Author: JOLT Page 8 of 50

By: Olivia Akl

When the 2008-2009 financial crisis meant many in the U.S. were facing unemployment or underemployment, the “gig economy” boomed.[1] Based on “[t]he concept of creating an income from short-term tasks,” the gig economy has grown to encompass full-time independent contractors as well as those picking up a few hours or shifts a week to augment other full- or part-time employment.[2] The gig economy includes the more traditional “[m]usicians, photographers, writers, truckdrivers, and tradespeople,” as well as the more modern “independent management consultants…, machine learning data scientists…, delivery drivers,” rideshare drivers, and hosts.[3]

Along with the modern notions of the gig economy, a modern business approach rose up to facilitate it: apps.[4] The apps of companies like Uber, AirBnB, Lyft, Grubhub, DoorDash, Instacart, and more are so synonymous with the business entity that the average individual does not separate the business entity from the service it provides.[5] However, the business entities have drawn very hard legal lines between their services, in the form of the app which serves as a marketplace connecting the gig worker to the client, and the actual service the gig worker performs.[6]

This liability shield is currently under fire in California where the adoption of Assembly Bill 5 (“AB5”), which institutes a three-pronged test to decide whether a gig worker is a contract worker or a hired employee.[7] AB5 effectively expands the Dynamex[8] ruling of the California Supreme Court which applied the “ABC test” first articulated in Martinez v. Combs[9] to a document delivery company, affirming the lower court’s decision that the drivers for Dynamex Operations West were employees as defined by California’s Industrial Welfare Commission.[10] The adoption of AB5 codified the ABC test into California law.[11]

The ABC test, so named for the bulleting system the Martinez Court used in its articulation of the test, breaks down that “to employ” means: “(a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.”[12]

AB5 “will affect at least one million workers,” who have been denied “basic protections like a minimum wage and unemployment insurance.”[13] AB5 could also fundamentally change how these app-based companies have been doing business if the companies in question cannot avoid the employee categorization for their workforce, as Uber believes it can.[14] Some estimates by industry officials say costs will go up “by 20 to 30 percent” as a result of recategorizing gig workers as employees.[15] Uber and Lyft have warned of reduced scheduling flexibility for gig workers.[16]

Perhaps the biggest impact of AB5 for the gig economy app companies will be the loss of their liability shield.[17] Uber, for example “faces many lawsuits over issues ranging from fender benders to wage disputes to more-serious incidents.”[18] Recently, an individual sued Uber and one of the gig workers who drove for it “alleging she nearly lost her leg after being struck by [the gig worker], who she claimed veered off the road.”[19] Uber’s defense in cases such as these relies on the gig worker not being an employee, and thus an agent of Uber which would open Uber up to liability, but rather an independent contractor whose “work is outside the usual course of Uber’s business.”[20] Uber is able to make this claim by maintaining that it is not “in the business of providing transportation,” but in the business of providing a marketplace for independent drivers to contract with those who wish to hire their services.[21] If under AB5 Uber’s gig workers are found to be employees, driving for Uber would be working in “the usual course of business” and thus they would likely be found to be agents of Uber, opening Uber up to legal liability for any accidents their employees have while driving for Uber.

Legal liability is likely the main reason why Uber, Lyft, and DoorDash have announced “they would commit $90 million to a state ballot measure to create an alternative worker classification, somewhere between employee and independent contractor.”[22] Whatever the outcome, AB5 has already had a large impact and more states may follow in California’s steps.[23]

image source: https://www.gigeconomydata.org

[1] John Frazer, How the Gig Economy is Reshaping Careers for the Next Generation, Forbes (Feb. 15, 2019), http://www.forbes.com/sites/johnfrazer1/2019/02/15/how-the-gig-economy-is-reshaping-careers-for-the-next-generation/#292554049ada.

[2] See id.

[3] Id.

[4] See Angela Stringfellow, Best Gig Economy Apps, Wonolo (Sept. 30, 2019), https://www.wonolo.com/blog/best-gig-economy-apps/.

[5] See e.g., Maggie Tillman & Britta O’Boyle, What is Uber and How Does it Work?, Pocket-lint (June 2019), https://www.pocket-lint.com/apps/news/uber/139559-what-is-uber-and-how-does-it-work (describing Uber as “a ride-hailing company”); Cambria Bold, I Had My Groceries Delivered by Instacart, and Here’s How it Went, Kitchn (Jan. 2015), https://www.thekitchn.com/i-had-my-groceries-delivered-by-instacart-and-heres-how-it-went-214795 (describing Instacart as a “grocery delivery company”).

[6] See Greg Bensinger, Uber: The Ride-Hailing App That Says it Has “Zero” Drivers, Wash. Post (Oct. 2019) https://www.washingtonpost.com/technology/2019/10/14/uber-ride-hailing-app-that-says-it-has-zero-drivers/.

[7] See Alexia Fernández Campbell, California Just Passed A Landmark Law to Regulate Uber and Lyft, Vox (Sept.18, 2019) https://www.vox.com/2019/9/11/20850878/california-passes-ab5-bill-uber-lyft.

[8] See Dynamex Operations W. v. Superior Court, 416 P.3d 1 (Cal. 2018).

[9]  See Martinez v. Combs, 231 P.3d 259, 278 (Cal. 2010).

[10] See Dynamex, 231 P.3d at 42.

[11] Kate Conger & Noam Scheiber, California Bill Makes App-Based Companies Treat Workers as Employees, NY Times (Sept. 2019), https://www.nytimes.com/2019/09/11/technology/california-gig-economy-bill.html.

[12] See Martinez, 231 P.3d at 278.

[13] Conger & Scheiber, supra note 11.

[14] See Aarian Marshall, In California, Gig Workers Are About to Become Employees, Wired (Sept. 2019) https://www.wired.com/story/california-gig-workers-become-employees/ (“[Uber] won’t reclassify its drivers as employees on January 1, because the company believes it can pass the law’s three-part test”).

[15] See Conger & Scheiber, supra note 11.

[16] See id.

[17] See Bensinger, supra note 6.

[18] Id.

[19] Id.

[20] Id.

[21] See Id.

[22] See Marshall, supra note 14.

[23] See id. (noting that New York is working on a similar bill).

By: Erin Kidd

The earliest known functional prosthetic device dates all the way back to anywhere between 950-710 BC.[1] The field has been innovating ever since and new technologies, particularly 3D printing, potentially stand to push it forward farther, and faster, than ever before.[2] However, looking at the achievements such as those of The Alternative Limb Project, where UK-based Sophie de Oliveira Barata uses her design expertise and special effects background to create state-of-the-art, completely unique prosthetics,[3] the word innovation starts to feel almost inadequate.

In 2016, de Oliveira Barata and a team of artists, craftsman, 3D modelers, and 3D printers created “The Phantom Limb” for biological science graduate and “amputee gamer” James Young.[4] The project was sponsored by Konami and developed in collaboration with Open Bionics and GTR motorsport and aerospace manufacturers.[5] The result features a 3D-printed hand which receives signals from electrodes in an attached harness to form various grips and gestures, which allow the wearer to form various grips and gestures, using buttons in the forearm.[6] It also features a mechanical elbow, a “Social Space” that can hold and charge devices including a paired quadcopter, built-in lights which can respond to the wearers heartrate, and, last but not least, a Bluetooth enabled wrist with a USB port and a small screen for viewing message, emails, and social media updates.[7] “It is, in short, a prosthetic masterpiece.”[8]

The Phantom Limb is far from the only masterpiece de Oliveira Barata has created, from a leg that can hold art supplies for a creative child to a Swarovski Crystal showstopper, she is “blurring the line between everyday prostheses and body modification”[9] and helping reframe the discussion around prosthetics along the way.[10]

The ability to fully customize a prosthetic, and the resulting body positivity that many people feel when able to do so,[11] is only one of the benefits 3D printing stands to bring to the prosthetics field. The biggest benefits are in time and cost.[12] Where traditional prosthetics could cost anywhere from $5,000 to $50,000 and take anywhere from weeks to months to receive,[13] 3D printed prosthetics can be dreamed up “prototyped, printed and tested in a matter of days [, sometimes hours]”[14] for as little as $50.[15]

There is also another form of customization: fit. Dan Ignaszewski, chief policy and programs officer with the Amputee Coalition of America, estimates about 2.1 million people in the U.S. are living with limb loss and nearly 200,000 amputations occur in the United States every year.[16] Yet, despite such high number, only around half of all amputees receive a prosthetic.[17] Some of these are by choice and most commonly that choice has to do with uncomfortable weight and fit that cannot be overcome by utility.[18] It most commonly happens with arm and hand prosthetics.[19] But some of those going without prosthetics are not doing so by choice; sometimes the law gets in the way.

Over the past few years, the FDA has struggled to keep up with the rapidly changing field of 3D printing, or “additive manufacturing” as they typically refer to it. Overall though, the agency has decided to favor encouraging innovation over restricting through regulation.[20]

With the exception of certain preassembled lower limb prosthetics and types of myoelectric and microprocessor-controlled prosthetic devices, the FDA has largely classified prosthetics of all kinds as Class 1 medical devices which are exempt from much of the regulatory scheme currently in place.[21] In other words the FDA has mostly avoided placing taxing regulations on prosthetic devices that may limit public access to new and rapidly-developing prosthetic technologies. Many, in fact, are exempt from all but a complaint process.[22]

FDA policies on the matter, however, do not prevent states from creating barriers, even those that were not originally intended to act as such. Earlier this year Ohio changed its licensing laws for prosthetics manufacturers specifically to allow companies and charities to make and distribute 3D-printed prosthetics.[23] The previous 2001 law required prosthetic developers to get a license from Ohio’s Occupational Therapy, Physical Therapy, and Athletic Trainers Board (OTPTAT Board)—a license which required a bachelor’s degree, a residency program, a minimum of eight months working under the supervision of an already licensed prosthetist, an examination, and a fee. According to a press release from Lieutenant Governor Jon Husted’s office, the whole process would generally take at least six years to complete.[24]

Husted, along with Ohio Senator Rob McColley, was inspired to propose a change when a charity organization faced resistance and a possibly concerted push to prevent the unlicensed use of 3D printing in the prosthetics field from companies hoping to ward off competition.[25] The charity was Form 5 Prosthetics, which was created by an entrepreneurial twenty year-old business major named Aaron Westbrook, who himself was born with a limb difference which left him without a wrist or hand on his right arm, in order provide task-specific prosthetic limbs to children who normally would never be able to afford them.[26]

Husted and McColley’s proposed change was successful and, starting October 17, 2019, Ohio prosthetic developers working with 3D printing kits will be allowed to work without a license as long as the they seek and receive approval from the OTPTAT Board.[27] But Ohio is one of just fifteen states that regulates the licensure of prosthetics developers and manufacturers.[28]

Perhaps the larger barrier, though, is insurance and how it can differ from state to state. Generally speaking, all insurance providers will cover at least some prosthetics devices to at least some extent, not all insurances are created equal in this light.[29]

Due to the Affordable Care Act (ACA), all individual and small group insurance plans[30] currently cover ten categories of “Essential Health Benefits,” and among those are “rehabilitative and habilitative services and devices.”[31] So, too, do all states participating in the Medicaid expansion.[32] However, federal law does not mandate how much insurance plans have to cover under the ACA and the Department of Health and Human Services elected to allow states to define their own EHBs.[33] According to The Amputee Coalition, a Virginia-based non-profit and advocacy group, this creates a problem where state Medicaid plans can “cut corners,” and those in need face inconsistent care depending on where they may live.[34]

Even though all states seem to cover prosthetics as a Medicaid benefit to some extent, most still allow all sorts of exceptions and exclusions.[35] For instance, Florida’s Medicaid program only covers one prosthetics per lifetime.[36] Even Utah, the only state which did not officially recognize prosthetics as an EHB as of 2018, allows coverage of one prosthetic every five years.[37] As of this year, only fifteen states cover prosthetics without explicit type-based exclusions of some kind.[38] Most frequently, type-based exclusions prevent access to more advanced devices, especially myoelectric prosthetic arm prosthetics, even though they have been available for more than a decade![39]

The previously mentioned Amputee Coalition is at the center of a significant, ongoing advocacy initiatives to change the situation for those in need. The nonprofit drafted a model bill, “Insurance Fairness for Amputees,” and, to date, twenty-one states have adopted legislation based off the model bill.[40] Virginia is one such state, though efforts to strengthen the adopted legislation is still ongoing.[41]

Despite these improvements, it can still be a long-uphill battle for approval and appeals or legal disputes over what counts as “medically necessary” enough to be covered are commonplace even where coverage is available.[42] Battles for coverage, and limited coverage in general, are particularly taxing on families that require access to prosthetics. A traditional prosthetic has an average lifetime of five years, but children and young adults can go through them much faster, either by growing or just by acting like normal kids.[43] With insurance limitation, many families can only afford one general use prosthetic per year for a child, especially when everything supporting a prosthetic typically must be paid for out of pocket.[44] Many insurance policies do not cover repairs, extra unanticipated prosthetics fittings, or physical therapy, let alone a whole new device for when a young child grows too quickly. This also leaves many children without access to task-specific prosthetics which can be designed for sports, playing an instrument, or even just safely riding a bicycle.[45]

It is past time for many states to review their licensure and insurance regulations. In the words of Ohio’s Lt. Governor Husted, “Laws and regulations need to keep people safe and healthy, but we can’t have our regulations ever standing in the way of innovation . . . especially when innovation can improve people’s lives.” Until then, many families will continue to turn to where 3D-printed prosthetics revolution first began: the internet. [46] Until 3D prosthetics can inspire state legislatures to act and improve official access, more and more families (and charity organizations) will continue relying on makerspace designs and software collaborations, along with a good, old fashioned DIY spirit, for more affordable, customizable prosthetic limbs.[47]

image source: https://www.look4ward.co.uk/inspiration/alternative-limb-project-artificial-limbs-turned-works-art/

[1] Jen Owen, Prosthetics Through the Ages, Enabling the Future (Jan 23, 2014), http://enablingthefuture.org/2014/01/23/prosthetics-through-the-ages/.

[2] See, e.g., Meg Bryant, 3D Printing Poised to Disrupt Healthcare, MedTech Dive (Nov. 12, 2018), https://www.medtechdive.com/news/3d-printing-poised-to-disrupt-healthcare/541540/.

[3] See The Alternative Limb Project, http://www.thealternativelimbproject.com/about/the-alternative-limb-project/ (last visited Oct 9, 2019); Katie Armstrong, Interview: Sophie de Oliveira Barata, 3D Printing Industry (Aug 26, 2016), https://3dprintingindustry.com/news/interview-sophie-de-oliveira-barata-93878/.

[4] See The Phantom Limb, The Alternative Limb Project, http://www.thealternativelimbproject.com/project/phantom-limb/ (last visited Oct 9, 2019); Victoria Gruenert, The Alternative Limb Project: Artistic Prosthetic Design, Design Museum Foundation (Apr 30, 2018), https://designmuseumfoundation.org/blog/2018/04/30/alternative-limb-project-artistic-prosthetic-design/; Luke Dormehl, How the Alternative Limb Project is Transforming Prosthetics into an Astonishing Artform, Digital Trends, (Oct 18, 2016, 3:00 AM) https://www.digitaltrends.com/cool-tech/alternative-limb-project/;

[5] The Phantom Limb, supra note 4.

[6] See id.

[7] See id.

[8] Dormehl, supra note 4.

[9] Id.

[10] E.g., Armstrong, supra note 3 (“People like Sophie are helping change the conversation around amputees and prosthetics. Where in the past, where some people would feel pity, now are asking where these amazing limbs come from, which is a refreshing change.”); Dormehl, supra note 4 (“It helps break down barriers, and shows that people are quite happy with their prosthetics. It lets my clients take ownership of their prosthetic by having a piece of their imagination on show. (quote by de Oliveira Barata).

