Category: Blog Posts Page 59 of 75

SHOTSPOTTER: DETECTING GUNFIRE FROM A MILE AWAY

By Lindsey McLeod

In recent years, Silicon Valley has taken on a range of issues that span the spectrum from consumer entertainment to government security and data protection.[1] Recently, Silicon Valley executives have made the jump into the gun violence arena, attempting to use technology to assist police officers in responding to shots fired. The technology, one of a many apps that are currently emerging in the tech-security world, is called ShotSpotter.[2]

ShotSpotter was initially developed to combat the growing gun violence program in urban areas within the United States.[3] The developers intended the app to meet the growing need to combat gun violence in the communities most affected.[4] The developers recognized a problem in that those who are most significantly impacted by gun violence on a regular basis are the least likely to report it, resulting in incident reports that grossly misrepresent the problem at hand.[5] For example, fewer than one in five shooting incidents are reported to police, and when reports are made to the police, the account is rarely accurate.[6] This miscommunication and misrepresentation causes police to respond inappropriately, further perpetuating the gun violence problem.[7]

ShotSpotter is cloud-based technology that creates a system similar to a large cyber network implanted over a geographic area, equipping that area with microphones and software monitoring.[8] The microphones are designed to suppress ambient noise and pay particular attention to loud “trigger” noises, which respond to “booms” and “bangs,” referred to as “impulsive noises.”[9] When a sound is triggered, the system sends an alert to the ShotSpotter headquarters location, where the monitoring review service—comprised of trained acoustic experts—makes the final determination regarding the origin of the audio.[10] When these impulsive noises are deemed the result of gunfire, the local police are alerted to the disturbance and dispatched to the area.[11] The police can then interrupt the event and terminate the gun violence event.

Despite the obvious need for police intervention like that which this app creates, critics of the app point to the lack of arrests it produces as evidence of the app’s ineffectiveness. For example, in Brockton, MA, between January 1, 2013 and September 28, 2015, the ShotSpotter technology alerted police of gun activity 296 times, yet those alerts led to only two arrests.[12] These unimpressive statistics represent the nationwide trend of the impact that ShotSpotter has had on combatting gun violence, increasing the frequency of alerts but doing little in terms of arrests.[13]

The developers, however, argue that this data is not representative of a technological failure; instead, the developers argue that this technology was not developed to lead to arrests, but rather to combat the problem at its origin.[14] Ralph Clark, the CEO of ShotSpotter, argues that “only a small number of individuals are responsible for most of a city’s gunfire and any tools available to get those folks off the street are important”.[15] Thus, though ShotSpotter has not led to an increase in arrests, the understanding by the residents of these high-risk communities is that police will respond quickly to the alert of gunfire, which will likely to lead to a decrease in the gunfire, and consequently a decrease in violence.[16] Effectively, the presence of such technology within high-risk communities should abolish the need for this technology altogether.[17]

Beyond the prosecution numbers of gun violence perpetrators, there is a legal issue presented in terms of the admissibility of material created by this technology. Although the infrequency of arrests suggests that there is little need for the use of this evidence at trial, the mere potential for its use nevertheless poses an interesting legal question. The use of this technology creates a feeling of a “big brother” presence, a phenomenon that tends to invoke Fourth Amendment concerns.[18] Additionally, this technology appears to invoke privacy concerns that, although not explicitly protected by the Constitution, are inferred by the Supreme Court rulings in cases such as Roe v. Wade and Bowers v. Hardwick.[19] Despite these concerns, United States v. Katz states that privacy concerns invoking the Fourth Amendment’s protection from unreasonable searched and seizures apply only to the search of a person, not the place. In these instances, then, the party supporting the ShotSpotter evidence could argue that this material is collected from the place, not the parties, that are present at the scene of the crime and is thus admissible.[20]

The courts consider the evidentiary issues loosely, which here would result in support of combatting crime as opposed to protecting the accused. A Massachusetts Superior Court recently deemed the material admissible in the first-degree murder trial of Dwayne Moore and Edward Washington.[21] In this trial, an expert witness from SST Inc. a, the company that manufactures ShotSpotter, testified about the timeframe during which the shots were fired and the time lapse between shots.[22] The use of this evidence in the Massachusetts Superior Court suggests that this evidence will be seen more frequently in the coming years in criminal proceedings as a means to prove, or disprove, the location and details of a shooting.[23] Because of the growing presence of these technologies in the criminal justice community, criminal defense attorneys should anticipate the impact that these technologies could have on evidence admitted at trial going forward.

 

 

 

 

[1] See Megan Smith, Expanding the Pentagon’s Silicon Valley Office, WhiteHouse.gov (May 20, 2016) https://www.whitehouse.gov/blog/2016/05/19/expanding-pentagons-silicon-valley-office (Secretary of Defense Ash Carter is taking bold steps to help the U.S. military take advantage of commercially driven technology and innovation).

[2] See ShotSpotter, ShotSpotter.com (Nov. 21, 2016) http://www.shotspotter.com/.

[3] See id.

[4] See id.

[5] See Law Enforcement Resources, ShotSpotter.com (Nov 17, 2016) http://www.shotspotter.com/law-enforcement.

[6] See id.

[7] Id.

