While algorithms like Amazon’s have reduced the cost and increased the speed at which hiring can be completed, they have presented a new set of problems.[8]

The use of technology in hiring is raising concerns, specifically surrounding the removal of the humanist aspect of hiring and the likelihood of discrimination.[9] These concerns are not unwarranted. In 2018, Amazon was forced to terminate its hiring algorithm when the company  discovered that the algorithm was discriminating against women.[10] Dastin, a tech columnist for Reuters, writes, “[B]y 2015, the company [Amazon] realized its new system was not rating candidates for software developer jobs and other technical posts in a gender-neutral way.”[11] Amazon’s algorithm was written to analyze resume patterns and characteristics of candidates over the previous ten-year period.[12] Since the tech world has been historically dominated by men, the resumes Amazon received over the ten-year period were mostly from men.[13] The male-centered data resulted in an algorithm that was biased towards hiring male candidates.[14] It “penalized resumes that included the word ‘women’s,’ as in ‘women’s chess club captain.’”[15] Although Amazon attempted to correct the algorithm’s biased nature, there continued to be a threat of implicit bias towards women.[16]

Amazon is not the only company transitioning its hiring process to artificial intelligence algorithms. Companies such as Target and Pepsi are also testing algorithms to “improve” their hiring processes.[17] While the shift to artificial intelligence is inevitable with the advancements in technology, lawmakers are attempting to introduce legislation to combat discrimination. In early 2019, the Algorithmic Accountability Act was introduced into Congress by Rep. Yvette Clarke.[18] The intention of this bill is “to require large companies to audit their algorithms for potential bias and discrimination and to submit impact assessments to Federal Trade Commission officials.”[19] The introduction of this bill shows that lawmakers are aware of the potential dangers of artificial intelligence in the hiring process and want to create legislation that regulates this problem.

Artificial intelligence is a fairly new concept, so it is developing and evolving daily. That means that there is a lot of opportunity for legislation regarding the artificial intelligence community to evolve as well. The discussion of hiring algorithms’ potential implicit biases and discrimination will likely continue to be a pressing issue in the coming years. Legislators will have to work to create laws to ensure that all are continued to be protected equally in the hiring and employment process, and lawyers will have to work to ensure that these laws are actually doing just that. While robots might not be replacing you at your job just yet, be wary of the algorithm when applying for your next job!

[1]Robby Berman, Infographics Show Jobs Most Likely to be Lost to Robots,  Big Think (Apr. 6, 2018), https://bigthink.com/robby-berman/infographics-show-jobs-most-likely-to-be-lost-to-robots.

[2]Aaron Holmes, AI could be the key to ending discrimination in hiring, but experts warn it can be just as biased as humans, Business Insider (Oct. 8, 2019), https://www.businessinsider.my/ai-hiring-tools-biased-as-humans-experts-warn-2019-10/.

[3]Id.

[4]Jeffery Dastin, Amazon scraps secret AI recruiting tool that showed bias against women, Reuters (Oct. 9, 2018, 11:12 PM), https://www.reuters.com/article/us-amazon-com-jobs-automation-insight/amazon-scraps-secret-ai-recruiting-tool-that-showed-bias-against-women-idUSKCN1MK08G.

[5]Id.

[6]Holmes, supra note 2.

[7]Dastin, supra note 4.

[8]Holmes, supra note 2.

[9]Id.

[10]Dastin, supra note 4.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]Id.

[17]Holmes, supra note 2.

[18]Jaclyn Diaz, Congress Plays Catch-Up on Artificial Intelligence at Work, Bloomberg Law (Aug. 27, 2019, 6:05 AM),  https://news.bloomberglaw.com/daily-labor-report/congress-plays-catch-up-on-artificial-intelligence-at-work.