[11] See, e.g., Rachel Oakley, The Alternative Limb Project is the Best Thing to Ever Happen to Prosthetics, Lost In E Minor (Dec. 13, 2018) (“I could see that every year [a small girl needing a custom leg prosthetic] was getting really excited about coming in. And, it wasn’t something she had to do that other people didn’t, it was something she got to do that other people didn’t. It was a nice event for her psychologically.” (quote by Sophie de Oliveira Barata)).

[12] See, e.g., Schwartz, Jonathan, The Future of 3D Printed Prosthetics, TechCrunch (June 26, 2016), https://techcrunch.com/2016/06/26/the-future-of-3d-printed-prosthetics/.

[13] Id.

[14] Owen, supra note 1.

[15] See, e.g., 3D Printed Prosthetics | Where We Are Today, The Amputee Coalition (Feb. 8, 2019), https://www.amputee-coalition.org/3d-printed-prosthetics/; Schwartz, supra note 10.

[16] See Emily Sides, Manassas Woman Seeks Law Requiring That Insurance Cover a Wider Range of Prosthetics, Inside NoVA (Jan. 18, 2019) https://www.insidenova.com/news/prince_william/manassas-woman-seeks-law-requiring-that-insurance-cover-a-wider/article_b9ca6f30-1b21-11e9-97ad-1ff774a75f2d.html; Schwartz, supra note 10.

[17] Sides, supra note 14.

[18] See, e.g., Jelle ten Kate, Gerwin Smit & Paul Breedveld, 3D-Printed Upper Limb Prostheses: A Review, 12:3 Disability and Rehabilitation: Assistive Technology 300, 309 (2017) https://www.tandfonline.com/doi/pdf/10.1080/17483107.2016.1253117.

 

 

[19] See, e.g., Bryant, supra note 2.

[20] See, e.g., 3D Printing of Medical Devices, U.S. Food and Drug Administration (Sept. 27, 2018), https://www.fda.gov/medical-devices/products-and-medical-procedures/3d-printing-medical-devices; The 3 R’s of 3D Printing: The FDA’s Role, U.S. Food and Drug Administration (Dec. 21, 2016).

[21] E.g., 21 C.F.R. § 890.3025 (2001); 21 C.F.R. § 890.3420 (2001); see also 3D Printing of Medical Devices supra note 18.

[22] See generally 21 C.F.R. § 820.198 (2013).

[23] E.g. McColley Joins Lt. Governor Husted to Announce Prosthetics Initiative, The Ohio Senate, 133rd General Assembly (June 13, 2019), http://www.ohiosenate.gov/senators/mccolley/news/mccolley-joins-lt-governor-husted-to-announce-prosthetics-initiative.

[24] See, e.g., Id.

[25] Andrew Tobias, Ohio Officials Seek to Promote 3D-Printing of Prosthetics Via Law Change, Cleveleand.com, https://www.cleveland.com/open/2019/06/ohio-officials-seek-to-help-3d-printing-prosthetics-charity-via-law-change.html.

[26] See Id.

[27] Ohio Rev. Code Ann. § 4779.02 (LexisNexis 2019) (effective Oct. 17, 2019).

[28] See, e.g., Press Conference – Announcing Prosthetics Initiative, The Ohio Channel: A Service Of Ohio’s Public Broadcasting Stations (June 13, 2019), https://ohiochannel.org/video/press-conference-announcing-prosthetics-initiative.

[29] See, e.g., Open Enrollment for Health Insurance Coverage, The Amputee Coalition (Oct. 1, 2019), https://www.amputee-coalition.org/resources/open-enrollment-for-health/; Nikki McCoy, What to Expect During the Insurance Process for Functional Prosthetic Fingers, NP Devices (Mar. 10, 2018), https://www.npdevices.com/what-to-expect-during-the-insurance-process-for-functional-prosthetic-fingers/;  Bryan Ochalla, Will My Insurance Pay for Prosthetics?, QuoteWizard by Lending Tree (Dec. 27, 2018).

[30] The ACA does not impact large employers and the insurances they provide.

[31] Patient Protection and Affordable Care Act, 111 P.L. 148, 124 Stat. 119 (2010).

[32] For states without an expanded Medicaid program, prosthetics need only be an “optional benefit,” but according to the Kaiser Family Foundation, every state offers at least some Medicaid coverage for prosthetics devices when doing so is optional. See, e.g.,Ochalla supra note 29; see also Medicaid Benefits: Prosthetic and Orthotic Devices: 2018 Table, Kaiser Family Foundation, https://www.kff.org/medicaid/state-indicator/prosthetic-and-orthotic-devices/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

(last visited Oct. 9, 2019).

[33] Open Enrollment for Health Insurance Coverage supra note 29.

[34] Id.

[35] See, e.g., id; Medicaid Benefits supra note 32.

[36] See Medicaid Benefits supra note 32.

[37] See id.

[38] According to the Amputee Coalition, those states are as follows: Colorado, Georgia, Idaho, Indiana, Iowa, Maryland, Massachusetts, New Jersey, North Carolina, Ohio, Pennsylvania, South Carolina, South Dakota, Washington, West Virginia. Open Enrollment for Health Insurance Coverage supra note 29.

[39] See, e.g., Sides supra note 16.

[40] See State Issues, The Amputation Coalition, https://www.amputee-coalition.org/advocacy-awareness/state-issues/ (last visited Oct. 10, 2019).

[41] Virginia: State Outlook, The Amputation Coalition, https://www.amputee-coalition.org/advocacy-awareness/state-issues/virginia/ (last visited Oct. 10, 2019); see also Sides supra note 16.

[42]See, e.g. Schwartz supra note 12; Sides supra note 16; Ochalla supra note 29.

[43] See, e.g., 3D Printed Prosthetics | Where We Are Today supra note 15; Heidi Reidel, The Successes and Failures of 3D Printed Prosthetics; PreScouter (July 2017), https://www.prescouter.com/2017/07/3d-printed-prosthetics/ (last visited Oct. 8, 2019); Schwartz supra note 12.

[44] See, e.g. Tobias supra note 25.

[45] See, e.g., Sarah Sole, Form5′s Aaron Westbrook Helping Others With Task-Oriented Prosthetic Devices, ThisWeek Community News (July 13, 2019, 9:00 AM), https://www.thisweeknews.com/news/20190713/form5s-aaron-westbrook-helping-others-with-task-oriented-prosthetic-devices; Tobias supra note 25.

[46] See, e.g., 3D Printed Prosthetics | Where We Are Today supra note 15 (discussing the story of how Artist Ivan Owen’s design for a boy named Liam became the first 3D printed hand and the basis for non-profit, online collaborative initiative called e-NABLE).

[47] See, e.g., id.  Though spaces of these kinds inevitably raise their own issues of products liability—particularly as materials for 3D printing are still improving—and intellectual property.

By: Paxton Rizzo

“If you see wolves there, that wilderness is intact”  – Paul Paquet

 

The Mexican Gray Wolf or the Mexican Wolf is simultaneously the most genetically distinct Gray Wolf subspecies in North America and the most endangered.[1] They are smaller than the Gray Wolf, standing only 28-32 inches at the shoulder and only weighing 50-80 pounds.[2] Most notably, Mexican Gray Wolves have coats of many intermingling colors, such as buff, rust, gray, and black; and unlike other North American Gray Wolves, solid coats of black or white do not exist within the sub-species.[3]

 

Historically, the Mexican Gray Wolf habitat ranged from the Mountains of Mexico, up into the states of New Mexico, Arizona and Texas.[4] Today, in the U.S. there are recovery populations in New Mexico and Arizona.[5] In recent years, the United States wild population of Mexican Gray Wolf has faced problems with recovery and expansion.[6] Because only eleven individuals were released in 1998, when they were reintroduced to the wild, the genetic gene pool that exists in the wild today is limited, which could lead to inbreeding and an overall decline in genetics, if not addressed.[7] Additionally, the revision to the recovery program under the Endangered Species Act that was set up in 2015 included provisions that did not support the full and long term recovery of the species.[8]

 

Besides current programs that successfully add captive bred puppies to litters of wild mothers[9], technology has now improved to the point that artificial insemination is now an option in recovery efforts in the Mexican Gray Wolf recovery program.[10] This development is encouraging because it means an additional source of genes can be introduced to the remaining members of the species. Utilizing every source of genes available is essential, since in 2017 there were only 130 Mexican Gray Wolves left in the wild and 220 left in managed care.[11] With the ability to artificially inseminate, conservationists are able to take semen samples collected twenty years ago and utilize those genetic sequences to increase gene diversity in today’s population.[12]

 

Other technological discoveries have helped to solidify the Mexican Gray Wolf’s distinction as very distinct sub-species of the Gray wolf.[13] A year long study conducted out of Florida State University has indicated that the Mexican Gray Wolf is in fact a distinct sub-species.[14] This research was done since there was enough evidence in the genome of the wolves to suggest that the animals that existed today were not purely Mexican Gray Wolves but Mexican Wolves that had hybridized with other canid species.[15]

 

Legally the Mexican Gray Wolves are fairing well as well, after a Federal Judge Decided in March 2018 that the provisions set out in Fish and Wildlife Services new plan in the10(j) rule of the 2015 revision of the Endangered Species Act failed to further the conservation of the species.[16] The court concluded that the 10(j) rule only provided for short-term survival of the species and did not consider the long-term recovery of the wolves in the wild.[17] Some limits of the rule were as follows: arbitrary limits to the Mexican Wolves population numbers, a ban on them from needed recovery habitat limiting them to south of I-40, and loosening of the rules against killing the wolves in the wild.[18]

 

In 2019, Fish and Wildlife Services assisted in introducing twelve captive born puppies to the wild litters to introduce new genes to the wild gene pool.[19] With steadily increasing population numbers and increasing puppy survival, Fish and Wildlife Services are hopeful that the Mexican Gray Wolf subspecies will recover.[20] They emphasize the importance of ongoing support and research in those efforts.[21]

image source: https://defenders.org/sites/default/files/styles/meta_image/public/2019-04/mexican_gray_wolf_rebecca_bose_wolf_conservation_center_header.jpg?itok=yzhKWVY1

[1] See What is a Mexican Wolf, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/aboutwolf.html.

[2] See id.

[3] See id.

[4] See id.

[5] See Andrew Howard, Mexican gray wolf numbers rise, but long-term viability still a concern, Arizona PBS: Cronkite News (Apr. 8, 2018), https://cronkitenews.azpbs.org/2019/04/08/mexican-gray-wolf-numbers-rise-but-long-term-viability-still-a-concern/.

[6] See id.

[7] See id.; See Mexican Wolf Recovery Efforts, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/Recovery.html.

[8] See Ctr. for Biological Diversity v. Jewell, 2018 U.S. Dist. LEXIS 56436, *65-*66.

[9] See Mexican Wolf Recovery, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/.

[10] See Patrick Clark, New reproductive technology being used to save Mexican Gray Wolf species, Fox 2 now: Saint Louis (Apr 24, 2017), https://fox2now.com/2017/04/24/new-reproductive-technology-being-used-to-save-the-mexican-gray-wolf-species/.

[11] See id.

[12] See id.

[13] See Heather Athey, Report: Red wolves, Mexican gray wolves are distinct species, subspecies, Florida State University News (Apr. 1, 2019).

[14] See id.

[15] See id.

[16] See Ctr. for Biological Diversity, 2018 U.S. Dist. *65 -*66

[17] See id.

[18] See Court Rejects Flawed Mexican Gray Wolf Rule: Ruling Rejects Measures That Hurt, Instead of Help, Rare Wolves, Center for Biological Diversity (Apr. 2, 2018), https://www.biologicaldiversity.org/news/press_releases/2018/mexican-gray-wolf-04-02-2018.php.

[19] See supra note 10.

[20] See id.

[21] See id.

By: Monica Malouf

Since its inception in 2016, Pokémon Go has been involved in numerous lawsuits for claims ranging from nuisance to unjust enrichment to trespass.[1]  This may come as no surprise, as the app entices users to enter private property while attempting to capture virtual creatures.  The app uses augmented reality (AR)[2] to superimpose Pokémon and other elements of the fantasy world onto real locations.[3]

Like straddling a state border, app users can be in two places at once—in their local city and the virtual Pokémon world. And while herds of nostalgic millennials ramble through neighborhoods pursuing Pokémon, hundreds of suburban flowerbeds are trampled upon around the world.  So, naturally, as the tulips were decimated, angry property owners filed lawsuits.

In In Re Pokémon Litigation, a federal judge in the United States District Court for the Northern District of California ordered Niantic, Inc. (Niantic)–Pokémon Go’s creator—and others to dissuade app users from trespassing onto private property.[4] The company had to kindly remind users that violating someone’s privacy and property rights was against the law.  However, in addition to the trespass and nuisance claims which inspired this discouragement, Niantic also faced claims of virtual trespass.

Basically, Niantic placed its intellectual property on top of privately-owned land without the consent of landowners.[5]

But it isn’t that the company threw a bunch of patents on the ground. The argument holds that, by placing their virtual creations above the space of private property, the company has violated the rights of private individuals.  In the minds of many, the existence of virtual creatures and Pokémon Gyms floating above real land constituted trespass, regardless of whether any individual actually pursued them.

According to Jon Festinger, a law professor at the University of British Columbia, “[the] virtual item [created for Pokémon Go] exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can’t fish it from a distance.”[6]  Essentially, Pokémon Go is planting alternate-reality items into real space.[7] But even if people do not chase those virtual items does this “planting” constitute physical trespass? Niantic’s attorneys argued that it does not.  Surprise, surprise.

In a memorandum supporting a motion to dismiss the claim, Niantic’s attorneys argued that Niantic did not commit trespass because Pokémon Go did not involve invasion onto private property by a tangible object.[8]  They go on to say “[t]here is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory [of virtual trespass].”[9]  In other words, existing law does not support the plaintiff’s theory, and there is no reason to expand the existing law to be more inclusive.

And while it would have been interesting to see the court rule on virtual trespass and whether or not to expand the current tort law surrounding trespass, the case settled.

In the agreement Niantic promised—in addition to encouraging users not to trespass on private property—to provide mediums for private property owners to file complaints regarding misuse of the app, private trespass, etc.[10] Most importantly, private property owners can request Niantic remove Pokémon Gyms and other virtual items from their property.[11]

What remains are questions regarding virtual trespass and the legal ramifications surrounding AR technology.  It will be interesting to see if and when the law catches up with this fast-changing technology.

image source: https://www.express.co.uk/entertainment/gaming/820379/Pokemon-Go-Gym-coins-new-changes-Niantic-major-update

[1] See James G. Gatto, Nuisance and Unjust Enrichment Class Actions: Pokémon Go…es to Court!, NAT’L L. REV. (Aug. 3, 2016), http://www.natlawreview.com/article/nuisance-and-unjust-enrichment-class-actions-pok-mon-go-es-to-court; Hannah Albarazi, Pokémon Go Nuisance Deal Netz Pomerantz $4M In Atty Fees, Law360 (Aug. 22, 2019, 5:51 PM) https://www.law360.com/articles/1191631.

[2] Augmented reality is defined as “an enhanced version of reality created by the use of technology to overlay digital information on an image of something being viewed through a device (such as a smartphone camera).” Augmented Reality, Merriam-Webster, https://www.merriam-webster.com/dictionary/augmented%20reality (last visited Oct. 3, 2019).

[3] Jennifer Huddleston, Can You Trespass Without Setting Foot on a Piece of Property?, Plain Text (June 28, 2018), https://readplaintext.com/can-you-trespass-without-setting-foot-on-a-piece-of-property-5070adefd1cd.

[4] See id.

[5] See Ryan Mitchell, Case Comment, Pokémon Go-es Directly to Court: How Pokémon Go Illustrates the Issue of Virtual Trespass and the Need For Evolved Tort Laws, 49 Tex. Tech L. Rev. 959 (2017).

[6] Yamri Taddese, Focus: Virtual trespassing result of Pokemon Go?, Law Times (Aug. 1, 2016) https://www.lawtimesnews.com/news/focus-on/focus-virtual-trespassing-result-of-pokemon-go/262211.

[7] See Id.

[8] See Defendant Niantic, Inc.’s Reply Memorandum In Support of Motion to Dismiss Consolidated Class Action Complaint, at 2, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).

[9] Id.

[10] See Settlement Agreement at 6-8, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).

[11] See Id.

By: Sheridan Maxey

Most people fear death. Humans generally do not like the idea of acknowledging the fact that we all will, someday, meet our makers, return to the earth, kick the bucket, or experience whatever euphemism one would replace for death. Some people find difficulty thinking about the present as it is now, and the future that is yet undetermined.[1] There are some who find their peace of mind by way of drafting and executing their last wills and testaments.[2] It is widely believed that creating a will is difficult, or that obtaining an attorney is necessary to draft a will; these beliefs are not necessarily true. In Virginia, a will can be fully handwritten, without an attorney, and will be considered as valid so long as the testator (the one drafting the will and whom the will is for) signs the document and that this fact is proven by two disinterested witnesses.[3] Additionally, a will not wholly in the testator’s handwriting is valid if the testator places his signature on the will and at least two witnesses present at the time sign their names on the will as well.[4]

 

Wills are not a new legal construction, people have been writing wills in many different fashions for centuries.[5] As time goes on, technological advances creep into the many different aspects of our lives. Of course, wills are not precluded from the scope of technological advances. With the vast integration of computers into our lives a new question is posed: Should electronic wills be considered valid under the current laws of wills?[6] If you were to ask the Uniform Law Commission, the minds behind the promulgation of the rules known as the Uniform Probate Code, they would answer in the affirmative.[7]

 

A number of states, including Virginia, have had bills proposed that would follow the footsteps of the Uniform Law Commission in legitimizing electronic will forms.[8] Virginia ultimately did not adopt the language of the proposed bill that would have validated electronic wills if they were written, created, and stored in an electronic record.[9] Currently, only three states have enacted electronic wills statutes, those being Arizona, Indiana, and Nevada.[10] Proponents against electronic wills believe that the acceptance of this will form would lead to less testators’ intents being followed because they are using boilerplate wills instead of having them specifically drafted by a lawyer.[11] What is peculiar is that printed out, boilerplate wills are typically followed in all states so long as they follow the governing state’s will formality requirements.[12]

 

The groundwork has been laid down for the states to follow[13], but it is difficult to determine whether the majority of the states will subscribe to example set by the Commission. For one, the meaning of “electronic will” differs depending on the person speaking the term.[14] Some would consider the term to mean wills that are primarily stored on servers or in the cloud[15], others would believe that the term only encompasses wills in which the testator and witnesses signed the document with an electronic signature. As time moves on and technology progresses further, it is likely that we will see more issues arising regarding electronic wills and probate courts nationwide will have to make determinations on the matter. For now, we must wait and see what the future holds.

image source: https://lasercycleusa.com/wp-content/uploads/2017/01/shutterstock_187997189.jpg

[1] See Susan Gubar, Living Intimately With Thoughts of Death, N.Y. Times, (Jul. 25, 2019), https://www.nytimes.com/2019/07/25/well/live/living-intimately-with-thoughts-of-death.html.

[2] See Eugene Tomine, Estate Planning Provides Peace of Mind, Nichi Bei, (Oct. 17, 2013), https://www.nichibei.org/2013/10/estate-planning-provides-peace-of-mind/.

[3] See Va. Code Ann. § 64.2-403 (2019).

[4] See id.

[5] See Pollock v. Glassell, 43 Va. 439 (1846) (holding that a marriage settlement gives a wife power to dispose of an estate if she signs the document and has the requisite number of witnesses).

[6] See Ashlea Ebeling, Electronic Wills Are Coming Whether Lawyers Like It Or Not, Forbes.com, (Jan. 17, 2019, 9:49 AM), https://www.forbes.com/sites/ashleaebeling/2019/01/17/electronic-wills-are-coming-whether-lawyers-like-it-or-not/#6473172671df.

[7] See Uniform Electronic Wills Act (2019), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=43c08ac6-d6e0-bd80-80b2-85c3a6621e1e&forceDialog=0.

[8] See Dan DeNicuolo, The Future of Electronic Wills, Bifocal, (Oct. 15, 2018), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue-5–june-2017/the-future-of-electronic-wills/.

[9] See H.B. 1643, V.A. Legis. (2017).

[10] See Ebeling, supra note 6.

[11] See id.

[12] See Cal. Prob. Code § 6110 (2019); see also Tenn. Code Ann. § 32-1-104 (2019).

[13] See supra note 7.

[14] See Developments in the Law — More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018).

[15] See id.

By: Anne Groves

The search box is the first place many researchers go to find the answers they need,^[1] but most legal researchers have no knowledge about the underlying structures of the technology they use.^[2] When it comes to relevance ranking, users simply expect an intuitive search process.^[3] Software engineers that work for legal research companies are tasked with the difficulty of building an algorithm that determines user search results to meet their needs.^[4]

 

Search users’ behaviors and expectations vary widely among different types of search engines. For an E-Commerce site, search acts as a salesperson with an ultimate goal of the user purchasing. Legal search engines are considered expert searches, using legalese and specialized jargon entered by lawyers.^[5] Even for the same type of search engine, users’ behaviors and expectations can vary. A law student or professor conducting academic research would have different behaviors and expectations than an attorney.^[6]

 

A search that may seem like a simple task for someone conducting research requires extensive engineering work.^[7] Search engineers make choices about how the algorithm will operate that has implications for legal research results.^[8] These choices become the preferences in a computer system, or a legal research database.^[9]

 

So, without having complete access to the decisions and preferences incorporated into our legal search engines, how do we decide what services to trust with providing relevant results? In a study conducted to compare how different algorithms process the same search with the same set of documents, Westlaw and LexisNexis, the oldest database providers, ranked at the top for relevance. ^[10] Nevertheless, for law students and anyone practicing in the legal profession, using multiple sources and learning to navigate an algorithm’s behavior is part of an ethical duty to perform competent research.^[11]

 

Search engineers strive to provide an experience that is the right balance between flexibility and simple design. Putting the customer in the driver’s seat is paramount to achieving search relevance and happy customers, but this process must be streamlined in such a way that is approachable for the average user.^[12]

 

Almost every major legal research company allows the user to filter by category and jurisdiction.^[13] In addition to filtering many legal database providers try to give their customers more control of this complex process through Boolean logic. Boolean search connectors are the words and symbols that create a relationship between your search terms.^[14] LexisNexis and Westlaw employ Boolean logic in conjunction with their own unique categorization systems to create relevant results for its users.^[15]

 

LexisNexis Shepard’s citation service provides a holistic editorial analysis by experienced attorneys to ensure the authorities being cited are still good law. ^[16] Shepard’s also allows you to identify potential splits of authority. ^[17] Westlaw’s Key Number System categorizes cases into their corresponding legal issues and topics, helping legal researchers more efficiently find relevant case law.^[18]

 

Even if firms pay a flat rate for an account with a top-notch legal database, attorneys may potentially need a result that is outside of their firm’s plan. As a result, they are charged an additional fee to access a document. ^[19] Learning the basic skills and concepts behind search relevance results is important for legal research, because not every firm has access to the same legal databases and results may vary between databases.^[20]

image source: https://www.cogitotech.com/services/search-relevance/

^[1] See Doug Turnball & John Berryman, Relevant SEARCH 2 (2016).

^[2] See Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal [Re]Search, 109 Law Libr. J. 387, 394 (2017).

^[3] See Turnball & Berryman, supra note 1.

^[4] See Mart, supra note 2, at 388.

^[5] See Turnball & Berryman, supra note 1, at 5.

^[6] See id. at 9.

^[7] See id. at 4.

^[8] See Mart, supra note 2, at 388.

^[9] See id.

^[10] See id. at 390.

^[11] See id.

^[12] See Susan Nevelow Mart, A.B.A J., Results May Vary in Legal Research Databases (Mar. 1, 2018, 12:15 AM),

http://www.abajournal.com/magazine/article/results_vary_legal_research_databases.

^[13] See, e.g., Lexis Advance Research, https://advance.lexis.com/firsttime?crid=cb2d94cb-c765-4750-80ea-8cd7e2d9a3b8 (allowing users to filter by category and jurisdiction).

^[14] See, e.g., Boolean Connectors, LexisNexis Help, http://help.lexisnexis.com/tabula-rasa/publisher/booleanconnectors_ref-reference?lbu=us&locale=en_us&audience=user (defining Boolean search connectors and explaining LexisNexis Boolean connectors).

^[15] See, e.g., id; Thomson Reuters, Searching with Boolean Terms and Connectors, WestlawNext, https://info.legalsolutions.thomsonreuters.com/pdf/wln2/L-362608.pdf (explaining Westlaw’s Boolean search connectors).

^[16] See LexisNexis, Shepard’s Citations, LexisNexis Academic, https://www.lexisnexis.com/communities/academic/w/wiki/105.shepard-s-citations.aspx.

^[17] See LexisNexis, Shepard’s Citations Service, Products, https://www.lexisnexis.com/en-us/products/lexis-advance/shepards.page.

^[18] See Maggie Keefe, Using the West Key Number System, Thomson Reuters, https://legal.thomsonreuters.com/en/insights/articles/using-the-west-key-numbers-system.

^[19] See, e.g., Cost-Effective Electronic Legal Research: Lexis & Westlaw Pricing, Franklin County Law Library, https://fclawlib.libguides.com/costeffectivelegalresearch/pricing (explaining how firms play a flat rate for whatever Westlaw or Lexis plans they use and if an attorney goes outside of a plan there are additional fees).

^[20] See Mart, supra note 12.

 

By: Joey Rugari

Image Source: https://www.publicdomainpictures.net/en/view-image.php?image=103151&picture=3d-r-symbol

The New Electronic Filing Trademark Rules Are Starting to Apply

“I want to get a trademark in the US.” Until recently, such a statement didn’t require too much effort – one could file with the United States Patent and Trademark Office (USPTO) easily without much fuss, no matter where you were from.[1] Then, on August 3, a new rule from the USPTO went into effect that requires foreign-domiciled trademark applicants to register their mark through a local attorney.[2] Such a system change shouldn’t necessarily come as a shock to the trademark world in intellectual property, as this particular change more or less puts the United States in line with other countries’ trademark application processes.[3] This is hardly the first time, even in recent memory, that the United States has sought to take its intellectual property systems and bring them into the fold with the rest of the world.[4]

These efforts being taken by the USPTO appear to be part of a broad effort to technologize the trademark filing and application system, regarding the use of the USPTO’s own website as a repository tool.[5] It becomes even clearer that the USPTO has been taking steps to implement its new system with the changes to the way the Trademark Electronic Application System (TEAS) operates.[6] The new system requires the person seeking to file application forms to “log in to a USPTO.gov account with a two-step authentication . . . to better track filing activity and reduce misuse of [the] electronic filing system.”[7]

On top of the changes to filing, the USPTO has taken steps, and is currently taking steps, to build and properly implement a full and sophisticated specimen database to allow for mark-searching in both the context of word marks and image marks.[8] This push is in light of the use of AI-powered image recognition software that appears to be taking the principles of recognition technology and applying it to specimen recognition.[9] This is of particular importance for determining whether an image mark is being followed, since, naturally, it’s harder to make a search engine that can easily and readily find an image without some kind of tag.

What Issues Seem to Be Driving These Changes?

The modern era is full of more and more electronic issues regarding trademarks.[10] One particular example of note is how to handle electronic infringement of trademarks.[11] Anyone anywhere in the world can easily set up advertising online and without much time or effort use someone else’s trademark to sell their goods in a stream of commercial commence. This issue was answered by the European Union’s Court of Justice as a matter of holding the “act of infringement,” when understood as advertising or directing offers for sale, to have been committed in the territory where the goods or services had been made available for consumption.[12]

The general technologization of the world is driving the updating of systems and harmonizing with other existing frameworks. It’s also worth considering the issue facing trademark applications, in the context of the AI image search, in light of the concerns facing the limited number of available word marks (that are worth having).[13] As it gets harder and harder to effectively get a word-mark for a business, it seems likely that image marks become more and more important. Since they’re going to be important, it’s also going to be important to be able to implement solutions that actually address the issue of image searching in an elegant and useful way.

But what about the problem of suspicious foreign marks? Arguably, the issue of suspicious foreign marks, with a rising number of them having been filed in recent years,[14] also ties directly into the need to have a proper updated system for search for existing marks. The logic connecting the issues is fairly simple: (1) There’s an issue with the number of word-marks worth using depleting. (2) Suspicious foreign marks are an abuse of the USPTO’s trademark system; therefore (3) we should implement technological and legal solutions that limit that abuse.[15] It just so happens that the system, as it updates, can double-dip by reducing foreign abuse of the system while improving its functionality for legitimate users and can try to start addressing the issue of search for image marks in the instance that word marks become less popular to trademark.

[1] See Andrei Iancu & Mary Denison, New U.S. Counsel Rule: USPTO’s Initiatives to Ensure Accuracy and Integrity of the Trademark Register, U. S. Patent & Trademark Office (Jul. 30, 2019), https://www.uspto.gov/about-us/news-updates/op-ed-new-us-counsel-rule-usptos-initiatives-ensure-accuracy-and-integrity.

[2] As in an attorney from the United States.

[3] See Iancu, supra note 1.

[4] In 2011, the America Invents Act brought the United States’ patent filing system into line with the rest of the world, shifting from a “first-to-invent” to “first-to-file” system, implemented as of March 2013. See John Villasenor, March 16, 2013: The United States Transitions to a ‘First-Inventor-To-File’ Patent System, Forbes (Mar. 11, 2013, 11:54 PM), https://www.forbes.com/sites/johnvillasenor/2013/03/11/march-16-2013-america-transitions-to-a-first-inventor-to-file-patent-system/.

[5] See Iancu, supra note 1.

[6] See U. S. Patent & Trademark Office, TEAS Login Requirement (Sept. 23, 2019), https://www.uspto.gov/about-us/news-updates/teas-login-requirement.

[7] See id.

[8] See Iancu, supra note 1.

[9] See CompuMark, Technology Has Revolutionized Trademark Research and It Will Never be the Same (Jan. 24, 2019) https://www.compumark.com/blog/technology-has-revolutionized-trademark-research-and-it-will-never-be-the-same/.

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

[11] See Giuliana Beneduci, CJEU Provides Clarifications on Jurisdiction for On-line EU Trademark Infringement, Lexology (Sept. 13, 2019), https://www.lexology.com/library/detail.aspx?g=a20771ea-d958-446f-9f07-cc48572f0e75.

[12] See Case C-172/18, AMS Neve Ltd. et al. v. Heritage Audio SL et al., 2019 Curia (Sept. 5, 2019), https://curia.europa.eu/jcms/jcms/P_106308/en/.

[13] See Barton Beebe & Jeanne C. Fromer, Are We Running Out of Trademarks?: An Empirical Study of Trademark Depletion and Congestion, 131 Harv. L. Rev. 947, 998-999 (2018) (describing depletion of available word marks and concluding that they are being depleted regarding commonly chosen words).

[14] See Iancu supra note 1.

[15] And requiring a United States-based and licensed attorney is a great way to do so – it’s hard to imagine too many U.S. practitioners willing to put their licenses and livelihoods on the line for the sake of shady filing. And even if that’s not the case, it’s still a bottleneck, since there are significantly more foreign-born individuals in the world than there are U.S. licensed attorneys.

By: Matt Romano

Image Source: https://newsroom.cisco.com/feature-content?type=webcontent&articleId=1938827

Huge opportunities in the facial recognition industry has led tech giants like Amazon, Google, and Microsoft to develop their own facial recognition software.  These companies are now selling this software to law enforcement and government agencies without any federal regulations on the technology.[1]  Law enforcement all over the country are using this technology in criminal investigations by either running a photo through a database of faces or conducting a real- or near real-time analysis of video footage.[2]  The concerns with these practices come from the fact that these facial recognition databases contain more than just mugshots.  In 2016, a Georgetown Law study found that law enforcement’s use of facial recognition was affecting nearly half of all American adults.[3]

 

Earlier this year, the House of Representatives showed bipartisan concern for the technology’s potential violations of civil rights and privacy at a series of hearings, but no legislation is close to being passed at this time.[4]  Without any federal regulations, some states have left the use of this technology by law enforcement vastly unregulated.  In 2016, Georgetown Law found Florida was permitting law enforcement to review a database of millions of driver’s licenses without even requiring reasonable suspicion.[5]  Moreover, eight thousand searches a month were being conducted within this database without the process being audited for misuse.[6] Along with concerns about privacy rights, several studies have shown evidence of racial and gender biases within the software algorithms.[7] These biases have drawn concerns that people of color are more likely to be misidentified in investigations, which could lead to wrongful convictions. As a response to these concerns many companies are working to rid their algorithms of these biases.[8]

 

While most states are trying to regulate the use of the technology,[9] Massachusetts, Michigan, and New York are considering temporary bans on the use of facial recognition technology by law enforcement until they can be certain that their citizens’ privacy can be protected.[10] Entire states banning the technology is obviously concerning to companies developing facial recognition software. They argue that, if regulated properly, the benefits far outweigh the risks.[11]  Federal legislation would certainly help to reduce the risks to the public and give these companies consistency and clarity on what products they are permitted to sell. Amazon has grown tired of waiting for Congress draft laws themselves and has reportedly begun writing its own facial recognition laws to pitch to federal lawmakers.[12]  It has not released any information on these laws yet, but they will likely mirror the guidelines for legislation it offered in a blog post from earlier this year.[13] Some of its recommendations in that blog post include requiring that the facial recognition system be ninety nine percent confident in a match for law enforcement investigations, providing written notice in areas where real-time facial recognition is in use, and developing standardized testing methodologies for measuring accuracy.[14]  Although Amazon has been praised by some for taking an initiative to improve the industry, others have concerns about one of the wealthiest corporations in the world drafting laws that will govern its own product.[15]  Whether you like Amazon drafting the laws or not, Congress must do something soon.

 

 

 

[1]See Jason Tashea, As Facial Recognition Software Becomes Ubiquitous, Some Governments Slam on the Brakes, Aba Journal (Sept. 24, 2019), http://www.abajournal.com/web/article/facial-recog-bans.

[2] See id.

[3] See Clare Garvie, Alvaro Bedoya & Jonathan Frankle, The Perpetual Line-Up, Geo. L. Ctr. on Privacy & Tech. (Oct. 18, 2016), https://www.perpetuallineup.org/ (finding that law enforcement facial recognition affects 117 million American adults).

[4] See Tashea, supra note 1.

[5] See Garvie, supra note 3.

[6]See id.

[7] See Drew Harwell, Amazon Facial Identification Software Used by Police Falls Short on Tests for Accuracy and Bias, Wash. Post (Jan. 25, 2019), https://www.washingtonpost.com/technology/2019/01/25/amazon-facial-identification-software-used-by-police-falls-short-tests-accuracy-bias-new-research-finds/#comments-wrapper; Steve Lohr, Facial Recognition is Accurate, if You’re a White Guy, N.Y. Times (Feb. 9, 2018), https://www.nytimes.com/2018/02/09/technology/facial-recognition-race-artificial-intelligence.html. But see Daniel Castro & Michael McLaughlin, Banning Police Use of Facial Recognition Would Undercut Public Safety, Info. Tech. & Innovation Found. (July 30, 2018),

https://itif.org/publications/2018/07/30/banning-police-use-facial-recognition-would-undercut-public-safety (providing evidence of flaws in a commonly referenced ACLU study on the bias of Amazon Rekognition).

[8] See Harwell, supra note 7 (confirming that Microsoft and IBM have improved their algorithms following the results of an independent study).

[9] See, e.g., Tashea, supra note 1 (mentioning that Vermont disallowed the search of it’s driver’s license databases by facial recognition).

[10] See id.

[11] See Daniel Castro, Are Governments Right to Ban Facial Recognition Technology?, Gov. Tech. (Apr./May 2019),  https://www.govtech.com/products/Are-Governments-Right-to-Ban-Facial-Recognition-Technology.html (emphasizing facial recognition technology’s value in finding missing children, catching people with fake documents at airports, and combating human trafficking).

[12] See Jason Del Rey, Jeff Bezos says Amazon is Writing Its Own Facial Recognition Laws to Pitch to Lawmakers, Vox (Sept. 26, 2019), https://www.vox.com/recode/2019/9/25/20884427/jeff-bezos-amazon-facial-recognition-draft-legislation-regulation-rekognition.

[13] See id.

[14] See Michael Punke, Some Thoughts on Facial Recognition Legislation, AWS Machine Learning Blog (Feb. 7, 2019), https://aws.amazon.com/blogs/machine-learning/some-thoughts-on-facial-recognition-legislation/.

[15] See Del Rey, supra note 12 (“[W]e’ve seen this playbook before. Once companies realize that people are demanding strong privacy protections, they sweep in, pushing weak rules that won’t protect consumer privacy and rights.”).

By: Tabetha Soberdash

Image Source: http://www.m2sys.com/blog/biometric-technology/10-massive-biometric-technology-examples-that-revamped-the-world/

What once was used primarily in science fiction movies to portray a far off, technology-advanced world, is now something that many use everyday as more and more companies begin to utilize biometric security technology.[1] Biometric security technology utilizes the individualizing characteristics of a person’s biometrics to identify or to authenticate the person.[2] Put simply, biometrics are an individual’s unique physical characteristics and can include things like fingerprints, irises, retinas, and facial characteristics.[3]

Over time, companies have started to utilize biometric technology for a variety of tasks. For example, it is used for going through some airports’ security, for entering places like Disney, and even for unlocking apps on one’s cellphone.[4] In fact, companies utilizing biometric technology has become so popular that a study by Spiceworks shows that biometric security technology is used in sixty-two percent of companies with an additional twenty-four percent planning to use it within the next two years.[5]

While this type of technology comes with some major benefits, such as narrowing who has access to a system’s login capabilities or eliminating the possibility of forgetting one’s password, there is still a risk that this sensitive data could be compromised or breached by third-parties.[6] If this happens, one cannot simply change one’s biometrics like one can change a password.[7] As biometric data is consistent throughout an individual’s lifespan, this risk can have substantial effects that can follow the individual.[8]

With such risks possible, it becomes crucial to look at what laws regulate biometric use and sharing that provide protection for one’s privacy. Currently, only a few states have comprehensive biometric privacy laws in place and no such federal law exist.[9] However, the year 2019 has shown a major movement towards defining the laws that do exist and describing the standing they require for litigation.

For example, Illinois is a state that has had its biometric privacy law litigated significantly this year. As Illinois was the first state to comprehensively address biometric privacy when it enacted the Biometric Information Privacy Act (BIPA) in 2008, it has been very influential in laying out the foundation of defining comprehensive laws regulating biometric collection.[10] According to BIPA, three main things must occur before a private entity can collect or store biometrics.[11] First, a private entity must inform individuals that their biometrics will be collected.[12] Secondly, the private entity must inform individuals of the purpose and length of the collection.[13] Thirdly, the private entity must receive informed written consent from the individual to proceed forward with the collection.[14] Continuatively, BIPA requires that a private entity must first obtain additional consent beyond that initial required consent before sharing biometric data with third parties.[15] This year, two major cases have affected the way BIPA is able to protect biometric privacy of Illinois citizens.  In the first case, Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court concluded that individuals will not need to “plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under [BIPA]” to have standing to sue.[16] This will allow for the possibility of many more suits to arise in the near future, as it makes it easier for plaintiffs to be able to prove they have standing to sue.[17] Additionally, this conclusion was soon used by the Ninth Circuit in the case of Patel v. Facebook, Inc in a manner that could further expand the potential for future suits.[18]

In Patel v. Facebook, Inc., the Ninth Circuit was faced with the issue of whether or not plaintiffs had sufficiently shown that Facebook’s biometric surveillance caused them a concrete injury that would allow their case to survive Article III standing and be heard in federal court.[19] In the case, plaintiffs alleged that Facebook’s “Tag Suggestions” feature violated BIPA, as it collected and used their biometric information without their informed opt-in consent.[20] Using the interpretation of the BIPA described in Rosenbach v. Six Flags Entertainment Corp., the Ninth Circuit determined that mere violation of the BIPA provisions created an actual harm to the privacy interests that BIPA was created to protect.[21] As such, the plaintiffs alleged a concrete and particularized harm sufficient to meet Article III standing.[22] Furthermore, the Ninth Circuit determined that it was “reasonable to infer that the [Illinois] General Assembly contemplated BIPA’s application to individuals who are located in Illinois, even if some relevant activities occur outside the state.”[23] It would appear that Patel v. Facebook, Inc. has the potential to open the door to many more class-action suits in the foreseeable future.[24] However, what actually occurs will depend on if Facebook chooses to appeal the decision and if that appeal is heard by the Supreme Court.[25] If Facebook does not follow through with an appeal, or its appeal is not heard by the Supreme Court, class-action suits likely will increase as the decision is utilized to find standing in future cases.[26] However, if Facebook does proceed with an appeal that is then heard, the decision of Patel v. Facebook, Inc. will have to be compared to an earlier decision by the Second Circuit that had the opposite conclusion.[27] In the Second Circuit’s decision of Santana v. Take-Two Interactive Software, Inc., BIPA violation claims from players of NBA 2K video games were rejected after concluding that the players were not injured sufficiently by the video game’s scans of their faces to meet Article III standing.[28] How the Supreme Court chooses to address this circuit split will greatly impact the number of cases that can find standing for litigating BIPA violation claims.[29]

Another state that has particularly taken a large step towards defining a comprehensive biometric privacy law is California. At the conclusion of the year, California will have a biometric privacy law that is similar to the European Union’s General Data Protection Regulation (GDPR) when the California Consumer Privacy Act (CCPA) goes into effect on January 1, 2020.[30] Potentially, CCPA may result in broader scope of protection than BIPA,[31] as it allows consumers to not only have more control over their biometric data but also many other types of personal information as well.[32] Specifically, the CCPA will provide California residents with the right to know what personal information large corporations are collecting about them, the ability to tell businesses not to share or sell their personal information, and the protection against businesses that compromise their personal information.[33]

Although the scope of protection of CCPA may be broader than the scope of BIPA, the CCPA will limit private right of action to when one’s personal information “is subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices.”[34] This likely will lead to requiring a greater showing of harm than BIPA requires before a private suit can occur.[35] However, the creation of the law in itself will likely provide an avenue for an increase in litigation.

Further, this year has been impactful on federal biometric privacy law development as well. As mentioned earlier, there is not currently a comprehensive federal biometric privacy law, but earlier this year a federal bill was introduced to regulate the commercial applications of facial recognition technology.[36] The bill, titled the Commercial Facial Recognition Privacy Act of 2019, would prohibit certain entities from using facial recognition technology and data without first obtaining user consent.[37] However, the act is limited in that it expressly states it “shall not be construed as superseding, altering, or affecting any statute, regulation, order, or interpretation in effect in any State, except to the extent that . . . is inconsistent with the provisions of this Act, and then only to the extent of the inconsistency.”[38] As such, biometric protection is likely still going to be broader under state laws and enforcement.

In conclusion, the year 2019 has shown major movement towards defining biometric privacy laws and expanding protection of one’s privacy. However, as the world continues to increase its use of biometric technology, litigation over the issue is likely to continue. As jurisdictions utilize different definitions and laws to regulate biometric use and collection, the upcoming years will likely show an increase in litigation of biometric privacy issues as companies balance out the different rules.[39] Further, as circuits split on defining what harm is required to have standing to sue, even determining how to meet an individual area’s laws will likely result in an increase in litigation and need for policy formation in the upcoming years. As such, companies will need to continuously keep watch of how jurisdictions decide to protect an individual’s privacy, and individuals will need to watch for what policies companies have in place to protect their biometric information and what their stat

[1] See SHRM, More Employers Are Using Biometric Authentication (2018), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/employers-using-biometric-authentication.aspx.

[2] See Chiara Braghin, Biometric Authentication 1–2 (2000).

[3] U.S. Dep’t of Homeland Sec., Biometrics (2019), https://www.dhs.gov/biometrics.

[4] See Christina Ianzito, Airlines Using Facial Recognition to Speed Airport Check-In (2018); Adam Vrankulj, Walt Disney World introduces new RFID gate system (2013), https://www.biometricupdate.com/201303/walt-disney-world-introduces-biometric-verification-for-passholders; Michelle Wheeler, The future of biometric technology (2014), https://phys.org/news/2014-03-future-biometric-technology.html.

[5]See SHRM, supra note 1.

[6] See Nat’l Acads. of Scis., Eng’g, & Med., Biometric Recognition: Challenges and Opportunities 110 (Joseph N. Pato & Lynette I. Millett 2010).

[7] See id. at 114-115.

[8] See id.

[9] See SHRM, How to Stay Within the Law When Using Biometric Information (2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/stay-within-the-law-biometric-information.aspx.

[10] See id.

[11] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[12] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(1) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[13] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(2) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[14] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(3) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[15] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(d)(1) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[16] Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[17] See SHRM, Illinois Biometric Class Actions Are on the Rise Risks (2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/biometric-class-actions.aspx.

[18] See Patel v. Facebook, Inc., 932 F.3d 1264, 1273–1274, 1276–1277 (9th Cir. 2019); Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[19] See Patel v. Facebook, Inc., 932 F.3d 1264, 1268–1270 (9th Cir. 2019).

[20] See id.

[21] See Patel v. Facebook, Inc., 932 F.3d 1264, 1273–1274, 1276–1277 (9th Cir. 2019); Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[22] See id.

[23] Patel v. Facebook, Inc., 932 F.3d 1264, 1276 (9th Cir. 2019).

[24] See Crowell & Moring, Ninth Circuit Rejects Facebook’s Article III Argument; Biometric Lawsuit Will Proceed 1–2 (2019).

[25] See id.

[26] See id.

[27] See id.

[28] See id.

[29] See id.

[30] See Int’l Ass’n of Privacy Prof’ls, GDPR Matchup: The California Consumer Privacy Act 2018 (2018), https://iapp.org/news/a/gdpr-matchup-california-consumer-privacy-act; California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[31] Compare Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15 (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly) with Cal. Civ. Code § 1798.140 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[32] See Cal. Civ. Code § 1798.140(o) (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier) (defining personal information as “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household”).

[33] See California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[34] Cal. Civ. Code § 1798.150(a)(1) (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[35] See id.

[36] See Commercial Facial Recognition Privacy Act of 2019, S. 847, 116th Cong. (2019).

[37] See id.

[38] See Commercial Facial Recognition Privacy Act of 2019, S. 847, 116th Cong. § 6(a) (2019).

[39] See generally SHRM, Use of Biometric Data Grows, Though Not Without Legal Risks (2018), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/biometric-technologies-grow-.aspx (discussing how “a rise in class-action lawsuits against companies in some states suggests organizations need written policies and procedures regarding how they use, store and secure biometric data”).