Can AI Copyright Its Art?

By Mirae Heo

One of the things artists can do to protect their works is to federally register them with the US Copyright Office. Works that can be registered include literary works, musical works, graphical works, and even architectural works.[1] Congress purposely left the language of section 102(a) of the Copyright Act of 1976 to be very broad so that the statute did not bar future works from copyright protection because of updates in technology.[2] Does that mean that works created by artificial intelligence (AI) are copyrightable? The Copyright Office says no, but Dr. Stephen Thaler certainly tried to.

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By Nick Corn IV

 

I am an active Twitter user. One of my favorite accounts on Twitter is @BadLegalTakes. The basic gist of their account is that they post screenshots of users posting misinformed, yet often very self-assured, legal opinions. Recently, one of the screenshots featured a post that I thought was so downright ridiculously wrong that I couldn’t help but write a blog about it. I know what you’re thinking, “he isn’t really doing his blog about a dumb tweet is he?” Yes. Yes, I am.

On January 15, 2022, an NFT group by the name of Spice DAO announced on Twitter that they had won an auction for Director Alejandro Jodorowsky’s storyboard for a later cancelled 1974 film known as Dune.[1] This film, based on the 1965 book of the same name by Frank Herbert, was eventually produced under a different director in 1984 and re-made once again in 2021.[2] The 2021 iteration of the film has grossed over $400 million as of this writing.[3] Seeing the success of the 2021 film, Spice DAO saw what they thought was an opportunity to make a big splash when Jodorowsky’s storyboard went up for auction with world-renowned auction house Christie’s in November.[4] The piece was estimated to sell for anywhere between $29,000 and $40,000.[5] Spice DAO paid a whopping $3 million for the storyboard.[6] After their successful bid, Spice DAO pledged to “[m]ake the book public” and “[p]roduce an original animated limited series inspired by the book and sell it to a streaming service” among other things.[7] Essentially, Spice DAO had come to the conclusion that, because they bought the storyboard, they were now the owners both of the storyboard itself and the intellectual property rights to the storyboard.

Unfortunately for Spice DAO, the current copyright for Dune’s IP run through 2056.[8] Even more so, the book they bought will also be copyrighted until at least 2092 as an author, namely Jodorowsky himself, is still alive.[9] Just for kicks though, even if this was the correct method of copyright transfer, there are 10-20 other copies of the same storyboard in existence.[10] Not just that, but pages of the storyboard also already exist online. At the time of the purchase, an individual had already uploaded the contents of the book onto Google Photos.[11] While the link to it is no longer functional, presumably because the owner of the copyright became aware of it, there are still many images of pages that come up upon a quick Google search.

Undeterred, however, Spice DAO has continued to persist in their attempt to make some use of their massive overpayment. In a blog post released by Spice DAO, the group stated that they conducted a “whirlwind week of meetings” in which met with a producer who helped create the anime sequence in Quentin Tarantino’s “Kill Bill,” a writer for a Netflix series, an entertainment attorney employed by Canadian rapper Drake, and 3 Los Angeles based animation studios among others.[12] In an interview, Spice DAO tried to reframe the situation as everyone else simply misunderstood what the purpose for their purchase was for. According to Spice DAO, “while we do not own the IP to Frank Herbert’s masterpiece, we are uniquely positioned with the opportunity to create our own addition to the genre as an homage to the giants who came before us.”[13] This posits two questions to inquiring minds. Firstly, if they were simply going to create their own fanfiction based on the storyboard, why spend $3 million to buy pages they could have found online for free? Secondly, how exactly do they intend to create that fanfiction based on the storyboard, and then subsequently sell it for the creation of an animated series, without infringing upon the intellectual property? One writer was blocked by Spice DOA on Twitter after asking them that very question.[14] The answer however is that they can’t. As UK-based trademark attorney Kirsty Stewart wrote, “in order to produce or authorise derivative works such as an animated series, SpiceDOA would need to obtain licenses from the Herbert estate, as well as potentially Jodorowsky (and any other authors such as Michel Seydoux) if the adaptation was based on the Jodorowsky book. Similar to how buying a Batman comic does not give you the inherent rights to produce a new Batman film, the purchasing of this directors bible does not give SpiceDOA any intrinsic rights to produce new material.”[15]

At the end of the day, this is plainly an example of a group, caught up in a trend, taking drastic action without fully comprehending what they were doing. Their attempted backtracking is the equivalent of a teenager, upon being romantically turned down, stumbling through a “What? No, of course I wasn’t actually asking you out.” Unfortunately for Spice DOA, the world can recognize their $3 million embarrassment from a mile away.

 

[1] @TheSpiceDAO, Twitter (Jan. 15, 2022, 12:28 PM), https://twitter.com/TheSpiceDAO/status/1482404318347153413.

[2] Adrienne Westenfeld, The Crypto Bros Who Thought They Bought the Dune Rights Won’t Give Up, Esquire (Jan. 25, 2022), https://www.esquire.com/entertainment/books/a38815538/dune-crypto-nft-sale-mistake-explained/.

[3] Dune (2021), The Numbers, https://www.the-numbers.com/movie/Dune-(2020)#tab=summary (last visited Feb. 18, 2022).

[4] Westenfeld, supra note 2.

[5] Joyce Li, Rare 1970 ‘Dune’ Storyboard Set To Hit Christie’s Auction Block, HypeBeast (Nov. 3, 2021), https://hypebeast.com/2021/11/rare-1970-alejandro-jodorowsky-dune-storyboard-christies-auction-announcement.

[6] Spice DAO meets with Drake’s lawyer, still can’t fix $3M Dune blunder, Protos (Jan. 24, 2022), https://protos.com/spice-dao-dune-bible-blunder-drakes-lawyer-cant-fix/ [hereinafter Protos].

