Category: Blog Posts Page 58 of 75

By: Brad Stringfellow,

Voting down strict party lines, the Republican-majority Senate recently threw out FCC rules which would have provided consumers with more privacy from Internet Service Providers (ISPs).¹ As it stands, ISPs such as Comcast are on an even playing field with free services such as Google or Facebook who are able to capture, package, and sell your activity. The reason the FCC sought to put harsher restrictions on ISPs is that consumers have the choice of whether or not to use free services such as Google or Facebook, but there is little consumers can do to escape an ISP’s oversight: using the internet in almost any capacity is accomplished through an always-watching ISP.

The FCC was unhappy with this lucrative opportunity ISPs have to exploit and sell consumer browsing data, especially since consumers must pay ISPs for internet service. In 2016, the FCC passed a new set of rules entitled Protecting the Privacy of Customers of Broadband and Other Telecommunication Services in 2016.² The new rules were meant to increase consumer privacy by forcing ISPs to increase data security and privacy measures as well as a measure which would only allow the sale of browsing history if the consumer opted-in.³

The FCC explained their view of ISPs by saying that “ ISPs are in a position to develop highly detailed and comprehensive profiles of their customers – and to do so in a manner that may be completely invisible.”⁴ In justifying the proposed rules, the FCC explained, “[W]ell-functioning commercial marketplaces rest on informed consent.”⁵ ISPs were not happy about these new rules as it would cost them significantly to upgrade their infrastructure for the security requirements and lost revenue from selling consumer browsing history.⁶

Stay petitions on the new rules were filed by organizations composed of advertisers, telecom, broadband, ISPs, and other commercial groups sympathetic to ISPs. The FCC granted the stay on March 1, 2017.⁷ The Commissioner of the FCC, Michael O’Rielly, noted that “there has been no evidence of any privacy harms, and “no benefit to be gained from increased regulations,” while the new rules “place substantial, unjustified costs on businesses and consumers.”⁸

On March 23, 2017, the Senate passed a vote disapproving the stayed rules. Congress has the power to overturn agency rules with a simple majority through Chapter 8 Title 5 of the US Code.⁹ The vote was 50-48, with 50 Republican votes to overturn the rules against 48 Democratic votes to approve the rules, with two absent Republican Senators not voting.¹⁰ The vote will now go to the majority-Republican House where it will likely follow suit and throw the rules out.

Speaking of the vote’s outcome, Senator Edward Markey, a Democrat from Massachussets, said, “President Trump may be outraged by fake violations of his own privacy, but every American should be alarmed by the very real violation of privacy that will result of the Republican roll-back of broadband privacy protections. With today’s vote, Senate Republicans have just made it easier for American’s sensitive information about their health, finances and families to be used, shared, and sold to the highest bidder without their permission. The American public wants us to strengthen privacy protections, not weaken them. We should not have to forgo our fundamental right to privacy just because our homes and phones are connected to the internet.”¹¹

After winning the vote, Senate Majority Leader Mitch McConnell justified overturning the regulation as it “makes the internet an uneven playing field, increases complexity, discourages competition, innovation, and infrastructure investment.”¹²

It is curious to note how strictly the vote the went by party lines. Republicans have been supporters of individual rights and privacy in some regards, but here the desire to let big business work things out amongst themselves seems to won out. From the 2016 Republican Platform, they give a statement on internet privacy:

“We intend to advance policies that protect data privacy while fostering innovation and growth and ensuring the free flow of data across borders…We intend to facilitate access to spectrum by paving the way for high-speed, next-generation broadband deployment and competition on the internet and for internet services.”¹³

Protecting data privacy is balanced with the need to foster innovation and growth: in this case it seems the need to foster innovation and growth won out. In other elements of the Republican Platform, the party is protective of individual rights against big business, such as medical records and farmers’ data.¹⁴ The medical records position is stated, “We applaud the advance of technology in electronic medical records while affirming patient privacy and ownership of personal health information.”¹⁵ On farmers’ rights, it reads “   We will advance policies to protect the security, privacy, and most of all, the private ownership of individual farmers’ and ranchers’ data.”¹⁶ Additionally, the Republican Platform generally opposes aerial surveillance on US soil, with the exception of observation over borders.¹⁷

It seems the Republican Party has some intentions to protect individual privacy rights, and even goes so far as to partly acknowledge it, so it is certainly surprising that not one Republican Senator was willing to vote against such a sweeping grant of ISP power.

Since it seems as though this will inevitably pass through the House, what can be done to protect privacy? Virtual Private Networks (VPNs) are perhaps the easiest way to circumvent ISPs, but there are some downsides. VPNs are completely unregulated, and can just easily sell your browsing history as an ISP if careful scrutiny and selection is not applied.¹⁸ One VPN company, Private Internet Access, is jumping on the opportunity by taking a full page ad out in the New York Times calling out the 50 Senators who voted to disapprove the rules, and the potential consequences of increased ISP access to private data.¹⁹

This is an unsavory turn which grants sweeping power to ISPs to monitor, package, and sell consumers’ browsing history and activity. Hopefully, some Republicans in the House will be more protective of their constituents’ privacy. Contacting your House Representative may help. If things continue along the same path, internet privacy is about to be substantially changed for the worse.