[19]Id.

image source: https://condenaststore.com/featured/replaced-by-robot-farley-katz.html

By: Davina Seoparsan

The Case

In 2002, Lester Packingham was convicted of taking indecent liberties with a minor.[1] Lester was sentenced to a year of imprisonment with an additional 24 months of supervised release.[2] Upon his release, he was told to stay away from the minor involved in his case, but no further special instructions were given other than the contact ban.[3] In 2010, Lester Packingham was arrested for a violation of North Carolina’s law regarding sex offenders and social media.[4] The reason for his arrest? A Facebook post thanking god and celebrating having a parking ticket dismissed.[5] At the time, a North Carolina law prohibited registered sex offenders from using various social media sites such as Snapchat, Twitter, Instagram and LinkedIn.[6] The social media forms that were banned were mainly those which allowed children under 18 to create accounts. Lester’s case overturned that law.[7]

The Supreme Court of the United States reviewed the case and had two main reasons for overturning the law. Firstly, the Supreme Court discussed the important role that the internet plays in everyday life and determined that the internet is now included in the process of citizens exercising their First Amendment rights.[8] Secondly, the Court was unconvinced by the state’s argument that internet and social media restriction for sex offenders was absolutely necessary to protect innocent children and future potential victims.[9] The court did not challenge the assertion that registered sex offenders pose a risk to children and other individuals, rather, it rejected the notion that broadly banning access to certain social media platforms directly served the purpose of protecting victims.[10]

 

The Controversy

The debate regarding whether sex offenders should have the ability to access social media has been extremely controversial. On one hand, social media is considered fundamental to modern society. As Justice Kennedy noted, social networking sites are “the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the fact realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”[11] One of the (often forgotten) objectives of the criminal justice system is rehabilitation: an attempt to transform the offender into a valuable member of the general population once their time served in prison is complete.[12] Sex offenders already face restrictions on many aspects of life, including where they can live and what kind of environments, they can work in.[13] By not allowing sex offenders to have access to certain websites and platforms, their ability to re-enter into society is greatly impacted. Research suggests that feelings of isolation can prevent sex offenders from reentry, which in turns increases their likelihood of reoffending.[14]

On the other hand, sex offenses are considered especially heinous in society.[15] Logic indicates that those who commit especially heinous crimes should face stronger restrictions than those who have been convicted of other types of crimes. It is clear why advocates for sex offender restrictions have focused on social media; between dating apps, picture platforms and the amount of information that many have posted online, a sexual predator not only has every access to a large amount of information, but also has a way to communicate with any potential target they desire.[16] Crimes committed through the use of dating apps and other social media are not uncommon, and include rape, kidnapping, sex trafficking and even murder.[17] Those who support sex offender restrictions argue that by imposing these restrictions and banning sex offenders from access to these sites, many of these crimes will be prevented.

 

The Consensus

Though it might seem that the decision in Packingham was mainly supporting the anti-restriction advocates, the law has provided ways to limit sex offenders without infringing on their First Amendment rights.[18] That being said, a court can still impose social media, or even more broadly, internet, restrictions as a part of an individual’s probation.[19] Some states have enacted narrowly tailored laws in order to restrict and monitor the online activities of registered sex offenders without infringing on their rights. For example, there is a California Bill that was passed in 2016 which requires sex offenders to disclose their internet identifiers, including usernames, emails, and any names they use to send direct messages.[20] Pro-restriction advocates have recommended that states adopt laws requiring dating apps to do background checks on users to prevent sex offenders from utilizing the dating app, but few have chosen to act on this due to privacy concerns.[21] As modern technology develops and the amount of information that is accessible online expands, it is likely that we can expect a new wave of laws that aim towards protecting the youth without infringing on the First Amendment rights of sex offenders.

 

[1] State v. Packingham, 748 S.E.2d 146 (N.C. Ct. App. 2013).

[2] Id at 149. See also Packingham v. North Carolina, 137 S. Ct. 1730 (2017).

[3] Id.

[4] State v. Packingham, 748 S.E.2d 149 (N.C. Ct. App. 2013).

[5] Id.

[6] Id at 148.

