Richmond Journal of Law and Technology

By: Chresanthe Staurulakis,

Halloween 2016 marks the eighth anniversary of the release of Bitcoin, a decentralized, convertible, digital form of cryptocurrency.[1] Bitcoin was introduced by an anonymous creator, working under the pseudonym Satoshi Nakamoto.[2] Today, bitcoins function as a type of virtual currency.[3] Bitcoins can be traded, held or used to make online purchases on websites that accept it as a proper form of payment.[4] The system works as a computer protocol that lets users send money directly to anybody in the world over the internet.[5] While the technologies underlying Bitcoin are extremely complex, the process of trading bitcoins is fairly simple.[6]

First, one must download the Bitcoin “wallet” application onto one’s computer or phone.[7] This digital “wallet” functions the same way as a normal wallet but, instead of holding dollars, it holds bitcoins. This “wallet” also serves as a virtual bank account that allows the user to send or receive bitcoins or pay for items using bitcoins.[8] Once you have downloaded the “wallet,” you will receive a private key and a public key.[9] These two keys are what allows users to transfer bitcoins while keeping their identities anonymous.[10] Your private key is what you sign any transaction with to prove that you are the owner of the bitcoin you want to spend.[11] It is the key that allows you to send bitcoins to other users.[12] Only the owner of the “wallet” should know their private key.[13] Conversely, your public key serves as the address that you can share with other users in order to receive bitcoins from them.[14] To send bitcoins, you would enter the recipient’s Bitcoin address into the “wallet” app, enter the number of bitcoins you wish to send, authorize the transaction with your private key and hit “send” button.[15] The transferred bitcoins will immediately appear in the recipient’s wallet no matter where they are in the world.[16]

The way in which bitcoins may be transferred instantaneously and anonymously is part of their appeal and is the result of a completely trustless, peer-to-peer system.[17] There is no middleman or centralized server that may delay the money transfer.[18] There is nothing akin to a bank or PayPal system working to handle the transaction or verify the parties participating in the transaction.[19] Therefore, users are not required to pay any sort of transaction fee.[20] However, despite these advantages, there is still a lot of uncertainty surrounding bitcoins. Bitcoins are difficult to account for, report and value.[21] Moreover, Bitcoin makes it easy to participate in illegal activities such as money laundering or purchasing and selling goods on the black market.[22] Therefore, since its inception, Bitcoin has been the target of much regulation at both the federal and state level.

Many U.S. federal agencies have yet to draft completely new regulations pertaining specifically to virtual currency, like Bitcoin.[23] Instead, federal agencies have decided to oversee virtual currencies through pre-existing regulations.[24] The federal agencies that have been at the forefront of regulating bitcoins include the Commodity Futures Trading Commission (CFTC), the Financial Crimes Enforcement Network (FinCEN), the Securities and Exchange Commission (SEC), and the Internal Revenue Service (IRS).[25] On September 17, 2015, the CFTC announced that it was going to treat bitcoins as “commodities” for regulatory purposes.[26] Businesses dealing with bitcoins would be required to register with the CFTC and be subject to its regulation.[27] FinCEN has chosen to treat and regulate companies working with bitcoins as “money service businesses” (MSB), specifically “money transmitters.”[28] In 2011, FinCEN expanded its definition of “money transmitters” to include businesses that, on behalf of a third party, mine virtual currencies, use virtual currency to purchase goods and services, convert virtual currency to other forms of currency, invest in virtual currency, or rent out systems and software for the purpose of mining virtual currency.[29] If one is simply a “user” who uses bitcoins to purchase goods and services for themselves, they are not considered a MSB.[30] In 2013, FinCEN issued a guide to further clarify what activities count as “virtual currency activities” and distinguish among “users,” “exchangers” and “administrators.”[31] If one is simply a “user” who uses bitcoins to purchase goods and services for themselves, they are not considered a MSB.[32] However, businesses that issue virtual currency or provide for the exchange of virtual currency for real currency or other forms of currency are considered MSB’s and will be forced to register with FinCEN and be subject to its regulations.[33] Failing to register with FinCEN is a federal crime.[34]

In addition, the SEC declared that it will reserve the right to police virtual currency companies and prosecute them if they are found to be involved in any fraudulent schemes.[35] The SEC exercised this right in September 2014 when the District Court for the Eastern District of Texas entered a judgment against Bitcoin Savings & Trust for conducting a Ponzi scheme soliciting investments in bitcoin-related investment opportunities.[36] Finally, the IRS stated that it will treat bitcoins as “property” and tax any transfers of bitcoins among users.[37]

There has been less uniformity among states when it comes to regulating bitcoins. At the state level, a money transmitter is either a company that accepts value from one person and gives it to another or accepts value from one person and gives it back to that same person at a later date and time.[38] Unlike at the federal level, state money transmitters must be licensed.[39] However, businesses working with virtual currency may have difficulty determining whether they qualify as money transmitters within their state since each state has its own definition of “money” and “transmission.”[40]

In July 2014, New York was the first state to propose and implement a regulatory system governing bitcoins, called BitLicense.[41] Under BitLicense, “virtual currency” is considered “money” and companies dealing with bitcoins are considered money transmitters.[42] The five activities that BitLicense considers to be “virtual currency business activities” include transmitting virtual currency for third parties, maintaining control over virtual currency for others, buying or selling virtual currency as a customer business, exchanging or converting virtual currency and controlling, administering or issuing virtual currency.[43] Any business that participates in any of these activities must go through an extensive application process to obtain a license.[44] Once the business has obtained a license, it must abide by the compliance requirements set forth by BitLicense and be audited annually.[45] Other states have followed in New York’s footsteps. In June 2015, California passed a bill providing for similar licensing and regulation requirements as New York’s BitLicense.[46] Washington has ruled that virtual currency is considered in the definition of “money transmission.”[47] However, Kansas, Texas and Florida have all ruled that virtual currency is not “money” and is not included under its money transmission laws.[48] Finally, states like New Jersey, Connecticut, Pennsylvania, North Carolina, Utah, and New Hampshire have all taken efforts to follow in New York and California’s footsteps but the proposals have yet to been made official.[49]

It is clear that regulating Bitcoin remains unchartered territory for most. While it may have numerous advantages, businesses and everyday users should continue to exercise caution when using Bitcoin. While it is not illegal, the use of bitcoins is being monitored closely by federal agencies and states, as they continue to grapple with this new technology and determine how it should be regulated.

 

[1]^. See Beyond Bitcoin: Blockchain – The Essential Building Block in Designing the Future, Reed Smith LLP 1 (2016), https://www.reedsmith.com/files/Publication/9ac2cd3f-efdf-48a1-959d-bcf79f8f0d71/Presentation/PublicationAttachment/34219750-39fe-4f37-881c-9e4abf86e2fd/Beyond%20Bitcoin%20Whitepaper%20US.pdf [hereinafter Beyond Bitcoin].

