Richmond Journal of Law and Technology

The first exclusively online law review.

Watch Your Step: The Potential Use of Smart Concrete in Law Enforcement

Watch Your Step: The Potential Use of Smart Concrete in Law Enforcement

By Kathryn Threatt

In his podcast, The Justice Tech Download, Jason Tashea envisions a new and smart use for concrete: to collect data to identify perpetrators via gait analysis.[1]

Imagine. As you walk along your city’s sidewalks the sensors within its concrete track your steps and your gait. You pause just before someone bumps into you. That someone just rushed out of a convenience store. You notice a few characteristics about them as they pass by: hair color, height in comparison to your own, shade of clothing, and race/ethnicity. Your attention then turns to the convenience store owner who runs out of the store screaming, “Thief!” The alleged thief then sprints down the street and disappears before anyone stops them. The police take your statement and gather data from this smart sidewalk when they arrive.

Apple Vision Pro: Can it See China?

Apple Vision Pro: Can it See China?

By Jarrid Outlaw

Apple is slated to release their next big market product the “Apple Vision Pro” early next year.[1]  The vision pro is an augmented reality (AR) headset that also acts as a standalone computer.[2]  Apple proclaims this product to be the first “spatial computer.”[3]  It combines everyday apps we use on our phones and computers and projects them as an interactive canvas, while still allowing the user freedom to see the environment around them.[4]  It also connects with MacBooks, allows you to make the canvas as big and small as you want, has state of the art resolution, and works as a standalone computer.[5]  Tim Cook, Apple’s CEO, had this to say, “Apple Vision Pro introduces us to spatial computing. Built upon decades of Apple innovation, Vision Pro is years ahead and unlike anything created before — with a revolutionary new input system and thousands of groundbreaking innovations. It unlocks incredible experiences for our users and exciting new opportunities for our developers.”[6]  Though Apple has come up with numerous new and exciting technological innovations, they will have a hard time in the global market due to China’s trademark law.[7]

Deepfakes: Navigating Legal Challenges

Deepfakes: Navigating Legal Challenges

By Moses Hutchinson

Imagine a courtroom where the authenticity of every audio and video recording is suspect. Deepfakes force the legal field to grapple with a fundamental question: can our courts adapt to this new reality.

Can Artificial Intelligence Platforms be Held Liable for Defamation?

Can Artificial Intelligence Platforms be Held Liable for Defamation?

By: Sydney Coker

On May 4, 2023, journalist Fred Riehl was conducting research on a lawsuit, The Second Amendment Foundation v. Robert Ferguson, using an artificial intelligence chatbot, ChatGPT.[1] In his interaction with ChatGPT, Riehl provided the URL of a link to the complaint filed by The Second Amendment Foundation and asked ChatGPT to provide “a summary of the accusations in the complaint.”[2] In response, the chatbot produced a number of false allegations claimed to be made by the Second Amendment Foundation against Mark Walters, an individual who is neither a plaintiff nor defendant in the lawsuit.[3]

The Irish Tech Boom: a Jammy Success or a Banjaxed System?

The Irish Tech Boom: a Jammy Success or a Banjaxed System?

By Avery S. Younis

Once home to the “Double Irish” tax loophole, Ireland houses well over 100,000 information, communication, and technology professionals.[1] Over the past two decades, the country has seen a drastic increase in U.S. tech-based companies moving operations to its country.[2] The biggest companies include Apple, Microsoft, Meta Platforms, Alphabet’s Google, X (Twitter), and Amazon.com.[3] Dublin alone is an international tech hub with companies such as TikTok, Zoom Video Communications, ServiceNow, Datadog, Toast, and 2K.[4]

Tattoos, 2K, and the Future of Copyright Law

By Eleni Paraskevopoulos

 

For those unfamiliar with the video game franchise, NBA 2K, named 2023’s most popular video game in the U.S., is a series of basketball simulation video games designed to emulate the NBA where basketball enthusiasts can fulfill their NBA dreams by playing as NBA players of both the past and present.[1]  A major feature of 2K is the increasingly accurate likeness of NBA players in the playable avatars.[2]  In order for there to be optimal likeness, all aspects of players should be accurately represented: from an individual’s height to their eye color to even their tattoos.  Tattoos are becoming more important especially when given that as of 2020, an estimated 56% of NBA players have tattoos.[3] So what happens when the tattoo art being reproduced in a 2K, is done so without the permission of the artist and copyright holder?

George R.R. Martin Won’t Bend the Knee – Chat GPT, Generative AI, and the Fine Line Between Fair Use and Copyright Infringement

By Perla Khattar[1]

 

On September 19, 2023, George R.R. Martin and other professional fiction writers filed a class action lawsuit against OpenAI in the United States District Court for the Southern District of New York. The Plaintiffs alleged that at the heart of Large Language Models (LLMs) exists “systematic theft on a mass scale.”[2]  In their complaint, the plaintiffs explained that OpenAI, the maker of the LLM ChatGPT, copied their copyrighted works of fiction without permission and fed the data into LLMs that are carefully programmed to “output human-seeming text responses to users’ prompts and queries.”[3] The authors allege that OpenAI downloaded the manuscripts from pirated eBooks repositories.[4]

Why the Trial of Sam Bankman-Fried is Really a Trial about the Current and Future state of Crypto

By Kimberly Lo[1]

 

 

 

While the trial of Sam Bankman-Fried officially kicked off last week in the Daniel Patrick Moynihan U.S. Courthouse in Manhattan, the unofficial trial over the current and future state of crypto was already well underway.[2] The overwhelming consensus is that there is more at stake than whether or not Bankman-Fried will be found guilty on the seven criminal charges he faces.[3] Rather, many view it as the entire cryptocurrency industry on trial. [4]

Virginia’s Online Age Verification Law: Can it Withstand Constitutional Challenges?

By Jay Hale

 

On June 15, 2022, Louisiana broke new ground by enacting a law that creates civil liability for commercial entities whose websites contain more than 33.3% of material deemed harmful to minors.[1] This liability comes into play if minors gain access to such content, and the entity fails to implement reasonable age verification methods on its website.[2] These methods can range from digital ID cards to government-issued identification or any commercially viable approach that relies on public or private transactional data to confirm a user’s age.[3]

After Louisiana’s bold move in introducing this age verification law, several other states quickly passed similar legislation.[4] Virginia was among these states, enacting its own age verification law on May 12, 2023.[5] In this article, I will delve into recent challenges faced by similar laws in Utah and Texas, shedding light on potential challenges that Virginia’s age verification law might encounter.

 

Utah:

Utah made headlines with the passage of SB 287, known as the “Online Pornography Viewing Age Requirements” law. This legislation aimed to compel adult content websites to implement age verification systems, ensuring that individuals had reached the legal age before accessing explicit material.[6] However, this law quickly found itself in the crosshairs of legal challenges by the adult entertainment industry.[7]

In response to SB 287, Pornhub took the drastic step of blocking Utah-based internet connection access to all of its content.[8] The porn site xHampster attempted to comply with the new law by  using a service called Yoti, a system that estimates a user’s age through selfies without storing personal data.[9] Interestingly, when Pornhub closed its doors to Utah users, there was a notable surge in VPN downloads across the state.[10] This raises legitimate concerns that websites like Pornhub might still face liability if minors in Utah use VPNs to gain access to sensitive material.[11]

One of the most significant challenges to Utah’s new age verification law was presented in the case of Free Speech Coalition v. Anderson. In this case, the plaintiffs contended that SB 287 was unconstitutional.[12] They sought to enjoin the Commissioner of Utah’s Department of Public Safety from permitting the download of its data files for use in the age verification process.[13] Their argument revolved around the law’s alleged impermissible vagueness, which they believed violated the due process clause of the Constitution.[14] Additionally, they argued that SB 287 placed a substantial burden on interstate commerce by restricting the ability of online content providers to reach Utah residents.[15] Furthermore, the law was criticized for  imposing a content-based restriction on protected speech without effectively achieving the State’s goal of protecting minors from harmful material that is readily available elsewhere.[16]

The defendants in this case sought to have it dismissed, arguing that it lacked jurisdiction under the 11th Amendment, which typically prevents citizens from suing their own state in Federal Court.[17] This rule also extends to lawsuits against state officials acting in their official capacity.[18] However, there is an exception known as Ex parte Young which allows plaintiffs to sue state officials if the state official has a duty to enforce the statute in question.[19] In this case, the plaintiffs couldn’t use the Ex parte Young exception against the Attorney General because the law in question allowed private individuals, not state actors, to enforce it.[20] The Attorney General’s general duty to enforce the law didn’t qualify for the exception.[21] The same went for Commissioner Anderson, who oversaw a program related to driver’s licenses but lacked the online infrastructure needed for age verification.[22]  Due to this, the Court found that it lacked jurisdiction over the matter.[23]

While the case was ultimately dismissed, it sheds light on the challenges potential plaintiffs in Virginia might face when attempting to sue the state over its age verification law. Much like Utah, Virginia empowers private individuals to sue commercial entities for violating the law.[24] Consequently, it’s highly likely that a Virginia plaintiff would be unsuccessful in suing state officials on the grounds of the law’s unconstitutionality.

However, there remains a glimmer of hope for the adult entertainment industry in their battle against these laws. InFree Speech Coalition v. Anderson, the Judge’s opinion included a statement that offered some solace: “It may be of little succor to Plaintiffs, but any commercial entity sued under SB 287 may pursue state and federal constitutional arguments in his or her defense. They just cannot receive a pre-enforcement injunction…”[25]

The path forward suggests that until a commercial entity faces legal action under the age verification laws of each state, Utah and Virginia will have to wait to determine whether their respective age verification laws are indeed constitutional. A recent case in Texas, however, provides a hint that these age verification laws will continue to face significant constitutional challenges.

 

Texas:

Texas’ law sets itself apart from Utah and Virginia’s age verification laws in a significant way. While these states empower private individuals to bring claims against entities failing to comply with age verification requirements, Texas takes it a step further. It grants its Attorney General the authority to take legal action against online entities knowingly flouting the state’s age verification law.[26]

A pivotal case that exemplifies the clash over Texas’s age verification law is Free Speech Coalition Inc. v. Colmenero. This legal battle played out in the United States District Court for the Western District of Texas, Austin Division. Here, the Plaintiffs sought a preliminary injunction, a maneuver aimed at halting the enforcement of the age verification bill.[27]

What made this case particularly noteworthy was the Court’s determination of its jurisdiction. It determined that the Ex parte Young exception was present.[28] In this instance, the Attorney General’s involvement with the enforcement of the age verification law provided the necessary connection for the Court to assert jurisdiction.[29]

Furthermore, the Court determined that Texas’s age verification law violates the first amendment of the Constitution. Although the Judge acknowledged the consensus that pornography is inappropriate for children, Texas fell short in demonstrating that its law was narrowly tailored to the purpose of safeguarding minors.[30] The law also appears to unfairly target websites such as Pornhub while overlooking websites like Reddit, where pornography is prevalent but doesn’t make up over a third of its total content.[31]

As the law regulates speech, encompassing content deserving of First Amendment protection, it must survive strict scrutiny, meeting three critical criteria: (1) serve a compelling government interest, (2) be narrowly tailored to achieve that interest, and (3) be the least restrictive means of advancing it.[32] While a compelling state interest does exist in this context, the law falters in the realm of narrow tailoring.[33] It only applies to a subset of pornographic websites that are subject to the personal jurisdiction of Texas, failing to encompass many foreign websites beyond its reach.[34] Consequently, the law lacks a valid enforcement mechanism, permitting minors to access potentially explicit content from foreign sites with no ties to the United States.[35] Additionally, the law is overly broad and restrictive. It deters adult’s access to legal, sexually explicit material, well beyond the scope of protecting minors.[36]