[7] See Packingham v. North Carolina, 137 S. Ct. 1730 (2017).

[8] Id at 1735.

[9] Id at 1737.

[10] Id.

[11] Id 1732.

[12] See Edward L. Rubin, The Inevitability of Rehabilitation, 19 U. Minn. L. Rev. 343 (2001).

[13] See Samantha Olson, Moving the Sex Offender Registry to a Risk of Re-offense Model, 96 Oregon l. Rev. 314 (2017).

[14] Id at 321.

[15] See The Justice System, bureau of justice statistics, https://www.bjs.gov/content/justsys.cfm. See generally id at 328; Law and Order: Special Victims Unit: Title (NBC television broadcast).

[16] See Sam A. Wilcox, Should Registered Sex Offenders be Banned from Social Media?, 48 am. psychol. ass’n. 27 (2017).

[17] See Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts…”). See generally Child Sexual Abuse Statistics, the national center for victims of crime, https://victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics.

[18] See id at 1737 (“Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”).

[19] Id at 1738.

[20] See generally S.B. No. 448 (Ca. 2016).

[21] Wilcox, supra note 15.

 

image source:  https://www.irishtimes.com/polopoly_fs/1.3959186.1563369177!/image/image.jpg_gen/derivatives/box_620_330/image.jpg

By: Trevor Vonu

Starting in May of 2019, Facebook began to develop its cryptocurrency, known as Libra.[1] The social media giant hopes to use its worldwide reach to help Libra revolutionize the exchange of currency in the modern world.[2] Libra aims to allow consumers, especially those seeking an alternative to traditional currency and banking, to buy products or simply exchange money with virtually zero fees.[3] By eliminating transaction fees, a common staple of credit card companies, Libra could have a profound impact on the world’s paperless exchange of money.[4] Unlike its competitors, namely Bitcoin and Ethereum, Libra aims to maintain a stable price point, providing merchants and consumers comfort in using Libra as a regular method of exchange.[5] Another problem plaguing cryptocurrency pioneers, is the issue of widespread acceptance; most merchants only accept traditional forms of currency and lack the means and/or desire to allow payment via cryptocurrency.[6] This issue has proven to be quite challenging to current cryptocurrencies, however, Libra has the potential to become integrated throughout American and foreign economies.[7] Facebook already has a relationship with millions of advertisers and businesses.[8] With its foot already in the door, Facebook may be able to provide Libra the push it needs to become a common form of exchange among merchants.

However, it did not take long for lawmakers to push back against Facebook’s launch of Libra. Throughout the latter half of 2019, Facebook has been hit with a seemingly endless barrage of questions and concerns surrounding Libra.[9] Uneasiness concerning Facebook’s entrance into the financial arena should not come as a surprise, considering Facebook’s past struggles with user privacy and protection of personal information.[10] Lawmaker’s and regulatory concerns, however, stem far beyond the privacy interests of its users.[11] The U.S. Treasury Department voiced its concern regarding Libra’s potential to be misused for money laundering and financing criminal activity.[12] Based on the government’s concerns, it seems evident that the current regulatory infrastructure is simply not prepared for the shock that Libra could bring to the current financial system.[13] Further, widespread incorporation of Libra could drastically hamper the Federal Reserve’s ability to moderate United States financial policy.[14]

Expecting an avalanche of regulation and red tape, several of Libra’s partners, including Visa, Mastercard, and PayPal have already abandoned the project, at least for now.[15] Due to the government’s reluctance to accept Libra’s entrance into the finance arena, Facebook faces an uphill climb in its mission to launch its cryptocurrency brand.[16] However, Facebook shows no signs of abandoning the project.[17] Consequently, the U.S. government will likely do whatever it can to maintain regulatory control over Libra.[18]

