Category: Blog Posts Page 70 of 75

by Eileen Waters, Associate Staff

 

The concept of body-mounted cameras worn by police officers is not brand new; in fact, police departments across the United States, England, Brazil, and Australia have been implementing systems with wearable cameras since the early 2000s. [1] Recently in the U.S., public interest has put a brighter spotlight on wearable cameras since an incident in Ferguson, Missouri, where an unarmed teenager named Michael Brown was shot by a police officer.[2] Confusion as to what actually happened when the incident occurred has led to debate and speculation about whether there would be less “civil unrest” if the officer who shot Michael Brown had worn a body camera.[3] In an effort to appease those who believe police cameras are the panacea for this subsequent civil unrest, police officers in Ferguson began wearing cameras earlier this month, having been donated by two private companies. [4] Locally, in “Henrico County [Virginia,] police officers will begin wearing body-mounted cameras this fall.”[5] With the acceleration of this trend, it is important to begin analyzing the pros and cons of police officers wearing body cameras.

The benefits of wearable cameras are numerous: the “potential to change the dynamics of police-citizen encounters, to either exonerate or implicate officers in wrongdoing, or provide evidence of citizen misconduct.”[6] “Body-worn cameras can increase accountability” not only for police officers, but also for the citizens they interact with.[7] The city of Rialto, California rolled out a camera program in 2012, and has since reported a 60% reduction in use-of-force incidents and an 88% reduction in filed citizen complaints, “when compared with the year prior to deployment.”[8] William Farrar, the police chief in Rialto, has spoken of cases where citizen have gone to their local police station to file a complaint “and the supervisor was able to retrieve and play on the spot the video of what transpired.”[9] Rialto is not the only city that has experienced a decrease in police-related issues and complaints since employing body cameras, many cities across the country are finding good results with such programs.[10]

Regardless of the benefits, there are also reasons to be wary of this new technology and approach the use of cameras with caution. Arguably, the most prevalent of which is that once a policy of camera-wearing is established by a law enforcement agency, “it will become increasingly difficult to have second thoughts or to scale back” such a program.[11] Many scholars have also strenuously noted privacy concerns that will arise with more camera usage.[12] “It takes little imagination to see how such cameras could augment already ubiquitous CCTV and facial recognition systems, allowing police to retroactively track and monitor innocent passersby.”[13] Proponents of body cameras should ask themselves if they are willing to give up much of their privacy for the program’s benefits. On top of these issues, cameras have a huge economic cost: “agencies that have deployed the cameras spent between $800 and $1,200 for each device.”[14] After the initial cost, it then becomes expensive to store the considerable amount of data created; the New Orleans Police Department will pay “an expected cost of $1.2 million over five years” for 350 body cameras. [15] Overall, there are appreciable costs to body camera programs that need to be weighed with the benefits when deciding whether a program should be implemented.

Currently, public interest seems to be in favor of wearable cameras. This has prompted Congressman Al Green to propose a federal bill last week that would require any “state or local law enforcement agency that receives Federal funds” to use those funds to purchase “body cameras for use by the law enforcement officers employed by that enforcement agency.”[16] On a state level, New Jersey Senator Donald Nocross announced that he is “drafting legislation that would require all police officers to wear body cameras while on patrol.”[17] Lawmakers, perhaps reacting to public opinion, are in the beginning stages of legislating for mandatory use of police body cameras. Now is the time where engaged citizens need to decide if these programs should be implemented nation-wide or not. As this post suggests, the issue is not black and white, and should be discussed and critiqued before concrete legislation is enacted.

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[1] Joshua Kopstein, Police Cameras are No Cure-all After Ferguson, Aljazeera America (Aug. 29, 2014, 6:00AM), http://america.aljazeera.com/opinions/2014/8/ferguson-race-policesurveillancetechnology.html.

[2] Id.

[3] Justin T. Ready & Jacob T.N. Young, Three Myths About Police Body Cams, Slate (Sept. 2, 2014 12:54AM), http://www.slate.com/articles/technology/future_tense/2014/09/ferguson_body_cams_myths_about_police_body_worn_recorders.html.

[4] William Cummings, Ferguson Police Begin Using Body Cameras, USA Today (Sept. 1, 2014 1:43AM), http://www.usatoday.com/story/news/nation/2014/09/01/ferguson-police-cameras/14920587/.

