Category: Blog Posts Page 73 of 76

by Emma Buck, Associate Staff

Futuristic movies, television shows, and books have introduced us to the idea of unmanned drones in our everyday lives. Imagine having your mail or packages delivered by something that resembles a mini-helicopter and is piloted by someone many miles away. Even a few years ago, this idea would be pure imagination or fantasy but with recent technological advances, that is no longer the case. Drones with impressive technological abilities are already available to be purchased by individuals.¹ Amazon has recently announced their new drone project, Amazon Prime Air.² This service would allow certain users the option of thirty-minute drone delivery for their online orders. Amazon, which has frequently been a leader in innovation, anticipates that Amazon Prime Air will be available by 2015.

The Federal Aviation Administration regulates the national airspace. In recognition of the inevitable presence of drones in daily life, the FAA has been charged with developing new policies to integrate drones into the national airspace by September 2015.³ These policies will shape how companies, individuals, and governments can use drones in the near future. Many states have implemented bans on the use of drones by governmental entities, preventing potential Fourth Amendment search and seizure concerns.⁴ While these Constitutional issues only apply to government actions, there are also common law principles such as privacy and trespassing that would also apply to private use of drone technology.

One danger of the easy availability of drones that have video cameras attached is the potential abuse of privacy rights. Imagine that you are sunbathing in your fenced in backyard when suddenly a drone flies over the fence, capturing images of you that you did not want anyone else to see. The claim that would apply in this situation is “intrusion upon seclusion” and could likely apply to use of drones because such conduct may be highly offensive to a reasonable person. ⁵ This cause of action could likely be used in cases where someone is using drone technology to gather information about another. However, this is an objective standard so it may open the pilot to unintended liability if the drone ends up flying into a private situation, regardless of the pilot’s intentions. As this technology is still developing, there is very little legal precedent that actually speaks directly to this issue so it is unsure how the courts will decided that drone activity fits within this established standard.

A second concern is property rights. Courts have applied trespass to aerial vehicles (planes, helicopters, etc..,) when they are driven into the airspace close enough to someone’s home that it would interfere with their use and enjoyment of the land.⁶ Usually this has been met when the vehicle causes some sort of excessive noise or vibrations, which a smaller vehicle like a drone is unlikely to do. Yet, this principle would still apply to drones that caused a disturbance and any drone that landed on the property directly.

Drone technology creates all sorts of new and exciting possibilities. Some states are being proactive and starting to preemptively create laws that would regulate the use of this technology. However, these efforts have been more focused on use by the government and not as much by individuals.⁷ Those that use drones should be aware that they may be opening themselves up to liability in an area with very little guiding legal precedent directly on point.

by Kevin Conneran, Associate Technical & Public Relations Editor

Google Glass is the future of computers (if you believe Google). Google envisions a world where instead of purchasing your prescription glasses from eyewear stores, you simply provide your prescription to Google and they will outfit your computer with your prescription.[1] Lately, however Goggle’s Glass-centric lifestyle has not been embraced by state legislatures and government agencies.

Recently Wyoming joined a growing number of states that have started looking into banning drivers from using Google Glass.[2] Wyoming Democratic State Senator Floyd Esquibel crafted a bill directed at accomplishing this goal.[3] He stated,” Common sense would tell you that you really don’t need to be looking at a little computer while driving.” Similar measures have been proposed in Delaware, Illinois, Missouri, New Jersey, New York and West Virginia.[4]

Google Glass users have also had their fair share of hassles as society figures out how to handle this technological leap. In California, a woman received a ticket for operating a video display in front of the drivers head rest (Ca. Vehicle Code 27602).[5] She subsequently fought the ticket and ultimately won because there was not enough evidence to prove the device was on while the user was driving.[6]

In Ohio, a man was detained by Homeland Security officials for wearing Google Glass while in a movie theater.[7] Officials believed he was filming the movie through his Glass and interviewed him until they determined that he was not using the Glass for piracy.[8]

These are just some issues that have plagued Glass users, and Glass is still in its infancy. Once Glass is fully brought to market instances like this will only become more commonplace. States, government agencies, and businesses need to start planning now, so that they have established standards in place by the time Glass is as common as a Bluetooth.

by Anne Curtis Saunders, Associate Staff

Last week, the ever-innovative Google acquired Nest Labs (Nest), a small Palo Alto operation, for a whopping $3.2 billion, roughly five percent of Google’s available cash.[1] Nest is a producer of “reinvented” home products, an example of which is its cutting-edge thermostat that “…learns your schedule, programs itself and can be controlled from your phone,” and may lead to reducing “your heating and cooling bills up to 20%.”[2] To me, someone who spends far too much time adjusting the thermostat several times a day to get the temperature just right, this thermostat sounds sensational and approaches necessity. Nevertheless, why does Google want it?