¹ David Shepardson, U.S. Senate Votes to Overturn Obama Broadband Privacy Rules, Reuters (Mar. 23, 2017, 1:50 PM), http://www.reuters.com/article/us-usa-internet-idUSKBN16U2ER.

² Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, FCC 2500 (Mar. 31, 2016), https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-39A1_Rcd.pdf

³ Id. at 2502.

⁴ Id.

⁵ Id. at 2506.

⁶ Thorin Klosowski, The Senate Just Voted to Let Internet Sell Your Web History, Life Hacker (Mar. 23, 2017, 1:30 PM), http://lifehacker.com/senate-votes-to-let-internet-providers-sell-your-web-hi-1793574677.

⁷ Order Granting Stay Petition in the Matter of Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, FCC 1 (Mar. 1, 2017), http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0301/FCC-17-19A1.pdf.

⁸ Id. at 5.

⁹ 5 U.S.C § 8.

¹⁰https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=1&vote=00094.

¹¹ Edward J. Markey, Senator Markey Blasts GOP Roll-back of Broadband Privacy Protections, (Mar. 23, 2017), https://www.markey.senate.gov/news/press-releases/senator-markey-blasts-gop-roll-back-of-broadband-privacy-protections.

¹² Shepardson, supra note 1.

¹³ Republican Platform 2016 6, https://prod-cdn-static.gop.com/static/home/data/platform.pdf.

¹⁴ Id. at 18, 36.

¹⁵ Id. at 36.

¹⁶ Id. at 18.

¹⁷ Id. at 13.

¹⁸ Klosowski, supra note 6.

¹⁹ Private Internet Access, A VPN Provider, Takes Out A Full Page Ad in the New York Times Calling Out 50 Senators, https://i.redditmedia.com/0kc4jJDVgLGbOI0TSY8hwQfcCPoY6ADX-MtA2vilf2s.jpg?w=576&s=f65699ffabac82dbdaf8e6fe8482e133.

Image Source: https://cdn.arstechnica.net/wp-content/uploads/2017/03/getty-house-of-representatives-800×534.jpg.

By: Courtney Gilmore,

The much-anticipated public offering has finally been filed as of February 2.[1] Snapchat, formally known as Snap Inc., has officially requested a spot on the New York Stock Exchange under the ticker symbol SNAP.[2] The company took advantage of the JOBS Act (Jumpstart Our Business Startups), which allows companies with less than $1 billion of annual revenue to file for IPOs in secret.[3] The friendly ghost will likely go public in March of this year.[4]

While this is an exciting new endeavor for the everyday social media guru, it may be better suited for the high-risk tolerance investors only. Proceed with caution.

Facebook and Twitter aside, Snapchat boasts itself as a camera company, “giving people the power to express themselves and live in the moment.”[5] On the other hand, “Facebook says its mission is connecting everyone, while Google’s is to organize the world’s information.”[6]

Sure, this sounds like an attractive label for any millennial or investor out there, but beyond this, there is not much out there to lay a stable foundation for Snapchat’s future. For instance, Snapchat has an extremely short financial history.[7] Moreover, the company is labeled as secretive by outsiders and employees alike.[8] Evan Spiegel, Snapchat’s Chief Executive Officer, said in a 2015 note to employees, “‘[k]eeping secrets gives you space to change your mind, until you’re really sure that you’re right.’”[9] So, if Snapchat is unable to be transparent with even its own employees, how will prospective investors be able to keep track of their investments?

Snapchat’s founders are seemingly resistant to give up any control whatsoever. While this is a natural instinct for any sensible businessman or woman, Snapchat’s founders Evan Spiegel and Bobby Murphy, maintain that the shares issued to the public will carry no votes.[10] There are three classes of stock in Snapchat: Class A, Class B, and Class C. Only Spiegel and Murphy will control Class C shares, whereby each share receives 10 votes.[11] Class B shares receive one vote per share and are issued to venture capitalists and those investors that have poured capital into the company before its initial public offering.[12] Finally, the Class A shares will be issued to the public.[13] In addition to no vote shares, Snapchat reportedly has no intention of paying out cash dividends to its investors.[14] Without much control, investors must turn to other factors to weigh their risks and rewards.

In 2016, Snapchat recorded revenue of $404.5 million, but losses amounted to $514.6 million.[15] Although its revenue increased by 600% between 2015 and 2016, Snapchat’s current losses exceed Twitter’s at the time of its own IPO, while Facebook had revenue of $3.7 billion at the same point in its life cycle.[16] This begs the question of whether Snapchat will suffer the same fate that Twitter did when it went public. “‘To me, Snap is Twitter 2.0 – a company with a good growth rate that is losing a ton of cash, coupled w/ a massive valuation.’”[17] Snapchat is seeking a $25 billion valuation, which is sixty-two times its revenue.[18] On the other hand, GoPro, comparable to Snapchat’s “camera company” self-description, trades at one times GoPro sales.[19] Twitter trades at five times its revenue, and Facebook trades at fourteen times its revenue.[20]

Another important factor for investors to consider is the slowing in growth that Snapchat has experienced more recently.[21] Since Facebook’s attempt at similar products to Snapchat’s Stories, Snapchat views have allegedly declined between fifteen and forty percent since August.[22] Instagram’s version of Stories can also be attributed to Snapchat’s recent decline in user status.[23] Of Snapchat’s 158 million users, the majority consists of subscribers ranging between the ages of 18 and 34 years old.[24]

Hosting costs are another concern. Snapchat just signed a deal with Google to host Snapchat’s cloud space for $400 million per year.[25] On the surface this doesn’t seem like anything to get hung up on, except that Snapchat’s revenue last year was just about $400 million.[26] Snapchat’s hosting costs are so large because of the many video features Snapchat offers to consumers.[27] Expenses are also growing by employees.[28] Snapchat has tripled its number of employees to total 1,859 in 2016.[29]

On the upside, Snapchat is in the market of offering new, innovative products (like any logical tech company would). For example, Snapchat added its geofilter options in July 2014.[30] The company went on to release the Spectacles in September 2016.[31] Snapchat’s “foray into hardware and its new identity as a ‘camera company’ could cause investors to value it differently than a pure-play company, where profit margins are typically higher.”[32] Snapchat is also expected to bring in close to $1 billion in revenue by the end of this year.[33]

Moral of the story: while the risks are high, the rewards will likely be higher. Snapchat’s video features certainly distinguish the company from its competitors, as do Snapchat’s endeavors with the Spectacles and more products to hit the market. While the company may be secretive, experiencing minimal user decline, and racking up steep payment obligations, there is still a plethora of innovation to look forward to, and Snapchat remains at the cutting edge of it all. Perhaps Snapchat will not offer stock suitable for the novice investor’s portfolio, but it certainly has the potential to evince high reward for those that are even able to buy in initially. This young company has plenty of room to grow and plenty of buzz to live up to.

[1] See Barbara Ortutay, Snap, Maker of the Teen Social App Snapchat, Files for IPO, The Washington Post (Feb. 2, 2017), https://www.washingtonpost.com/national/snap-maker-of-the-teen-social-app-snapchat-files-for-ipo/2017/02/02/794c3b92-e9a4-11e6-903d-9b11ed7d8d2a_story.html?utm_term=.54565215b4ae.

[2] See id.

[3] See Seth Fiegerman & Matt Egan, Snapchat Files for $3 Billion IPO, CNN (Feb. 2, 2017), http://money.cnn.com/2017/02/02/technology/snapchat-ipo-filing/.

[4] See id.

[5] Sarah Frier & Alex Barinka, Can Snapchat’s Culture of Secrecy Survive an IPO?, Bloomberg (Jan. 17, 2017), https://www.bloomberg.com/news/features/2017-01-17/can-snapchat-s-culture-of-secrecy-survive-an-ipo.

[6] Id.

[7] See id.

[8] See id.

[9] See id.

[10] See Tom Zanki, 4 Takeaways From Snap’s IPO Filing, Law360 (Feb. 3, 2017), https://www.law360.com/technology/articles/888278/4-takeaways-from-snap-s-ipo-filing?nl_pk=a6f0df19-c127-4444-8e8b-a4c34dfadf0b&utm_source=newsletter&utm_medium=email&utm_campaign=technology.

[11] See Fiegerman & Egan, supra note 3.

[12] See id.

[13] See id.

[14] See Jen Wieczner, Here How Insanely Expensive Snap’s IPO Will Be, Fortune (Feb. 2, 2017), http://fortune.com/2017/02/02/snapchat-ipo-snap-stock/.

[15] See Victoria Woollaston, How Snapchat Turned Dick Pics into a Potentially Multi-Billion Dollar IPO, Wired (Feb. 3, 2017), http://www.wired.co.uk/article/snapchat-ipo-cameras.

[16] See Wieczner, supra note 13; Maya Kosoff, Will the Snapchat I.P.O. Be a Flop?, Vanity Fair (Feb. 2, 2017), http://www.vanityfair.com/news/2017/02/will-the-snapchat-ipo-be-a-flop.

[17] See Fiegerman & Egan, supra note 3.

[18] See Wieczner, supra note 14.

[19] See id.

[20] See Eric Jackson, 4 Reasons to Be Wary of the Snapchat IPO, Forbes (Feb. 7, 2017), http://www.forbes.com/sites/ericjackson/2017/02/07/4-reasons-to-be-wary-of-the-snapchat-ipo/#2abf5745339b.

[21] See Kosoff, supra note 16.

[22] See id.

[23] See Vikram Nagarkar, Snapchat IPO: The Pros and Cons of Buying Into Snap Stock Right Now, amigobulls (Feb. 6, 2017), http://amigobulls.com/articles/snapchat-ipo-the-pros-and-cons-of-buying-into-snap-stock-right-now.

[24] See Woollaston, supra note 15.

[25] See Jackson, supra note 20.

[26] See id.

[27] See id.

[28] See Wieczner, supra note 14.

[29] See id.

[30] See Woollaston, supra note 15.

[31] See id.

[32] Portia Crowe, Snap Files for its IPO, Revealing Surging Sales Growth and Huge Losses, Business Insider (Feb. 2, 2017), http://www.businessinsider.com/snap-to-list-on-nyse-report-2017-1.

[33] See Nagarkar, supra note 23.

Image Source: https://i2.wp.com/thenypost.files.wordpress.com/2017/01/snapchat-ipo_exchanges.jpg?quality=90&strip=all&ssl=1.