[5] Ted Strong & Brandon Shulleeta, Henrico Police to Roll Out Body Cameras for Officers, Richmond Times Disptach (Sept. 14, 2014), http://www.timesdispatch.com/news/local/henrico/henrico-police-to-roll-out-body-cameras-for-officers/article_1fe0fb5e-8752-573f-85e2-07ff33bf562b.html.

[6] Bryce Clayton Newell, Crossing Lenses: Policing’s New Visibility and the Role of “Smartphone Journalism” as a Form of Freedom-Preserving Reciprocal Surveillance, 14 U. Ill. L. Tech. & Pol’y 59, 82 (2014).

[7] Kevin Johnson, Police Body Cameras Offer Benefits, Require Training, USA Today (Sept. 12, 2014 6:21 PM), http://www.usatoday.com/story/news/nation/2014/09/12/police-body-cameras/15522059/.

[8] Id.

[9] Randall Stross, Wearing a Badge, and a Video Camera, The New York Times (Apr. 6, 2014), http://www.nytimes.com/2013/04/07/business/wearable-video-cameras-for-police-officers.html?_r=2&.

[10] Id.

[11] Johnson, supra note 6.

[12] Kopstein, supra note 1.

[13] Id.

[14] Johnson, supra note 6.

[15] Id.

[16] Transparency in Policing Act of 2014, H.R. 5407, 113th Cong. (2014).

[17] New Jersey Senator Proposes Bill Requiring Mandatory Body Cams for Police, Police State Daily (Sept. 11, 2014), http://policestatedaily.com/new-jersey-senator-proposes-bill-requiring-mandatory-body-cams-police/.

by Megan Carboni, Associate Staff

 

            Earlier this August, patent rights’ holder Alki David, owner of Hologram USA, filed suit against The Simpsons’ broadcaster, 20^th Century Fox, for alleged patent rights infringements.[1] David asserts infringement of his acquired hologram technology used to bring Homer Simpson to life at this year’s Comic-Con convention in San Diego.[2] Oddly enough, Homer Simpson is not the only celebrity in hot water over alleged unauthorized use of David’s patented technology. Michael Jackson’s estate and Pulse Evolution are also being sued for the unauthorized use of David’s hologram technology to bring Michael Jackson back to life at the Billboard Music Awards.[3] Adding more fuel to the fire is Pulse’s cross complaint stating that David is “falsely claim[ing] credit for creating and developing the visual effects spectacle [of Jackson] in a nationally-televised interview on CNN, in press releases, and on his various websites […].”[4]

            So, where did this all begin? Stepping back in time, back to 1862, a stage trick for magic shows was developed by two magicians called “Pepper’s Ghost.”[5] “Pepper’s Ghost” was a lifelike illusion technique that has currently been popularized in movie special effects, concerts, and amusement park rides.[6] Most recently, “Pepper’s Ghost” inspired the hologram technology behind Tupac Shakur’s resurrection at the 2012 Coachella Music Festival, whose patent rights were acquired by David and Hologram USA in February 2013.[7] Unfortunately for the late Michael Jackson and the animated Homer Simpson, neither Pulse nor Fox obtained any licensing rights to use the same hologram technology to create their holograms before they were publicly debuted. [8] Thus, enter the multimillion-dollar patent infringement suits brought by David. David’s attorneys representing him in the Jackson lawsuit state that Pulse, and now Fox, “have created significant confusion in the marketplace [and] diluted the value of the Hologram USA brand.”[9]

            But were Simpson and Jackson holograms made with the same technology? Of course, patent experts in this field will have to weigh in to determine if any of David’s claims of stolen holograms have any weight to them. The accused parties have publicly disavowed David’s allegations, with Fox saying “[t]his filing is totally without merit […] except to say […] Mr. David has demonstrated his insatiable need to stay relevant.”[10] Pulse adds in their own suit against the Hologram USA owner that David is merely “divert[ing] public and industry attention away from Pulse Entertainment,” asserting claims against David of unfair business competition practices and trade libel.[11] Pulse further asserts that the “mischaracterization of the [Michael Jackson] animation as a hologram highlights David’s complete lack of technical expertise….[This] was not a hologram at all, rather, it was an animation projected onto a screen.”[12]

            Will the courts find for David in his patent infringement claims? Or will they find that there is little substance to his allegations? Does the industry need the distinction between each of the types of technology and animation to continue to bring this type of entertainment to the masses? Is it also coincidence that Fox successfully sued one of David’s media companies for copyright infringement in 2012?[13] Time, or a hefty settlement (D’Oh!), will tell who has the future rights to collect off of celebrity holograms/animations technology.