The Court’s ruling highlighted how the law would deter many adults from engaging with the restricted content out of reluctance to disclose their identification information, fearing that it might be collected and stored.[37] The requirement for adults to actively identify themselves before accessing such material creates a chilling effect on their ability to access protected speech.[38]

 

Conclusion:

In summary, Utah and Texas serve as intriguing precursors for the constitutionality of Virginia’s age verification law. While Utah’s legal battle highlighted the challenges for plaintiffs in states where only private individuals can sue, Virginia seems poised for a similar scenario. In contrast, Texas, with its unique approach granting its Attorney General enforcement powers, sparked a constitutional clash that questioned the law’s narrow tailoring and potential chilling effect on adult access to explicit content.

As these age verification laws evolve, they foreshadow a future filled with legal battles and constitutional scrutiny, with the adult entertainment industry at the forefront of the fight to protect its interests and free expression rights.

 

 

 

 

 

 

 

 

 

[1] H.R. 142, 2022 Reg. Sess. (Va. 2023), http://www.legis.la.gov/legis/ViewDocument.aspx?d=1249878.

[2] Id.

[3] Id.

[4] Sara Cline & Kevin McGill, Adult entertainment group sues Louisiana over age-verification law for porn, AP News (June 22, 2023, 5:31 PM), https://apnews.com/article/porn-lawsuit-age-verification-louisiana-65c5ff6c6e15c8c95f73e81e3dc0a65e.

[5] H.R. 142, 2022 Reg. Sess. (Va. 2023).

[6] Ben Winslow, Pornhub blocks Utah in protest of new age-verification law, Fox 13 News Utah (May 1, 2023, 2:30 PM), https://www.fox13now.com/news/local-news/pornhub-blocks-utah-in-protest-of-new-age-verification-law

[7] Christopher Brown, Adult-Industry Group Challenges Utah Online Age Verification Law, Bloomberg Law (May 5, 2023, 2:03 PM), https://news.bloomberglaw.com/us-law-week/utah-age-minimum-website-law-challenged-by-adult-industry-group.

[8] Skye Witley & Andrea Vittorio, Porn Site Pushback on Utah Law Foreshadows More Age-Check Fights, Bloomberg Law (May 12, 2023, 5:10 AM), https://news.bloomberglaw.com/privacy-and-data-security/porn-site-pushback-on-utah-law-foreshadows-more-age-check-fights.

[9]Id.

[10] Christiano Lima & David DiMolfetta, Utah’s porn crackdown has a VPN problem, The Washington Post (May 5, 2023, 9:05 AM), https://www.washingtonpost.com/politics/2023/05/05/utahs-porn-crackdown-has-vpn-problem/.

[11] Id.

[12]  Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).

[13] Id.

[14] Id.  

[15] Id.

[16] Brown, supra note 7.

[17] Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] H.R. 142, 2022 Reg. Sess. (Va. 2023).

[25] Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).

[26] H.B. 1181, 88th Leg., Reg. Sess. (2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB01181F.pdf#navpanes=0.

[27] Amanda Silberling, Texas cannot yet enforce ID checks on porn sites, TechCrunch (Aug. 31, 2023, 4:23 PM), https://techcrunch.com/2023/08/31/texas-cannot-yet-enforce-id-checks-on-porn-sites/.

[28] Free Speech Coal., Inc. v. Colmenero, No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065 (W.D. Tex. Aug. 31, 2023).

[29] Id.

[30] Andrea Vittorio, Porn Industry Group Wins Pause of Texas Online Age Check Law, Bloomberg Law (Aug. 31, 2023, 5:32 PM), https://news.bloomberglaw.com/privacy-and-data-security/porn-industry-group-stops-texas-from-implementing-age-check-law.

[31] Id.

[32] Free Speech Coal., Inc. v. Colmenero, No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065 (W.D. Tex. Aug. 31, 2023).

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

 

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