[2]^. See Tal Yellin & Dominic Aratari, What is Bitcoin?, CNN Money (last visited Oct. 26, 2016), http://money.cnn.com/infographic/technology/what-is-bitcoin/.

[3]^. See Beyond Bitcoin, supra note 1, at 7.

[4]^. See Marco Santori, Bitcoin, Digital Currency and the Law, LawLine 1, 11 (2013), https://www.lawline.com/course-center/bitcoin-digital-currency-and-the-law.

[5]^. See id. at 4.

[6]^. See Beyond Bitcoin, supra note 1, at 2.

[7]^. See Santori, supra note 4, at 6.

[8]^. See Yellin & Aratari, supra note 2.

[9]^. See Beyond Bitcoin, supra note 1, at 2.

[10]^. See Yellin & Aratari, supra note 2.

[11]^. See id.

[12]^. See id.

[13]^. See id.

[14]^. See id.

[15]^. See Santori, supra note 4, at 7.

[16]^. See id.

[17]^, See Beyond Bitcoin, supra note 1, at 1.

[18]^. See Santori, supra note 4, at 6.

[19]^. See Beyond Bitcoin, supra note 1, at 2.

[20]^. See id.

[21]^. See Santori, supra note 4, at 18.

[22]^. See Don He Et Al., Virtual Currencies and Beyond: Initial Considerations, IMF 1, 27 (2016), https://www.imf.org/external/pubs/ft/sdn/2016/sdn1603.pdf.

[23]^. See Beyond Bitcoin, supra note 1, at 9.

[24]^. See id.

[25]^. See id.

[26]^. See Bitcoin Theft Highlights Cryptocurrency Regulatory Uncertainty, Allen & Overy (Aug. 11, 2016), http://www.allenovery.com/publications/en-gb/Pages/Bitcoin-theft-highlights-cryptocurrency-regulatory-uncertainty.aspx [hereinafter Bitcoin Theft].

[27]^. See id.

[28]^. See Santori, supra note 4, at 21.

[29]^. See Beyond Bitcoin, supra note 1, at 10.

[30]^. See id.

[31]^. See id.

[32]^. See id.

[33]^. See id.

[34]^. See id.

[35]^. See Don He Et Al., supra note 22, at 29.

[36]^. See Beyond Bitcoin, supra note 1, at 11.

[37]^. See Don He Et Al., supra note 22, at 24.

[38]^. See Santori, supra note 4, at 28.

[39]^. See id. at 29.

[40]^. See id.

[41]^. See Beyond Bitcoin, supra note 1, at 7.

[42]^. See id.

[43]^. See id.

[44]^. See id.

[45]^. See id.

[46]^.See Beyond Bitcoin, supra note 1, at 7.

[47]^. See id.

[48]^. See Stan Higgins, Federal Judge Rules Bitcoin is Money in US Trial, Coin Desk (Sept. 20, 2016), http://www.coindesk.com/us-judge-bitcoin-money-coin-mx/.

[49]^. See Beyond Bitcoin, supra note 1, at 7.

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By: Hannah Newman,

There’s an app for that. The influx of mobile apps has changed the way people do banking, connect over social media, and even buy groceries. They have changed industries; they have altered the way businesses advertise to customers and how they provide their services. The healthcare industry is no different.

Constant technological innovations combined with a health-conscious population has created an explosion of mobile health (mHealth) apps.[1] In 2015, more than 3 billion mHealth apps were downloaded from major app stores, according to “The 2015 mHealth App Developer Economics Study.”[2] Some apps help individuals count calories or track exercise, while others play a more substantial role in medical treatment.[3] Through laws like Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009, the federal government has incentivized the healthcare industry to promote patient engagement and the access to personal health data.[4] These apps are designed for sophisticated diagnostic use and aim to facilitate physician and patient interaction and decision-making.[5] Some of the more advanced apps also “collect, store, analyze, and transfer individual health information and data previously available only through face-to-face consultations with a health care professional.”[6]

Patients and the overall health care system have benefited from the adoption of mHealth apps. These apps have provided convenient and fun ways to focus on dietary habits and fitness goals, and in return have created a more health-conscious population overall.[7] Mobile health apps improve patient engagement with their physician by promoting shared health management and chronic condition monitoring. They assist patients and caretakers in adhering to post-treatment care instructions that are essential to a successful recovery. They also allow patients to connect with support communities online that can aid in the emotional aspect of treatment and recovery. [8]

However, the health care industry has not seen widespread usage of mHealth apps due to some significant issues that concern governing regulations and privacy and security uncertainties.

Governing Regulations:

There is no single federal agency or law that governs the vast realm of mHealth apps.[9] There are two types of health apps, and this distinction affects how they are regulated. The first type is used by health care providers and is integrated with existing medical technologies.[10] They are used to assist in the delivery of care, for example to monitor and store lab or test results. The second type is used outside of the health care facility and is referred to as private apps. These include fitness apps, weight loss apps, and chronic condition monitoring apps.[11]

The FDA regulates medical devices through section 201(h) of the Food, Drug, and Cosmetic Act of 1938 and the Medical Device Amendments of 1976 to that act.[12] However, the FDA regulates only mHealth apps “whose functionality could pose a risk to a patient’s safety if the mobile app were to not function as intended.”[13] Therefore, the FDA regulation covers all of the first type of apps used by health care providers and also private apps that are intended for use in “diagnosis of diseases or other conditions in the cure, mitigation, treatment, or prevention of disease.”[14] This leaves a vast majority of health care apps that are not regulated by the FDA, thus creating valid concerns among providers.[15]

Privacy and Security:

Protection of health information has been a primary concern with the adoption of mHealth apps. Enacted in 1996, the Health Insurance Portability and Accountability Act (HIPAA) governs health care privacy laws.[16] HIPAA governs the transmission of electronic health records and applies to all “covered entities,” such as health care providers, health insurers, health care clearinghouses, and the business associates of such entities.[17] The Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH) extends HIPAA protections to those who “create, receive, or transmit” health information.[18] Therefore, health apps that are used within a hospital, or by another covered entity, are protected under HIPAA.[19] The private apps that are used by an individual consumer are not subject to HIPAA, thus leaving an immense amount of health care information unprotected.[20]

As many of these apps are unregulated or unprotected, patients and providers may be subject to serious security threats. Forbes discovered through a recent study that 84% of all cyber attacks occurred at the application level.[21] The health care industry is no different. In the past two years, 81% of health care organizations have been breached.[22] A study conducted by security vendor Arxan found that of 19 FDA approved mobile health apps tested for security, 84% of them did not address at least two of the top ten security risks—application code tampering and reverse engineering.[23] Open Web Application Security Project (OWASP) identifies the top ten most critical security risks facing organizations.[24] The security issues that can result from such risks are “theft of personal health data and tampering with data.”[25] Through reverse engineering, an app can be reprogrammed to seriously alter treatment directions or dosage.[26] Information accessed through a security breach can include sensitive health information, but also other identifiable user information. Developers often sell this material to data aggregation companies, who then sell it to other third party parties such as credit card companies and life insurance companies.[27]

In order to prevent such privacy and security issues—and ultimate liability—the governing system of laws and regulations must stay current with the quickly developing world of mobile health apps.

 

 

[1] Kevin M. Henley, Tracking the Likelihood of Liability From Health Apps, Law360 (Mar. 11, 2015, 2:58 PM), http://www.law360.com/articles/629313/tracking-the-likelihood-of-liability-from-health-apps.

[2] Patrick Kehoe, 2016 State of Application Security: Top Health Care Apps in Critical Condition, Security Intelligence (Jan. 12, 2016), https://securityintelligence.com/2016-state-of-application-security-top-health-care-apps-in-critical-condition/.

[3] See supra note 1.

[4] See Sandeep S. Mangalmurti et. al., Medical Malpractice Liability in the Age of Health Records, New Eng. J. Med., 2060, 2060 (Nov. 18, 2010) http://www.nejm.org/doi/pdf/10.1056/NEJMhle1005210.

[5] Id.

[6] Supra note 1.

[7] Id.

[8] David L. Scher, The Big Problem with Mobile Health Apps, Medscape (Mar. 4, 2015), http://www.medscape.com/viewarticle/840335.

[9] David Pittman, 5 Problems with Mobile Health App Security, Medpage Today (Feb. 5, 2014), http://www.medpagetoday.com/practicemanagement/informationtechnology/44161.

[10] Y. Tony Yang & Ross D. Silverman, Mobile Health Applications: The Patchwork of Legal and Liability Issues Suggests Strategies to Improve Oversight, Health Affairs, 222, 222 (2014), http://content.healthaffairs.org/content/33/2/222.full.pdf.

[11] Id.

[12] Id. at 223.

[13] Id.

[14] Id.

[15] See supra note 8.

[16] See supra note 9.

[17] Jordan Cohen & Joanne Hawana, Mobile Health Apps Continue to Make Headlines, Mintz Levin (Mar. 16, 2016), https://www.healthlawpolicymatters.com/2016/03/16/mobile-health-apps-continues-to-face-privacy-security-and-consumer-protection-issues/.

[18] Supra note 9.

[19] See supra note 10, at 224.

[20] Id.

[21] See supra note 2.

[22] Id.

[23] Judy Mottl, Report: FDA-Approved Mobile Health Apps Pose Security Risks, FierceHealthcare (Jan. 10, 2016, 4:27 PM), http://www.fiercehealthcare.com/mobile/report-fda-approved-mobile-health-apps-pose-security-risks.

[24] See supra note 2.

[25] Supra note 23.

[26] Id.

[27] See supra note 17.

Photo Source:

http://altarum.org/sites/default/files/uploaded-blog-post-images/iphone-health.jpg

By: Kathleen Hugo,

Major companies such as Amazon and Alphabet (Google) have started testing drone delivery service of their products.[1] A “drone” is an unmanned aerial vehicle that can fly at a low altitude to report traffic, survey power lines on the land below, and now, make deliveries.[2] While drones have been around for decades, today’s drones are highly sophisticated and can be remotely controlled to act like a “miniature helicopter.”[3] Many modern drones, including the prototypes for Amazon Prime Air and Alphabet’s Project Wing, are equipped with “sense and avoid” technologies to detect potential obstacles in the air space.[4] However, many people fear that drones could pose a significant danger, especially when making multiple deliveries in a single neighborhood or a crowded urban area. [5]

Amazon’s future delivery service, Prime Air, promises to “safely get packages to customers in 30 minutes or less using small unmanned aerial vehicles, also called drones.”[6] Amazon states that Prime Air will only be released once they “have the regulatory support needed to realize [their] vision.”[7] This is referring to the recent regulations published by the Federal Aviation Administration (FAA) regarding the use of Small Unmanned Aircraft. Part 107 of the FAA Regulations addresses commercial uses for drones weighing less than 55 pounds.[8]

These regulations prohibit the use of any unmanned aircraft that are outside the “visual line of sight,” or VLOS, of the remote pilot in command and the operator of the drone.[9] Additionally, the FAA regulation requires the drone to remain close enough to the operator and pilot that the aircraft may be seen “with vision unaided by any device other than corrective lenses,” meaning without the use of visual aids such as binoculars.[10] The regulation states that these restrictions may be waived if proven that the drone may be operated safely “under the terms of a certificate of waiver.”[11] Clearly, these regulations are a significant obstacle to Amazon Prime Air, as they prevent the operation of drones without a visual line of sight, essentially barring drone deliveries outside of a 10-mile radius.[12] While this news was challenging for the future of Amazon Prime Air, not all hope is lost. In August 2016, the FAA granted the first exemption to the “Visual Line of Sight” provision in Part 107, granting Precision Hawk, an agricultural drone company, the ability to fly drones outside the visual line of sight of the remote pilot.[13] The FAA’s exemption for Precision Hawk’s drones could be a step in the right direction toward unmanned aircraft delivery services such as Amazon Prime Air.

Despite the regulatory hurdle imposed by the FAA, Amazon announced in July 2016 that it would soon begin testing drone delivery services in the United Kingdom.[14] The United Kingdom’s Civil Aviation Authority (CAA) has granted Amazon permission to “test the drones when they are out of sight from operators, measure their ability to identify and avoid obstacles and gauge the success of operators flying multiple drones at once.”[15] Supporters hoped that the success of these tests would put pressure on the FAA to amend their regulations to allow for drone delivery services to operate out of the visual line of sight.[16] In August 2016, the FAA granted Alphabet’s Project Wing the permission to begin testing drone deliveries beyond the line of sight in one of six FAA-approved testing locations.[17]

While there are signs of progress, Amazon and Alphabet still face regulatory challenges in the United States. For now, consumers in the United States will have to wait a little longer before drone deliveries become an every day reality.

 

 

[1] See Ben Popper, Alphabet Will Begin Testing Its Delivery Drones Inside the U.S., The Verge (Aug. 2, 2016, 1:19 PM), http://www.theverge.com/2016/8/2/12353788/google-autonomous-drone-project-wing-faa-approved-test.

[2] See Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155, 157-161 (2015); see also Martyn Williams, New FAA Rules Mean You Won’t Get Amazon Drone Delivery Anytime Soon, PC World (June 21, 2016, 9:00 AM), http://www.pcworld.com/article/3086790/legal/new-faa-rules-mean-you-wont-get-amazon-drone-delivery-anytime-soon.html.

[3] See Rule, supra note 2, at 160.

[4] See David Z. Morris, Top Amazon Exec Says U.S. Rules Could Delay Drone Delivery, Fortune (Jan. 19, 2016, 2:00 PM), http://fortune.com/2016/01/19/amazon-drone-delivery-delay/.

[5] See Adario Strange, 3 Challenges Keeping Amazon’s Delivery Drones From Taking Flight, Mashable (Dec. 1, 2015, 2:46 PM), http://mashable.com/2015/11/30/amazon-prime-air-reality/#Ih1ZzM9fakqR.

[6] See Amazon Prime Air, https://www.amazon.com/b?node=8037720011 (last visited Oct. 21, 2016).

[7] See id.

[8] See 14 C.F.R. § 107 (2016), http://www.faa.gov/uas/media/Part_107_Summary.pdf.

[9] See id. at § 107.31(Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer.”).

[10] See id.

[11] See Waiver Policy and Requirements, 14 C.F.R. § 107.200 (2016).

[12] See Luke Johnson, 9 Things You Need to Know About the Amazon Prime Air Drone Delivery Service, Digital Spy (July 26, 2016), http://www.digitalspy.com/tech/feature/a775701/9-things-you-need-to-know-about-the-amazon-prime-air-drone-delivery-service/.

[13] See BI Intelligence, The FAA has Granted a Major Drone Exemption to This One Company, Business Insider (Aug. 31, 2016, 2:02 PM), http://www.businessinsider.com/faa-grants-drone-exemption-to-precisionhawk-2016-8; see also Lora Kolodny, In a First, FAA Allows PrecisionHawk to Fly Drones Where Pilots Can’t See Them, TechCrunch (Aug. 29, 2016), https://techcrunch.com/2016/08/29/in-a-first-faa-allows-precisionhawk-to-fly-drones-where-pilots-cant-see-them/.

[14] See Gwen Ackerman, Amazon Partners With U.K. to Test Deliveries by Aerial Drone, Bloomberg (July 26, 2016, 6:17 AM), https://www.bloomberg.com/news/articles/2016-07-26/amazon-partners-with-u-k-government-to-test-delivery-by-drone.

[15] See id.

[16] See Cecelia Kang, Amazon Expands Drone Testing in Britain, New York Times (July 25, 2016), http://www.nytimes.com/2016/07/26/technology/amazon-expands-drone-testing-in-britain.html?_r=0.

[17] See Popper, supra note 1.

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By: Hsiao-Han Wang

“Personal care products” is the term usually used by people to refer to variety items found in health and beauty sections of stores.[1] These include but not limited to items like shampoo, body lotion, toothpaste, shaving cream, as well as other cosmetics such as lipsticks and eye-makeups. There are estimated eight billion personal care products sold annually and the industry creates more than 200 billion dollars of gross domestic product (GDP) value in the United States.[2] Personal care products expose people to multiple chemical ingredients everyday simply via using them: in America, that means an average of twelve personal care products that contain 168 different chemicals for women, and six personal care products that contain 85 different chemicals for men.[3]

Personal care products play a very intimate role in our daily life and most of them will come to contact directly with our skin, hair, and other body organs eventually. However, in despite of the high volume of use and the safety concerns, many chemicals in personal care products are not subject to either statutory or regulatory restrictions. According to Food and Drug Administration (FDA), products “intended to cleanse or beautify are generally regulated as cosmetics,” therefore, are not subject to premarket-approval from the agency.[4] Moreover, the laws governing the safety of personal care products have not been substantially updated since 1938.[5] Due to the outdated statutory requirement, FDA has prohibited or restricted only eleven ingredients from use in personal care products[6] which is far less than the number of chemicals that have been actually put into the industry.[7]

The FDA’s lack of power over these personal care products also reflects in the case which a nine-year-old child lost most of her hairs after using one celebrity-endorsed hair product for only three times.[8] After receiving 127 complaints from the consumers, FDA issued a safety alert on this line of hair cleaning products and pointed out that thousands of complaints were received by the hair products company. [9] However, while about twenty-one thousand consumers claimed to encounter health problems including hair loss and allergy reaction like itching and rashes, FDA does not have the authority to recall these products.[10]

It is true that most chemicals contained in personal care products are relatively harmless and may only post little or no risk to our health compared to products subject to rigorous restrictions (such as drugs). Nonetheless, it is also true that some chemicals used in cosmetics and other personal care products may result in serious health problems, including cancer and reproductive harm.[11] Chemicals that have been linked to health problems can be divided into five major groups: “frank carcinogens (cancer causing); precursors of or []hidden[] carcinogens; endocrine or hormonally disruptive; penetration enhancers; and allergens.”[12] Endocrine disruptors, for example, may be especially harmful for pregnant women and infants since they may impose “greatest risk during prenatal and early postnatal development when organ and neural systems are forming.”[13] Another example, formaldehyde-based hair straightening products, “have been linked to hair loss, rashes, blisters, nosebleeds, bleeding gums, and loss of taste and smell.”[14]

The health risks of personal care products are well acknowledged by many other countries. For example, the European Union has banned more than 1,300 chemicals from personal care products and restricted an additional 256.[15] This number is far higher than the eleven restrictions and prohibitions mentioned above in the United States. In addition to health risks, environmental concerns should also be taken into consideration.[16] Furthermore, the needs to have a uniform standard for the cosmetics industry to follow are too addressed by a lot of small business owners.[17]

In light of the risks imposed to the society, personal care products should be subject to stricter and updated statutory and regulatory requirements. Particularly, granting more authority to FDA would enable the agency not only to stop products with potential risks at the frontend but also to respond efficiently and effectively once any harm or risk is realized. From the aspect of protecting consumers, American people deserve to have a safe and reliable market environment that is at least equally regulated as those in other countries. From the other aspect of the personal care products industry, it would also promote American businesses’ long-term competitiveness wherever they are selling their products domestically, exporting, or operating in the international markets all over the world.

 

 

[1] See U.S. Food and Drug Administration (FDA), http://www.fda.gov/ForIndustry/FDABasicsforIndustry/ucm238796.htm (last visited Oct. 19, 2016).

[2] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Lamar Alexander, Chairman, S. Comm. on Health, Educ., Labor, & Pensions); see also Personal Care Products Council, Economic & Social Contributions Report 3 (2016), http://www.personalcarecouncil.org/sites/default/files/PCPC%20FINAL%20Economic%20&%20Social%20Contributions%20Report%20-%20Web.pdf (“in 2013, the personal care products industry added $236.9 billion to U.S. GDP”).

[3] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Scott Faber, Senior Vice President for Government Affairs, Environmental Working Group).

[4] See FDA, Supra note 1.

[5] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Dianne Feinstein, S. Comm. on Health, Educ., Labor, & Pensions); See also, e.g., 21 U.S.C. § 361 (LEXIS through Pub. L. 114-244).

[6] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Sen. Dianne Feinstein, S. Comm. on Health, Educ., Labor, & Pensions).

[7] See Breast Cancer Fund, http://www.breastcancerfund.org/clear-science/environmental-breast-cancer-links/cosmetics/ (last visited Oct. 20, 2016) (“[i]n the U.S., major loopholes in federal law allow the cosmetics industry to put thousands of synthetic chemicals into personal care products”).

[8] See Daily Hornet, Colorado Mom Says WEN Shampoo Caused Daughter to Go Bald (Oct. 19, 2016), https://dailyhornet.com/2016/colorado-mom-says-wen-shampoo-caused-daughter-to-go-bald/.

[9] See FDA, WEN by Chaz Dean Cleansing Conditioners: FDA Statement – Investigation of Adverse Event Reports (July 19, 2016), http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm511890.htm; see also Tina Sigurdson, FDA Investigating Hair Care Products Linked to Balding But Can’t Stop Sales, Enviroblog (July 26, 2016), http://www.ewg.org/enviroblog/2016/07/fda-investigating-hair-care-products-linked-balding-cant-stop-sales.

[10] See Tina Sigurdson, FDA Investigating Hair Care Products Linked to Balding But Can’t Stop Sales, Enviroblog (July 26, 2016), http://www.ewg.org/enviroblog/2016/07/fda-investigating-hair-care-products-linked-balding-cant-stop-sales.

[11] See Scott Faber, supra note 3.

[12] Dr. Frank Lipman, Major Risks From Cosmetics & Personal Care Products, http://www.drfranklipman.com/risks-from-toxic-ingredients-in-cosmetics-personal-care-products/ (last visited Oct. 20, 2016).

[13] National Institute of Environmental Health Sciences, http://www.niehs.nih.gov/health/topics/agents/endocrine/ (last visited October 20, 2016).

[14] Scott Faber, supra note 3.

[15] See Sen. Dianne Feinstein, supra note 6.

[16] See, e.g., Alistair B.A. Boxall, et al., Pharmaceuticals and Personal Care Products in the Environment: What Are the Big Questions, 120 Env’t Health Persps. 1221–29 (2012).

[17] See Exploring Current Practices in Cosmetic Development and Safety: Hearing Before the S. Comm. on Health, Educ., Labor, & Pensions, 114th Cong. (2016) (statement of Curran Dandurand, CEO & Co-founder, Jack Black, LLC) (“the science establishing ingredient safety should not change from state to state, therefore it does not make sense to allow varying state regulations regarding cosmetics”).

Photo Source:

http://lifestyleorganic.org/wp-content/uploads/2013/02/toxic-cosmetics.jpg

By: Genevieve deGuzman

The World Wide Web, or simply Web as we know it, actually only covers the surface of an ocean of information. The search engines we use, like Google and Bing, only float on the surface and cast a short net that follow links or static pages between sites.[1] The apps, merchants, social media, news, etc. we access on a daily basis barely make up less than one percent of the actual Web content.[2] These comprise what is more aptly called the Surface Web: anything accessible through search engines.

Diving further down, we would find the databases and academic journals hidden behind private networks or standalone pages that connect to nothing at all and do not surface to the Web. These are still reasonably known. The Deep Web is anything inaccessible through search engines, and a study conducted in 2001 revealed that the Deep Web was approximately 400-500 times the size of the Surface Web.[3]

Within the Deep Web lies the Dark Web, which refers to a collection of secret websites “concealed to hide in plain sight or reside within a separate, but public layer of the standard internet.”[4] They can only be accessed using certain special software, like The Onion Router, more commonly known as Tor.[5] Tor not only allows its users to access these concealed sites but also allows websites to operate on “hidden services” by replacing it with a Tor-based web address; the only way to access a hidden service is to know the hidden service’s Tor-based address.[6] It thwarts traditional IP identification and investigative techniques by masking a user’s IP address and its administrator’s identity.[7] Using Tor would render a user’s web activity as practically untraceable by bouncing signals around a “distributed network of relay computers” run by Tor-enabled volunteer computers around the world.[8]

Tor not only allows anonymous communication online for sensitive information, but more recently, Tor has become a “hub for black markets that sell or distribute drugs, [weapons, and people,] stolen credit cards, illegal pornography, pirated media,” assassins for hire, political dissidents, and more.[9] Tor is accessible and available to the public for free by downloading the Tor browser bundle.[10]

Tor effectively renders users anonymous to websites and to law enforcement officers who may be monitoring websites. However, Tor administrators claim that they are not aware of anyone being sued or prosecuted in the United States for using Tor.[11] Further, they believe it is legal under United States law.[12] Although it may be used for illegal purposes, Tor asserts that it was developed as a “tool for free expression, privacy, and human rights.”[13] Still, these Tor relays may still be subject to U.S. laws such as the Electronic Communications Privacy Act of 1986[14] which extends government restrictions on wire taps on telephone calls to include transmissions of electronic data via computers. Using Tor may not be illegal nor is merely masking one’s IP address and browsing history and activity, but as its anonymity tools are increasingly used for illegal activity, it may become more of an issue. Tor and other Dark Web tools are almost certain to gain more exposure and popularity, and with its increase in usage will come an increase in legal concerns and action. That said, you can expect the Dark Web to be an increasingly relevant factor for U.S. lawmakers to consider.

 

[1] See Jose Pagliery, The Deep Web you don’t know about, CNN, Mar. 10, 2013, available at http://money.cnn.com/2014/03/10/technology/deep-web/index.html.

[2] Id.

[3] Bright Planet, Understanding the Deep Web in 10 Minutes (2013), available at http://cdn2.hubspot.net/hub/179268/file-377288418-pdf/docs/understandingthedeepweb_20130311.pdf?t=1476906418725.

[4] Id.

[5] Id.

[6] See id; see also United States v. Werdene, No. 15-434, 2016 U.S. Dist. LEXIS 66311 (E.D. Pa. May 18, 2016)

[7] Id. See also United States v. Johnson, No. 15-00340-01-CR-W-GAF, 2016 U.S. Dist. LEXIS 145180 (W.D. Mo. Oct. 20, 2016).

[8] Id.

[9] Supra note 3.

[10] Id. See also Tor, https://www.torproject.org/ (last visited Oct. 20, 2016).

[11] Tor, https://www.torproject.org/ (last visited Oct. 20, 2016).

[12] Id.

[13] Id.

[14] Electronic Communication Privacy Act of 1986, 100 Stat. 1848.

Photo Source:

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By: Nicole Desbois,

When everyone first unwraps their new smart phones and turns them on, they expect to see certain pre-installed apps. With the iPhone there is iMaps, iTunes, News, iBooks and plenty more. The same goes for Android software smart phones. Google maps, Google search, and nine other Google apps are pre-downloaded. Unfortunately, for Google the European Union is particularly troubled by the pre-installment of their products across various smart phone manufactures such as HTC and Samsung.

Google is currently being charge by the European Union with “unfairly using Android to promote its own services – like mobile search over those of its rivals”[1]

The issue here is Google has signed contracts with popular phone manufactures like HTC and Samsung which provide financial incentives to exclusively pre-install Google applications, such as Google Maps, Google Search, and “links to the company’s app store, from which Google takes a cut of each application sold.” In these licensing agreements with Android, Google requires smartphone makers to load 11 core Google apps onto the phone before a customer buys it. The apps need to be at least one swipe away from the home screen, and customers cannot delete those apps.”[2]

On top of this stringent licensing agreement, Google is also making money off the advertising revenue from the use of its search engine. Although manufactures are free to include their own applications as part of the mobile software, the chances of consumers choosing relatively unknown brands in favor of Google is slim.[3]

Not only does Google have the financial incentives to strong arm smart phone manufacturers into these deals, but device makers are continually struggling against one competitor in particular, Apple. Which raises questions over Apple’s own software system. When a consumer purchases an iPhone certain apps are packaged with the phone. Additionally, consumers again are not given the option to delete those pre-downloaded applications. The main different in Apple’s case is their software works exclusively with the iPhone as opposed to be utilized across brands like Android with manufactures like HTC and Samsung.

In response to these accusations, “Google says its relationships with cellphone manufacturers are voluntary and that rival mobile services, including those from the likes of Amazon and Facebook, are readily available on its Android software, which does not restrict people from downloading competitors’ applications.”[4]

However, no one is going to delete Google apps, like Maps, in exchange for a download of an unknown operating company. Additionally, consumers with pre-downloaded apps are more likely to be subconsciously persuaded that perhaps googles apps run better with a google software system. Advertising for alternative software systems is unlikely fruitful when the search engine pulling up these advertisers is the competition itself. Again, even if competitors are allowed to include their own applications, users are still more likely to gravitate towards the familiar.

Margrethe Vestager, Europe’s antitrust chief, has voiced her concern “that, by requiring phone makers and operators to preload a set of Google apps, rather than letting them decide for themselves which apps to load, Google might have cut off one of the main ways that new apps can reach customers.”[5]

Right now Google’s version of Android powers more than “98 percent of the Android-based smartphones in Europe and the United States.” [6] Additionally, Android based smartphones accounted for 76.5% of the smartphones sold from March to May of this year in the European Union.[7]

Google continually makes the argument that the deals they make with phone manufactures, and consumer choice over app preference, is all voluntarily. However, is any of it actually voluntary or is it necessary? There are no large scale competitors, and further funding to build a platform to compete with Google seems fruitless. Who would invest in a product that does the same thing as Google, when Google is already trusted, and has a software system that currently powers over 75% of the smartphones sold in Europe? The funding isn’t there, nor is the incentive.

The EU executive body has given the Silicon Valley-based company an October 31st deadline to provide evidence whether it may or may not have been abusing its power to block out competitors.[8] Google could face a fine of around 10% of the company’s annual revenue worldwide, which is about 7 billion dollars.[9]

 

 

[1] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[2] David Goldman, Google Charged by EU in Android Monopoly Lawsuit, C.N.N. (Apr. 20, 2016), http://money.cnn.com/2016/04/20/technology/google-android-lawsuit-europe/.

[3] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[4] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[5] Mark Scott, Google’s Antitrust Woes in Europe Are Likely to Grow, New York Times (Apr. 19, 2016), http://www.nytimes.com/2016/04/20/technology/google-android-eu-antitrust.html?_r=0.

[6] Mark Scott, E.U. Charges Dispute Google’s Claims That Android Is Open to All, New York Times (Apr. 20, 2016), http://www.nytimes.com/2016/04/21/technology/google-europe-antitrust.html.

[7] Android Share Tops 75% in Europe’s Largest Markets, Market Wired (Jul. 13, 2016), http://www.marketwired.com/press-release/android-share-tops-75-in-europes-largest-markets-2142004.htm.

[8] C. See, Google-Parent, Alphabet Inc. Forced to Respond to Changes Suggested by the EU or Get Fined for Violating Antitrust Rules, News Everyday (Oct. 16, 2016), http://www.newseveryday.com/articles/48623/20161006/google-parent-alphabet-inc-forced-to-respond-to-changes-suggested-by-the-eu-or-get-fined-for-violating-antitrust-rules.htm.

[9] Marty Baes, How the EU Plans to End Google’s Dominance in Europe, Tech Times (Oct. 5, 2016), http://www.techtimes.com/articles/180668/20161005/google-anti-trust-cases-european-union-punishing-google-google-anti-trust-issues.htm.

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By: Ellie Faust,

When a random person approaches you on the street or at a bar, you are able to decide if you want to talk to them and maybe give them your number, right? Well, not according to a couple of Russian app developers who founded FindFace, an app that can provide you with a passerby’s identity within seconds.[1] The app works by comparing uploaded photos to profile pictures on Vkontakte, a popular social network in Russia with over 200 million user accounts.[2] After the photo is uploaded, the app searches through a billion photos in seconds and provides the user with the identity of the person in the photo as well as ten similar looking people.[3] This app currently boasts a 70% reliability rate and the founders, Artem Kukharenko and Alexander Kabakov have marketed the app as a way for men to meet women.[4] One of the apps creators, Kabakov stated, “If you see someone you like, you can photograph them, find their identity, and then send them a friend request.”[5] Within the first two months of the app’s launch, FindFace gathered upwards of 500,000 users and have processed over three million searches.[6]

So how exactly does this technology work? In the same way that a person’s fingerprint may be collected for future reference, identifying a person’s face requires building a faceprint to compare it to.[7] Since our faceprints are left everywhere that we go, our movements can be tracked and stored on a larger scale than ever before.[8] Such facial recognition is effectuated without your permission and you do not have the ability to opt out.[9]

While Canada and many other countries in Europe have placed restrictions on how facial recognition technology may be used, the United States has left the field largely unregulated.[10] Currently, only Texas and Illinois have implemented state level laws to protect biometric information.[11] One such law is the Biometric Information Privacy Act, which regulates how a person’s biometric identifiers, including “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” may be collected, stored, and used.[12] Under the Act, a person must provide written permission before a private entity may obtain any biometric identifiers.[13] The Illinois law has generated a number of lawsuits in which it is alleged that companies have failed to obtain consent before images of people’s faces are scanned and stored.[14]

The same technology that allows users to automatically tag friends in photos and that lets us filter ourselves into dogs has landed tech companies in hot water.

