Richmond Journal of Law and Technology

By: Mariah Bayless Davis

The advancement of technology has given individuals the false sense of familiarity with people they have never met. Social media users are often motivated to overshare experiences and information about themselves to feel a sense of community on platforms such as Twitter and Facebook. While sharing what you ate is normal in today’s society, sharing your personal health information may not be something one is forthcoming about, rightfully so. The Health Insurance Portability and Accountability Act allows patients to guard their medical records and control the use of such personal health information.[1] However, what is the protection for data that is not deemed, “personal health information?” Information such as biometric data collected from wearable technology is not specifically regulated by federal laws.[2] That might not be an issue for a regular person that uses a Fitbit to track their daily steps, but what happens when an athlete uses wearable technology for rehab and training purposes? Barbara Osborne, a professor of sports law at University of North Carolina, commented on the murky waters that puddle at the intersection of public athletes and privacy by saying, “once [athletes] private biometric data is considered a term of employment, the contents of that data are no longer considered protected health information under law.”[3] How do athletes grapple with being public figures while simultaneously wanting to improve their skills in private with the help of wearable technology? With the introduction of the Motus mThrow sleeve in 2014[4], Major League Baseball and Major League Baseball Players Union attempted to navigate the unpaved roads of wearable technology in professional sports.

In professional sports, injuries are inevitable. Injuries can not only lead to poor performance by a team, but also wasted money in a league like Major League Baseball where contract money is guaranteed. In 2015 alone, the league reported $420 million in pitchers’ salaries “wasted” on the disabled list and pointed its finger at elbow injuries as the main culprit.[5] The sport of baseball is so plagued by elbow injures that the surgery to fix them is known as a “Tommy John procedure,” named after the first player to get the surgery.[6] As the founder of the American Sports Medicine Institute, Dr. James Andrews has had plenty of experience researching elbow injuries and performing elbow surgeries. When asked why he was so passionate about finding a preventative measure to lessen elbow injuries, he said, “I’d like to put myself out of business [one day].”[7] By researching the cause of elbow injuries, one could potentially develop a piece of technology to lessen the popularity of Tommy John surgeries, which “increased by 700 percent [from 2004 to 2010].”[8] That was Joe Nolan’s goal when he and his company, Motus, developed the mThrow Pitcher Sleeve.[9] The mThrow sleeve looks like a common compression sleeve that you could buy at Dick’s Sporting Goods. However, the Motus technology built into the sleeve is what could completely eliminate elbow injuries caused by the force of pitching. To be able to collect data relating to arm speed and release point, the sleeve stretches from the mid forearm to just under the shoulder and nestled inside a slot on the sleeve is a small sensor.[10] As the pitcher throws, the sleeve not only collects data and measurements pertaining to shoulder rotation, but also pertaining to the angles of the elbow and shoulder.[11] Knowledge about the angles of the elbow and shoulder shed light on the stress being put on the ulnar collateral ligament, which if weakened without correction can lead to an elbow injury.[12] Many companies that analyze the mThrow data for players and teams say that the technology is used mainly to “train players to withstand fatigue, rehab them faster and better, and hopefully prevent them from having surgery at the beginning.”[13]

Although the general consensus around the league is that athletes’ biometric data collected from the mThrow sleeve would be used for good purposes, some athletes are skeptical. Andrew Miller, an All-Star pitcher who most recently played for the Cleveland Indians shared his thoughts by saying, “you don’t want a team to treat you differently in some sort of contractual thing because they don’t think you’re not getting enough sleep or sleep poorly…it’s just a matter of how you work [data] in and who do you give access to and in what form?”[14] Alan Milstein, an attorney who lectures on sports and bioethics shares the same sentiment as Miller. He states that the use of the data might actually deter athletes from voluntarily using the technology, “if the purpose is to find out, ‘Geez, is this guy really worth it? Should we sign him to another year? Nah, he looks like he’s really failing. Let’s get rid of him,’ then it’s no longer in the athletes’ best interest to have the team be able to monitor every aspect of their health.”[15] Both Miller and Milstein question the regulations and further perimeters regarding not necessarily the taking of the data, but the use of it. A new Collective Bargaining Agreement was introduced in 2017 and while the agreement provided clarity regarding the technology and data that comes from it, the regulations might increase skepticism.

Attachment 56 of the 2017-2021 Collective Bargaining Agreement summarizes the manner in which new biometric technologies are evaluated and approved, while also making an effort to establish regulations regarding a player’s privacy when it comes to their data, who has access to it, and for what purpose.[16] In 2016, before Major League Baseball updated the Collective Bargaining Agreement, the only people who had access to the biometric data from the sleeve were the pitcher himself, the agency that represents him, and Motus.[17] As set out in the new agreement, “the Club representatives permitted access to a player’s wearable data are: General Manager, Assistant General Manager, Field Manager, Team Physician, Certified Athletic Trainer, Strength and Conditioning Coach, Rehabilitation Coordinator, and an individual hired by a Club to manage the use and administration of wearable technology.”[18] The agreement later regulates the use of the data and says that it cannot be exploited or used for any commercial purposes.[19] Although not explicit, the agreement also prohibits the use of a player’s biometric data as a tool during salary arbitration. Explicitly using the data in the argument during salary arbitration would lead to disclosing the data to outside parties not permitted to access data.[20] Initially the league and player’s union sought out to make the discussion about wearable technology clearer but the regulations point to a loophole that could be used by Club representatives.

During a salary arbitration, Club representatives and the athlete present their cases in front of a panel of arbitrators. While the athlete has his agent there to represent his interests, the Club usually sends two individuals on their behalf: The General Manager and Assistant General Manager.[21] Those two individuals are also amongst the permitted Club representatives who have access to wearable data. Although the GM and Assistant GM are not permitted to explicitly use this information during a salary arbitration, just the mere knowledge of it can point to anchoring bias. Anchoring bias is a human’s natural tendency to rely too heavily on the first piece of information received when making decisions.[22] Is it natural or even possible for someone to use data for one purpose but then not let that same data influence their decisions for another purpose? If the General Manager and Assistant General Manager of a Club can continue to access this loophole to use data in salary arbitrations, that could lead to another problem: abuse of power. As one of the first professional sports leagues to regulate the ownership and fair use of the advanced data[23], the MLB will act as a case study for the National Football League, as conversations regarding commercial use of football players’ data are already happening.

 

[1] See Jen Booton, Widespread Wearable Use Could Fundamentally Change Professional Sports, Sport Techie, (Aug. 28, 2018), https://www.sporttechie.com/widespread-wearable-use-could-fundamentally-change-pro-sports/

[2] See id.

[3] Id.