By: Lindsey McLeod

“Put your money where your mouth is” realized a modern meaning in this past week as individuals concerned about President Trump’s travel ban donated to the American Civil Liberties Union (ACLU) as a means of voicing their objection.[1] The ACLU reportedly received $24 million in online donations in the week following the immigration ban, totaling over six-times the ACLU’s yearly donation average.[2] Most of these donations occurred via online portals, flooding the website with donations from 356,306 people. This isn’t the first time that President Trump has sparked an influx of online donations to the ACLU, as the organization received nearly fifteen million dollars in the weeks following Trump’s election.

This online-centric donation model is consistent with millennial behaviors, as millennials tend to donate online, a realm that has dominated millennial financial tendencies.[3] Such innovative and effective online fundraising campaigns are a trademark of the millennial generation, and the ACLU is getting on board. The start-up business model is commonly associated with trendy work environments, invoking images of Ping-Pong tables and office kegs and tech-obsessed millennials. This start-up model, however, has begun to branch beyond the confines of the tech and app environment and into the realm of civil liberties.

The “Y Combinator” provides a new model for funding early stage startups in which the Y Combinator invests “a small amount of money (120k) in a large number of start ups (105),” these startups then move to Silicon Valley for three months where they are able to work with professionals who are familiar with investment pitches and facilitate a business model that effectively reaches target consumers.[4] Because the Y Combinator is typically associated with its graduates such as Airbnb, Dropbox, and similar start-up model consumer products, the ACLU is seemingly out of place in the market, yet the Y Combinator president, Sam Altman, is interested in the potential success that a collaboration between the two groups may have. Although the ACLU is far from a “start up”, having been established in the early 1900s, the ACLU has a history of working with modern, tech-savvy businesses, such as Twitter, to invoke rapid fundraising participation, and thus a more thorough examination of how to improve the business-model may rapidly expand the ACLU’s national and international presence.[5]

This decision by ACLU to partner with Y Combinator is significant in the impact it may have on the expansion of the ACLU and the services that the ACLU is able to offer. Two significant characteristic of the millennial generation, as noted in Leigh Buchanan’s book entitled Meet the Millennials is that they are “masters of digital communication…[and] are primed to do well by doing good. Almost 70 percent say that giving back and being civically engaged are their highest priorities.”[6] Thus, the decision by the ACLU and Y Combinator represents a decision to engage a civic-minded generation on their turf, so to speak. This move is particularly pertinent at a time in American politics in which millennials are seemingly rejecting the current president.[7] The stronger presence that the ACLU may gain upon completion of the three-month Silicon Valley program may prove to ignite a generation of civically engaged individuals, and perhaps future ACLU lawyers.

[1] Katie Mettler, The ACLU says it got $24 million in online donations this weekend, six times its yearly average, The Washington Post (Jan. 30, 2017)

https://www.washingtonpost.com/news/morning-mix/wp/2017/01/30/the-aclu-says-it-got-24-million-in-donations-this-weekend-six-times-its-yearly-average/?utm_term=.77e7a5afb276.

[2] See id.

[3] See Randy Hawthornw, Understanding What Motivates Millennials to Give to Your NPO, NonProfitHub.org http://nonprofithub.org/fundraising/understanding-motivates-millennials-give-npo/ (last visited Feb. 3, 2017).

[4] Y Combinator, https://www.ycombinator.com/.

[5] See Sarah Ashley O’Brien, ACLU is participating in elete Silicon Velley accelerator, CNN Tech (Jan. 31, 2017) http://money.cnn.com/2017/01/31/technology/aclu-ycombinator/index.html.

[6] Jay Gilbert, The Millennials: A new generation of employees, a new set of engagement policies, Ivey Business Journal (Sept. 2011) http://iveybusinessjournal.com/publication/the-millennials-a-new-generation-of-employees-a-new-set-of-engagement-policies/.

[7] See Cody Boteler, Students plan demonstrations and walkouts to protest Trump’s inauguration, USA Today (Jan. 19, 2017), http://college.usatoday.com/2017/01/19/students-plan-demonstrations-and-walkouts-to-protest-trumps-inauguration/.

Image Source: http://thehill.com/sites/default/files/styles/thumb_small_article/public/blogs/protest_1.jpg?itok=ZUbOBxAB.

By: Will MacIlwaine,

In 2016, Urban Air Mobility, a division of Airbus Group, began looking into the possibility of self-flying vehicles.[1] On January 16, Airbus Chief Executive Officer Tom Enders announced that the company plans to test a prototype of a self-flying taxi for a single passenger by the end of 2017.[2] The company’s flying taxi system will be called CityAirbus, and customers will be able to book a taxi using a smartphone device.[3]

While Airbus plans to have a taxi prototype ready by the end of this year, it also hopes to have models of its flying vehicle for sale by as early as 2020.[4] The benefits of flying vehicles seem abundant, two obvious benefits being avoidance of congested roadways, as well as potentially faster travel times. Aside from the sheer convenience of a flying car, Mr. Enders believes that a product such as his company’s prototype could decrease costs for city infrastructure planners, as flying cars would not travel on roads or bridges that are often costly to maintain and repair.[5] Further, air pollution could be reduced significantly in a move toward flying vehicles, as Airbus is committed to making its flying vehicles fully electric.[6]

As intriguing as this idea may seem, there are certainly issues that will need to be addressed, as well as potential legal ramifications that could arise through the introduction of this product. Airbus believes the biggest task its team will face is making its CityAirbus taxi fly on its own, without a pilot.[7] Tesla has introduced a similar autopilot feature for its Tesla Model S automobile, but has faced criticism as reports of accidents have surfaced in the past year. Enders’ team faces an even taller task: ensuring that its autopilot feature is successful in the air.

There are a variety of potential disastrous lawsuits that the CityAirbus technology might cause. For one, if two CityAirbus taxis crash into each other, how is liability determined? Certainly the passengers in the flying vehicles would not be liable, as the passenger is not the one operating the self-flying car. Airbus would most certainly be legally responsible for these accidents. This could also extend further, encompassing situations in which Airbus vehicles malfunction and damage buildings, or worse, injure the passengers of the flying cars.

Regarding the risk of injury while using a CityAirbus taxi, it is likely that passengers would be given extensive warnings about the dangers and risks of using the vehicles. If the user sees these warnings and understands the dangers inherent in flying cars, yet still voluntarily decides to ride in the vehicle, wouldn’t this amount to implied assumption of risk and bar any negligence claims by the passenger against Airbus?

Further, a new legal framework would need to be developed for flying cars. Would flying cars have to abide by speed limits? Would owners of these vehicles who purchase them in 2020 have to obtain a “flying license,” even though the vehicle is self-operated? Would flying cars need insurance just like ordinary cars? Would federal government regulate all of these things, or would the states be responsible for creating guidelines for flying cars?[8]

These are not the only legal questions surrounding flying vehicles. Would there be restricted areas where flying cars could not travel, such as around airports? If so, how would these regulations be legally enforced, when law enforcement officials are busy fulfilling their duties on the ground? Cities and states might be required to purchase similar flying vehicles so that its law enforcement officers could travel in them to enforce these regulations in the air. Wouldn’t this certainly offset and likely exceed the cost savings for city infrastructure planners that Mr. Enders predicted? While only hypothetical questions today, these legal issues will likely arise eventually if the Airbus team is successful in introducing its prototype by the end of this year.

Flying cars could certainly offer obvious advantages, but it seems that Mr. Enders and his team have many questions to consider in its development of CityAirbus if the company is to ensure that its potentially historical technological advancement does not turn into a legal nightmare.

[1] See Forget Self-Driving Cars: Airbus Will Test a Prototype Flying-Taxi by the End of This Year, Reuters, Jan. 16, 2017, http://www.dailymail.co.uk/sciencetech/article-4124412/Airbus-CEO-sees-flying-car-prototype-ready-end-year.html.

[2] See id.

[3] See id.

[4] See id.

[5] See Victoria Bryan, Airbus CEO Sees ‘Flying Car’ Prototype Ready by End of Year, Reuters, Jan. 16, 2017, http://www.reuters.com/article/us-airbus-group-tech-idUSKBN1501DM.

[6] See Jay Bennett, Airbus Wants to Test its Flying Car Prototype This Year, Popular Mechanics, Jan. 16, 2017, http://www.popularmechanics.com/flight/a24780/airbus-test-its-flying-car-prototype-2017/.

[7] See Forget Self Driving Cars, supra note 1.

[8] See Cory Smith, Soaring to New Heights: Flying Cars and the Law, Michigan Telecomm. & Tech. L. Rev., Oct. 22, 2015, http://mttlr.org/2015/10/22/soaring-to-new-heights-flying-cars-and-the-law/.

Image Source: http://i2.cdn.turner.com/money/dam/assets/161020184223-airbus-flying-car-4-780×439.jpg.

By: Ryan Martin,

Genetic testing is a fast-growing area of medical technology, but in many respects the legal world has yet to match this pace.[1] These genetic tests can detect the likelihood of developing Celiac disease, Alzheimer’s, and various forms of cancer.[2] One of the most popular areas for genetic testing has been to detect gene mutations that lead to breast cancer. Although breast cancer rates have remained the same between 2005 to 2013, a recent study reported the rate of women receiving mastectomies increased 36 percent during that time.[3] Certainly this increase was partly aided by Angelina Jolie’s release of her own genetic breast cancer test subsequent double mastectomy.[4] However, this trend has shown a larger willingness to use genetic testing as a preventative health method. While this testing could save countless lives, it raises new concerns about medical malpractices cases, the privacy of one’s genetic data and how insurance companies can use this data.

Under traditional malpractice claims physicians are already at the risk for being sued for failure to: evaluate a lump, perform or analyze a mammogram, and perform or analyze a biopsy.[5] In these malpractice cases the proper care is to be determined by the then available facts which were or ought to have been known.[6] An action cannot succeed unless the diagnosis or error was made in a manner that did comply with the recognized standard of medical care by physicians in the same specialty, under the same or similar circumstances.[7] But what happens when different physicians are using different services to acquire these genetic tests, and what if it is publicized that certain tests contain serious flaws? Furthermore, if the results of a test turn out to be incorrect could a doctor be liable for having recommending that specific company?