Facebook, Google, and Snapchat are all facing lawsuits for allegedly violating the Illinois law by producing biometric face prints without first notifying the citizens of Illinois.[15] According to plaintiffs in the current lawsuits, the companies’ actions amount to collecting biometric information. Collecting such information requires more notice and consent that what the companies are currently providing.[16] Recently, Senator Terry Link proposed a revision to the Act which would limit the bill to “data resulting from an in person process whereby a part of the body is traversed by a detector or an electronic beam”.[17] This would rule out scans from preexisting photography and, if the revisions become law, the lawsuits would come to an end.[18] However, when fingerprints and iris prints can be obtained from simply a high-resolution photograph, the proposed separation between photographs and biometric scans does not fit with modern technology.[19] While we cannot stop the advancement of facial recognition technology, we do need more regulation in the area to ensure that our privacy is being properly protected.

 

 

[1] See Shaun Walker, Face recognition app taking Russia by storm may bring end to public anonymity, Guardian (May 17, 2016, 4:39 PM), https://www.theguardian.com/technology/2016/may/17/findface-face-recognition-app-end-public-anonymity-vkontakte.

[2] See id.

[3] See id.

[4] See Jeff John Roberts, Facebook and Google Really Want to Kill This Face-Scanning Law, Fortune (Jun. 30, 2016, 10:17 AM), http://fortune.com/2016/06/30/facebook-google-facial-recognition-lawsuits/.

[5] See Walker, supra note 1.

[6] See Tarun Wadhwa, Facial Recognition Will Soon End Your Anonymity in Public, Huffington Post (Jun. 6, 2016, 1:26 PM), http://www.huffingtonpost.com/tarun-wadhwa/facial-recognition-will-s_b_10321972.html?.

[7] See Russell Brandom, Apple’s new facial recognition feature could spur legal issues, Verge (Jun. 16, 2016, 8:11 AM), http://www.theverge.com/2016/6/16/11934456/apple-google-facial-recognition-photos-privacy-faceprint.

[8] See Wadhwa, supra note 6.

[9] See id.

[10] See Roberts, supra note 4.

[11] See Stephanie Grimoldby, Illinois Facial Recognition Law Leads To Wave Of Class Actions Against Facebook, Others, Forbes (Jul. 5, 2016, 6:00 AM), http://www.forbes.com/sites/legalnewsline/2016/07/05/il-facial-recognition-law-leads-to-wave-of-class-actions-against-facebook-others/#75375ced4e56.

[12] See id.

[13] See id.

[14] See Roberts, supra note 4.

[15] See Russell Brandom, Someone’s trying to gut America’s strongest biometric privacy law, Verge (May 27, 2016, 8:27 AM), http://www.theverge.com/2016/5/27/11794512/facial-recognition-law-illinois-facebook-google-snapchat.

[16] See Brandom, supra note 7.

[17] See Brandom, supra note 15.

[18] See id.

[19] See id.

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By: Brad Stringfellow,

Superstar Justin Timberlake caused a bit of a stir this week when sharing a selfie at a Tennessee polling station to encourage his thirty-seven million Instagram followers to vote. His actions bring to light the vast array of differences between states in regards to ballot selfies. Under Tennessee law, it is illegal to take photos or video at a polling location.¹ If prosecuted, it is a Class C misdemeanor, which can lead to up to thirty days in jail and/or a fine up to fifty dollars.²

Fortunately, the Shelby County District Attorney General Amy Weirich responded to questions of prosecution of Mr. Timberlake by saying, “No one in our office is currently investigating this matter nor will we be using our limited resources to do so.”³

Mr. Timberlake flew from California to Memphis, Tennessee, in order to vote early and help promote this civic opportunity before the American people. His now-deleted Instagram message read,

“Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote !!! No excuses, my good people! There could be early voting in your town too. If not, November 8th! Choose to have a voice! If you don’t, then we can’t HEAR YOU! Get out and VOTE! #excerciseyourrighttovote.”⁴

His non-partisan encouragement and enthusiasm for voting was endorsed with a slight rebuke in a statement by Secretary of State spokesman Adam Ghassemi, “We’re thrilled Justin can’t stop the feeling when it comes to voting … We hope this encourages more people than ever to vote, but Tennesseans should only use their phones inside polling locations for informational purposes to assist while voting.”⁵

Mr. Timberlake’s small gaffe brings a timely reminder of the difference between states in regulating voter behavior at the polls. Had his selfie taken place in Illinois, consequences could have been much worse with a punishment ranging between one and three years in prison.⁶ The policy reasons to discourage pictures at voting sites include privacy of other voters, influencing others, and a fear that photographic proof of voted ballots could lead to bought votes.⁷

Eighteen states currently have bright-line rules banning photos or public display of a vote at polling stations and/or of ballots, including absentee ballots.⁸ Punishments range from no enforcement action to felony prosecution for violating the respective statute.⁹

Thirteen states are currently unclear or sending a mixed message as to the right to photograph a personal ballot.¹⁰ Ohio and Missouri state officials, for example, have left ballot selfies to local election boards to deal with.¹¹ Iowa, Maryland, Texas, and West Virginia do not allow photos at polling stations, but do allow photos of absentee ballots.¹² Arizona does not allow photos within seventy-five feet of polling stations, but paradoxically, allows photos of completed ballots.¹³

Nineteen states and the District of Columbia accept ballot selfies ranging from begrudging acceptance to solid endorsement.¹⁴ Utah, Rhode Island, North Dakota, Nebraska, Minnesota, Louisiana, and Hawaii all have passed laws expressly allowing ballot selfies; like Justin Timberlake, some of these states see it as a means of encouraging more voter participation .¹⁵ The majority of other states allowing photos have done so either because they have no rule forbidding it, or have had a law forbidding photos repealed (Indiana and New Hampshire).¹⁶

More states may soon be allowing ballot selfies as the First Circuit Court of Appeals has found ballot selfies to be a valid form of free speech under the First Amendment.¹⁷ The court found New Hampshire’s purpose in preventing the ballot selfies as too broad to serve a specific governmental purpose worthy of infringing on first Amendment rights. ¹⁸

While Mr. Timberlake was able to share a photo of his ballot with no consequence, it would be wise to check state rules before following likewise. Perhaps in the future, all ballot selfies will be seen as a form of free speech. In the meantime, don’t cry a river if you can’t share a selfie.