Stemming from the controversy sparked by Facebook’s announcement of Libra, the House of Representatives held a hearing primarily purposed to determine how Libra would affect the current financial system.[19] Some of the concerns voiced in the hearing include financial regulations, consumer protection, and whether Libra coins should be regulated as securities.[20] Perhaps most notably, the lawmakers discussed Libra’s potential impact on the U.S. financial system, as well as public policy concerns.[21] Evidently, Libra is currently seen as a serious threat to the Federal Reserve’s ability to regulate currency.[22] As such, Facebook and Libra will likely be subject to continued governmental oversight as lawmakers work to ensure that the government will be able to maintain a degree of control of Libra’s impact on the American financial system.[23] Consequently, at the time of its launch, Libra will likely be less innovative than initially expected.[24] That said, it will certainly be interesting to see whether Facebook unveils Libra as it was originally designed.

image source: https://images.theconversation.com/files/286737/original/file-20190802-117871-qda2ij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=926&fit=clip

[1] AnnaMaria Andriotis, Peter Rudegeair, & Liz Hoffman, Wallstreet Journal (Oct. 16, 2019, 12:19 PM), https://www.wsj.com/articles/facebook-wanted-to-create-a-new-currency-it-wasnt-ready-for-the-backlash-11571242795?mod=searchresults&page=1&pos=11.

[2] Id.

[3] Josh Constine, Tech Crunch (June 18, 2019, 5:01 AM), https://techcrunch.com/2019/06/18/facebook-libra/.

[4] See Id; Outside Perspectives on the Collection of Beneficial Ownership Information: Hearing Before the S. Comm. on Banking, Housing, and Urban Affairs, 116^th Cong. 15 (2019) (statement of Sen. Jack Reed, Chairman, S. Comm on Banking, Housing, and Urban Affairs).

[5] Jonathan L. Marcus, Recent Cryptocurrency Regulatory Developments, 38 Banking & Fin. Services Pol’y Rep. 1, 7 (2019).

[6] Constine, supra note 3.

[7] Id.

[8] Id.

[9] See supra note 3, at 14-15.

[10] Jonathon Shaw, The Privacy Implications of Facebook’s Surreptitious and Exploitive Utilization of Facial Recognition Technology, 31 Temp. J. Sci. Tech. & Envtl. L. 149, 150 (2012).

[11] Androitis, supra note 1.

[12] Examining Facebook’s Proposed Cryptocurrency and its Impact on Consumers, Investors, and the American Financial System: Hearing Before the H. Comm. on Fin. Serv., 116^th Cong. (2019).

[13] See Outside Perspectives on the Collection of Beneficial Ownership Information: Hearing Before the S. Comm. on Banking, Housing, and Urban Affairs, 116^th Cong. 15 (2019) (statement of Sen. Jack Reed, Chairman, S. Comm on Banking, Housing, and Urban Affairs).

[14] See Andriotis, supra note 1.

[15] Id.

[16] See hearings, supra note 12.

[17] See Andriotis, supra note 1.

[18] See hearings, supra note 13, at 15.

[19] See hearings, supra note 12.

[20] Id.

[21] Id.

[22] See id.

[23] See Marcus, supra note 5, at 8.

[24] Andriotis, supra note 1.

By: Bhavik Shukla*

Blockchain technology is a significant development on the technological canvas of the world. Be it commerce, entertainment, logistics or even functioning of the government, this technology finds its footing in all avenues. Blockchain technology refers to a distributed ledger over which transactions are validated, executed and recorded. The feature which makes this technology attractive is that it is tamper-proof, permanent and functions without the involvement of an intermediary. It certainly appears that this technology is here to stay and develop. However, this development appears to be stifled in India due to the recent governmental moves which aim at banning some applications of blockchain. Through this piece, the author shall discuss the recent Indian developments restricting the application of blockchain technology in India, and the problems that accompany such a restrictive approach.