[8] Here’s How the NYPD is Expanding ShotSpotter, ShotSpotter.com, (Nov. 17, 2016) http://www.shotspotter.com/news/article/heres-how-the-nypds-expanding-shotspotter-system-works.

[9] See id.

[10] See id.

[11] See id.

[12] See Matt Drange, ShotSpotter Alerts Police to Lots of Gunfire, But Produces Few Tangible Results, FORBES (Nov. http://www.forbes.com/sites/mattdrange/2016/11/17/shotspotter-alerts-police-to-lots-of-gunfire-but-produces-few-tangible-results/#71c59a892539.

[13] See id.

[14] See John Biggs, ShotSpotter CEO Ralph Clark Talks About the Future of City Surveillance, Tech Crunch (Nov. 20, 2016) https://techcrunch.com/2016/11/19/shotspotter-ceo-ralph-clark-talks-about-the-future-of-city-surveillance/.

[15] See id.

[16] See id.

[17] See id.

[18] U.S. Const. amend IV.

[19] See The Right of Privacy, Exploring Constitutional Conflicts, UMKC Law (Nov. 21, 2016) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html.

[20] See United States v. Katz, 389 U.S. 347 (1967).

[21] See Stephen Neyman, Massachusetts Criminal Trial Using Gunshot Detection System to Support Witness Testimony in High Profile Murder Trial, Massachusetts Criminal Defense Attorney Blog (Feb. 2012) http://www.shotspotter.com/news/article/massachusetts-criminal-trial-using-gunshot-detection-system-to-support-witn.

[22] See id.

[23] See id.

 

Image Source: https://openclipart.org/

By: Etahjayne Harris,

“Virtual Reality (VR) is the use of computer technology to create a simulated environment. Unlike traditional user interfaces, VR places the user inside an experience.”[1] With virtual technology, a user can be transported to a destination of their choice in an instant. Today, virtual reality is increasingly becoming part of our actual reality.[2] For example, “[t]he virtual world Second Life is populated by 1 million people on a daily basis, and there are expected to be as many as 171 million active VR users by 2018.”[3] Companies like Microsoft Corp., Sony Corp., Facebook, Inc. and Samsung Electronics Co. Ltd., are major investors in this emerging technological field.[4] The number of virtual reality devices sold is projected to rise from 2.5 million units in 2016 to 24 million units in 2018. [5] Today, consumers may experience virtual worlds through products like Google Cardboard glasses, Samsung VR, and the Facebook owned Oculus Rift.[6]

Accurate environmental sounds and visual characteristics are essential to creating a truly lifelike virtual reality experience.[7] “As virtual worlds continue to grow in scope and popularity, they also become inextricably linked with the real world.”[8]  The need to create realistic, immersive virtual worlds necessarily means using multisensory effect designs (touch, appearance, sound, smell, taste). Do intellectual property rights like trademark rights extend to multisensory effect designs in virtual worlds?

Currently, intellectual property rights do not extend to multisensory effect designs in virtual reality worlds; but they should. Multisensory effect designs are what make virtual worlds seem more like the real world. Environmental elements like touch, taste, sound, smell, and appearance are very important in real life so it follows that these multisensory effects would be essential to creating quality immersive virtual reality experiences. Can these virtual reality multi-sensory effect designs be protected under trade dress? “Trade dress is a specific type of trademark.”[9] Under the Lanham Act, trademark protection extends to, “any word, term, name, symbol, or device” that “is likely to cause confusion, or to cause mistake, or to deceive” as to the source of a product.”[10] This is a very broad standard. In order to get trademark protection, a word, term, name, symbol, or device must be distinctive and used in commerce.[11] A trademark is considered distinctive if consumers recognize the mark as an indicator of the product source, such that they can use it to distinguish one producer’s product from another. [12] Thus, trade dress protection is limited to, “the meaningful use of a mark in a trade or business.”[13] Furthermore, [i]f the trade dress is not inherently distinctive, it can be protected only if, as a result of use, it has acquired secondary meaning in the marketplace.”[14]

“[W]hether a VR sensory scheme will be categorized as product design or packaging will have profound implications in its trade dress eligibility.”[15] If the Lanham Act requirements are satisfied, a virtual reality business owner may be afforded protection over multisensory effect designs that are either inherently distinctive or have acquired distinctiveness attributable to their business over time. The test for trade dress infringement is, “whether there is a likelihood of confusion resulting from the impression created by the defendant’s accused trade dress.”[16] So if the virtual reality business owner has a valid trademark in their multisensory effect design, he or she would be able to bring a claim against another virtual reality business owner that, “inappropriately used the mark in a way that generates consumer confusion.”[17]

The courts have not yet decided whether multisensory effect designs are protected under current trademark law. As of today, these designs are not protected under intellectual property law. As virtual reality gains in popularity and becomes more widespread, it will be important for the courts to resolve this issue.

 

 

[1] Brian Jackson, What is Virtual Reality? [Definition and Examples] Marxentlabs (2015), http://www.marxentlabs.com/what-is-virtual-reality-definition-and-examples/ (last visited Nov 30, 2016).

[2] See Jonathan M. Purow, Virtual Reality May Create Novel IP Issues In The Real World Law360 (2016), http://www.law360.com/articles/769479/virtual-reality-may-create-novel-ip-issues-in-the-real-world (last visited Nov 30, 2016).

[3] Id. 

[4] See id.

[5] See id.

[6] See id.

[7] See Brian Jackson, What is Virtual Reality? [Definition and Examples] Marxentlabs (2015), http://www.marxentlabs.com/what-is-virtual-reality-definition-and-examples/ (last visited Nov 30, 2016). 

[8] Erez Reuveni, ARTICLE: On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age, 82 Ind. L.J. (2007).

[9] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 823 (2016).

[10] 15 U.S.C. § 1125(a) (2012).

[11] See Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 630 (6th Cir. 2002) (“Because we can conceive of no ‘thing’ inherently incapable of carrying meaning, any ‘thing’ can come to distinguish goods in commerce and thus constitute a mark within the meaning of the Lanham Act.”).

[12] See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n.11 (1982).

[13] See Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 630 (6th Cir. 2002) (“Because we can conceive of no ‘thing’ inherently incapable of carrying meaning, any ‘thing’ can come to distinguish goods in commerce and thus constitute a mark within the meaning of the Lanham Act.”).

[14] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 824 (2016).

[15] See id.

[16] J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 8:1 (4th ed. 2014).

[17] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 824 (2016).

Image Source:

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By: Hsiao-Han Wang,

The term “smart contract” refers to “the use of computer code to articulate, verify and execute an agreement between parties.”[1] Unlike traditional contracts, smart contracts are written in codes, stored on distributed ledgers (like a database that can store all sorts of information) and secured by cryptographic keys, which make them immutable and help to avoid malfunction.[2]

The idea of a smart contract is not new, but the development of “blockchain” technology provides a way for this concept to be put into practice.[3] Blockchain is a technology that creates “a decentralized, digital ledger that encrypts, registers, and verifies transactions” through a peer-to-peer system, “essentially making public (or private, if you want) record of transactions, stored on thousands of different computers.”[4] With these characteristics, smart contracts allow the transactions over computer system “be verified, monitored, and enforced without the presence of a trusted third party or central institution.”[5] Smart contract requires no direct human involvement after it has been made a part of the blockchain, and will automatically execute once the pre-set conditions are met.[6] As a result, smart contracts have the potential to avoid risks on implement of contracts, to improve efficiency and to reduce transaction costs in financial or commercial agreements.

As blockchain technology continues to advance, some people have begun to believe that smart contracts will soon become alternatives to traditional contracts.[7] People who embrace technologies are excited about the possibility that smart contract might encode and perform complex agreement automatically.[8] However, there are still some potential practical risks and problems that can arise from the use of smart contracts.

Coding errors and software bugs may be among the key concerns that users have. For example, just like traditional contracts where words and specific terms are used in the agreement, the code base may not perfectly reflect what the parties understand to be their agreement, or the effect of the code base may be misrepresented by a party to be different to what it actually is.[9] Since the execution of smart contracts relies on computer network, cybersecurity is also a potential risk area that should be taken into consideration. A $50 million hack happened to DAO, a decentralized investment fund which was funded by thousands of people raising about $160 million with code based on smart contract protocol, is an example showing the problem of lacking proper programming to secure the system against external attack.[10] Some smart contracts that rely “real-time data feeds” to execute entire or certain parts of the agreement may also face the risk that potential manipulation of underlying data feeds and indices will trigger real-time contract execution.[11]

In addition to the technology, other issues also need to be considered when disputes between parties arise. When parties take legal action, questions such as where to bring suit or what law to apply come into play. There is currently no international internet law. Therefore, negotiation on jurisdiction may need to be set up beforehand when parties involved are from different states or even nations.[12]

The underlying characteristics of blockchain and smart contracts bring up potential legal issues as well. For example, one of the characteristics of blockchain is its transparency, which allows users to gain access to any permanent records on blockchain.[13] While the records are anonymously stored, which does not show the identity of transactions, information regarding the detail of transactions allow others to guess on it.[14] This, therefore, may raise the privacy concerns for contracts and property ownership, after all, some financial and commercial data is highly sensitive.[15] Another example may be deriving from the character of decentralization. Blockchain allows people to create a new type of entity, which is called “decentralized organization.” Such organizations are composed with “autonomous individuals given discrete tasks and rewards,” and operate in the way more like corporations but without formal legal structure.[16] Lack of formation initially does not sound like a big deal in terms of day-to-day operation. It would become a serious problem for participants, however, when this kind of organization gets sued in the court. Since it is a new type of entity, what law or classification should apply to them is still a question up in the air. But without formalized legal structure, courts are likely to hold individuals in the organization personally liable.[17]

The term “smart contract” does not have a settled definition yet, and the concept is apparently still at an early stage of development. However, as the technology progresses, state and federal government may need to develop a set of statutes or regulations to deal with various possible situations in the future to address risks and issues that may result from this new type of contract. It may be fair to say that smart contracts might be able to replace some of the functions of traditional contracts in the future. Nonetheless, it also creates new legal issues which are still waiting for a more definitive and suitable solution to come by.

 

 

[1] Josh Stark, How Close Are Smart Contracts to Impacting Real-World Law?, CoinDesk (Apr. 11, 2016, 2:00 PM), http://www.coindesk.com/blockchain-smarts-contracts-real-world-law.

[2] See Kate H. Withers, Smart Contracts: Opportunities and Legal Risks in FinTech, National Law Review (Nov. 8, 2016), http://www.natlawreview.com/article/smart-contracts-opportunities-and-legal-risks-fintech.

[3] See Lee Bacon, Nigel Brook & George Bazinas, “Smart Contracts”: Where Law meets Technology, Clyde & Co (June 22, 2016), http://www.clydeco.com/insight/article/smart-contracts-where-law-meets-technology.

[4]Casey C. Sullivan, What Is Blockchain? A Lawyer’s Guide, FindLaw (Nov. 14, 2016, 10:58 AM), http://blogs.findlaw.com/strategist/2016/11/what-is-blockchain-a-lawyers-guide.html; see also Joe Dewey & Shawn Amuial, What Is A Blockchain, Big Law Business (Sept. 22, 2015), https://bol.bna.com/what-is-a-blockchain.

[5] Benjamin Beck & Dr. Ulrich Worm, Blockchain-Based Applications – Evolving Legal Issues, Mayer Brown (Sept. 8, 2016), https://www.allaboutipblog.com/2016/09/blockchain-based-applications-evolving-legal-issues.

[6] See Joe Dewey & Shawn Amuial, What Is a Smart Contract?, Big Law Business (Sept. 24, 2015), https://bol.bna.com/what-is-a-smart-contract.

[7] See Stark supra note 1.

[8] See Cheng Lim, TJ Saw & Calum Sargeant, Smart Contracts: Bridging the Gap Between Expectation and Reality, Oxford Business Law Blog (July 11, 2016), https://www.law.ox.ac.uk/business-law-blog/blog/2016/07/smart-contracts-bridging-gap-between-expectation-and-reality.

[9] See id.

[10] See Klint Finley, A $50 Million Hack Just Showed That the DAO Was All Too Human, Wired (June 18, 2016, 4:30 PM), https://www.wired.com/2016/06/50-million-hack-just-showed-dao-human; See also Jamie Redman, How Should We Prepare Smart Contracts to Replace Law Firms?, Bitcoin.com (June 26, 2016), https://news.bitcoin.com/smart-contracts-replace-law-firms.

[11] See Withers supra note 2.

[12] See Richard Howlett, A Lawyer’s Perspective: Can Smart Contracts Exist Outside the Legal Structure?, Bitcoin Magazine (July 11, 2016, 6:52 PM), https://bitcoinmagazine.com/articles/a-lawyer-s-perspective-can-smart-contracts-exist-outside-the-legal-structure-1468263134.

[13] See Peter Kirby, Blockchain Transparent Lending: How Accountable Lending Systems Can Prevent A ‘Big Short’ For The Digital Age, Blockchain News (Feb. 24, 2016), http://www.the-blockchain.com/2016/02/24/blockchain-transparent-lending-how-accountable-lending-systems-can-prevent-a-big-short-for-the-digital-age.

[14] See David Cornwell & James Lawrence, Blockchain – emerging legal issues, Lexology (Oct. 12, 2015), http://www.lexology.com/library/detail.aspx?g=6e5a942e-94ea-4891-a07c-a9d96343dc95.

[15] See Id.

[16] Stephen D Palley, How to Sue A Decentralized Autonomous Organization, CoinDesk (Mar. 10, 2016), http://www.coindesk.com/how-to-sue-a-decentralized-autonomous-organization/#; see also Cornwell supra note 14.

[17] See Palley supra note 16.

Image Source:

http://bluzelle.com/wp-content/uploads/2015/09/smartcontracts.png

 

By: Kathleen Pulver,

Social media has changed the face of the legal landscape as we know it. As of 2015, nearly two-thirds of American adults were using social media. [1] The percentage is even higher among young adults, reaching an outstanding 90%. [2] It is now commonplace to see warrants appear in cases for access to social media pages and photographs. [3]

In order for evidence to be admitted in court, a four step analysis must be conducted.[4] First, under Rule 401, for any evidence to be admissible in court, it must be relevant.[5] A finding of relevance requires that the evidence have a tendency to make a fact more or less probable than it would be without the evidence, and the fact must be one of consequence in determining the action.[6] Second, after a finding of relevance, the evidence must meet the standard laid out by Rule 901.[7] Federal rule of evidence 901 states: “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce the evidence sufficient to support a finding that the item is what the proponent says it is.”[8] The rule provides several specific examples of the appropriate way to authenticate different kinds of evidence, however the most common way to authenticate is through the testimony of a witness, with knowledge of the evidence, that it is what it claims to be.[9] Third, the evidence may not be hearsay, defined by rule 801 as, an out of court statement made by a declarant offered to prove the truth of the matter asserted.[10] Finally, the admission of the evidence must not be blocked by another rule, such as privilege, or rule 403 which blocks the admission of evidence which has its probative value “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” [11] Social media and other electronic evidence present unique challenges when conducting this analysis.