 

Photo Source: http://media.phillyvoice.com/media/images/tmp4Qyhzc.width-800.jpg

1. See Code Ann. § 2-7-142(b) (2016).
2. See Code Ann. § 40-35-11(e)(3) (2016).
3. Lisa R. France, Justin Timberlake Not in Trouble for Voting Selfie, CNN (Oct. 26, 2016, 2:07 PM), http://www.cnn.com/2016/10/26/entertainment/justin-timberlake-selfie/.
4. Kenzie Bryant, A Gentle Reminder Not to Make Justin Timberlake’s Voting Mistake, Vanity fair (O 26, 2016, 12:44 PM), http://www.vanityfair.com/style/2016/10/justin-timberlake-voting-selfie.
5. Katie Fretland & Linda A. Moore, Timberlake’s Voting Selfie Not Under Review by D.A., The Tennessean (Oct. 25, 2016, 8:14 PM), http://www.tennessean.com/story/news/local/2016/10/25/justin-timberlake-selfie-under-review/92730796/
6. See Ballot Selfies: A Look at Where They Are Allowed or Not, The Associated Press (Oct. 23, 2016, 10:03 PM), http://bigstory.ap.org/article/04c313da0672422ba28bb57c4e4a7ca0/ballot-selfies-look-where-they-are-allowed-or-not.
7. See France, supra note 3; id.
8. See The Associated Press, supra note 6.
9. See id.
10. See id.
11. See id.
12. See id.
13. See The Associated Press, supra note 6.
14. See id.
15. See id.
16. See id.
17. Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, 12-14, 21 (1st Cir. Sep. 28, 2016).
18. See id. 

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By: Victoria Linney,

As the election on November 8th draws near, there is something aside from the candidates that you might consider when casting your vote – whether or not you are risking a fine when taking a ballot selfie. A ballot selfie is a photo of a completed ballot, and it is particularly popular among millennials.[1] Ballot selfies became especially prominent with the introduction of smartphones into our daily lives, as well as the ability to post photos on social media in seconds. These selfies are more likely than ever to occur this election cycle because in 2015, sixty-eight percent of American adults owned a smartphone, while eighty-six percent of people ages 18 to 29 owned a smartphone.[2]

However, many states have laws prohibiting sharing ballot images and information, hoping to protect voter privacy and prevent vote buying schemes.[3] In fact, some state legislatures chose to extend their existing bans on voting booth photography to ballot selfies,[4] but, these laws have clashed with the emergence of social media.[5]

Social media has provided Americans, especially millennials, with a method of showing election enthusiasm and, in essence, a way to provide positive peer pressure to get out and vote.[6] As such, some states have begun to hold such restrictions on ballot selfies unconstitutional. For example, recently the First Circuit found New Hampshire’s ban on ballot selfies to be unconstitutional.[7] The Court found that New Hampshire’s statute failed to meet the test for intermediate scrutiny, and that the purposes of the statute could not justify the restrictions it placed on speech.[8]

New Hampshire’s statute had been amended in 2014 to prohibit voters from displaying their ballots to others in order to show how they have voted through “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.”[9] Violation of this statute carried a fine of up to $1,000.[10]

In order for the statute to survive intermediate scrutiny, it must be “narrowly tailored to serve a significant governmental interest.”[11] The Court found that even if the premise that ballot selfies make voter coercion and vote buying easier was accepted that the statute would still fail for lack of narrow tailoring.[12] This failure is for two reasons: first, because the prohibition on ballot selfies impedes the speech rights of all voters, not just those who are casting a vote illegally, and second, because New Hampshire did not demonstrate that other laws aimed at prohibiting vote corruption were inadequate.[13] Therefore, the Court held that New Hampshire’s restriction on ballot selfies was unconstitutional.[14]

Nevertheless, some states are lifting their restrictions on ballot selfies. The Governor of California signed into law a new exemption that allows voters to disclose how they have voted if doing so does not violate any other law.[15] But, it is important to note that even though the law was signed this past September, it does not go into effect until January of 2017, and therefore Californians will not be able to take ballot selfies on this upcoming Election Day.[16]

However, if you live in Virginia, you are free to take ballot selfies this Election Day.[17] Previously the rules surrounding the use of electronic devices at polls in Virginia were unclear.[18] Then, in June, the State Board of Elections approved new regulatory language that loosened restrictions on electronic devices.[19] This led Virginia Attorney General Mark Herring to issue an opinion stating that Virginia voters were allowed to take ballot selfies as long as it does not disrupt other voters or the election.[20] So, Virginians, do not forget to vote on November 8th, and feel free to take a selfie with your ballot!

 

 

[1] See Mark Joseph Stern, Bring on the Ballot Selfies!, Slate (Sept. 23, 2016, 11:45 AM), http://www.slate.com/articles/technology/future_tense/2016/09/voting_booth_ballot_selfie_bans_violate_the_first_amendment.html.

[2] See Monica Anderson, Technology Device Ownership: 2015, Pew Res. Ctr. (Oct. 29, 2015), http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/.

[3] See Joseph Weber, States, Courts Wrestle With Allowing “Ballot Selfies,” Fox News (Aug. 15, 2016), http://www.foxnews.com/politics/2016/08/15/states-courts-wrestle-with-allowing-ballot-selfies.html.

[4] See Stern, supra note 1.

[5] See Weber, supra note 3.

[6] See Stern, supra note 1.

[7] See Katie Rogers, Court Overturns New Hampshire Ban on Selfies (and Snapchat) in Voting Booths, N.Y. Times (Sept. 28, 2016), http://www.nytimes.com/2016/09/29/us/politics/voting-booth-selfie-snapchat.html?_r=0.

[8] See Rideout v. Gardner, No. 15-2021, 2016 U.S. App. LEXIS 17622, at note 2 (1st Cir. Sept. 28, 2016).

[9] Id. at note 4.

[10] See id.

[11] See id. at note 14.

[12] See id. at note 18.

[13] See Rideout, 2016 U.S. App. LEXIS 17622, at note 19.

[14] See id. at note 21.

[15] See John Myers, Sorry, Californians, You Still Can’t Take Ballot Selfies on Nov. 8, L.A. Times (Oct. 13, 2016), http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-updates-state-elections-officials-are-still-1476379986-htmlstory.html.

[16] See id.

[17] See Virginia AG: “Ballot Selfies” Not Illegal in Virginia, Wash. Post (Oct. 6, 2016), https://www.washingtonpost.com/local/virginia-ag-ballot-selfies-not-illegal-in-virginia/2016/10/06/2a89c9ba-8b86-11e6-8cdc-4fbb1973b506_story.html.

[18] See Graham Moomaw, Ballot Selfies Are Legal in Virginia, Attorney General Says, Rich. Times Dispatch (Oct. 5, 2016, 9:30 AM), http://www.richmond.com/news/virginia/government-politics/article_54c016c3-71d5-51e9-9745-974e63d68137.html.

[19] See id.

[20] See id.

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