[7] @TheSpiceDAO, supra note 1.

[8] David Barnett, Jodorowsky animated Dune in development, says crypto group, The Guardian (Jan. 24, 2022, 7:43 AM), https://www.theguardian.com/film/2022/jan/24/dune-animation-based-on-jodorowsky-concept-art-in-development-says-cryptocurrency-group-spice-dao-frank-herbert.

[9] Id.

[10] Protos, supra note 6.

[11] Id.

[12] Spice DAO, Development on the Original Animation has begun!, Medium (Jan. 18, 2022), https://medium.com/@spicedao/development-on-the-original-animation-has-begun-7879d785d013.

[13] Christian Zilko, Crypto Investors Plot Animated Series Based on Jodorowsky’s ‘Dune’ Ideas — Without ‘Dune’ IP, IndieWire (Jan. 23, 2022, 2:30 PM), https://www.indiewire.com/2022/01/crypto-investors-dune-animated-series-no-ip-1234693130/.

[14] Barnett, supra note 8.

[15] Kirsty Stewart, Jodorowsky’s Dune, NFTs, and Copyright, Thorntons (Jan. 17, 2022), https://www.thorntons-law.co.uk/knowledge/jodorowskys-dune-nfts-and-copyright.

Image source: https://worldfamousdesignjunkies.com/new-blog/2014/7/4/jodorowskys-dune-a-collection-of-media

By Alexis Laundry

 

Last week, PJM Interconnection’s Planning Committee endorsed a transition plan that included a two-year delay on reviewing the majority of proposed projects in their interconnection request queue.[1] PJM is the nation’s largest regional grid operator, controlling electricity transmission activities across all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and the District of Columbia.[2] Over the past several years, PJM has seen a drastic increase in interconnection requests for new generation projects, most from renewable sources like solar and wind, as demand for green electricity has grown in response to widespread passage of state Renewable Portfolio Standards and net-zero carbon goals.[3] The trend is expected to continue as the nation works towards meeting the Biden administration’s goal of a carbon-free electricity sector by 2035.[4] This increase in demand for interconnection approval has created a backlog in the queue, mostly due to the fact that the approval system is not meant to handle this volume of applications, which is delaying projects from being built by months and even years. It is a problem that must be resolved soon if the U.S. is going to meet the transition goals necessary to reduce carbon-emissions and mitigate the effects of climate change.

PJM is a regional transmission organization (RTO), which is a non-profit entity that coordinates the movement of electricity throughout a specific geographic region.[5] RTOs are responsible for operating the wholesale electricity market in their region and managing the high-voltage transmission grid to ensure reliable access to electricity for users.[6] This includes approving requests from new generation facilitates to connect into that transition network, which allows the electricity they produce to be delivered to end-users. The approval system was originally designed to accommodate the relatively few and far between requests for large-scale coal or natural gas plants to interconnect.[7] This process is slow and thorough, which worked fine when only a few big projects needed to be approved each year. However, the recent proliferation of smaller scale renewable energy projects being proposed across the region has overwhelmed the system. PJM recognized this problem and began taking steps late last year to create a plan for transitioning to a new approval process. The organization created the Interconnection Process Reform Task Force, which met for the first time in April 2021.[8] This task force created the proposed transition plan that was officially endorsed by the Planning Committee last week.[9] The transition plan creates a “fast track” approval process for projects currently in the queue that are the most ready for implementation, which amounts to about 450 of the ~2,500 projects currently languishing in the queue.[10] Another 1,200 would be prioritized for review starting in 2024.[11] The plan also includes a pause on new applications until 2025, which means many approvals wouldn’t be complete until 2027.[12] The ultimate result is a two-year pause on reviewing the majority of projects currently in the queue, which will delay getting over 100,000 MW of carbon-free electricity onto the grid by at least that long.[13] The plan is just a proposal at this time and still needs to be reviewed by additional PJM committees and ultimately approved by FERC, the federal agency responsible for regulating RTOs.[14] PJM plans to file with FERC in May and begin implementation late this year or early next year.[15]

What does this all mean for our nation’s climate action goals? On the one hand, many stakeholders are very supportive of the plan.[16] Representatives from major trade groups and public interest organizations have spoken in favor of the changes, seeing them as necessary and timely.[17] It’s obvious that something must be done to address the backlog for renewable projects, which is an issue replicated at many RTOs across the country. PJM is largely considered a bellwether for how RTOs operate, so approval of this plan would likely make it a model for other regions.[18] On the other hand, the two-year delay and new prioritization process will put many renewable project developers into tough financial positions, forcing them to delay work and ultimately revenue on projects as they await approval.[19] The delay will also have consequences on states’ ability to meet their renewable portfolio goals, many of which are statutorily mandated, as well as national goals. It seems unlikely that the U.S. will be able to get to 100% carbon-free electricity in just 13 years if new projects can’t come online quickly. At the end of the day, it will all depend on whether FERC approves this plan and how other regions respond to the same problem. Hopefully, other solutions will also arise that can help maintain the momentum for renewable development that we’ve seen over the past few years.

 

[1] PJM’s Planning Committee Widely Endorses PJM Transition Plan to New Interconnection Process, PJM Inside Lines (Feb. 9, 2022), https://insidelines.pjm.com/pjms-planning-committee-widely-endorses-pjm-transition-plan-to-new-interconnection-process/ [hereinafter PJM Transition Plan].

[2] Who We Are, PJM, https://www.pjm.com/about-pjm/who-we-are (last visited Feb. 11, 2022).

[3]  PJM Transition Plan, supra note 1.

[4] Exec. