By Christopher Vinson

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

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

[16] Id.

[17] Id.

[18] See Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

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

By Ken Kajihiro

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

[3] 18 U.S.C. § 1030(a)(1) (2021).

[4] See id.

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

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

[7] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[22] Hulme, supra note 18.

[23] Id.

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

By Noah Holman

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

[9] Id.

[10] Id.

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

[12] Phillips, supra note 8.

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

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

[15] Id.

[16] Id.

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

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

By Joleen Traynor

 

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

 

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

 

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

 

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

 

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

[2] Id.

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

[4] Id.

[5] Id.

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

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

[8] Id.

[9] Id.

[10] Id.

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

[12] Id.

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

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

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

By Chloe Hillard

 

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

 

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

 

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

 

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

 

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

[2] Id.

[3] Id.

[4] Id.

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

[6] Id.

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

[8] Id.

[9] Id.

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

[11] Id.

[12] Id.

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

By Eleni Poulos

 

Technology innovations, generally, can have a large impact on the law field because it requires continuous and, at times, significant changes in how attorneys conduct their practice.[1] These changes can be difficult for attorneys to implement and keep up with, especially if attorneys are wary of embracing the innovations to their field.[2] After all, these innovations often require a significant investment of an attorney’s time and money.[3]But even more specifically, how do these changes effect in-house counsel? Working in-house as general counsel for any company or organization already requires any attorney to know the basics of most legal specialties, like employment law, contract law, and regulatory compliance, to name a few.[4]

 

Each day brings new challenges and different responsibilities—especially when tech innovation is constantly occurring and implementation into every day work is multi-faceted.[5] Adding another layer to the intricacies of tech innovation is what happens when the business is tech focused, and the law hasn’t quite caught up.[6]

 

Enthralled by the fast past innovation in technology are general counsels of companies within the tech field.[7]One reason for this is because “technology is moving so quickly that it’s outpacing social dialogue and outpacing regulation.”[8] In other words, state and federal regulations have not laid out much of any kind of guidelines on how a tech company should conduct their business or what technology use is, or is not, permitted.[9] A notable example of new and evolving technological advancements is genetic-testing, like the services provided at 23andMe.[10] In a recent panel with several large tech companies, the company’s chief legal and regulatory officer of 23andME, Kathy Hibbs, discussed the difficulties of handling a field with little regulation—including customer privacy and computer facial recognition and bias.[11] In addition, she mentioned how crucial it was that the company take  the privacy of its customers seriously—as it was “probably the most important issue to customers.”[12] This effect of constant innovation is felt around the world and in different sectors, too.[13] For example, in the manufacturing field these innovations “are not only an opportunity—they’re a considerable risk.”[14]

 

Countries around the world consider cybersecurity as the biggest risk to general counsels because as more things become tech-based the ability to steal others research and products.[15] General counsels face several other issues brought on by technology innovation, such as digitalizing the supply chain, which produced more cyber security risk, data and information protection, and general compliance.[16] According to a survey conducted by Forbes, the general counsel’s believe these difficulties come from “keep[ing] tabs on the safeguarding and whereabouts of data.”[17]

 

Overall, as the world continues to make technological advancement after technological advancement, general counsels in all fields, and particularly in the tech field, will have to continue to make evolve with the changing technology.[18] This evolution requires attorneys to change the way they work, and to adapt and think ahead to what legislation and regulations will look like as more technology is created.[19]

 

[1] The Unexpected Challenges to Adopting New Technology in Your Law Firm, LexisNexis (Apr. 16, 2020) https://www.lexisnexis.com/community/lexis-legal-advantage/b/insights/posts/the-unexpected-challenges-to-adopting-new-technology-in-your-law-firm.

[2] Id.

[3] Id.

[4] Innovation Raises Novel Legal Issues for Tech General Counsels, A.B.A. (Aug. 19, 2019)https://www.americanbar.org/news/abanews/aba-news-archives/2019/08/innovation-raises-novel-legal-issues-for-tech-general-counsels/.

[5] Lexis

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Hugo Moreno, General Counsel and Technology Risks, Forbes (Oct. 30, 2017) https://www.forbes.com/sites/forbesinsights/2017/10/30/general-counsel-and-technology-risks/?sh=19b24818f95c.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] See supra note 1.

[19] Id.