Blockchain Technology and the Indian Legal Fabric

India has been highly receptive in experimenting and accepting the applications of the blockchain technology since its introduction. Though this move was initially spearheaded by businesses in India; over the course of time formal institutions such as banks[i] and few state governments[ii] have deployed blockchain-based applications. However, cryptocurrencies which work on the blockchain platform have not found the desired acceptance in India. An inter-ministerial committee headed by Subash Chandra Garg recently expressed its intention to ban private cryptocurrencies.[iii] Simply put, cryptocurrencies refer to digital currency which comprise a code and hold monetary value. The Reserve Bank of India (“RBI”), India’s central bank, has also expressed its reservations on permitting transactions in cryptocurrencies in the past.  The notification dated April 6, 2018[iv] is an excellent specimen of this as it indirectly imposed a ban on cryptocurrencies by prohibiting entities regulated by it from facilitating transactions in such digital currencies. This translates into a situation wherein a Bank ‘A’, regulated by the RBI shall no longer, after the publication of notification, clear payments for the purchase of cryptocurrencies or otherwise. This ban has been challenged before the Supreme Court of India by the Internet and Mobile Association of India, and the matter is sub judice before the Court.[v] Additionally, the Enabling Framework for Regulatory Sandbox, 2019 published by the RBI also included cryptocurrencies in the negative list of the sandbox, thereby prohibiting its application in the testing of FinTech services.[vi]

Due to the aforementioned measures of the RBI, entities have resorted to a half-hearted use of the blockchain technology in India. Most Indian entities use blockchain for its rudimentary function of recording data and are unable to harness its benefits through platforms powered by cryptocurrencies. This has hindered the development of a mature blockchain technology-driven landscape in India.

Potential pitfalls of the Indian approach on the blockchain technology

However, this piecemeal application of the technology is detrimental towards realization of a developed blockchain economy which India desires[vii], the reasons for which are as follows:

1. Inefficient blockchain technology without cryptocurrencies

Regardless of the insular Indian position on the adoption of blockchain, it offers staggering independent uses like verifying the source of goods in supply chain, collecting viewership preferences on video applications, maintaining the ownership and royalty details for music artists etc. If viewed through a wide lens, all independent uses of blockchain technology fundamentally concern recording of data in a permanent and immutable form. For example, the move of the regional Indian state of Andhra Pradesh aimed at managing land deeds through blockchain merely concerns the record-keeping function of the technology. Similarly, the supply-chain details to determine the source of seafood and their subsequent transfer also encompasses the basic function of recording and further transmitting data. This implies that the primary function of blockchain if not used in collaboration with cryptocurrencies is limited merely to recording data and further transmitting it in whichever way appeals to the public.

An instinctive question which then arises is – whether such application of the blockchain technology is practically feasible? The answer to this is both “yes” and “no”. The former answer can be obtained in case where the government or an organization creates a private blockchain, meaning thereby that the information in such a network can be monitored as well as altered by that entity. The idea of a private blockchain contradicts the primary reason for the introduction of this technology, precisely for promotion of transparency and decentralization.[viii] Additionally, individuals or a group of individuals discharging their roles as administrators can unilaterally alter information on private blockchains[ix], thereby adversely affecting immutability.

On the other hand, the scales will tip against this aspect where a public blockchain is adopted, which works on the fundamental principles of transparency and trust. Characteristically, a public blockchain involves addition of “blocks” to the “chain” through solving a cryptographic puzzle. Addition of blocks to a public blockchain warrants more legitimacy and acceptability to it. Accordingly, once a solution is found, the miner is awarded cryptocurrencies as incentive for adding legitimacy to the blockchain.[x] Such handling of cryptocurrencies is anonymous in nature, where the miner does not reveal his personal details or account number. Therefore, it cannot be substituted by distribution of legal tender. Without cryptocurrencies or any form of reward, the miners would not have an incentive to maintain or add to a public blockchain.

Without the use of cryptocurrency, the blockchain technology will be crippled and restricted to merely private blockchains. The problems inherent in private blockchain render it an autocratic medium, very similar to the traditional means of recording data in India.