[4] See Will Carroll, The Sleeve That Could Save Baseball: Exclusive Look at New MLB Technology, Bleacher Report, (July 2, 2014), INSERT LINK

[5] See Tom Goldman, What’s Up with Those Baseball Sleeves? Lots of Data, and Privacy Concerns, NPR, (Aug. 30, 2017), https://www.npr.org/2017/08/30/547062884/whats-up-those-baseball-sleeves-lots-of-athletes-data-and-concerns-about-privacy

[6] See id.

[7] See Carroll, supra note 4.

[8] Id.

[9] Id.

[10] See Tom Goldman, What’s Up with Those Baseball Sleeves? Lots of Data, and Privacy Concerns, NPR, (Aug. 30, 2017), https://www.npr.org/2017/08/30/547062884/whats-up-those-baseball-sleeves-lots-of-athletes-data-and-concerns-about-privacy

[11] See id. See also Will Carroll, The Sleeve That Could Save Baseball: Exclusive Look at New MLB Technology, Bleacher Report, (July 2, 2014), https://bleacherreport.com/articles/2097866-the-sleeve-that-could-save-baseball-exclusive-look-at-new-mlb-technology (explaining the extent of technology and what can be recorded by the sleeve.)

[12] See Carroll, supra note 11.

[13] See Goldman, supra note 10 (explaining how technology could be used to prevent elbow injuries, instead of just using the technology after the fact.)

[14] Mike Vorkunov, Innovation vs. invasion of privacy: MLB wearable technology battle looms, USA Today, (Sept. 21, 2016), https://www.usatoday.com/story/sports/mlb/2016/09/21/innovation-vs-invasion-privacy-mlb-wearable-technology-battle-looms/90783188/

[15] See Goldman, supra note 10 (citing lack of perimeters as a reason athletes might not take advantage of the positives that the technology offers.)

[16] Stephanie Springer, An Update On Wearable Baseball Technology, Fan Graphs, (Aug, 7, 2018), https://www.fangraphs.com/tht/an-update-on-wearable-technology/

[17] See Vorkunov, supra note 14.

[18] 2017 Major League Baseball Collective Bargaining Agreement, attach. 56 (Dec. 1, 2016).

[19] See id.

[20] See id (explaining that the data shall not be disclosed by a Club to any party other than those persons listed as permitted.)

[21] Eric Stephen, Salary Arbitration: A Necessary Evil, True Blue LA, (Feb. 17, 2014), https://www.truebluela.com/2014/2/17/5379764/salary-arbitration

[22] Mohammed, S. (2018). The Hidden Trap of “Anchoring Bias” in Decision Making and The Leadership Lesson From “Moneyball” Movie. [Blog] Medium. Available at: https://medium.com/@shahmm/the-hidden-trap-of-anchoring-bias-in-decision-making-and-the-moneyball-movie-79aa7295f21d.

[23] See Springer, supra note 16.

Image Source: https://www.overthemonster.com/2018/2/6/16979376/mlb-starting-pitcher-rankings-chris-sale

By: Jordan Carrier

Nearly two-thirds of Americans own and use smartphones,[1] up from only two percent in 2005.[2] Cell phones, and particularly smart phones, have “an immense storage capability,”[3] which can have serious implications for what information is available to be police when the owner of the smartphone is suspected of criminal activity. In 2014, the Supreme Court held that cell phones are protected under Fourth Amendment restrictions and may only be searched after police have obtained a warrant for the contents of the cell phone, absent existent circumstances.[4]

Today, police may gain access to cell phones after obtaining a warrant, but how they are permitted to do so remains up for debate.[5] Smartphones offer a variety of ways consumers can secure their devices, including passcodes, fingerprint scanning, and facial recognition software.[6]

The Supreme Court has not addressed Constitutionality of compelling individuals to unlock their cell phones, nor have any federal appellate courts, so the decisions have so far been left to lower courts.[7] So far, lower courts have turned to the Fifth Amendment, which prohibits compelling individuals to provide testimony that would be incriminating against himself.[8] A Virginia Circuit Court held that “[a]n act is testimonial when the accused is forced to reveal his thoughts and beliefs with the government.”[9] Under that definition, a defendant cannot be required to divulge his passcode because it relies on his personal knowledge.[10] However, a fingerprint is not testimonial and is more like types of evidence that the Fifth Amendment privilege against self-incrimination does not protect, such as voice, handwriting, and blood samples.[11] The same court held that fingerprints are not protected under the Fifth Amendment, so a state may be granted a motion to compel a defendant’s fingerprint,[12] giving them access to the defendant’s cell phone and its contents.

Facial recognition has been used as a way to unlock smartphones since March of 2017, and has since become a popular way for consumers to secure their smartphones with the introduction of the iPhone X. So far, unlocking a cell phone with facial recognition has been treated similarly to the use of a fingerprint. For example, on August 10, 2018 FBI agents entered the home of a man suspected of receiving and possessing child porn and told him to put his face in front of his iPhone X, based on a search warrant.[13] With his phone unlocked, investigators were given access to online chats, pictures, and other evidence that could be used against the suspect.[14]

Based on the ability of the government to obtain access to cell phones through biometrics like fingerprints, faces, and conceivably irises,[15] consumers who are worried their security may be compromised have been advised to use a traditional passcode. However, law enforcement is now able to access cell phones despite not knowing the passcode to unlock them.[16] In 2016, Apple refused to provide the FBI with access to an Apple cellphone and was in the midst of litigating the issue when the FBI paid more than one million dollars for software that could unlock the phone.[17]

While the purchase of million dollar software by the federal government may have been concerning to some, it seemed unlikely that many local governments would be able to afford to use this technology.[18] Enter Grayshift, a startup company, that began selling “iPhone-unlocking boxes” for $15,000 apiece in early 2018.[19] The Indiana State Police, one government agency that has purchased GrayKey, reported that in the first 60 days of owning the device, investigators were able to unlock 96 iPhones.[20]

While Apple, the only company currently affected by the devices,  has publicly stated that they support law enforcement and will assist in criminal and other investigations,[21] the company has actively worked to foil GrayKrey and other similar devices, implementing new security measures with almost every software update.[22] In the iOS 12 update, Apple reportedly blocked police from cracking phone passcodes.[23]

With the Fifth Amendment protections against compelling defendants to reveal their phone passcodes and the efforts of Apple to protect consumer privacy, consumers can feel confident that the data stored on their cell phones is secure and will not be used against them in court. At least until GrayKey counters Apples latest update.

 

[1] Aaron Smith, U.S. Smartphone Use in 2015, Pew Research Center (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/.

[2]Alexander Howard, Americans Think Smartphones Hurt Socializing, but Use Them Anyway, Huffpost (August 26, 2015), https://www.huffingtonpost.com/entry/americans-think-smartphones-hurt-socializing-but-use-them-anyway_us_55de233ee4b08cd3359e7031.

[3] Riley v. California, 134 S. Ct. 2473, 2478 (2014).

[4] Id. at 2487.

[5] Kaveh Waddell, Police Can Force You to Use Your Fingerprint to Unlock Your Phone, The Atlantic (May 3, 2016), http://www.leadingedgelaw.com/can-the-police-force-you-to-unlock-your-phone/.

[6]Adi Robertson, PSA: Samsung’s New Face Scanner Won’t Give You the Legal Protection of a Passcode, The Verge (Apr. 5, 2017 3:27 PM EDT), https://www.theverge.com/2017/4/21/15360584/samsung-galaxy-s8-unlock-face-iris-fingerprint-scanner-most-secure.

[7] Kaveh Waddell, Police Can Force You to Use Your Fingerprint to Unlock Your Phone, The Atlantic (May 3, 2016), http://www.leadingedgelaw.com/can-the-police-force-you-to-unlock-your-phone/.

[8] U.S. Const. amend. V.

[9] Commonwealth v. Baust, 89 Va. Cir. 267, 269 (2014).

[10] Id. at 271.

[11] Id. at 269.

[12] Id. at 271.

[13]Thomas Brewster, Feds Force Suspect to Unlock an iPhone with their Face, Forbes (Sept. 30, 2018, 10:01AM),  https://www.forbes.com/sites/thomasbrewster/2018/09/30/feds-force-suspect-to-unlock-apple-iphone-x-with-their-face/#563ae3821259.

[14] Id.

[15] Adam Clark Estes, Let’s Take This Case all the way to the Supreme Court, Gizmodo (June 1, 2017, 11:51AM), https://gizmodo.com/can-we-please-make-a-decision-on-police-unlocking-iphon-1795721375.

[16]Jason Tashea, Cat-and-Mouse Game: Customers Demand Cybersecurity, Law Enforcement Wants Easier Access to Evidence, ABA Journal (Oct. 2018), http://www.abajournal.com/magazine/article/cybersecurity_law_enforcement_access.

[17] Roert McMillan, Meet Apple’s Security Headache: The GrayKey, a Startup’s iPhone-Hacking Box, Wall St. J. (June 14, 2018, 1:21PM ET), https://www.wsj.com/articles/the-hacking-box-that-led-to-a-golden-age-of-iphone-investigations-1528996893.

[18] Id.

[19] Id.

[20] Jason Tashea, Cat-and-Mouse Game: Customers Demand Cybersecurity, Law Enforcement Wants Easier Access to Evidence, ABA Journal (Oct. 2018), http://www.abajournal.com/magazine/article/cybersecurity_law_enforcement_access.

[21]Romain Dillet, Justice Department Drops Lawsuit Against Apple as FBI has now Unlocked Farook’s iPhone, Tech Crunch (2015), https://techcrunch.com/2016/03/28/justice-department-drops-lawsuit-against-apple-over-iphone-unlocking-case/.

[22]Thomas Brewster, Apple vs. GrayKey: Leaked Emails Expose the Fight for Your iPhone Privacy, Forbes (July 16, 2018, 10:55AM), https://www.forbes.com/sites/thomasbrewster/2018/07/26/apple-ios-security-boost-not-stopping-cops-hacking-iphones/#31c457637129.

[23]Chaim Gartenberg, Apple Seems to Have Completely Blocked Police Password Cracking Tool in iOS 12, The Verge (Oct. 24, 2018, 3:53PM EDT), https://www.theverge.com/2018/10/24/18019660/apple-blocked-police-password-cracking-tool-ios-12-graykey-law-enforcement.

Image Source: https://blog.malwarebytes.com/security-world/2018/03/graykey-iphone-unlocker-poses-serious-security-concerns/

By: Kara Powell

“Vaping” has become an increasingly popular alternative to traditional cigarettes. Technically, vaping is an “electronic nicotine delivery system.”[1] Hookah, nicotine gels, and e-cigarettes are also included in this category.[2] While many adult smokers are turning to vaping while trying to quit smoking traditional cigarettes, many teenagers are also turning to vaping and e-cigarettes. E-cigarette use among high school students has increased drastically by 900% from 2011 to 2015.[3]

The 2009 Tobacco Control Act[4] gave the Food and Drug Administration (“FDA”) “authority to regulate the manufacture, distribution, and marketing of tobacco products.”[5] For example, under the Act, the FDA can restrict tobacco marketing and sales to youth, require smokeless tobacco product warning labels, and require disclosures of ingredients in tobacco products.[6]

The “Deeming Rule,”[7] amended the Tobacco Control Act by expanding the FDA’s authority from only being able to regulate traditional tobacco products, to being able to regulate all other types of tobacco products, including e-cigarettes and other vaping products.[8] The rule “deemed” that these vaping products constituted “tobacco products.”[9] Because of the “Deeming Rule,” e-cigarette products are now subject “to the same intense regulatory treatment as traditional cigarettes.”[10] This means that manufacturers and retailers must meet various requirements.  For example, manufacturers must pay fees, submit “tobacco health documents,” submit “quantities of harmful and potential harmful constituents,” and submit premarket applications.[11]

Before the Deeming Rule, there was no federal law to prohibit retailers from selling vaping products to minors under the age of eighteen.[12] One of the FDA’s main objectives with the Deeming Rule was to restrict youth’s access to tobacco products.[13] Recently, in September 2018, the FDA ordered five of the largest e-cigarette manufacturers to submit plans within sixty days on reducing teen use.[14] These five companies make up about ninety-seven percent of the e-cigarette market.[15] The FDA Commissioner, Scott Gottlieb, characterized the significant e-cigarette use among teens as a public health crisis.[16] In fact, after many convenience store retailers were caught illegally selling e-cigarettes to minors, the FDA is even considering limiting e-cigarette sales to vape shops.[17]

Only allowing vape shops to sell such products does not seem very effective, because if a teenager is using fake identification at a convenience store, nothing is stopping that individual from using the same form of identification at a vape shop. Hopefully a better and more realistic solution lies ahead once the five companies submit their plans to the FDA.

 

[1] Ashley Yi, Comment, E-cigarettes, the Controversial Buzz Across States that Puff for Stricter Regulation, 18 Tex. Tech. Admin. L. J. 149, 194 (2016).

[2] The Facts on the FDA’s New Tobacco Rule, U.S. Food & Drug Admin. (June 16, 2016), https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm506676.htm. I refer to “vaping” and “e-cigarettes” interchangeably in this blog post.

[3] U.S. Dep’t of health & human servs., Office of the Surgeon General, E-cigarette Use Among Youth and Young Adults (2016)

[4] 21 USC § 387 (2012)

[5] Family Smoking Prevention and Tobacco Control Act – an Overview, U.S. Food & Drug Admin., https://perma.cc/9Z46-A7VD (last updated Jan. 17, 2018)

[6] Id.

[7] The Deeming Rule, 81 Fed. Reg. 28975 (May 10, 2016) (codified at 21 C.F.R. pts. 1100, 1140, 1143).

[8] Lauren H. Greenberg, Note, The “Deeming Rule”: The FDA’s Destruction of the Vaping Industry, 83 Brooklyn L. Rev. 777, 777­–78.

[9] Jonathan H. Adler, Regulatory Obstacles to Harm Reduction: The Case of Smoking, 11 N.Y.U. J.L. & Liberty 713, 733.

[10] Id. at 778.

[11] Pipe, Cigar, and Vape Shops that Are Regulated as Both Retailers and Manufacturers, U.S. Food & Drug Admin., https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm506676.htm (last updated Aug. 13, 2018).

[12] The Facts on the FDA’s New Tobacco Rule, supra note 2.

[13] Id.

[14] Angelica LaVito, FDA Says it Had ‘Constructive’ Meetings with E-cigarette Manufacturers on Teen Epidemic, CNBC (Oct. 31, 2018), https://www.cnbc.com/2018/10/31/fda-has-met-with-juul-others-in-effort-to-curb-teen-e-cigarette-use.html.

[15] Id.

[16] Id.

[17] Angelica LaVito, FDA to Consider Limiting E-cigarette Sales to Vape Shops to Curb Youth Use, CNBC (Oct. 19, 2018), https://www.cnbc.com/2018/10/19/as-youth-e-cigarette-use-surges-fda-may-stop-convenience-store-sales.html.

Image Source: https://www.npr.org/sections/health-shots/2017/12/14/570767261/teens-pretty-sober-except-for-the-marijuana-and-vaping

By Kirk Kaczmarek

In 1848, James Wilson Marshall was walking along the American River near Coloma, California when he spied gold in the riverbed.[1] Thus began the California Gold Rush.[2] Within twenty months of Marshall’s discovery, the non-native American population increased by over 12,400%.[3] In 1852, the Gold Rush’s peak year, miner forty-niners extracted an inflation-adjusted $2.623 billion in gold.[4] This exploding and newly wealthy population supported further economic growth, as merchants and other service providers made more money than the miners ever did.[5] As for Marshall, he was unable to secure legal claim to the gold fields, and completely missed any form of windfall.[6]

The next gold rush might happen in outer space as governments and private companies consider mining asteroids for rare earth metals. For example, NASA has placed a rush on plans to investigate an asteroid estimated to contain $10,000 quadrillion in iron and nickel by 2022.[7] Goldman Sachs has indicated that, “while the psychological barrier to mining asteroids is high, the actual financial and technological barriers are far lower,” and that the world’s first trillionaire will be an asteroid miner.[8] Whether humans mine asteroids is fundamentally a matter of economics. And whether investors end up wealthy or following in Marshall’s footsteps will require clarity in a currently unclear area law.

When considering whether to mine at a location on earth, geologists consider resources and reserves.[9] Resources are mineral deposits that geologists identify through exploration.[10] Reserves are the portion of resources that feasibility studies determine are economically viable for mining.[11] Thus, resources and reserves do not estimate how much of a mineral is available on the planet – they are merely labels that help us measure the quantity of minerals available against market demand.[12] Conversely, terminal depletion refers to the actual lack of a mineral.

Today, China produces over 90% of the world’s rare earth metals.[13] Unfortunately, China claims that its reserves for numerous rare earth metals will deplete within twenty years.[14] Terminal depletion is unlikely; geologists would likely discover more resources in the meantime, though issues in the supply chain might occur.[15] But whether these resources would have the economic viability to become reserves is less certain, especially when confronted with the possibility of turning asteroids into mineral reserves. This possibility is quickly growing noticeably closer.

On October 3, 2018, a mission headed by the Japanese Aerospace Exploration Agency successfully landed a robot onto an asteroid, Ryugu, for the first time in history.[16] On December 3, 2018, NASA expects to collect a sample from asteroid Bennu and return it to earth.[17] With the convergence economic and physical capabilities, asteroid mining seems like an inevitable future.

In the United States, private companies like Elon Musk’s SpaceX and Chris Lewicki’s Planetary Resources hope to gain access to the asteroid mining market.[18] The United States government appears to support their entrepreneurialism. In 2015, the U.S. Commercial Space Launch Competitiveness Act passed with bipartisan support. Title IV of this act directs the President to facilitate the private commercialization and recovery of resources found in space.[19] The act also states that miners are entitled to own the resources they mine.[20] Some might argue that this act conflicts with the 1967 Outer Space Treaty, which states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation.”[21]

Can a country mine minerals and remain in compliance with the Outer Space Treaty? Can a country contract a corporation to mine minerals on its behalf? What if two corporations try to mine the same asteroid at the same time? What if these corporations are headquartered in different countries? Who will clean up the debris left orbiting the earth as spacecraft exit the atmosphere and return with valuable payloads? Should we require licenses to mine asteroids? The hypotheticals are as endless as space itself.

The law governing this emerging field is understandably immature. As a leader – if not the leader – in space exploration, United States ought to remember the case of James Marshall, and its own analogous position as the discoverer. Growing pains are likely unavoidable as we reach into a new era of exploration and innovation. However, by giving some forethought to the international law governing asteroid mining, the United States might mitigate the worst of those pains.

 

[1] See Events in the West 1840-1850, PBS (2001) https://www.pbs.org/weta/thewest/events/1840_1850.htm, James Wilson Marshall, PBS (2001) https://www.pbs.org/weta/thewest/people/i_r/marshall.htm.

[2] See James Wilson Marshall, supra 1.

[3] See Gayle Olson-Raymer, The California Gold Rush and the Controversy of the State Constitution, Humboldt State University (2014)  http://users.humboldt.edu/ogayle/hist383/GoldRush.html.

[4] See id. See CPI Inflation Calculator, Inflation Calculator https://www.officialdata.org/1852-dollars-in-2018?amount=80000000.

[5] See Karen Clay & Randall Jones, Migrating to Riches? Evidence from the California Gold Rush, 64 The Journal of Economic History 4, 1021-1022 (2008) https://www-jstor-org.newman.richmond.edu/stable/pdf/40056467.pdf?refreqid=excelsior%3Abe44b6164c135df13a516fed60ed92ca.

[6] See James Wilson Marshall, supra note 1.

[7] See Brid-Aine Parnell, Nasa Will Reach Unique Metal Asteroid Worth $10,000 Quadrillion Four Years Early, Forbes (May 26, 2017, 6:12 am) https://www.forbes.com/sites/bridaineparnell/2017/05/26/nasa-psyche-mission-fast-tracked/#376228844ae8.

[8] See Aaron Mamiit,  The World’s First Trillionaire Will be the One Who Harnesses Space Mining, Tech Times (April 23, 2018, 8:37 am EDT) https://www.techtimes.com/articles/225886/20180423/the-worlds-first-trilionnaire-will-be-the-one-who-harnesses-space-mining.htm.

[9] https://www.geologyforinvestors.com/classification-of-mineral-resources-and-reserves/.

[10] See id.

[11] See id.

[12] https://www.mining-technology.com/features/featuremined-into-extinction-is-the-world-running-out-of-critical-minerals-5776166/

[13] See id.

[14] See id.

[15] See id.

[16] See Numerous Boulders, Many Rocks, No Dust: MASCOT’S Zigzag Course Across the Asteroid Ryugu, DLR (October 12, 2018) https://www.dlr.de/dlr/en/desktopdefault.aspx/tabid-10081/151_read-30235/#/gallery/32338.

[17] See The Mission, OSIRIS-REx Mission https://www.asteroidmission.org/objectives/, Mission Operations, OSIRIS-REx https://www.asteroidmission.org/objectives/mission-operations/.

[18] See Staff, Classification of Mineral Resources and Reserves, Geology for Investors https://www.washingtonpost.com/business/space-mining-may-be-only-a-decade-away-really/2017/04/28/df33b31a-29ee-11e7-a616-d7c8a68c1a66_story.html?utm_term=.23a3f5ddd07c.

[19] 51 U.S.C.A. § 51302

https://1.next.westlaw.com/Document/NB31DBAB0A3BB11E5AA6DE6442ADFAF1C/View/FullText.html?originationContext=previousnextsection&contextData=(sc.Category)&transitionType=StatuteNavigator&needToInjectTerms=False.

[20] 51 U.S.C.A. § 51303 https://1.next.westlaw.com/Document/NC516B640A3BB11E59891923A4484C9F7/View/FullText.html?originationContext=previousnextsection&contextData=(sc.Document)&transitionType=StatuteNavigator&needToInjectTerms=False.

[21] G.A. Res. 2222 (XXI) http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html.

Image Source: https://www.flickr.com/photos/cygni_18/41235922900

By: Eric Richard

Not that long ago there was no such thing as an app store, the word “smartphone” wasn’t commonplace, and artificial intelligence existed only in science fiction. Today, we know a very different world. Companies fight to have a best-selling app, smartphones are considered a necessity for everyday life, and artificial intelligence is finding a place in industry after industry.[1] The legal profession is no exception.[2] Year after year people are “taking the law into their own hands,” whether it be through the use of websites like LegalZoom or any number of others. People are trusting lawyers less and trusting their own abilities more. It was only a matter of time before artificial intelligence started playing a role in an attempt to do what lawyers have spent years being trained to do.

One segment of artificial intelligence, natural language processing, is already capable of scanning documents and anticipating their relevancy to a particular case.[3] While some aspects of a lawyer’s work will likely always be safe from machines and artificial intelligence, such as appearing in court, any automation is always cause for concern. [4] Basic document review has already been “outsourced,” although to machines and not to persons of other countries than the United States, with more and more likely to follow.[5] This isn’t necessarily a bad thing, after all, with less time needed to be spent on menial tasks, lawyers will be free to devote more time and manpower to the more complicated aspects of work that come with a common law system.[6]

But what happens when a program is capable of handling more than just the menial tasks? What happens when an app could handle actual lawyering and cut the attorney out of the equation altogether? That’s exactly what people like Justin Kan and Josh Browder are trying to do.[7] Kan is an entrepreneur who is responsible for the video game streaming service, Twitch.[8] After selling Twitch to Amazon for nearly a billion dollars, Kan has set his sights on a different venture, and now operates a legal technology start-up in Silicon Valley.[9] It’s called Atrium, and the company isn’t just looking to replace the menial tasks done by lawyers, it’s engineers are hoping to design artificial intelligence that could even issue stock options to employees of a corporation or assist with fundraising from venture capitalists.[10]

While Kan’s work is still in the early stages, Browder has released an app just this month called DoNotPay that looks to further chip away at the work lawyers are traditionally hired to do.[11] At first, DoNotPay was just a tool that people could use to challenge a parking ticket without the need of an attorney, but now a new update will reportedly allow the user to sue anyone in small claims court in all 50 states.[12] The latest version of the app is still in its infancy, and we have yet to see what successes and complications are going to come, but it’s fair to say that innovation is never going to slow down. Artificial intelligence is muscling its way into the legal profession and apps like DoNotPay might just be the first of it but will certainly not be the last.

 

[1] See Dan Mangan, Lawyers could be the next profession to be replaced by computers, CNBC (Feb. 17, 2017, 1:55 PM), https://www.cnbc.com/2017/02/17/lawyers-could-be-replaced-by-artificial-intelligence.html.

[2] See id.

[3] See Steve Lohr, A.I. Is Doing Legal Work. But It Won’t Replace Lawyers, Yet, N.Y. Times (Mar. 19, 2017), https://www.nytimes.com/2017/03/19/technology/lawyers-artificial-intelligence.html.

[4] See id.

[5] See id.

[6] See id.

[7] See Elizabeth Dwoskin, This Silicon Valley start-up wants to replace lawyers with robots, Wash. Post (Sept. 14, 2017), https://www.washingtonpost.com/news/innovations/wp/2017/09/14/this-silicon-valley-startup-wants-to-replace-lawyers-with-robots/?noredirect=on&utm_term=.7a7097ee6959; See also Jason Tashea, DoNotPay app aims to help users sue anyone in small claims court–without a lawyer, A.B.A. J. (Oct. 10, 2018, 9:30 AM), http://www.abajournal.com/news/article/file_a_smalls_claims_suit_anywhere_in_the_country_through_an_app/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email.

[8] See Dwoskin, supra note 7.

[9] See id.

[10] See id.

[11] See Tashea, supra note 7.

[12] See id.

Image Source: https://www.entrepreneur.com/article/291928

By: Florian Uffer

In an Initial Public Offering (“IPO”), a private company or corporation offers its stock to the public for the first time.[1] The main goal behind going public usually consists of raising capital for different purposes, such as expansion.[2]

The drastic rise of cryptocurrency over the past five years, showcasing an increase in market capitalization of 190.27%,[3] has brought a similar animal into existence: the Initial Coin Offering (“ICO”).

Because ICOs are set in the world of cryptocurrency, a brief introduction to it is needed. Cryptocurrency is an electronic cash system which does not rely on banks or third parties to verify transactions.[4] Rather, transactions are recorded on a blockchain, a digital ledger.[5] This blockchain is used to confirm upcoming transactions, thus enabling direct peer-to-peer payments.[6] As of today, there are three main types of cryptocurrency.[7] First, Bitcoin is a digital currency which can be exchanged among people.[8] The second type, Altcoins, usually are alternatives of Bitcoins with minor changes.[9] Third, tokens reside in their own blockchains and represent an asset or utility.[10]

Just like IPOs, ICOs act as fundraisers of sorts.[11] Interested investors buy in to the offering, and receive a new token specific to the ICO as consideration.[12] The company holding the ICO then uses the raised funds to pursue the respective investment it had in mind.[13] ICOs come with unique advantages and risk of which the investor should be aware.

One of the more obvious advantages of an ICO lies in the volatility of cryptocurrency: in this high-risk/high-reward setting, an investor may be able to realize stellar profits. Additionally, ICOs do not require much paperwork,[14] which reduces the administrative costs. All that is needed is a “white paper,” which describes the project and thus is the primary tool used by investors to decide whether they wish to invest or not.[15]
In considering the dark side, it becomes apparent that ICOs are based on pure speculation.[16] The volatile nature of cryptocurrency combined with the extremely low amount of financial information[17] that is available to investors give rise to an unpredictable financial environment.

The major issue arising out of the lack of paperwork inherent in ICO are scams: a 2018 study reported that about 80% of ICOs were fraudulent.[18] The Securities and Exchange Commission (“SEC”) manifests these concerns on its website: “While [cryptocurrencies] and the technology behind them may present a new and efficient means for carrying out financial transactions, they also bring increased risk of fraud and manipulation because the markets for these assets are less regulated than traditional capital markets.”[19]

Regulating the ICO market offers numerous advantages. First, increased investor protection would ensue. Requiring more disclosure from ICO offerors and thus ensuring a more consistent financial environment would drastically reduce the rate of scams and thus promote the market for ICOs.[20] Heightened disclosure requirements would also minimize the use of ICOs to raise money for illegitimate purposes, such as money laundering or terrorism funding.[21] Finally, regulation would increase the certainty of investment in the space, and consequently attract more investors.[22]

The market for ICOs however, remains yet to be thoroughly regulated. Due to the revolutionary concept behind cryptocurrency and its technologically advanced nature, relevant U.S. regulatory agencies have found it difficult to rightfully assert jurisdiction over it. In a hearing before the House Committee on Appropriations however, SEC Chairman Jay Clayton addressed the SEC’s view on ICOs. The SEC views tokens as generally falling within the realm of securities.[23] Because tokens are the financial assets involved in ICOs, it seems that the SEC is in pole position to regulate this market in the future.

 

[1] See Initial Public Offering – IPO, Investopedia, https://www.investopedia.com/terms/i/ipo.asp (last visited Oct. 25, 2018).

[2] See id.

[3] See Visualizing The Meteoric Rise Of Cryptocurrency in the Past 5 Years, HowMuch.net, https://howmuch.net/articles/top-10-cryptos-past-5-years (last visited Oct. 24, 2018).

[4] Adam Levy, What is Cryptocurrency?, The Motley Fool (Mar. 11, 2018, 7:15 AM), https://www.fool.com/investing/2018/03/11/what-is-cryptocurrency.aspx.

[5] See id.

[6] See id.

[7] See Ray King, Understanding the Different Types of Cryptocurrency, Bitdegree (Sept. 17, 2018), https://www.bitdegree.org/tutorials/types-of-cryptocurrency/#The_Three_Main_Types_of_Cryptocurrency.

[8] See id.

[9] See id.

[10] See id.; Definition of Crypto Token, Investopedia, https://www.investopedia.com/terms/c/crypto-token.asp (last visited Oct. 25, 2018).

[11] See Initial Coin Offering (ICO), Investopedia, https://www.investopedia.com/terms/i/initial-coin-offering-ico.asp (last visited Oct. 25, 2018).

[12] See id.

[13] See id.

[14] See Ameer Rosic, ICOs Pros & Cons. Cutting Through the Noise, Huffpost (July 4, 2017, 8:02 AM), https://www.huffingtonpost.com/entry/ico-pros-cons-cutting-through-the-noise_us_595b7f22e4b0c85b96c6646e.

[15] See id.

[16] See id.

[17] Investors usually are only able to consider the ICOs’ “white papers” in making an investment decision, as it is the only paperwork arising out of the ICO. See id.

[18] See 80% of ICOs are Scams : Report, Investopedia, https://www.investopedia.com/news/80-icos-are-scams-report/ (last visited Oct. 25, 2018).

[19] SEC, Initial Coin Offerings (ICOs) (2018), https://www.sec.gov/ICO.

[20] See Thijs Maas, Why ICOs Need to Be Regulated, Hackernoon (Oct. 17, 2017), https://hackernoon.com/why-cryptocurrencies-and-tokens-should-be-regulated-349b920b62c8.

[21] See id.

[22] See id.

[23] See FY 2019 U.S. Securities and Exchange Commission: Hearing Before the Comm. on Appropriations (2018) (statement of Jay Clayton, Chairman, Securities and Exchange Commission).  

Image Source: https://www.sec.gov/ICO

By Cam Kollar

The first time I heard about a massive data breach was when OPM sent me a letter in the mail informing me that my personal data may have been compromised. Soon after I realized that these data breaches that are seemingly dismissed were happening more frequently-happening in more industries. Then it was Sony, Target, Equifax, Mossack Fonseca, Facebook….the lists goes on and on.[1] The constant barrage of how our data has been compromised and the fact that you are not as anonymous as you think you are, has been desensitizing individuals across industries.

It isn’t a surprise that most data security specialists state that it isn’t a matter of “if” you will be hacked, but “when”.[2] Regardless, attorneys have a special role-we have to protect clients’ confidences where law firms end up acting as bank vaults for the secrets that people keep from even their closest family members. Law firms saw an increase of data breaches to 22% of respondents according to the ABA 2017 Legal Technology Survey Report.[3] That is an estimate that more than one in five law firms were hacked last year.[4] Firms of every size are affected and unfortunately according to some reports approximately 40% of law firms do not even realize that they were breached![5]

Despite these numbers many law firms are lagging in their cybersecurity procedures. Of note, in Shore v. Johnson & Bell, a former client is holding the law firm responsible for their cybersecurity practices (or then lack thereof) alleging that the large law firm, Johnson & Bell, “left its clients’ confidential information unsecured and unprotected.”[6] Johnson & Bell have since corrected the specified vulnerabilities, which were originally spelt out in the temporarily sealed complaint.[7]

The highlights of the cybersecurity practices that triggered the legal malpractice suit are as follows: Johnson & Bell used a “webtime time tracking system” that was built on a “JBoss Application Server.”[8] The particular software was introduced in 2005, and had an “end of life” recommendation.[9] JBoss terminated full support for the software in September 2007, and maintenance support ended in September 2009.[10] Johnson & Bell was still running the software when the complaint was filed in April 2016.[11] Technology updates quickly and those pesky updates your computer and phones do every so often protect the devices from vulnerabilities and are considered to be maintenance support. Johnson & Bell was possibly running unsupported product for over six years.[12] Adding insult to injury, a partner at Johnson & Bell was aware of reasonable cybersecurity practices as he wrote a paper titled “Don’t Let Cybersecurity Breaches Lead to Legal Malpractice: The Fax is Back.“[13] I believe Joseph Beckman said it clearly when he said, “You can bet Johnson Bell wishes it had invested the money to patch its time-keeping program sometime between 2009 and 2016.” [14]

The costs of data breaches get shared between the clients, attorneys, and law firms. These costs include significant business downtime, loss of billable hours, hefty fees to correct the problems, and effects on lawyer and law firm reputations.[15] According to Lucian T. Pera, legal ethics partner at Adam and Reese LLP in Memphis, Tennessee, and former treasurer of the American Bar Association, lawyers that fail to protect data from hackers due to lax cybersecurity practices risk their licenses.[16]

[1] See Nate Lord, The History of Data Breaches, Digital Guardian, (Apr. 6, 2018), https://digitalguardian.com/blog/history-data-breaches.

[2] See David Ries, ABA Security TechReport 2017, A.B.A., https://www.americanbar.org/groups/law_practice/publications/techreport/2017/security.html.

[3] See id.

[4] Jay Reeves, One in 5 Law Firms Hacked Last Year, Lawyers Mutual (Feb. 22, 2018), https://www.lawyersmutualnc.com/blog/one-in-5-law-firms-hacked-in-2017.

[5] Law Firm Cyber Security Scorecard, Logicforce, https://www.logicforce.com/2018/03/28/law-firm-cyber-security-scorecard/ (last visited Oct. 25, 2018).

[6] Joseph P. Beckman, Law Firm Cybersecurity Breach Opens Door to Lawsuit, Litigation News, A.B.A. (July 31, 2017), https://www.americanbar.org/publications/litigation-news/featured-articles/2017/law-firm-cybersecurity-breach-opens-door-to-lawsuit/.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] Joseph P. Beckman, Law Firm Cybersecurity Breach Opens Door to Lawsuit, Litigation News, A.B.A. (July 31, 2017), https://www.americanbar.org/publications/litigation-news/featured-articles/2017/law-firm-cybersecurity-breach-opens-door-to-lawsuit/.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] Daniel R. Stoller, Memo to Law Firms: Raise Cybersecurity Bar or Risk Client Losses, Bloomberg Law (Feb. 23, 2018), https://biglawbusiness.com/memo-to-law-firms-raise-cybersecurity-bar-or-risk-client-losses/.

Image Source: https://selinc.com/solutions/sfci/cybersecurity-posters/

By: Kara Powell

“More than 1 in 3 women . . . and more than 1 in 4 men . . . in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime[s].”[1] Domestic violence protective orders forbid a perpetrator from performing specific actions that are threating, injuring, or harassing to victims.[2] Protective orders can also include, but are not limited to: financial support orders, court guidance regarding child visitation and custody, and physical distance orders.[3] However, the legal system can be difficult for domestic violence victims to access and navigate.[4]

HelpSelf Legal,[5] which was released in December 2017,[6] is an AI-assisted online platform that provides software services to legal aid associations.[7] Specifically, HelpSelf Legal currently assists individuals prepare and file domestic violence protective orders in California.[8] HelpSelf Legal is improving access to justice for domestic violence survivors, particularly those lacking financial resources. For just fifteen dollars, “[t]he program walks users through a series of questions designed to gather information about which court the document will be filed in, the person against whom the restraining order is sought, the nature of the abuse and whether the user wants to request support.”[9] The questions are lay-person friendly so every individual can use and understand the system.[10]

After the user completes the questions, all the necessary documents are automatically generated.[11] The user reviews and double-checks the information on each document, and then either files the documents on their own or submits the documents to the courts electronically through HelpSelf Legal.[12] The system is similar to the tax preparation software TurboTax.[13] Because the user does not have to physically bring the forms to the appropriate court, this may allow more domestic violence victims to file for protective orders.

HelpSelf Legal was created by Dorna Moini, who had pro bono experience during her time with big law.[14] She created HelpSelf Legal to assist low-income domestic violence survivors access legal assistance.[15] She noticed the disparity between the technology available to pro bono clients and the technology available to law firm clients, and wanted to decrease the gap.[16] Currently, the platform only serves California, “but Moini hopes later to expand into other states.”[17] Wyoming may be the next state to use the HelpSelf Legal software to create domestic violence tools.[18]

HelpSelf Legal works with shelters and legal aid organizations who assist the clients after they have completed the online protective order process.[19] The fifteen dollars domestic violence survivors pay on the front-end goes along way with all the resources HelpSelf Legal is providing and coordinating.

 

[1] Michele C. Black et al., The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control (2011), https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.

[2] See How to Get a Personal Protection Order, domesticshelters.org (July 1, 2014), https://www.domesticshelters.org/domestic-violence-articles-information/faq/how-to-get-a-personal-protection-order.

[3] See Robert Ambrogi, Startup Launching Today Provides Automated Legal Help to Those with Low and Moderate Incomes, Starting with Domestic Violence, LawSites (Dec. 13, 2017), https://www.lawsitesblog.com/2017/12/startup-launching-today-provides-automated-legal-help-low-moderate-incomes-starting-domestic-violence.html.

[4] See id.

[5] HelpSelf Legal, https://www.helpselflegal.com/domestic-violence (last visited Oct. 22, 2018).

[6] See Ambrogi, supra note 3.

[7] See e-mail from Dorna Moini (Sept. 25, 2018, 12:05 PM) (on file with author).

[8] John Biggs, HelpSelf Uses Simple AI to Help Those in Legal Trouble, TechCrunch (Apr. 12, 2018), https://techcrunch.com/2018/04/12/helpself-uses-simple-ai-to-help-those-in-legal-trouble/.

[9] Tyler Roberts, Statesman of the Month: Dorna Moini, National Jurist (Jan. 8, 2018), http://nationaljurist.com/smartlawyer/statesman-month-dorna-moini.

[10] See Mary E. Juetten, Access to Justice Through Technology for 2018, Above the Law (Dec. 19, 2017, 3:59 PM), https://abovethelaw.com/2017/12/access-to-justice-through-technology-for-2018/.

[11] See id.

[12] Id.

[13] See Biggs, supra note 6.

[14] See id.

[15] See Ambrogi, supra note 3.

[16] See Biggs, supra note 6.

[17] Id.

[18] See e-mail from Dorna Moini (Sept. 25, 2018, 12:05 PM) (on file with author).

[19] See id.

Image Source:  https://www.shouselaw.com/colorado/domestic_violence/CO_permanent_protective_order.html

By: Catherine Schroeder

With society’s increasing dependency on ever-changing technology, particularly cell phones, the need to protect individuals’ privacy in criminal investigations is paramount.[1] Cell phone users  no longer share personal information with their cell phone carriers but with apps and search engines.[2] Furthermore, cell phone carriers are adding smaller cell sites, in addition to macro cell towers, which allows cell phone carriers to determine a cell phone’s location within smaller and more targeted boundaries.[3] While this cell phone technology is evolving at a fast pace, the law is slow to adapt.[4] The judiciary and legislatures, both state and federal, must anticipate emerging technology in order to fully protect individuals’ privacy.[5]

The Supreme Court’s recent decision in Carpenter v. United States may give insight into how the Court will handle digital privacy in the near future.[6] In a narrow ruling, the majority held that law enforcement’s acquisition of over 127 days of cell-site location information (CSLI) constituted a search under the Fourth Amendment and required a warrant.[7] The majority reasoned that tracking a cell phone’s location for that length of time gives a complete record of an individual’s whereabouts.[8] Similar to tracking GPS information from a car, tracking a cell phone’s location reveals a person’s “familial, political, professional, religious, and sexual associations.”[9] The intimate and exhaustive nature of the information led the Court to conclude that the warrantless search was unconstitutional.[10]

Proponents of increased protection of privacy in the digital era hailed this decision as a win.[11] They argue because the third-party was developed in the 1960s and ‘70s, the doctrine does not take into account the precision and invasiveness of information available today.[12] The majority in Carpenter addressed these concerns and declined to extend the third-party doctrine, citing the nature of the data collection and recognizing that the necessity of cell phones in modern life renders the voluntary exposure rationale of the third-party doctrine mute in the particular circumstance.[13] Despite its narrow ruling, proponents of digital privacy have been hopeful the rationale may be applied to other information held by third parties, such as search history, emails, and more.[14] Nathan Wessler, ACLU attorney who argued before the Court on Carpenter, stated this decision “provides a path forward for safeguarding other sensitive digital information in future cases–from…smart-home appliances…[to] technology that is yet to be invented.”[15]

However, after the recent confirmation of Justice Brett Kavanaugh, the dissent’s approach, which considered the majority’s ruling an “undue restriction” on law enforcement, may be the Court’s future approach to digital privacy with cellphones.[16] During Justice Kavanaugh’s confirmation process, proponents of increased digital privacy criticized several of his previous rulings .[17] In Klayman v. Obama, Justice Kavanaugh wrote a concurrence that upheld the constitutionality of the National Security Agency’s (NSA) bulk telephone metadata program from the Bush Administration.[18] The NSA would collect information about numbers dialed and the length of phone calls without a warrant and store this information.[19] The FBI could look through this data with permission from the Foreign Intelligence Surveillance Act court.[20] In an unprompted concurrence, where the majority did not even write a full opinion, Justice Kavanaugh wrote that this constituted a “special need” that outweighs the intrusion on individual liberty.[21]

For proponents of increased digital privacy, the more concerning decision by Justice Kavanaugh is his joining of the dissent for the D.C. Circuit Court of Appeals in United States v. Jones.[22] Justice Kavanaugh and the dissent found that Jones’s reasonable expectation of privacy in his movements on public highways was nonexistent, despite the month long GPS tracking.[23] This is in stark contrast to the majority ruling in Carpenter that relied on the Supreme Court’s concurrence in Jones, which opposed Justice Kavanaugh’s reasoning.[24] The Jones majority used a property-based rationale to determine the tracking was an unconstitutional search, but the concurrence in Jones foresaw longer term GPS monitoring, possibly using cell phone data, as “impinging on expectations of privacy.”[25] In Justice Kavanaugh’s Senate Judiciary Committee questionnaire, he stated he was only applying a property-based rationale as later implemented by the Supreme Court majority;[26] however, the dissent he joined did clearly state that Jones had no expectation of privacy.[27] Justice Kavanaugh’s opinion  is not likely to change if the facts in front of him included a month-long surveillance in Jones to a little over two months in Carpenter.[28]

It is unclear how Justice Kavanaugh will rule on issues of digital privacy. As an appellate judge, he was bound by precedent in interpreting the third-party doctrine.[29] However, since the Carpenter decision was a narrow ruling to its specific facts, it is more likely that Justice Kavanaugh will move the Court to the direction of the dissent in Carpenter. Proponents of increased digital privacy may have been too hasty with their celebrations.

 

[1] See Anne Pfeifle, Alexa, What Should We Do About Privacy? Protecting Privacy for Users of Voice-activated devices?, 93 Wash. L. Rev. 421, 424 (2018).

[2] See Craig Silliman, Technology and Shifting Privacy Expectations (Perspective), Bloomberg Law: Big Law Business (Oct. 7, 2016), https://biglawbusiness.com/technology-and-shifting-privacy-expectations-perspective/.

[3] See id.

[4] See Pfeifle, supra note 1, at 458.

[5] See Pfeifle, supra note 1, at 457.

[6] See Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018).

[7] See id. at 2217.

[8] See id.

[9] See id. (quoting United States v. Jones, 565 U.S. 400, 415 (2012)).

[10] See id. at 2223.

[11] See Louise Matsakis, The Supreme Court Just Greatly Strengthened Digital Privacy, Wired (June 22, 2018, 12:26 PM), https://www.wired.com/story/carpenter-v-united-states-supreme-court-digital-privacy/.

[12] Editorial Board, The Supreme Court’s Privacy Case Shows Congress Needs to Draw New Lines, Washington Post (Dec. 10, 2017), https://www.washingtonpost.com/opinions/the-supreme-courts-privacy-case-shows-congress-needs-to-draw-new-lines/2017/12/10/c4d85c12-d940-11e7-b1a8-62589434a581_story.html?utm_term=.0de888bbcb05.

[13] See Carpenter, 138 S. Ct. at 2220.

[14] See Matsakis, supra note 11.

[15] Id.  

[16] See Carpenter, 138 S. Ct. at 2221; See Michael Macleod Ball, Kavanaugh’s Views on Privacy, Fourth Amendment Should Make Republicans Think Twice, The Hill (Sept. 3, 2018, 4:00 PM EDT), https://thehill.com/opinion/judiciary/404751-brett-kavanaughs-views-in-privacy-and-the-fourth-amendment-should-make (“Kavanaugh’s nomination…raises troubling concerns about our right to be free of unwarranted government oversight in an age of expanding capacity to engage in surveillance without our knowledge.”).

[17] Ball, supra note 16.

[18] Matthew Feeney, Kavanaugh, Klayman, and the Fourth Amendment, Cato Institute (July 13, 2018, 1:19 PM), https://www.cato.org/blog/kavanaugh-klayman-fourth-amendment.

[19] See id.

[20] Ball, supra note 16.

[21] Klayman v. Obama, 805 F.3d 1148, 1149 (D.C. Cir. 2015).

[22] United States v. Jones, 625 F.3d 766, 767–68 (D.C. Cir. 2010).

[23] See Jones, 625 F.3d at 769.

[24] See Carpenter, 138 S. Ct. at 2215.

[25] United States v. Jones, 565 U.S. 400, 415, 430 (2012).

[26] Ball, supra note 16.

[27] See Jones, 625 F.3d at 769.

[28] See Carpenter, 138 S. Ct. at 2213; See Jones, 565 U.S. at 768.

[29] See Feeney, supra note 18.

Image Source: http://www.houseofbakchodi.com/digital-privacy-case-supreme-court-over-cell-phone-record/