Myriad Genetics has been the leader in genetic testing that identifies women who have an increased chance of developing breast cancer. This test detects dangerous forms of BRCA1 or BRCA2 genes that lead to a substantially higher risk for cancer.[8] If either of these genes is mutated a woman’s risk of developing breast cancer can soar to as high as 85 percent.[9] For years Myriad was the sole distributor of BRCA testing and made more than $2 billion from its BRCA tests.[10] However, the US Supreme Court overturned their patent which opened the door for other companies to begin offering the same test for significantly cheaper prices.[11]

As recently reported, Myriad is now advising that these other companies test have significant flaws and are missing these deadly mutations. Spokesman for Myriad, Ron Rogers, suggested that, “We don’t know how many people are affected, but we believe it’s hundreds of thousands.”[12] Clearly, Myriad has an interest in having its competitors have inferior test results but this raises unanswered questions as to what the recognized standard is in the field of genetic testing. As always, to reduce risk of malpractice suits, physicians should advise on any risks associated with genetic testing as well as any surgeries performed because of those results.

There is also the issue of what access someone’s family should have to their genetic results. There are currently no laws that say what a patient can or cannot do with their own genetic information.[13] However, what if that information could lead to a critical medical diagnosis in a child or sibling? Alternatively, someone who publicizes their genetic information—like Angelina Jolie—could be divulging genetic information of their family members. This raises privacy concerns and issues over who owns that information.[14]

The law has yet to catch up in the insurance realm as well. Typically, under the Genetic Information Nondiscrimination Act (GINA), health insurance companies are barred for denying coverage to people with a gene mutation.[15] However, the law does not encompass life insurance companies, long-term care, or disability insurance.[16] These insurers can ask about family history of disease and genetic information and are authorized to deny coverage if the person is deemed too risky.[17] While GINA applies at the federal level various states, such as CA, have passed legislation prohibiting discrimination based on genetic testing results.[18]

Ultimately, the world of technology is moving too fast for the legal world to keep pace. Courts must address this issues as they arise to give a sense of how genetic testing will be assessed in malpractice cases and state legislatures should take the lead to address the issues posed by genetic testing and insurance. Further information on genetic testing can be found here.

[1] See Genetic Testing Market Headed for Growth and Global Expansion by 2020 – Persistence Markey Research, medGadget, (Nov. 14, 2016), http://www.medgadget.com/2016/11/genetic-testing-market-headed-for-growth-and-global-expansion-by-2020-persistence-market-research.html.

[2] See id.

[3] See Gillian Mohney, Mastectomies Increased 36 Percent From 2005 to 2013, Report Finds, ABC News, (Feb. 22, 2016), http://abcnews.go.com/Health/mastectomies-increased-36-percent-2005-2013-report-finds/story?id=37116791.

[4] See Alexandra Sifferlin, Angelina Jolie’s Surgery May Have Doubled Genetic Testing Rates at One Clinic, TIME, (Sept. 2, 2014), http://time.com/3256718/angelina-jolie-genetic-testing/.

[5] See Medical Malpractice in Diagnosis and Treatment of Breast Cancer, 92 A.L.R.6th 379.

[6] See id.

[7] See id.

[8] See Sharon Begley, As revenue falls, a pioneer of cancer gene testing slams rivals with overblown claims, STAT, (Nov. 29, 2016), https://www.statnews.com/2016/11/29/brca-cancer-myriad-genetic-tests/.

[9] See Dr. Ian Shyaka, Breast cancer: Early detection is the key to survival, The NewTimes, (Nov. 14, 2016), http://www.newtimes.co.rw/section/article/2016-11-14/205322/

[10] See Begley, supra note 8.

[11] See Leo O’Connor, Experts Debate MDx Industry Impact of AMP v Myriad Three Years After Court’s Decision, genomeweb, (Nov. 15, 2016), https://www.genomeweb.com/business-news/experts-debate-mdx-industry-impact-amp-v-myriad-three-years-after-courts-decision

[12] See Begley, supra note 8.

[13] See Emily Mullin, Do your Family Members Have a Right to Your Genetic Code?, MIT Tech. Rev., (Nov. 22, 2016), https://www.technologyreview.com/s/602946/do-your-family-members-have-a-right-to-your-genetic-code/.

[14] See Privacy in Genomics, Nat’l Human Genome Research Inst., (Apr. 21, 2015), https://www.genome.gov/27561246/privacy-in-genomics/.

[15] Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (2008).

[16] See Christina Farr, If You Want Life Insurance, Think Twice Before Getting A Genetic Test, Fast Company, (Feb. 17, 2016), https://www.fastcompany.com/3055710/if-you-want-life-insurance-think-twice-before-getting-genetic-testing.

[17] See id.

[18] See id.

Image Source: https://www.nursingtimes.net/attachment?storycode=5074974&attype=P&atcode=1288573

By: Brad Stringfellow,

The FTC is cracking down on social media ads and seeking to enforce proper disclosure amongst celebrity endorsers and advertisers. The means by which people connect with one another seem to be expanding at an ever-increasing rate. As conventional media loses its predominant grasp on consumer attention, advertisers have sought alternative means to promote their products. The FTC is doing its best to step in and regulate advertisements across all platforms, including social media.