1. Smart contracts and its obliteration

In addition to being used for numerous purposes, cryptocurrency forms the basis for its closest aide, smart contracts. A smart contract comprises a code which executes itself once certain pre-determined conditions are fulfilled. For example, when a particular condition/s is satisfied, the requisite amount of cryptocurrency is transferred to the other party automatically. This method of execution necessarily strikes out a third party of any sort, thereby leading to a direct transaction routed merely through the platform running on the blockchain technology. The obvious advantages of this contract include transparency, security, efficiency and savings. Numerous platforms offering smart contract services have gained traction in the recent past.[xi] China[xii] as well as the U.S. State of Delaware[xiii] have opened up to the introduction of smart contracts in discharging governmental functions.

Attraction towards smart contracts is attributable to its automation and efficiency-oriented features. Cryptocurrencies lie at the heart of powering these features by acting as a method of payment. An isolation of cryptocurrencies from such a setting would deprive the contract from being automatically executed. This is a consequence which smart contracts shall face in India, if implemented. Without cryptocurrencies, authorization would be required for transfer of funds in a contract, thereby doing away with the “smart” aspect of the contract. Therefore, it is impossible for smart contracts to exist without cryptocurrencies, thereby depriving India of its valuable benefits.

Introduction of an Indian digital currency

Recently, the Subash Chandra Garg Committee recommended the introduction of an official digital currency with the status of a legal tender.[xiv] The Report of the Committee undertakes a specific inquiry into such currency being based on the blockchain technology.[xv] Though the move exudes confidence in the technology, it may end up being an inefficient and non-transparent application of the technology. Disadvantages of private cryptocurrencies have come to fore with the recent launch of Libra, Facebook’s private cryptocurrency.

A private cryptocurrency even if officially launched by India would not make its ‘claim to fame’ in the blockchain technology sector. First, the use of a private cryptocurrency launched by the government may be through acquiring it in a special wallet in exchange for legal tender. This means that a person may have to unnecessarily get involved in an additional procedure in order to transact with such currency. Second, the author acknowledges that though public cryptocurrencies are also acquired against legal tender, but they have discernibly substantial advantages. A private cryptocurrency shall essentially be regulated by the RBI making it very much like a digital Rupee. This will mean that such a centrally controlled currency shall not be trustless, decentralized or immutable like most public cryptocurrency. A centralized system lacking trust signifies that the government shall have complete authority to determine the liquidity, value and other conditions attached to the cryptocurrency. In such a case, the government can majorly alter its state and nature in order to help its financial agenda. Third, data concerns are at the head of introduction of a government-regulated cryptocurrency. In usual public systems, such currencies are dealt with anonymously, but a government issuing crypto tokens will be able to keep a track of its expenditure. This infringes the data privacy of the users by exposing their expenditure trends, average spending etc.

Conclusion

The stance of the Indian government on the entire cryptocurrency issue looks non-negotiable. In another recent report published under the guidance of Subash Chandra Garg[xvi], this unassailable stance was implicitly visible. It appears that the Indian government is still oblivious to the handicapped growth that the blockchain technology will undergo due to the imposition of a blanket ban on cryptocurrency. This piece merely coaxes the government to take this into account and reconsider its stance.

image source: https://www.asiablockchainreview.com/indian-finance-minister-confirms-no-law-banning-crypto-in-india/

[i] See Toshendra Kumar Sharma, Which Indian Bank uses Blockchain Technology?, Blockchain Council (May 7, 2018), https://www.blockchain-council.org/blockchain/which-indian-bank-uses-blockchain-technology/.

[ii] See Dhiman Bhattacharyya, Blockchain Technology Adoption in India: Prospects and Challenges, MyIndia (Mar. 31, 2019), https://www.mapsofindia.com/my-india/technology/blockchain-technology-adoption-in-india-prospects-and-challenges#; See also KV Kurmanath, In AP capital, blockchain technology secures land records, Hindu BusinessLine (Jan. 8, 2018), https://www.thehindubusinessline.com/info-tech/in-ap-capital-blockchain-technology-secures-land-records/article10020465.ece.