Social media evidence can certainly meet the first prong as we can think of numerous reasons why a certain posting or picture could be relevant to a criminal or civil case. Social media postings have been used as evidence of prior intent to harm and to rebut a claim of injury with photos of the person claiming injury doing things they shouldn’t be able to do while injured.[12] It is also clear that certain social media postings could get around the third and fourth prongs by meeting a hearsay exclusion, such as statement made against interest, and being more probative than prejudicial. [13] The difficulty with social media evidence is the second prong, ensuring that there is enough evidence presented to authenticate the posting to be what it claims to be.

When the evidence rules were first created, creating fraudulent documents was nowhere near as simple as it is now. With the evolution of technology, people are now placing more of their trust in the information provided by online sources, however this faith may be misplaced. Evidenced by the recent Facebook fake news scandal, we cannot trust everything we read online.[14] Like fake news stories, it is not difficult to create a fake social networking page.[15] In fact, a simple google search of “creating a fake Facebook” brings up more than 5 sources willing to assist in the creation of a fake Facebook.[16] This constant availability of means to create fraudulent sources brings up difficult authentication questions under the second prong that have yet to be significantly addressed by most courts. Only time will tell how courts adjust to these newly presented problems.

 

 

[1] See PEW RESEARCH CENTER, Social Media Usage: 2005-2015 (Oct. 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/.

[2] See id.

[3] See e.g., Bradley v. State, 359 S.W.3d 912 (2012); Elonis v. United States, 135 S. Ct. 2001 (2015).

[4] This post discusses only the federal rules of evidence. Each state has their own rules of evidence, although many closely follow the same analytical structure as the rules for the federal courts.

[5] See Fed. R. Evid. 401.

[6] See id.

[7] See Fed. R. Evid. 901.

[8] Id.

[9] See id.; See also David I. Schoen, The Authentication of Social Media Postings, ABA Association (May 17, 2011), https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html.

[10] See Fed. R. Evid. 801.

[11] Fed. R. Evid. 403. See Fed. R. Evid. 502.

[12] See Jessica Velasco, Social Media Can and Will Be Used Against You in Court, Socialnomics (Dec. 30, 2014), http://socialnomics.net/2014/12/30/social-media-can-and-will-be-used-against-you-in-court/.

[13] See Fed. R. Evid. 403; Fed. R. Evid. 801(d)(2).

[14] See Mirren Gidda, Facebook Staff Form ‘Secret Taskforce’ to Deal with Fake News Controversy, Newsweek (Nov. 15, 2016, 6:58 AM), http://www.newsweek.com/2016-election-facebook-google-fake-news-donald-trump-521255.

[15] See, e.g., How Do I Create a Page, Facebook, https://www.facebook.com/help/104002523024878?helpref=faq_content (Last visited Nov. 20, 2016).

[16] Search on Instructions for Creating a Fake Facebook Page, Google, https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=creating%20a%20fake%20facebook.

Image Source:

http://www.klugerkaplan.com/blog/wp-content/uploads/2013/01/12_5_LG06.png

By: Genevieve de Guzman,

Wearable technology is not new to the world of action and science fiction movies, but this technology has developed from being mere speculation to having real-world possibilities. As technology becomes an increasingly integral part of people’s daily lives, it seems an inevitability that it also becomes increasingly integrated with our physical beings, and what could be more intimate than an individual’s perception of their world?

Google pioneered “smart” glasses with Google Glass[1] and “smart” contact lenses with glucose-sensing and monitoring contact lenses[2] and solar-powered contact lenses capable of communicating with computers and mobile devices and collecting biological data such as internal body temperature and blood-alcohol content.[3] More recently, Google filed a patent describing a device akin to a bionic eye.[4] This device is described as an intra-ocular implant that features an electronic lens that can be controlled to provide an optical power to focus images alternatively, essentially correcting and enhancing vision.[5] However, this device serves less as a contact lens and more as a surgical implant.

Arguably following Google’s lead, other researchers and companies have reportedly began developing similar “smart” contact lenses. Scientists at the University of Michigan are working on night vision contact lenses that uses thermal imaging to view a full spectrum of light, including ultraviolet light.[6] Researchers at the University of Wisconsin are developing contact lenses that autofocuses within milliseconds without the loss of contrast and sensitivity that come with glasses, conventional contact lenses, and surgery.[7] Johnson & Johnson are collaborating with a subsidiary of HP, Inc. to develop a contact lens that can adapt to the environment to “reduce glare and eyestrain indoors and out[doors],” change the cosmetic coloring of eyes, and treat presbyopia.[8] Swiss start-up company Sensimed recently received approval from the United States Food and Drug Administration (FDA) to start human testing for its contact lenses that promise to cure glaucoma.[9]

Samsung and Sony also join the race to develop “smart” contact lenses but aim to make them smarter and to reach a wider consumer base. Both companies describe contact lenses with built-in cameras, various movement sensors, and antennae that transmit and receive data as well as supply and receive electric power.[10] These contact lenses may be considered a response to the growing use of wearable technology and social media. Samsung filed its patent application in South Korea in 2014 and notes that the lenses would “allow users to view augmented reality” in more natural ways with a small display unit in the center of the lens and can sync up to smartphones wirelessly via the antenna.[11] Motion sensors in the lenses would allow the user to control the lens’ camera feature using blinking, similar to how Google Glass captured photos with winking, and a playback feature.[12] Samsung seems to function like a contact lens version of Google Glass.[13] Sony filed its patent application in the United States. Its lens would use piezoelectric sensor (example of pressure sensor), an infrared sensor, an acceleration sensor, a gyro sensor (example of tilt sensor), or an ocular potential measurement unit that converts eye movement into electrical power to control the smaller versions of part of a modern digital camera embedded in the lens.[14] Unlike the Samsung Lens, the Sony lens can store data without the need for a smartphone as well as contain features such as autofocus, automatic exposure adjustment, aperture controls, adjustable zoom, and playback.[15]