 

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[1] Homer Simpson Duffed With Patent Lawsuit, WORLD INTELL. PROP. REV. (Aug. 18, 2014), http://www.worldipreview.com/news/homer-duffed-with-patent-lawsuit-7050.html.

[2] Id.

[3] Id.

[4] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[5] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[6] Amended Complaint and Demand for Jury Trial at 2, Hologram USA, Inc. et al. v. Pulse Evolution Corp. et al. (D. Nev. May 29, 2014) (No. 2:14-cv-00772).

[7] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[8] Id.

[9] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[10] Gardner, supra note 6.

[11] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire, THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[12] Id.

[13] See WORLD INTELL. PROP. REV., supra note 1.

by John A. Myers, Associate Staff

 

In the digital age, social media has become a dominant form of communication. Because of the increased usage of social media in recent years, user contributions to social media have increasingly been used as evidence in litigation. The main legal question that has arisen from social media as evidence is: How much access of their social media account does a party have to give to an opposing party that is requesting the evidence? If one party wants to introduce a single social media post as evidence against the opposing party, should that party have access to the other party’s entire social media account, or just that single post? Courts have recently started to adjudicate on this issue and the results have been mixed, with some courts arguing that access to opposing parties social media account is an unreasonable intrusion on privacy.

 

Because of the public nature of social media, posts made on social media sites have increasingly contributed to litigation. For example, the American Academy of Matrimonial Lawyers published a survey indicating 81% of divorce proceedings involve social media evidence, with 66% coming from Facebook alone.[1] It’s easy to understand how a Facebook post blasting a spouse or an Instragram picture showing a spouse with a mistress could be used as evidence during a subsequent divorce proceeding. The problem becomes when a court has to decide how much access the requesting party should be given to the opposing party’s social media account. While it may be easier to just allow the requesting party to have temporary access to the opposing party’s account for the purposes of securing the evidence requested, that also opens up the possibility that that party could find more evidence against their opposing party that wasn’t specified in a discovery request.[2]

 

Because of the potential encroachment on the privacy of the opposing party, courts have been hesitant to allow complete access to the requesting party and have attempted to establish a two-part test regarding access to social media evidence.[3] Firstly, the social media evidence must have some relevance to the facts that it is seeking to support.[4] This first part is well ingrained in the Federal Rules of Evidence and similar state rules for introduction of evidence from any source.[5] Secondly, the court must determine whether blanket access to the social media account is allowed or if the requesting party need only be given the social media post in question. Recent court cases have split on this issue. Some courts said that blanket access to the other party’s social media account is per se unreasonable.[6] Other courts have granted blanket access, but with restrictions. In Largent v. Reed, the plaintiff was ordered to turn over her Facebook login information to opposing counsel, who would then have 21 days to inspect a limited section of the account.[7] After that period, the plaintiff could change her password to prevent any further access to her account by opposing counsel.

 

What is most interesting about social media as evidence and its development is the affect on an individual’s privacy. Since the advent of Facebook, Twitter, and other social media platforms, the main legal question surrounding these platforms has been: How much privacy should their users expect from comments made on those sites? While the answer has almost always been “None”, the first cases to address the introduction of social media as evidence seem to indicate that there is at least some material on social media that is off limits to opposing parties. A Pennsylvania court recently concluded that a court order that would grant the opposing party access to information on a Facebook account that was only intended for “Friends” (of which the opposing party was not one), would be intrusive and potentially embarrassing for the acquiescing party.[8] Other state and federal cases have concluded that searches of social media accounts are an intrusive way of gathering evidence and less speculative and “annoying” methods should be used when possible.[9]

 

The use of social media as evidence is still in its infancy and its introduction or exclusion will likely develop for decades to come. It will be interesting to see the progress of social media evidence and whether future courts continue to hold certain aspects of social media to be off limits for evidentiary purposes.

 

 

[1] Press Release, American Academy of Matrimonial Lawyers, Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers (Feb. 10, 2010) (on file with author).

 

[2] Fed. R. Civ. P. 26(A)(ii)

 

[3] Margaret DiBianca, Discovery and Preservation of Social Media Evidence, Business Law Today (Jan. 2014), http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html.

 

[4] Fed. R. Evid. Rule 401(a).

 

[5] Id.; Va. R. Evid. 2:401.

 

[6] Trail v. Lesko, No. GD-10-017249, LEXIS 194, at *30-31 (Pa. D. & C. Jul. 3, 2012).