Danny Sullivan, leader of and journalist for Search Engine Land, a search engine news and information site,[3] says that “Google likes to know everything they can about us, so I suppose devices that are monitoring what’s going on in our homes is another excellent way for them to gather that information.”[4] He further asserts, “[t]he more [Google is] tied into our everyday life, the more they feel they can deliver products we’ll like and ads.”[5] And, it is the sharing of this information data that has consumers concerned.[6]

Tony Fadell, founder and CEO of Nest, assures consumers that immediately Google will be utilizing the current privacy policy of Nest, whereby the information gained from the products’ monitoring will only be used for the advancement of its own products and services.[7] Or, if changes do occur to the privacy policy, they will be transparent and opt-in.[8] But, what if these possible changes do occur, then what happens?

According to Fadell’s statements, it means that Google will let consumers know of the change in policy, but the change will still occur. And, what can be done about it legally? Unfortunately, not much. For when any privacy policy change takes place, consumers will have agreed to terms of service that refer to the privacy policy, agreeing with whatever the privacy policy may be, including any information data sharing authorized in the policy and any changes that may occur.

The moral of the story – under the present existing legal framework, consumers are offered little to no recourse for such changes to the privacy policy, so think twice before “accepting” terms of service and a possibly not-so-private privacy policy.

by Spencer Mead, Associate Survey and Symposium Editor

The invention of the internet forever changed the way consumers shop. Consumers now can order an item and receive it within less than 24 hours of the order date. Some of the benefits of online shopping include ease, ability to compare prices across multiple stores, it can be cheaper, and shopping can be more efficient be eliminating the need to physically drive to a store. This has caused a massive surge in the number of people who are shopping online instead of going through a store. Most people assume it is safe to shop online as long as they stay away from phishing scams and seedier parts of the internet. But is this just a false sense of security? This explosion in internet shopping has coincided with a large increase in the number of hackers around the world attempting to get one’s personal information in order to steal their identity or their money.

            Any security felt with being on the internet seems to be a false one with the government’s extensive spying efforts recently coming to light.[1] Some are probably thinking the NSA’s spying program was targeted only at possible terrorists right? Well the short answer is no, the NSA has been targeting all Americans and hording vast amounts of information on these Americans.[2] Well if the government is spying on us are the big companies at least doing anything to try and protect our information? The short answer is yes they are, but how successful are they?

            Target recently made headlines for having over 70 million Target customer’s information stolen.[3] These 70 million customers had their personal information stolen such as their email addresses, mailing addresses, and/or phone numbers stolen.[4] In addition, 40 million target customers had all of their credit card information stolen.[5] This obviously can create problems with people using this stolen information to charge items on the credit accounts. Additionally, if a person’s social security number was tied into the credit card information these thieves would be able to open up other lines of credit in the person’s name without their knowledge. This can have a major impact on a person’s credit score.

            So as a consumer what can you do to protect your information? Well unfortunately not shopping online is not an option. The credit card information was stolen from consumers that used their credit cards within a physical Target store.[6] The best thing a consumer could realistically do would be to not shop online, and to make all purchases in cash. This would eliminate the possibility of a company ever obtaining one’s personal information. However, this raises other concerns such as carrying large amounts of a cash on one’s person, building a credit score by regularly using a credit card, and how to make large purchases easily.

            Obviously there is no way to keep one’s information perfectly safe in this day and age. However, being aware of the problems and putting pressure on large companies to better protect consumer information is a step in the right direction to better secure our personal data. Maybe one day payment methods will be tied into a person’s DNA so that they are the only ones that could possibly use it. However, any such technology is a long ways off and we are going to have to deal with the shortcomings of today’s security.

by: Billy Raska, Associate Staff

Starting back in 2011, Innovatio IP Ventures, LLC (“Innovatio”) began suing various hotels, coffee shops, restaurants, supermarkets, and other commercial Wi-Fi users for infringing several patents that it had acquired from Intermec Technologies Corporation and Intermec IP Corporation, Norand Corporation, and Broadcom Corporation.[1] Most of the publicity surrounding this case has focused on the fact that Innovatio is a non-practicing entity and that the act of suing companies for merely using Wi-Fi is an abusive use of the patent system.[2] However, it is equally interesting to examine how Innovatio has gone about discovering the alleged infringement of its patents.

Innovatio sent technicians to the premises of the various hotels, coffee shops, restaurants, and supermarkets that it ultimately sued with a laptop and a Riverbed AirPcap Nx packet capture adapter[3] (or another similar device). The technicians analyzed only the headers of captured Wi-Fi packets using a modified version of Wireshark [4]. On August 22, 2012, in a preliminary ruling on the admissibility of the information that Innovatio had obtained through its Wi-Fi sniffing process, Judge Holderman held that “Innovatio may collect information from the defendants’ public-facing Wi–Fi networks according to its proposed protocol.”[5]

In reaching this conclusion, Judge Holderman examined the potential privacy concerns raised under the Federal Wiretap Act and ultimately found that “Innovatio’s proposed protocol falls into the exception to the Wiretap Act allowing a person ‘to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.’”[6] Judge Holderman relied heavily on the fact that the Riverbed AirPcap Nx packet capture adapter is available to the public to purchase for $698 and the Wireshark software can be downloaded for free. Furthermore, Riverbed offers a more basic packet capture adapter for $198. Therefore, the information that Innovatio obtained was readily accessible because the technology used to obtain it was readily accessible to the general public.

A further analysis of the technology involved here reveals that Judge Holderman could have made an even stronger argument on this point. “[A]ll Wi–Fi devices necessarily store an entire received data packet, including the packet’s substantive communications, while the device processes the packet.”[7] These packets are then subjected to several different types of filters that are used to determine whether or not the packet is addressed to the particular Wi-Fi device. There are two types of filters that are of particular interest here: the first filter is used to determine whether or not the packet was sent on the same Wi-Fi network and the second filter is used to determine whether or not the packet is addressed to the particular Wi-Fi device.[8]

The first filter can be avoided by placing a device in “monitor mode.”[9] Some newer Linux machines have monitor mode functionality built in and for those computers that do not, devices such as the Riverbed AirPcap Nx packet capture adapter can be used.

The second filter can be avoided by placing a device in “promiscuous mode.”[10] This can be achieved by simply checking a box in the Wireshark software. Therefore, once a computer is connected to a Wi-Fi network, Wireshark can be used to capture packets on that Wi-Fi network that are not intended for that computer due to the underlying implementation of Wi-Fi.

This all goes to show that capturing Wi-Fi packets in today’s day and age is very easy to accomplish. There are several benefits to having the ability to place a device in monitor mode, but a lot can be accomplished in promiscuous mode. Innovatio targeted commercial entities that provided an open Wi-Fi network for customers. Anyone connected to one of those open Wi-Fi networks could have installed and run Wireshark in promiscuous mode in order to capture packets for FREE.

A point of concern is that Judge Holderman did not rely at all on the fact that Innovatio only collected the header information of the packets because Innovatio’s protocol fell under an exception to the Federal Wiretap Act. This raises the question: could Innovatio have also collected the personal information that was associated with the captured packets? If so, then this opens the door for companies to use the techniques employed by Innovatio to discover a much wider range of patent infringement than may have been initially anticipated.

by Laura Bedson, Associate Staff

On October 1 of 2013 the much awaited online insurance exchanges launched under the Affordable Care Act.  With this launch millions of uninsured people were to be offered health insurance plans on Healthcare.gov.  Unfortunately the website did not run as smoothly as planned, leaving individuals with error messages and long waits to sign on to the site.  And to date, the website is still experiencing technological difficulties.  These technological errors, while embarrassing, and frustrating, have proven to be the least of the Obama administration’s worries.

Where this mess gets even messier is when you start to contemplate the lawsuits that will inevitably spring up as a result of the problems encountered on the website. Currently the extent of the legal issues seem like a good deal of finger pointing but in today’s lawsuit-happy society, it is likely that lawsuits are possible and imminent.  What we are waiting for at this point is for the tangled web of culprits to be unwoven. 

Health and Human Services Secretary KathleenSebelius is part of that web, and is one of the parties who has been the subject of much scrutiny as a result of the website’s failure.  Secretary Sebelius is convinced that by the end of November the majority of consumers will be able to successfully use the site to enroll in their insurance plans.  This does not mean however that Secretary Sebelius is off the hook.  She along with an additional 55 or so contractors reportedly involved in setting up the Obamacare federal exchanges stand to be implicated in lawsuits seeking refunds as a result of the site’s malfunctions.[1]  In fact, on Thursday, October 24, House Oversight Committee Chairman Darrell Issa threatened Secretary Sebelius with a subpoena saying that if she didn’t respond to questions about the problems with the website she could possibly face compulsory action.[2]

Action can come about in the form of the federal government suing for refunds or withholding payment to contractors.  In response to this, the contractors who feel they are entitled to payment could sue.  In addition, the contractors can sue one another.  This web of blame is undoubtedly tangled but with so many players involved it is likely that someone will be impacted.  Harv Lester, who spent 20 years litigating in the Justice Department’s Civil Division is quoted saying that “the government, to recover damages, will have to prove which contractor or contractors are responsible for any defects.”[3] 

Overall this ordeal is just beginning.  It is likely that we will have to wait until the end of November, as Secretary Sebelius has predicted to determine what the extent of the damage is.  Right now it is clear that these technological glitches carry more weight than anticipated.   We will just have to continue waiting and watching to see how the rest of the story unfolds.

by Miles Jolley, Associate Staff

Your initial response to this question is probably, “No way bro!” But answering this question under Virginia law may not be as easy as it seems.  If your league requires an entry fee and then allocates the pot to your league’s best, you may be breaking Virginia law.

Illegal betting in Virginia is prohibited by statute.  The statute reads, in pertinent part: “‘Illegal gambling” means the making, placing or receipt of any bet or wager . . . made in exchange for a chance to win a prize . . . dependent upon the result of any game, contest or any other event the outcome of which is uncertain or a matter of chance.”[1]  Broken down, this means that if you put down money in order to win a prize (more money), and winning is dependent upon events out of your control, you are an illegal gambler in Virginia.  However, there are exceptions in the code as well.  The relevant exception to Virginia’s gambling law reads: “Nothing in this article shall be construed to prevent any contest of speed or skill between men . . . where participants may receive prizes or different percentages of a purse . . . dependent upon their position or score at the end of such contest.”[2]  This exception carves out immunity for people who involve themselves in games of skill for gain.  The big difference between these two statutes is whether the contest involves a game of chance or skill.  So the title question boils down to another question: what are fantasy sports, games of chance or games of skill? 

There are certainly elements of both involved.  On the skill side, fantasy sports require fantasy owners to evaluate hundreds of real-world players’ potentials before the draft to determine when to, if at all, draft certain players.  Additionally, players are constantly assessed during the season for trade value, starting spots, and free-agent acquisitions.  All of this seems to include some sort of skill.  Owners need to interpret a player’s past performance, future matchups, etc.  Any first-time owner will tell you this is not easy, and requires loads of skill and experience. 

On the chance side, all of that assessment hinges on the performance of a real-world player.  Everything about this aspect of fantasy sports is out of the owners’ hands.  A player’s performance depends on coaching decisions, injuries, the other team’s performance, etc.  Again, any fantasy owner can tell you how unpredictable fantasy sports can be.  This chance is the reason gambling is illegal in most states; as wagering money on unknown outcomes is seen as morally defect.  The distinction between skill and chance is what this issue hinges on, but federal law may provide a guiding light for future Virginia statutes.

Betting on fantasy sports is not illegal under federal law.  In fact, there is a special carve out for this activity.  In 2006, the Unlawful Internet Gambling Enforcement Act established widespread provisions limiting online gambling.  However, members of Congress (I wonder how contentious that fantasy league must be) made a specific exception for fantasy sports.  Betting is allowed on fantasy sports so long as rosters aren’t based entirely on the rosters of real sports teams, prizes are established at the outset of the league, outcomes are based on the skill of fantasy owners and the collective statistical performance of several individuals, and so long as outcomes aren’t based entirely on one team’s or one individual’s performance.[3]  Virginia, if it so chooses, can use this statute as an example to exempt fantasy leagues from its illegal gambling law.

 While nobody in Virginia has ever heard of fantasy sports leagues being prosecuted, it still could very well be illegal.

by Spencer Mead, Associate Staff

Shopping today looks very different than it did 20 years ago. Online retailers like Amazon have forever changed the way consumers shop. A person can hop on the internet, travel to a website such as Amazon.com, and order a wide variety of items in a matter of minutes. This method saves time traveling to the store, walking around to find what you want, and in most states shopping online is cheaper. The reason for this is because most states have not enacted any form of taxation on online retail sales. Thus, making the total cost cheaper to shop online than in a local store.

In this day and age of budget cuts and deficits, should online retailers be taxed by states? The taxation would help generate revenue for states desperate for income, and remove the incentive for people to buy online instead of going to their local retail store. But it would come at a cost to the average consumer having to pay slightly more for all online purchases. Now this probably would not have a significant impact on consumers overnight, but the few dollars of tax on each purchase would add up over time. Eventually, these dollars could add up to having a significant impact on families already stretched thin from the recession.

 18 states have determined that they are allowed to tax online retailers, and these states have enacted some form of law taxing sales that take place on the internet. However, the Illinois Supreme Court invalidated a state law allowing taxation of online retailers.[1] The Court determined that the state tax was superseded by Federal Law, and therefore not valid.[2] You might be thinking to yourself, “So what? I don’t live in Illinois so this can’t possible impact me.” However, that would be looking at this issue very narrowly.

This split created by the states could lead to the Supreme Court stepping in to determine if states are allowed to tax transactions taking place on the internet. This has the potential to have an impact on online shoppers across the United States, not just Illinois. This would also have an impact on how states can or cannot generate extra income from taxes on the internet as a whole. A Supreme Court ruling could also greatly affect how retail chains approach online shopping. Even if you are not an online shopper, this can impact you in the future. Large retailers like Wal-Mart and Amazon believe the future of retail lies somewhere between in-store shopping and online shopping.[3]

Regardless of how you shop, you need to be aware of the taxation of online goods. In the future, all goods might be bought and sold online. That is not the case today, but the current decisions of the courts and lawmakers will have a significant impact on the future of retail shopping.

by Laura Bedson, Associate Staff

Consumers will stop at nothing to get their hands on the newest Apple products.  But, it appears that with the launch of the iPhone 5s those same hands will be used for something more than just coveting Apple’s newest creation.  The introduction of the 5s also meant the introduction of “Touch ID”,  Apple’s latest technological toy, which has replaced the old passcode system as the means of unlocking one’s phone.  As always, Apple has outdone itself with the release of its newest device, however lawmakers have voiced concerns over Touch ID, specifically it’s Fifth Amendment implications.

 Touch ID has been touted by many as the fingerprint scanning device on the new iPhone.  But this is not what it does.  Instead, it goes deeper to get at information under your skin.  Put (very) simply, the technology in the home button of the phone scans information from the sub-epidermal layers of the skin and uses it as one variable in a larger mathematical representation of your fingerprint to identify you as the owner of the phone and unlock it.[1]  What this means is that the biometric system is more concerned with the capacitive properties of the user’s finger than with its print.[2]

 This procedure is markedly different from the alphanumeric password that iPhone users have been used to, in that it would no longer require users to remember such passwords.  While this may seem like a great idea for those of us whose brains are already at capacity, lawmakers and scholars have approached this new advancement skeptically.

 This skepticism grows out of the possible Fifth Amendment implications of using the Touch ID, specifically the right against self incrimination.  Under this privilege, a witness in a criminal or civil proceeding is protected from revealing information that has the potential to incriminate herself.[3]  The privilege however only extends to testimonial statements, which is a statement that reveals the contents of one’s mind.  A password is something that is (ideally) stored in one’s mind, and as such, qualifies as a testimonial statement.  Based on this logic, law enforcement cannot compel a phone’s owner to incriminate herself by requiring her to enter her password and provide access to the contents of her phone.

 Where the privilege fails is when we enter the realm of biometric data, data which includes but is not limited to fingerprints, blood work, and DNA.  Courts have determined that because this evidence does not speak to what someone “knows”, it is not testimonial and therefore is not privileged. Therefore, the use of the new Touch ID technology, which focuses solely on this biometric data, may make it easier for the government to compel information without implicating the Fifth Amendment privilege against self incrimination.  Without this privilege, a phone user would be forced to use her finger to unlock her phone and reveal its contents law enforcement. 

 Over the years our phones have become an extension of our brains, storing all types of what we may consider personal, classified information.  As our reliance on our phones and the information they store increases, it is now, more than ever, crucial to be aware of how these newest advances, while exciting, can impact the right to privately store and access that information.  It will take time to know whether these advancements have constitutional implications, but until then knowledge is power and consumers need to be alerted to the possibility of infringement on their rights.