Under the Federal Trade Commission Act, the FTC has been granted the broad authority to regulate “unfair or deceptive practices in or affecting commerce.”[1] FTC guidelines can be boiled down to four basic principles that all advertisements must meet: “1) Advertisements must be truthful and not misleading; 2) Advertisements may not be unfair or deceptive; 3) Advertisers must substantiate all claims, whether express or implied; 4) Any disclosures necessary to make an advertisement accurate must be clear and conspicuous.”[2]

The FTC has been putting in a fair amount of effort to adapt to changes in the digital landscape, and has done a fair job of doing so for a federal agency. The most recent change was put into place in December 2015 regarding deceptive formatting.[3] The FTC has been focusing heavily on proper disclosures within all social media. A handy, non-technical guide has been created by the FTC and put on their website to help people understand how to properly disclose promoted material.[4]

Social media stars who promote products or services are dubbed influencers.[5] Because of the personal nature of social media accounts and the much more informal atmosphere, disclosures are all the more important for the public to know when an influencer is sharing on honest opinion or hawking a product. The FTC guide gives a handy example of the weight you would give to the opinion of a travel blogger who paid from their own pocket to stay at a resort versus the opinion of a travel blogger paid by the resort.[6]

One is obligated to follow the guidelines if they have a “material connection” to an advertiser; this can be met by receiving gifts or being related to someone at the company.[7] The guide requires that a disclosure be made when a lack of disclosure misleads “a significant minority” of consumers.[8]

Anticipating questions of constrained formats, such as Twitter, the guide points out that “sponsored” and “promotion” are only nine characters, “paid ad” is only seven characters, and that “#ad” or starting the tweet with “Ad:” is only three characters: the FTC does not require specific words to meet the disclosure threshold, but does provide simple suggestions for fulfilling it.[9] In situations where a disclosure is not possible, such as adding a “Like” to a company or product, the FTC recommends against such acts.[10] It is interesting to note that making a three hour video endorsing a product is acceptable with one spoken sentence disclosing your relationship, but a simple tap of your thumb giving a heart symbol to a product page is impossible to disclose.

In order to demonstrate the seriousness with which they take these guidelines, the FTC has pursued several social media campaigns that made insufficient efforts to disclose. The FTC recently reached a settlement with Warner Brothers over the promotion of a video game advertised by several Youtube influencers.[11] While Warner Brothers, through an ad agency, instructed the influencers to include a disclosure statement buried in the video description box; the FTC found this insufficient and pursued a civil action.[12] Earlier in the year, the FTC went after Lord & Taylor, clothing manufacturers, who used fashion bloggers to promote a sundress from a new line.[13] While the company instructed the influencers to include the company name and dress line in the Instagram posts, the FTC found this as an insufficient disclosure as it provided no indication the influencers were paid for the post.[14]

Several media watch dog groups have also taken action to help enforce policy guidelines. Three such watch dog groups have filed complaints with the FTC regarding sponsored content targeted towards children.[15] Following the line of reasoning of harsh censures on advertisers of Saturday morning cartoons in the 1980s, the groups petition strict guidelines or outright banning of sponsored content coming from Disney and Dreamworks through various agents.[16] No action has been taken by the FTC yet.[17] Likewise, another watch dog group found over 100 instances of paid product placement with improper disclosure by various members of the Kardashian family.[18] The Kardashians were given the option to delete improperly disclosed posts or face being turned in to the FTC.[19]

A few companies are recognizing the FTC’s efforts and are taking a pro-active approach in promoting disclosure. As of last month, Youtube has updated their sponsored content guidelines.[20] They have also added a few new features to help promote disclosure, such as the option to add a “sponsored content” line at the beginning of a video.[21] Electronic Arts (EA), a gaming software company has also put in place new policies.[22] EA now mandates that any influencer receiving any kind of benefit (free software, paid trips, gifts, etc) add watermarks or hashtags “Supported by EA” for content where EA has no editing rights, and “Advertisement EA” for content where EA does have editing rights.[23]

The FTC has established standards for the social media world, and has begun enforcing their policy. Advertisers are taking notice and beginning to take action. Hopefully, consumers will benefit and be better able to distinguish when they are advertised to.

[1] 15 USC § 45(a)(2).

[2] See Michael W. Schroeder. The FTC’s Crackdown on Social Media #Ads, Lex (Nov. 3, 2016), http://www.lexology.com/library/detail.aspx?g=a62ff1c5-c8fc-45f7-9eea-903be4ecac58.

[3] See id.

[4] See Fed. Trade Comm’n, The FTC’s Endorsement Guides: What People are Asking (last visited Nov. 23, 2016), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.

[5] See id.

[6] See id.

[7] See id.

[8] See id.

[9] See supra note 4, Fed. Trade Comm’n.

[10] See id.

[11] See Wendy Davis, Warner Bros. Finalize FTC Settlement Over Influencer Campaign, The Daily Online Examiner (Nov. 22, 2016, 5:14 PM), http://www.mediapost.com/publications/article/289543/warner-bros-finalizes-ftc-settlement-over-influen.html.

[12] See id.

[13] See id.

[14] See id.

[15] See Jon Fingas, FTC Complaint Blasts Disney, Google over Child Influencer Videos, Engadget (Oct. 24, 2016), https://www.engadget.com/2016/10/24/ftc-complaint-over-influencer-videos-targeting-kids/.

[16] See id.

[17] See id.

[18] See Janko Roettgers, Kardashians in Trouble Over Paid Product Endorsements on Instagram, Variety (Aug. 22, 2016, 10:52 AM), http://variety.com/2016/digital/news/kardashians-instagram-paid-ads-product-placements-1201842072/.

[19] See id.

[20] See Youtube, Paid Product Placements and Endorsements (last visited Nov. 23, 2016), https://support.google.com/youtube/answer/154235#paid_promotion_disclosure.

[21] See id.

[22] See Julia Alexander, EA puts Influencers in Check with Disclosure Rules for Sponsored Content, Polygon (Nov. 16, 2016, 4:00 PM), http://www.polygon.com/2016/11/16/13655180/ea-sponsored-content-youtube-twitch-disclosure.

[23] See id.

Image Source: https://14415-presscdn-0-52-pagely.netdna-ssl.com/wp-content/uploads/2014/01/Untitled3.png

By: Sophia Brasseux

This past October, a fourteen-year-old girl from the UK, known as JS, died of a rare form of cancer.[1]  However, she just might have a second chance at life. Justice Peter Jackson’s ruling on October 17 granted her mother control over decisions regarding the disposal of her daughter’s body in a groundbreaking family law dispute.[2]

In a letter JS wrote to the court, she expressed her desire to be cryogenically preserved, which would allow her body to be unfrozen upon the discovery of a cure for her rare form of cancer.[3]  When JS’s father disagreed with her decision—one that her mother supported—the family asked a High Court Judge to intervene.[4] Judge Jackson emphasized that the focus of his ruling would not be on the science, but rather on the parental dispute concerning whether the mother or father would be responsible for JS’s body after her death.[5] In his court opinion, the Judge expressed his concerns about the controversial technology.[6]

Cryopreservation is the process of freezing a human body to prevent decay after death.[7] Though the process is complicated, and still very much developing, there are three basic steps: first, the body is placed in an ice bath immediately following its being legally declared dead; second, the organs and cells are prepared for freezing temperatures by replacing the body’s fluids with agents that work as antifreeze; third, the body is placed in an insulating bag and then inside a cooling box with liquid nitrogen until it reaches minue-200 degrees Celsius.[8] Once this process is complete, the body can be transported to various storage facilities.[9] JS was transported to the Cryonics Institute, located in Michigan, on October 25.[10]

Cryopreservation has been met with mixed reviews; while some scientists are optimistic about its benefits, others are more skeptical. One such skeptic, Clive Coen, a professor of neuroscience at Kings College in London, questions whether revival is going to be a reality.[11] In Coen’s view, not only has there yet to be a revival of a human being,  a lack of weight has been given to the damage bodies incur from the antifreeze agents used during the freezing process.[12]

Many issues have led to controversy surrounding this recently developed technology, one being the uncertainty regarding its outcomes. Judge Jackson said that, not only was this the first case of its kind to come before the court in the UK, but also probably in the world.[13] In Jackson’s view, this new science will likely have the biggest impact on the future of family law.[14] Another issue is that, although cryopreservation is legal, it is still largely unregulated.[15] While regulation does exist for freezing sperm and embryos, those regulations do not encompass freezing the whole body; this sort of procedure had not yet been contemplated when regulations were initially passed.[16] Even so, preservation agreements are still considered an unsettled area of law when dealing with sperm and embryos.[17] These agreements are most successful when they are unambiguous, in line with public policy, and have extensive detail about the individuals involved.[18] Since human cryopreservation is so new, there is even less case law to base such conclusions in regards to how those sorts of agreements will be treated in court.

In JS’s case, the court’s decision to protect her post-mortem wishes gave her comfort in her final days. But what does this mean in a more general sense for family law?[19] This procedure is extremely expensive, especially considering the lack of certainty about the results, averaging around 37,000 euros for the most basic package.[20] Is the potential outcome worth the cost of the procedure plus litigation fees if a family cannot decide for themselves how to handle such a decision? Those in support of cryopreservation claim that the procedure is truly a leap of faith in the choice between “’definitely’ dying and ‘maybe’ living on.”[21] Even if the process does work, JS will likely have no living family and be stuck in the United States as a fourteen-year-old non-citizen with no conception of the present state of the world once she is brought back to life.[22] The revival of those who have been preserved may create even more legal issues well into the future.

[1] See Gordon Rayner, Girl, 14, Who Died of Cancer Cryogenically Frozen After Telling Judge She Wanted to be Brought Back to Life ‘In Hundreds of Years’, The Telegraph (Nov. 18, 2016), http://www.telegraph.co.uk/news/2016/11/18/cancer-girl-14-is-cryogenically-frozen-after-telling-judge-she-w/.

[2] See id.

[3] See id.

[4] See id.

[5] See Laura Smith-Spark, UK Teenager Wins Battle to have Body Cryogenically Frozen, CNN (Nov. 18, 2016), http://www.cnn.com/2016/11/18/health/uk-teenager-cryonics-body-preservation/.

[6] See id.

[7] See Meera Senthilingam, What is Cryogenic Preservation?, CNN (Nov. 18, 2016), http://www.cnn.com/2016/11/18/health/how-cryopreservation-and-cryonics-works/.

[8] See id.

[9] See id.

[10] See supra 5.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See supra 1.

[16] See id.

[17] See T.G. Schuster et al., Legal Considerations for Cryopreservation of Sperm and Embryos, Fertility and Sterility (July 2003). https://www.ncbi.nlm.nih.gov/pubmed/12849802.

[18] See id.

[19] See supra 1.

[20] See id.

[21] Id.

[22] See id.

Image Source: http://www.workerscomplawyerie.com/workers-compensation-law/