 

[7] Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Pa. D. & C. Nov. 8, 2011).

 

[8] See Lesko, LEXIS 194, at *28-30.

[9] Id.; Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-11735, 2011 U.S. Dist. LEXIS 121600, at *1-3 (S.D. Mich. Oct. 20, 2011). 

By: Adam Lamparello & Charles MacLean[1]

August 6, 2014

 

In an era of metadata collection and warrantless searches of laptops at the border, the Supreme Court recognized that privacy—and the Fourth Amendment—still matter.

A. The Court’s Opinion

In Riley v. California,[2] the defendant was stopped for having expired registration tags and arrested when law enforcement officers discovered that the defendant’s license had expired.[3] After the arrest, a detective conducted a warrantless search of the defendant’s Smartphone and discovered incriminating evidence that led to charges of assault and attempted murder.[4]

Relying on the search incident to arrest doctrine, the lower courts rejected the defendant’s Fourth Amendment challenge, holding that officer safety and evidence preservation justified the search of defendant’s Smartphone.[5]

The Supreme Court granted certiorari—and unanimously reversed.

Writing for the Court, Chief Justice John Roberts held that the two objectives underlying the search incident to arrest doctrine were not implicated in the cell phone context.[6] Chief Justice Roberts also rejected the Government’s argument that Smartphones were analogous to physical objects such as containers and cigarette packs, stating to it was akin to “saying a ride on horseback is materially indistinguishable from a flight to the moon.”[7]

Justice Roberts also recognized that, unlike finite physical objects, Smartphones can store “millions of pages of text, thousands of pictures, or hundreds of videos,”[8] which makes them different “in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”[9] In fact, “even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, [and] a thousand-entry phone book.”[10]

As such, “the sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.”[11] Moreover, because of their immense storage capacity, “cell phone searches would typically expose to the government far more than the most exhaustive search of a house, and contains a broad array of private information never found in a home in any form—unless the phone is.”[12]

Based on these considerations, the Court held that the search violated the Fourth Amendment’s prohibition against unreasonable searches and seizures, which “was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era . . . [and] allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”[13]

Riley is a victory for privacy rights and shows that law enforcement’s investigatory powers are not without limits. Time will tell whether the Court’s reasoning will have implications for future cases involving, for example, the Government’s warrantless search of laptops at the border and indiscriminate collection of metadata. What we know now is that times have changed.

B. What Does Riley Mean for Privacy?

In their upcoming article, Professors MacLean and Lamparello will analyze the implications of Rileyin various contexts where expanding surveillance by the Government threatens to infringe individual privacy rights. They will analyze, among other things, the current circuit split regarding the warrantless—and suspicionless—collection of metadata, and discuss the extent to which the National Security Agency can continue to monitor and track metadata, email, internet browser histories, and other communications data both domestically and abroad.

Professors MacLean and Lamparello will argue that, although Rileyis a victory for privacy rights, there is reason to be cautious. Chief Justice John Roberts has taken a minimalist approach to constitutional adjudication and often strives to decide cases on the narrowest grounds possible.[14] In addition, the basis upon which Riley was decided—reasonableness—may be difficult to apply in contexts where the Government’s interest is heightened, the search is less intrusive than, for example, the search of a cell phone, and occurs in places where an individual’s expectations are privacy are diminished.

Ultimately, the authors will argue that the Court’s jurisprudence will proceed incrementally. Although the Court will increasingly safeguard privacy rights, it will not be able to keep pace with the speed of technology and the efforts by Government officials to increase the scope and breadth of their surveillance power. The authors will propose a detailed legislative solution that includes, among other things: (1) the privacy expectation that citizens should have in various contexts; (2) the levels of suspicion that the Government must satisfy before performing various searches; (3) and the circumstances, if any, when the interest in national security will outweigh a legitimate or diminished expectation of privacy. In so doing, the authors will provide a solution that they believe can guide lawmakers, citizens, and courts as the technology era increasingly implicates complex question about the balance between civil liberties and national security.

 

 

 

 

[1] Professors Charles E. MacLean and Adam Lamparello of Indiana Tech Law School filed an amicus brief in the case supporting Riley’s argument. The Professors argued that the search incident to arrest doctrine did not apply because: (1) cell phones, unlike other physical objects, could not be used as weapons; and (2) the risk that evidence would be destroyed, through either remote wiping or data encryption, was minimal and easily manageable. The authors have also written rather broadly in this area, including: Charles E. MacLean & Adam Lamparello, Abidor v. Napolitano: Suspicionless Cell Phone and Laptop “Strip” Searches at the Border Compromise the Fourth and First Amendments, 108 Nw. U. L. Rev. Colloquy 280 (Spring 2014); Adam Lamparello & Charles E. MacLean, Back to the Future: Returning to Reasonableness and Particularity under the Fourth Amendment, 99 Iowa L. Rev. Bull. 101 (Spring 2014); Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, unless Congress Continually Resets the Privacy Bar, 24 Albany L.J. Sci. & Tech. 47 (Spring 2014). The authors’ full article addressing the implications of the Riley decision will be published this fall in Volume 20 of the Richmond Journal of Law and Technology.

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

[3] See id. at 2480.

[4] See id. at 2480-81.

[5] See id. at 2481.

[6] See id. at 2485-87.

[7] Id. at 2488.

[8] Riley v. California, 134 S. Ct. 2473, 2489 (2014).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 2491.

[13] Id. at 2494.

[14] See University of Chicago Law School Faculty Blog, Chief Justice Roberts and Minimalism, (May 25, 2006), available at: http://uchicagolaw.typepad.com/faculty/2006/05/chief_justice_r.html.

by Walton Milam, Associate Staff

 

For years, Virginia anglers have lamented the arbitrary three mile line separating the legal area to chase Virginia’s striped bass from the “exclusive economic zone”[1] where commercial boats can legally reek havoc[2] on schools of striper for which the Virginia coast is famous.  The three-mile line is non-sensical for a number of reasons.  The idea that the environment is less affected by a fish caught 2.9 miles offshore than one caught 3.1 miles offshore seems unpersuasive at best.  If population decimation is the federal government’s concern, the two fish per angler rule seems to address these concerns adequately.   If the two fish per angler rule is inadequate, laws ought to further restrict the amount of fish legally caught rather than how far offshore the fish can be caught.  The rule instead seems more likely to be the result of successful lobbying on the part of commercial fisherman who have long foiled the attempts of environmentalists to invoke meaningful improvement, particularly in the Chesapeake Bay.[3]  While I admittedly am skeptical of any attempt by the government to manipulate behavior to affect environmental change, the case of the three-mile line seems particularly heinous.  Commercial fisherman claim that their livelihood depends on their ability to harvest fish outside the three mile zone.  However, many anglers make their living guiding “non-commercial” patrons.  Further, even more anglers work five days a week with the hopes that they can spend money and time and enjoy their free time on the weekend.  In doing so they spend thousands of dollars on licenses, boats, tackle, bait, gas, ice, food, lodging, and beer.  These endeavors seem just as economic as any commercial fisherman catching fish in the “exclusive economic zone.” 

Finally, the technological aspect of enforcement is tricky, given the nature of fishing near the line.  While most GPS and Fishfinder systems include the Three Mile Line in maps, when fishing near the line, it is not always easy to ascertain whether one is in an illicit or legal zone.  This issue is further complicated when fighting a fish that may start in the legal zone but move to the illegal zone.  While most citations of which I am aware occur far outside the line, the difficulty of determining when one is fishing legally adds to the confusion.  One could foreseeably hook up with a striper within the three-mile zone but have the friend run into the exclusive economic zone, making the fish illegal to catch. 

by Danielle Bringard, Associate Survey & Symposium Editor

 

I don’t know about you, but my heart skipped several beats after reading the first wave of news detailing the Heartbleed Security Hack.  I changed all of my passwords on various sites only to find if I had changed them before that particular web operation had updated its software I would have to change my passwords again.  Now, I find, by checking the security of a website I may be violating the law?

Heartbleed is not a virus, but a software defect.[1]  It affects OpenSSL software which is used for encryption.[2]  OpenSSL is an open source software, meaning anyone can access the code, review it, and make changes to it.[3]  So what happens when Heartbleed is exploited?  Essentially it allows a hacker to retrieve memory which may contain usernames, passwords, keys, credit card numbers, social security numbers or other useful information.[4]  Each time the hacker access the system it he or she can gain access to more information.[5]  This is a serious problem as many people now do much of their banking and shopping on the internet.

 So before you change your passwords it might be a good idea to check to see if the website is still vulnerable.  If the website hasn’t patched its software then changing your password will do you no good.  McAfee released a free tool to help consumers determine if the website they visit is safe or not.[6]  That tool can be accessed at http://tif.mcafee.com/heartbleedtest. 

 STOP!  Before you click that link and test a website you have in mind, you should know that some technology experts are worried that doing so could break the law.[7]  These naysayers cite the United States Computer Fraud and Abuse Act.[8]  Software that checks a website to see if it has patched the Heartbleed actually accesses that sites security certificate, which may or may not fall under the purview of 18 U.S.C. §1030.  Since everyone across the globe is experiencing the effects of Heartbleed, and it may take some time before all websites have patched their software[9], I doubt the U.S. government would prosecute a citizen simply seeking to ensure their person information remained protected or taking any proactive steps to do so.

As always, safety first. 

by: Kit Mathers,  Associate Copy Editor

 

In January, Congress, through overwhelming bipartisan cooperation, approved, and President Obama signed into law, a $1.1 trillion omnibus spending bill; a provision of which precludes the U.S. Department of Energy (“DOE”) from spending allocated funds to enforce twilight measures of a “light bulb phase-out” mandated by the 2007 Energy Independence and Security Act (“EISA”).[1]  The phase-out, which effectively began in January 2012, requires that light bulbs produce a certain level of brightness at specified energy levels.[2]  Of particular significance to the average consumer, traditional incandescent light bulbs are incapable of fulfilling the new energy efficiency standards and as of January 1, 2014 60- and 40-watt incandescent light bulbs (which represent half of the consumer light bulb market) are no longer allowed to be manufactured or imported into the U.S.[3]  Overall, the standards set forth by the EISA are predicted to result in annual electric bill savings of nearly $13-billion, power savings equivalent to the output of 30 large power plants,  and will reduce carbon dioxide emissions by about 100 million tons per year.[4]

The spending bill’s ban is not particularly formidable from the perspective of many environmentalists and “pro phase-out” light bulb manufacturers who have characterized it as a nuisance that can’t possibly derail the “market shift” toward more energy-efficient light bulbs.[5]   But should we be more supportive of the spending bill’s ban despite the EISA’s potential environmental benefits?  In support of the ban, House Republicans have stated that EISA phase-out requirements are characteristic of government overreach, and enforcement measures should not be tolerated.[6]   Is there any merit to the House Republicans’ argument?  Is federal product regulation really the proper avenue for catalyzing change in consumer power consumption?  The tension at the heart of the light bulb phase-out is representative of a fundamental issue that must be addressed in any discussion of “where” energy regulations should be focused.  I tend to agree with House Republicans who are wary of the government’s reach into consumer purchasing power, but perhaps end-user regulation (“downstream”) is the most parsimonious way of realizing change in energy use and accompanying (upstream) emissions.  Upstream regulation is inescapably difficult.  State and federal regulation of power plants and their emissions is tedious work, often drawn out interminably by litigation.  But then again, why not increasingly regulate power plants themselves if we are operating under the guise that the end goal is to limit carbon emissions and power plant out-put?  It’s not as though the light bulbs are the source of poor energy management decisions or egregious carbon emissions.   Understanding why the EISA, in large part, came to be makes the decision to regulate downstream consumer choice even less palatable.

While the EISA does not outrightly proscribe the manufacture or importation of all incandescent light bulbs, it has the net effect of increasing market  prevalence  and selection of more expensive, compact fluorescent light bulbs  (“CFLs”) and light emitting diodes (“LEDs”) which is extremely beneficial to major light bulb manufacturers.  As Timothy Carey of the Washington Examiner details, the 2007 Energy Independence and Security Act “wasn’t a case of an industry getting on board with an inevitable regulation in order to tweak it.  The lighting industry was the main reason the legislation was moving.”[7]  The light bulb industry is, by its nature, a competitive market with no significant impediments to entry.  Characteristic of such competitive markets, under the neoclassical economic model, is product pricing at marginal cost – the cost of producing one additional unit of output- which results in low profit margins.[8]  GE, Phillips and Sylvania, which dominate the U.S. incandescent light bulb market, want to “convert their dominance into price hikes,” but because market entry is not significantly encumbered by manufacturing or regulatory costs, consumers will gladly purchase new alternative brands that offer bulbs at, or close to, marginal cost.[9]   Market giants, with significant capital available for research and development programs, sought to extinguish the threat of competition (which keeps profit margins low) by expending significant money to improve the incandescent light bulb, primarily through advancing halogen, LED and fluorescent technologies.[10]  These “energy efficient bulbs” sell at a much higher price point compared to incandescent light bulbs, and because of this, consumer choice has remained somewhat stagnant and heavily biased toward incandescents.  Light bulb manufacturers, aware that consumers won’t willingly skirt cost benefit considerations in light bulb selection, have thus collaborated with groups like the NRDC in lobbying for the phase out of incandescents; their agenda being the “push” of profitable products rather than environmental conservancy.[11]  Undoubtedly, there are great advantages to newer bulb technologies, as well as associated costs.[12]  However, it’s extremely hard to justify the handcuffing of consumer freedom of choice when it is being instituted by government elites and unelected bureaucrats.[13]