[iii] See ET Bureau, Inter-ministerial group suggests banning of private cryptocurrencies in India, The Economic Times (Jul. 23, 2019), https://economictimes.indiatimes.com/news/economy/policy/indian-panel-recommends-ban-on-cryptocurrency/articleshow/70331293.cms?from=mdr.

[iv] See Prohibition on dealing in Virtual Currencies, Reserve Bank of India (Apr. 6, 2018), https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243.

[v] See Aashish Aryan, RBI banned cryptocurrency deals on moral grounds: IAMAI to Supreme Court, Business Standard (Aug. 8, 2019), https://www.business-standard.com/article/economy-policy/rbi-banned-cryptocurrency-deals-on-moral-grounds-iamai-to-supreme-court-119080801517_1.html.

[vi] See Exclusion from Sandbox Testing, Enabling Framework for Regulatory Sandbox, Reserve Bank of India (Aug. 13, 2019), https://www.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=938.

[vii] See Nupur Anand, Here’s what could happen if India bans cryptocurrencies, Quartz India (Nov. 1, 2018), https://qz.com/india/1446880/what-could-happen-if-india-bans-bitcoin-and-cryptocurrencies/.

[viii] See Shannon Appelcline, A Philosophy of Blockchain: What would Satoshi Nakamoto think of Proof of Stake?, Medium (Aug. 1, 2019), https://medium.com/clean-titles/a-philosophy-of-blockchain-what-would-satoshi-nakamoto-think-of-proof-of-stake-f9aac8e4d005.

[ix] See Koshik Raj, Foundations of Blockchain: The pathway to Cyrptocurrencies and Decentralized Blockchain Applications 16 (2019).

[x] See Andre Boaventura, Demystifying Blockchain and Consensus Mechanisms – Everything you Wanted to Know but were Never Told, Medium (Apr. 12, 2018), https://medium.com/oracledevs/demystifying-blockchain-and-consensus-mechanisms-everything-you-wanted-to-know-but-were-never-aabe62145128.

[xi] See John Gilleran, ‘Smart contracts’ on cusp of mainstream adoption, New England In-House (Jul. 17, 2019), https://newenglandinhouse.com/2019/07/17/smart-contracts-on-cusp-of-mainstream-adoption/.

[xii] See Toshendra Kumar Sharma, Top 10 Friendly Countries for Blockchain Startups, Blockchain Council (Apr. 15, 2019), https://www.blockchain-council.org/blockchain/top-10-friendly-countries-for-blockchain-startups/.

[xiii] See Julia Magas, Smart Cities and Blockchain: Four Countries Where AI and DLT Exist Hand-in-Hand, Coin Telegraph (Jun. 17, 2018), https://cointelegraph.com/news/smart-cities-and-blockchain-four-countries-where-ai-and-dlt-exist-hand-in-hand.

[xiv] See Rahul Oberoi, India mulling an official crypto-currency? Looks like govt vering towards the idea, Economic Times (Jul. 23, 2019), https://economictimes.indiatimes.com/markets/stocks/news/india-mulling-an-official-crypto-currency-looks-like-govt-veering-towards-the-idea/articleshow/70343343.cms.

[xv] See Report of the Committee to Propose Specific Actions to be taken in relation to Virtual Currencies, Department of Economic Affairs (Feb. 28, 2019), https://dea.gov.in/sites/default/files/Approved%20and%20Signed%20Report%20and%20Bill%20of%20IMC%20on%20VCs%2028%20Feb%202019.pdf, at pp. 37-45.

[xvi] See Report of the Steering Committee on Fintech Related Issues, Department of Economic Affairs, https://dea.gov.in/sites/default/files/Report%20of%20the%20Steering%20Committee%20on%20Fintech.pdf.

*Bhavik Shukla is a guest contributor from the National Law University, Bhopal.