Image Source: “Secure Data – Cyber Security -“ by perspec_photo88 is licensed under CC BY-SA 2.0, https://search.creativecommons.org/photos/5e907343-7c47-49ce-acd7-f93bf877316d.

By Logan Childress

 

In normal years, there many accessible sources of capital for small business owners. But, as we all know, 2020 and 2021 have been anything but normal. And the pandemic is continuing to have far-reaching effects. Small businesses are continuing to feel the pressures of closures and safety measures intended to flatten the curve and slow the spread of COVID-19.[1] And, making matters worse, small businesses are finding it more complicated to raise funds due to uncertainty and volatility resulting from the pandemic.[2] Thankfully, in an attempt to address some of the challenges faced by small businesses, the Commission adopted temporary final rules on May 4, 2020, to allow quicker access to urgently needed capital in a timely and cost-effective manner.[3] The temporary final rules provided “flexibility for eligible issuers to assess interest in a Regulation Crowdfunding offering before preparation of full offering materials, and then once launched, to close such an offering and have access to funds sooner than would be possible in the absence of the temporary relief.”[4]

 

What is Regulation Crowdfunding?

 

Regulation Crowdfunding is a relatively new funding method.[5] It allows the general public to invest during the early stages of a business without having to be an accredited investor, which is a usual requirement imposed by other private placement exemptions under the United States securities laws.[6] Because the requirement of being an accredited investor is relaxed, the SEC attempts to protect investors by limiting the amount of funds that can be raised and invested through Regulation Crowdfunding to $1.07 million during a 12-month period.[7] Further, each Regulation Crowdfunding offering must be exclusively conducted on an online platform.[8] And the intermediary operating the online platform must be a broker-dealer or a funding portal that is registered with the SEC and FINRA.[9] Finally, in normal years, there are certain disclosure and reporting requirements for the issuers.[10] Pre-COVID-19, an issuer that offers securities through Regulation Crowdfunding must file with the SEC an offering statement on the Form C.[11] Further, Form C requires disclosure of certain business and financial information of the issuer with the initial Form C filing.[12]

 

What is the Temporary Relief?

 

The Commission temporarily amended Rules 100, 201, 301, 303, and 304 of Regulation Crowdfunding and Form C under the authority found in the Securities Act.[13] This generally means that the SEC’s temporary rule relaxed certain financial information and timing requirements for these offerings.[14] The temporary rules allow an issuer to omit the financial information required in its initial Form C filing with the SEC (to the extent that such information is not available at the time of its initial filing) and commence its offering.[15] However, please note, that the financial information is required to be included in a subsequent amendment to the Form C filing and provided to investors and the intermediary before the intermediary accepts any investment commitments in the offering.[16]

 

Additionally, the intermediary is not required to comply with the usual 21-day requirement imposed on Regulation Crowdfunding offerings.[17] Instead, the intermediary has to make the required issuer information publicly available on the intermediary’s online platform before any securities are sold in the offering, but only if the issuer has provided the required financial information.[18]

 

Are There Conditions to the Temporary Relief?

 

Yes. To rely on the temporary relief, a company must meet the existing eligibility requirements for Regulation Crowdfunding and:

1. The issuer cannot have been organized and cannot have been operating for less than 6-months before the start of the offering; and
2. An issuer that previously sold securities in a regulation crowdfunding offering must have complied with the requirements in 15 U.S.C. 77d-1(b) (“Section 4A(b)”) of the Securities Act and the related rules.[19]

 

There is also a requirement to provide “clear disclosure to investors with respect to the issuer’s reliance on such relief.” [20] In other words, this means that an issuer relying on the temporary relief must provide prominent disclosures in its Form C that the offering is being conducted on an expedited basis due to circumstances relating to the COVID-19 pandemic and under the SEC’s temporary regulatory relief.[21]

 

Of course, this blog post is only a summary of some important features of Regulation Crowdfunding and the temporary relief. If you are a small business owner considering regulation crowdfunding, the temporary final rules apply to securities offerings initiated under Regulation Crowdfunding until February 28, 2021.[22] Regulation crowdfunding will still be available after February 28, but all requirements will be back in place.[23]

 

[1] Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. 54,483, 54,483 (Aug. 31, 2020); see, e.g., MetLife & U.S. Chamber of Commerce, Special Report on Coronavirus and Small Business (April 3, 2020).