While these advancements in wearable technology are substantial steps toward the future, “smart” contact lenses differ from other wearable products in their covertness. Needless to say, these “smart” contact lenses present many privacy and security concerns. Google Glass raised similar issues, but its design was distinguishable while these lenses would enable clandestine photography that is virtually undetectable. Privacy with these lenses, in public places and even in semi-public places such as restrooms, would be virtually impossible. Covert surveillance of private meetings dealing with sensitive information, unconsented recordings of intimate interactions, violations of stalking laws, and the lenses’ susceptibility to hacking, involuntary use, malfunction, etc. are all necessary considerations, not to mention social harms as technology will be an even more intimate, integral part of daily life. This could also add a new dimension to the discussion of law enforcement body cameras and government surveillance of its citizens. The Sony and Samsung patent applications have not yet been granted, nor would their issuance guarantee that the products would be on the market any time soon. Until then, these “smart” contact lenses will be the subjects of conspiracy theories, hypothetical analyses, and spy movies.

 

 

[1] See U.S. Patent No. 9,195,067 (filed Sep. 28, 2012).

[2] See U.S. Patent No. 8,985,763 (filed Sep. 26, 2012).

[3] See U.S. Patent No. 9,158,133 (filed Jul. 26, 2012).

[4] See U.S. Patent Application No. 20160113760 (filed Oct. 24, 2014).

[5] See id.

[6] See Kate McAlpine, New tech could lead to night vision contact lenses, Michigan News (Mar. 16, 2014), http://www.ns.umich.edu/new/releases/22042-thermal-vision-graphene-light-detector-first-to-span-infrared-spectrum (last visited Nov. 17, 2016).

[7] See Fish and insects guide design for future contact lenses, EurekAlert! (Mar. 14, 2016) https://www.eurekalert.org/pub_releases/2016-03/nei-fai031116.php (last visited Nov. 17, 2016).

[8] See Richard Kirkner, J&J’s Plans for Smart & 3D Printable Contact Lenses, OIS News (June 8, 2016) http://ois.net/jjs-plans-for-smart-3d-printable-contact-lenses/ (last visited Nov. 17, 2016).

[9] See Sensimed announces first-of-a-kind product approval for its Contact Lens based sensing device by U.S. FDA, Sensimed (Mar. 15, 2016) http://www.sensimed.ch/images/pdf/PR_2016-03-15_sensimed_FDA_US_E.pdf (last visited Nov. 17, 2016).

[10] See Sony U.S. Patent Application No. 20160097940 (filed Feb. 12, 2014); S. Kor. Patent Application No. (filed Sept. 26, 2014).

[11] See Danielle Muoio, Samsung just patented a contact lens with a built-in camera, Business Insider (Apr. 11, 2016) http://www.businessinsider.com/samsung-filed-a-patent-for-smart-contact-lenses-2016-4 (last visited Nov. 17, 2016).

[12] See Amit Chowdhry, Samsung Patent Unveils Idea For Smart Contact Lenses With A Camera And Display, Forbes (Apr. 11, 2016) http://www.forbes.com/sites/amitchowdhry/2016/04/11/samsung-patent-unveils-smart-contact-lenses-with-a-camera-and-display/#438a947067be (last visited Nov. 17, 2016).

[13] See id.

[14] See Sony U.S. Patent Application No. 20160097940 (filed Feb. 12, 2014).

[15] See Sony Filed a Patent for Video-Recording Contact Lens, Huffington Post (Apr. 28, 2016) http://www.huffingtonpost.com/entry/sony-contact-lens-camera_us_57220fc6e4b0f309baefd3f2 (last visited Nov. 17, 2016).

Image Source:

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By: Ellie Faust,

During Donald Trump’s campaign, he certainly had an opinion regarding cyber security, but his opinions have been pretty inconsistent. While the president-elect vowed to protect the nation’s networks against foreign spies and criminals, he also encouraged Russian hackers to distribute emails stolen from Democratic nominee, Hillary Clinton.[1] While we do not know much about Donald Trump’s stance on technology policies, we do know that the man loves surveillance and hates encryption.