 All in all, it is extremely important to ask, where (or at what phase) should regulatory efforts be focused (and why)?  The upstream power plants, downstream consumers, or both?  Perhaps the fact that light bulb manufacturers are sustaining windfall profits from federal regulation is an inevitable consequence; in any regulatory effort there will always be a party that benefits, perhaps grossly, from regulation.  It will be interesting to see what happens to the spending bill’s ban in the coming months, and whether or not downstream regulation will accomplish its goals.

by Brittani Lemonds, Associate Manuscripts Editor

 

Society’s dependency on smartphone technology has undoubtedly benefitted the fashion industry worldwide.  Gone are the days where cell phone users were limited to the cases and tech accessories available at the storefront of their service provider or local office supply store.  The iPhone opened the door for upscale accessories including designer phone cases, handbags created to fashionably (and conveniently) hold the iPhone’s slender structure, and even winter accessories that allow users to engage with touchscreen technology without removing their gloves.

Enter Echo Design Group – a prominent fashion designer and retailer specializing in home décor, stationary, women’s handbags, scarves, and other cold weather accessories including the aforementioned touchscreen compatible gloves.

Since November 2013, Echo Design Group has been aggressively filing lawsuits against major fashion brands, designers and high-end retailers alike for alleged infringement of its U.S. Patent 8528117 titled “Gloves for Touchscreen Use.”[1]  The most recent fashion heavyweight involved in this patent controversy is American fashion designer and former Project Runway judge, Michael Kors.[2]  On February 24, 2014 Echo Design Group filed a complaint against Michael Kors (USA), Inc. and Michael Kors Stores LLC., in the United States District Court, Southern District of New York for patent infringement of Kors’ Touch Screen Zip Glove.[3]

Just weeks earlier, in January 2014 Echo Design Group filed a similar complaint against Henri Bendel in the United States District Court, Southern District of New York for patent infringement of Bendel’s NB Polka Dot Glove.[4] 

But Michael Kors and Henri Bendel are not the only designers facing legal threats for their touchscreen compatible gloves.  Echo has targeted other fashion designers for alleged infringement of the same patent, filing at least four other lawsuits in November 2013 against the likes of Fownes Brothers & Co., Inc. for the Touchscreen Compatible Gloves sold under UGG, G-III Apparel Group, Ltd., for the Calvin Klein Text Enabled Gloves, Kate Spade for the iPhone Gloves sold under the Jack Spade brand, and Marc Jacobs International, LLC. for the various touchscreen gloves retailed under the brand.[5]

All of the filed complaints state that Echo invested significant time and resources into developing the touchscreen glove concept and that Echo secured intellectual property rights to the “Gloves for Touchscreen Use” on September 10, 2013 when USPTO (the Patent 117) issued U.S. Patent No. 8528117 to Echo.[6]

The complaints allege that all of the defendants “without permission or license from Echo, has made, is making, is having made, has sold, is selling, is causing to be sold, has offered for sale, is offering to sell, is causing to be offered for sale, and/or has imported, is importing, and/or is causing to be imported into the United States, within this State and elsewhere, of the products.  The products directly infringe, contributorily infringe, and/or induce others to infringe, at least one claim of the ‘117 Patent, including but not limited to claim 1, in violation of 35 U.S.C. § 271.”[7]  Echo is seeking damages, preliminary and permanent injunction and fees.[8]  It will be interesting to see whether Echo succeeds in its myriad of lawsuits against the fashion industry.

by Fiona Clancy, Associate Notes and Comments Editor

 

A Florida dad learned a costly lesson about sharing confidential information with his daughter and the ramifications of a subsequent social media post in a case that has gotten a lot of media attention lately. 

Patrick Snay sued his employer, Gulliver Prep School, when his 2010-2011 contract as the school’s headmaster was not renewed.[1]  Mr. Snay filed a two count complaint under the Florida Civil Rights Act alleging age discrimination and retaliation.[2]  On November 3, 2011, the parties executed a settlement agreement with various payments to be made by Gulliver Prep including $10,000 in back pay to Mr. Snay, (known as “Check #1), $80,000 to Mr. Snay as a “1099” (known as “Check #2), and $60,000 to Mr. Snay’s attorneys (known as “Check #3).[3]  Central to the agreement was a confidentiality clause that read in part:

 “13. Confidentiality…The plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in disgorgement of the Plaintiffs portion of the settlement payments.”[4] 

On November 7, 2011, only four days after the agreement was signed, Gulliver Prep notified Mr. Snay that he had breached the Agreement based on his daughter Dana Snay’s Facebook post which stated[5]:

 “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”[6]

The Facebook post went out to approximately 1,200 of Dana Snay’s Facebook friends, which included many current or past Gulliver Prep students.[7]

Gulliver Prep also informed Mr. Snay that it would not be tendering Check #2, the $80,000 payment.[8]  Mr. Snay moved to enforce the settlement agreement and receive payment, and the trial court held that the Facebook posting did not constitute a breach of the agreement.[9]  However, Florida’s Third District Court of Appeals reversed the trial court’s ruling on February 26, 2014, stating that Mr. Snay’s $80,000 settlement with Gulliver Prep was null and void because his daughter breached the terms of the non-disclosure clause when she posted about it on Facebook.[10]  The Court of Appeals ruled in favor of Gulliver Prep in finding that Snay violated the agreement when he told his daughter about the settlement and acknowledged that Dana Snay did precisely what the confidentiality agreement was designed to prevent– advertising to the Gulliver Prep community that Snay had been successful in his age discrimination and retaliation case against the school.[11] 

The internet has been buzzing with legal commentary regarding this case with many lawyers weighing in and discussing the lessons learned.

A Chicago based, self-described “social media” attorney feels “this case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements and (2) people who learn confidential information should keep their social media mouths shut.”[12] 

One employment attorney commented that in most cases, the discussion revolves around the liability that social media can cause employers, while this case represents a turn of events with Facebook working in the employer’s favor.[13]  That attorney believes this case serves as a reminder that social media can open “Pandora’s box” with respect to liability for employers, but it can also provide a wealth of information during litigation for both sides.[14] 

Another employment attorney believes this case illustrates the need for well drafted confidentiality clauses.[15]  After all, employers include confidentiality clauses in their agreements precisely because they do not want a former employee openly disclosing the amount or existence of a settlement payment as that can encourage additional legal challenges and/or cause discord among current employees.[16]  While Gulliver did not end up paying Mr. Snay the $80,000, the information it wanted to protect is nevertheless now public.  The valuable lesson for employers, the attorney opines, is that a well written confidentiality clause is essential if an employer wants to prevent disclosure of the existence or amount of a settlement payment.[17]  The attorney suggests drafting the clauses to permit disclosure to immediate family members (which the agreement in the Snay case did not) because it is unlikely that families will not share the information with people who have been aware of and involved in the litigation process.  The key is to permit disclosure to those immediate family members but subject those family members to the same confidentiality requirements as the employee, preventing disclosure outside the immediate family.[18]  During the appeals process, Mr. Snay testified that he “knew the litigation was important to his daughter and that he and his wife would have to tell her something.”[19]  The appellate judge stated in her opinion that “[t]he fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach” and that there was “no evidence that [Snay] made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement.”[20]  The court was not swayed by Mr. Snay’s testimony that he had not told his daughter he had “won” the case, and that she did not go to Europe, nor had she planned such a trip.[21]

A Michigan based employment attorney summed it up by stating “Facebook and confidentiality agreements do not mix.”[22]  The attorney also posits that it is “unrealistic to think that a family cannot be told since the fact of litigation is undoubtedly known” and suggests language in the agreement that allows for the disclosure of the settlement to immediate family members which specifically defines what family members may be told, while also specifically prohibiting any disclosures.[23]  Such a provision would not have authorized Dana Snay’s Facebook post, and would have better protected Gulliver Prep’s interests.[24]

While acknowledging that people may feel sympathy for the Snay family, the Michigan employment attorney feels this case provides important comfort to employers who settle cases with the express intention that the settlement remains confidential, and properly emphasizes to plaintiffs that nondisclosure means nondisclosure—even when third parties or family members are involved.[25]  Furthermore, this case serves as an important reminder that social media is now an established part of everyday life, that prohibitions against disclosure should specifically mention social media, and that our lawyering and agreements should adapt to the ever present technologies and platforms that permeate our lives.[26]  Appropriately planning for these situations is something both clients and attorneys can “Like.”