[2] See Jamie Herzlich, Small Business: COVID-19 Makes Raising Capital Harder, Newsday (June 28, 2020, 6:00 AM), https://www.newsday.com/business/jamie-herzlich-angel-investors-covid-19-1.46108235.

[3] Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. at 54,484.

[4] Id.

[5] Max Crawford, Regulation Crowdfunding 101 For Entrepreneurs, StartEngine (Jan. 24, 2019),https://www.startengine.com/blog/regulation-crowdfunding-101-for-entrepreneurs.

[6] The SEC Has Provided Temporary COVID-19 Relief from Certain Requirements of Regulation Crowdfunding, but Will It Make Securities-Based Crowdfunding a More Attractive Fundraising Option?, Black Rome (May 26, 2020), https://www.blankrome.com/publications/sec-has-provided-temporary-covid-19-relief-certain-requirements-regulation.

[7] Id.; Crawford, supra note 5.

[8] Regulation Crowdfunding: A Small Entity Compliance Guide for Issuers, SEC (Apr. 5, 2017), https://www.sec.gov/info/smallbus/secg/rccomplianceguide-051316.htm.

[9] Id.

[10] The SEC Has Provided Temporary COVID-19 Relief from Certain Requirements of Regulation Crowdfunding, but Will It Make Securities-Based Crowdfunding a More Attractive Fundraising Option?, Black Rome (May 26, 2020), https://www.blankrome.com/publications/sec-has-provided-temporary-covid-19-relief-certain-requirements-regulation.

[11] Id.

[12] Id.

[13] Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. at 54,490.

[14] See Press Release, SEC, SEC Provides Temporary, Conditional Relief to Allow Small Businesses to Pursue Expedited Crowdfunding Offerings (May 4, 2020).

[15] The SEC Has Provided Temporary COVID-19 Relief from Certain Requirements of Regulation Crowdfunding, but Will It Make Securities-Based Crowdfunding a More Attractive Fundraising Option?, Black Rome (May 26, 2020), https://www.blankrome.com/publications/sec-has-provided-temporary-covid-19-relief-certain-requirements-regulation.

[16] Id.

[17] Id.

[18] Id.

[19] Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. at 54,484.

[20] Id.

[21] Brian Bloomer & Albert Vanderlaan, SEC Provides Temporary Relief from Certain Regulation Crowdfunding Requirements in Response to COVID-19, JD Supra (May 28, 2020), https://www.jdsupra.com/legalnews/sec-provides-temporary-relief-from-14594.

[22] Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. at 54,483.

[23] See Temporary Amendments to Regulation Crowdfunding; Extension, 85 Fed. Reg. at 54,483.

Image Source:  “Crowdfunding” by Rocío Lara is licensed under CC BY-SA 2.0, https://search.creativecommons.org/photos/8fbbf111-9dbd-4358-ac53-3e3f3fa0d3ea.

By Ian McDowell

 

GamesStop (ticker: GME) is a video game retailer that, prior to the events described in this blog, had mostly been written off by professional investors due to a largely outdated business model.  This negative outlook led a substantial number of professional investors to “short” the stock, benefitting as the price of GameStop declined (while conversely, losing money if the price goes up, highly risky given that the maximum price of a stock is hypothetically infinite). [1]  The mechanics of a short-sell are simple- the investor hoping to profit on a stock’s decline borrows that stock (for example, from their broker), sells it on the open market, and then buys it back at a lower price (thus making a gain) before returning it to the lender at the lower price. [2]  If the price goes up, that investor faces losses and may get “margin called” by their broker, which requires them to deposit funds to cover potential losses on the short. [3] A “short squeeze” refers to a situation where investors act to raise the price of a stock through purchases, which may force those short in the stock to purchase it themselves to cover the losses from their short position, which raises the price even more. [4]

 

Over January 2020 alone, GameStop appreciated by over 1500% due to investors (or uninformed speculators, depending on one’s view) driving up demand to “short-squeeze” the hedge funds that were shorting the stock. [5]  As of this writing, the price of GameStop has declined significantly from its peak valuation, signaling that the short-squeeze is over. [6] The GameStop short-squeeze of 2020-2021 is notable because it signaled the emergence of retail investors as a powerful market force, and highlights the increasing importance of discussions on social media platforms in accounting for why a security might move in a certain way.

 

It must be emphasized that the retail traders that decided to buy the stock (or call options- a right to purchase a stock at a higher price in the future) to influence the price were not doing so because of typical revelations that could influence a stock to appreciate in value, such as positive changes in the company’s financial data, a new management strategy, the acquisition of the company, lower interest rates, and so on.

 

Given that many individuals participated in this coordinated strategy, there is not one single motivation for picking GameStop (out of thousands of tradable securities) as the primary stock to target.  For some, driving GME up was a way to exact revenge on hedge funds for the 2008-2009 economic crisis, despite the fact that the funds that were notably short on GME simply did not engage in the activity that caused the collapse of the housing market and the subsequent broader recession in 2008. [7]  Even if certain Reddit posters were incorrect in their assessment of recent financial history, these posts nevertheless indicate that a long-standing resentment of Wall Street in an era of great uncertainty and wealth inequality was a significant motivating factor for many to take the risk of buying GME stock and potentially cause financial pain to hedge funds.  In response to the short squeeze, SkyBridge Capital managing partner (and former White House Communications Director) Anthony Scaramucci commented that observers were witnessing the “French Revolution of Finance.” [8]

 

Other traders of course may have simply wanted to collect on the gains, and might have never had any particular ideological motivation behind buying the stock.  In addition, prominent figures such as Elon Musk and Chamath Palihapitiya tweeted favorably about the GME surge, which certainly influenced the price to trend upwards. [9]

 

While the media has portrayed retail traders as being responsible for the GME short squeeze, it has emerged that many institutional investors have recently purchased the stock, and retail traders did not solely influence the price movements. [10] It is clear that many of the individuals that were speculating on GameStop’s price were not sophisticated investors, as evidenced by large purchases of another stock under the ticker GME at the same time that the short squeeze was taking place. [11]

 

If legal, there is a certain appeal to disregarding more traditional investing strategies in favor of collectively banding together with others over social media to influence the price of a stock (despite any concerns over the company’s health).  Specifically, the price will (in the ideal scenario) appreciate with near-immediate effect solely because the investors have banded together to cause a rise (whereas, with other stocks without any coordination it might take years to see a stock appreciate), regardless of any other factor.  The risk to the social-media coordination strategy is precisely that it ignores the fundamentals of the stock, and that after large numbers of the traders that caused the price of to go up sell to realize their gains, the stock price will inevitably go down as demand decreases, leading to the price reflecting a more reasonable interpretation of the publicly available data of the company.

 

Given the serious price fluctuations with GameStop and the public spectacle of a perceived contest between retail traders and professional investors, it was only natural that there would be a subsequent federal investigation.  The Justice Department’s fraud section, the San Francisco U.S. Attorney’s Office, the Commodity Futures Trading Commission, and the Securities and Exchange Commission are all currently investigating potential illegal activity in relation to trading around GameStop. [12] Daniel Hawke, a former chief of the SEC’s market abuse unit and a partner at Arnold & Porter Kaye Scholer LLP noted that users of a social-media platform “egging each other on, [. . .] effectively constituted a crowdsourced pump-and-dump scheme” and that the traders on social media were “making no effort to conceal their apparent intent to manipulate the price of the stock.”  [13]

 

The GameStop Short Squeeze raises broad questions of the appropriate role of forums and social media platforms with regard to trading of other securities.  Public figures such as Elizabeth Warren have harshly criticized the SEC for having a woefully inadequate response to potential GameStop and potential market manipulation, which could lead to increased enforcement of existing policy in the future, if not new regulations. [14]

 

In addition to a potential federal response, the President of the NASDAQ stock exchange has indicated that the organization has technology that monitors and evaluates market-oriented discussions on social media, and that NASDAQ would potentially halt trading of any stock if there was unusual trading activity that matched social media conversations.[15]  Further, it is plausible that social media companies may seek to limit discussions regarding financial markets to protect against any civil or criminal legal liability.  To conclude, while the extent to which forums such as Reddit will be able to influence securities pricing in the future is uncertain, it is plausible that a regulatory response can be expected to curb the risk of market manipulation vis-a-vis forums or social media platforms.

 

[1] Alex Fitzpatrick, So, Uh, What’s Up With GameStop’s Stock?, TIME (Jan. 26, 2021), https://time.com/5933242/gamestop-stock-gme/

[2] Chad Langager, What are the Minimum Margin Requirements for a Short Sale Account, Investopedia (updated Jan. 7, 2021), https://www.investopedia.com/ask/answers/05/shortmarginrequirements.asp.

[3] Justin Kuepper, Margin Call, Investopedia (Updated Jan. 28, 2021), https://www.investopedia.com/terms/m/margincall.asp.

[4] Cory Mitchell, Short Squeeze, Investopedia (Updated Jan. 28, 2021), https://www.investopedia.com/terms/s/shortsqueeze.asp.

[5] Yun Li, GameStop, Reddit, and Robinhood: A Full Recap of the Historic Retail Trading Mania on Wall Street, CNBC (Jan. 30, 2021), https://www.cnbc.com/2021/01/30/gamestop-reddit-and-robinhood-a-full-recap-of-the-historic-retail-trading-mania-on-wall-street.html?&qsearchterm=GameStop

[6] Caitlin Ostroff, Peter Santilli, The Rise and Fall of the GameStop Frenzy, Wall Street Journal (Feb. 11, 2021), https://www.wsj.com/articles/the-rise-and-fall-of-the-gamestop-frenzy-11613083164.

[7] See Rick Newman, What the GameStop vigilantes get Wrong About the 2008 Financial Crash, Yahoo! (Feb. 1, 2021), https://www.yahoo.com/now/what-the-gamestop-vigilantes-get-wrong-about-the-2008-financial-crash-201225688.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAJ5yqGflZktchbEej_LAShPPsFmNWQdKSf-3QL2fJRn4uqX2EfiVX5wPYRpXXobkF6tden5uoshR_z4Zf2PThAQUlPFdAMZKbOWylAZbf_rTBJweycXCKBYEUxFHEqgk5SsEcnzLgl-pq2raPzamEdMCMmEeKGFv4zjrr8buEacs.

[8] Nicole Casperson, How Social Media Fueled the GameStop Stock Surge, Investment News (Jan. 27, 2021), https://www.investmentnews.com/how-social-media-fueled-the-gamestop-stock-surge-202018.

[9] Id.

[10] See Maggie Fitzgerald, GameStop mania may not have been the retail trader rebellion it was perceived to be, data shows, CNBC (Feb. 5, 2021), https://www.cnbc.com/2021/02/05/gamestop-mania-may-not-have-been-the-retail-trader-rebellion-it-was-perceived-to-be-data-shows.html.

[11] See Justin Harper, GameStop: Share Buying Mistakes ‘on the rise’, BBC News (Feb. 11, 2021), https://www.bbc.com/news/business-56020950 (discussing a spike in an Australian mining company that also trades under the ticker GME, as well as other recent instances of clear trader error, such as the recent 1500% spike in Signal Advance stock (SIGL) after Elon Musk tweeted favorably about an (unrelated) messaging app called Signal).

[12] Dave Michaels, GameStop Mania is Focus of Federal Probes Into Possible Manipulation, The Wall Street Journal (Feb. 11, 2021), https://www.wsj.com/articles/gamestop-mania-is-focus-of-federal-probes-into-possible-manipulation-11613066950.

[13] Dave Michaels, Alexander Osipovich, GameStop Stock Surge Tests Scope of SEC’s Manipulation Rules, The Wall Street Journal (Jan. 28, 2021), https://www.wsj.com/articles/gamestop-surge-tests-scope-of-secs-manipulation-rules-11611838175.

[14] Thomas Franck, ‘You’ve got to Have a cop on the Beat’: Elizabeth Warren Slams SEC Over GameStop Chaos, CNBC (Jan. 28, 2021), https://www.cnbc.com/2021/01/28/elizabeth-warren-gamestop-robinhood-market-manipulation.html.

[15] Jason Rechel, How Social Media Moves Markets: Analyzing GameStop (GME) Using Social Listening Data, Sprout Social (Jan. 28, 2021), https://sproutsocial.com/insights/gamestop-stock-social-media/.

Image Source: https://menshumor.com/viral/the-best-jokes-about-whats-happening-right-now-with-gamestop-stock/

Questioning Facial Recognition Tech Following the Capitol Riots

By Alexandra Tillman

 

As Capitol rioters are found and charged, the public has applauded.[1] The rioters have been found through a variety of methods—public tips, videos and photos posted online, some members of the public have even posed as conservatives on dating apps to “catfish” unsuspecting rioters into sharing their photos of the riots and turning those photos over to the FBI.[2]  But law enforcement’s most recent method of finding suspected rioters via facial recognition technology is under scrutiny.[3]

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