With Trump’s victory and the reelection of Republican Senator Richard Burr, the chairman of the Senate intelligence committee, the battle over encryption could intensify. Last year, Burr led a failed effort to pass legislation that would require companies to build “back doors” into their products in order to allow the government to evade encryption and other data protection.[2] The tech industry is unwavering in adamantly opposing back doors and believes the government has no right to dictate the design of tech products.[3]

It is likely that Burr will soon reintroduce his encryption legislation. This year, with the support of the White House and Republican majorities in both houses of Congress, the passing of legislation is much more likely. Not to say that Democrats and the more libertarian minded Republicans of the House will not put up a fight.[4]

Many believe that a Trump presidency could very well lead to a restoration of the Patriot Act along with increased pressure on Silicon Valley companies to break encryption.[5] It has become apparent throughout the course of his campaign that Trump is supportive of reinstating the dormant portions of the Patriot Act and the collection of bulk cell phone metadata by the National Security Agency.[6]

Trump’s campaign has always been less than tech friendly. From encouraging a boycott of Apple products to a plea to close off parts of the Internet in order to limit Islamist propaganda, the majority of Silicon Valley is certainly not thrilled about the outcome of this election.[7] The battle between the tech world and Donald Trump has begun. While we wait for the action, there are a few things we can do now to ensure some sort of personal security in the future.

If you are one of the many concerned about the possible increased surveillance, there are a few simple steps you can take to protect yourself now. To keep text messages private, you should look to install a service that provides end-to-end encryption. Apple’s iMessage currently offers this service but only between iMessage users.[8] If you do not have an iPhone, the apps Signal and WhatsApp both offer end-to-end encryption but again, both users need to have the app installed in order for the encryption to work.[9] For those with a questionable search history, the Internet browser, Tor, is the way to go. This browser makes your search activity anonymous by routing the data though a variety of destinations before sending it out to the web.[10] While we do not know what is ahead of us, it never hurts to protect yourself just in case.

 

 

[1] See Hiawatha Bray, Trump, the digital authoritarian, Boston Globe (Nov. 10, 2016), https://www.bostonglobe.com/business/2016/11/09/trump-digital-authoritarian/77tnj7mF95eZManXFOkZ7N/story.html.

[2] See Dustin Volz and Joseph Menn, Trump election ignites fears over U.S. encryption, surveillance policy, Reuters (Nov. 9, 2016, 7:50 PM), http://www.reuters.com/article/us-usa-election-cyber-idUSKBN13503H.

[3] See id.

[4] See id.

[5] See Phil Muncaster, Trump’s Presidency Raises Encryption and Surveillance Fears, InfoSecurity (Nov. 10, 2016), http://www.infosecurity-magazine.com/news/trumps-presidency-raises/.

[6] See David Gilbert, What a Donald Trump presidency would mean for privacy and security, Comparitech (Sept. 6, 2016), https://www.comparitech.com/blog/vpn-privacy/trump-privacy-cyber-security/.

[7] See Volz, supra note 2.

[8] See id.

[9] See id.

[10] See id.

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By: Victoria Linney,

Yik Yak is a popular app among many college and university students. The app is a location-based network that helps people connect with others around them.[1] However, the app differs from Twitter and Facebook in that users are able to post on the app anonymously and must be within a certain radius to see the posts.[2] Only users who are seventeen and older are allowed to use the app, and the company actively blocks middle and high schools from Yik Yak by using geofences.[3] Geofencing is a method of placing boundaries based on location, and depending on where you fall in said boundary you are either able to use the Yik Yak app or not.[4]

Due to the anonymity of the app, users feel free to post whatever they are currently thinking, and sometimes these posts lead to cyberbullying.[5] But, Yik Yak takes cyberbullying very seriously, and asks that users screenshot and “downvote” the post before reporting the post.[6] Once the yak has been reported, it is removed from the user’s feed and if the yak violates Yik Yak’s rules the user who posted the yak is suspended and the yak is removed from all feeds.[7]

However, the measures taken by Yik Yak to prevent cyberbullying are not enough for some people. While middle and high schools are unable to access the app, there has been a call for college campuses to block Yik Yak.[8] Some campuses have responded to this call by banning the app from their wireless networks.[9] But this move is largely symbolic, because as long as students are able and willing to switch off wifi on their phones, they are able to access the app by using phone data.[10] In an attempt to make more than a purely symbolic move, some colleges have asked Yik Yak to install a geofence around their campuses, which would prevent students from accessing the app, even while using data.[11] However, Yik Yak does not comply with these requests, and states clearly on the geofence request form on their website that they “only geofence middle and high schools (primary and secondary) and will not geofence an entire town or college campus.”[12]

But, the question still remains – even if Yik Yak was willing, or compelled, to put geofences around university campuses, would doing so violate students’ First Amendment rights? If a public college or university were to implement a geofence to ban Yik Yak, they would be violating the First Amendment.[13] This is because the Supreme Court has stated that the purpose behind the First Amendment is to “protect unpopular individuals from retaliations – and their ideas from suppression – at the hand of an intolerant society.”[14]

Protecting unpopular ideas, however, does not mean that threatening language is protected. True threats of violence are constitutionally unprotected, but true threats are not the only things being posted on Yik Yak.[15] People post about what the dining hall is serving, or about a tough breakup they are going through.[16] To block an entire platform designed for people to express their thoughts and opinions simply because some posts on the app are unpopular is contrary to the spirit of the First Amendment. As such, implementing a geofence to ban Yik Yak on college campuses would likely be held as unconstitutional, regardless of whether the university is public or private.

 

 

[1] See About, Yik Yak, https://www.yikyak.com/about (last visited Nov. 13, 2016).

[2] See Tasnim Shamma, Yik Yak Tests Universities’ Defense of Free Speech, NPR (Jan. 23, 2016), http://www.npr.org/sections/alltechconsidered/2016/01/23/463197593/yik-yak-tests-universities-defense-of-free-speech.

[3] See How Do You Prevent Children From Using Yik Yak?, Yik Yak, https://www.yikyak.com/support/faqs/sections/201022049/204565809 (last visited Nov. 13, 2016).

[4] See Shamma, supra note 2.

[5] See Adam Steinbaugh, The Futility of ‘Banning’ Yik Yak on Campus, The FIRE (Feb. 22, 2016), https://www.thefire.org/the-futility-of-banning-yik-yak-on-campus/.

[6] See I’m Being Bullied/Targeted, Yik Yak, https://www.yikyak.com/support/faqs/sections/201022049/205758949 (last visited Nov. 13, 2016).

[7] See id.

[8] See Steinbaugh, supra note 5.

[9] See Nathan Rubbelke, Campuses ‘Symbolically’ Ban Yik Yak as Battle Over App Rages, The College Fix (Oct. 21, 2015), http://www.thecollegefix.com/post/24735/.

[10] See Tyler Kingkade, Students Dip Into Their Data Plans to Get Around College’s Yik Yak Ban, Huff Post (Apr. 12, 2016), http://www.huffingtonpost.com/entry/illinois-college-banned-yik-yak_us_570d0bb7e4b0836057a25ad7.

[11] See College of Idaho Tries to Ban App Yik Yak on Campus, Wash. Times (May 15, 2015), http://www.washingtontimes.com/news/2015/may/15/college-of-idaho-tries-to-ban-the-app-yik-yak-on-c/.

[12] Geofence Request, Yik Yak, https://www.yikyak.com/support/requests/geofence (Nov. 13, 2016).

[13] See Steinbaugh, supra note 5.

[14] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).

[15] See Eugene Volokh, National Coalition in Favor of Campus Censorship, Wash. Post (Oct. 26, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/26/national-coalition-in-favor-of-campus-censorship/.

[16] See Shamma, supra note 2.

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By: Joe Strafaci,

Hacking a device, including one that you rightfully own, has been illegal under the Section 1201 of the Digital Millennium Copyright Act (DMCA) since 1998.[1] In effect, it prevents anyone from reverse-engineering hardware or software on any product they obtain in the marketplace.[2] While this might seem odd at first, companies have routinely cited its importance for maintaining the security of their products. This application ranges from protecting the copyright behind everything from a PlayStation to an automobile.[3]

But advocacy groups have long argued that certain types of hacking based on goodwill actually serves to help these companies and the general public. Recent research-oriented hackers have risked prosecution to show vulnerabilities in certain products.[4] Some examples of this research that includes showing how insulin pumps can be hacked to induce an overdose and how a Jeep could be hacked to affect the brakes and transmission.[5] As a result of this advocacy, an exemption finally kicked in on October 28, 2016 which will now permit what may be viewed as “good faith” hacking. While it permits the hacking of devices, the exemption will not provide a full bar from prosecution under Section 1201 of the DMCA.[6]

Several limitations have been placed on the exemption to permit hacking of commercial hardware and software products. The exemption only applies to what the DMCA refers to as “good faith” testing. This means that individuals will only be able to avoid the threat of prosecution if they are conducting their testing for the purpose of public safety or some similar reasoning. Additionally, any hacking or testing must be performed in a controlled environment in an effort to prevent potential harm to individuals involved or the public in general. Lastly, it is important to note that this exemption will only be active for two years, although it could potentially be extended.[7]

As a result of these limitations, the ability to hack into an individual’s own device will likely be severely limited. Different exemptions still exist for conducting specific activities, such as jail-breaking an iPhone.[8] However, most of the testing and hacking that the DMCA protects will be unavailable to the common individual. Due to these limitations, any individual that is not part of some type of research group is likely to risk prosecution under Section 1201.[9]

Despite these limitations, the general public will likely benefit greatly from this new exemption. It will allow sophisticated researchers to point out vulnerabilities in hardware and software that is now utilized in almost every industry. Furthermore, it will enable research groups to enact a degree of corporate oversight. For example, the recent Volkswagen scandal was initially brought to the attention of the public because researchers had reverse-engineered a Volkswagen automobile to show how Volkswagen had rigged its software to cheat emissions testing.[10] The limitations referenced above are likely a small price to pay for the general good that can come by providing an exemption to Section 1201 of the DMCA.

 

 

[1] See Digital Millennium Copyright Act, 17 U.S.C. § 1201 (1998).

[2] See id.

[3] See Understanding the Section 1201 Rulemaking, U.S. Copyright Office (Oct. 28, 2015).

[4] See Andy Greenberg, It’s Finally Legal to Hack Your Own Devices, Wired, (Oct. 31, 2016), https://www.wired.com/2016/10/hacking-car-pacemaker-toaster-just-became-legal/.

[5] See id.

[6] See id.

[7] See id.

[8] See Thomas Fox-Brewster, DMCA Ruling Ensures You Can’t Be Sued for Hacking Your Car, Your Games Or Your iPhone, Forbes, (Oct. 27, 2015), http://www.forbes.com/sites/thomasbrewster/2015/10/27/right-to-tinker-victory/#38a249a938ae.

[9] See id.

[10] See id.

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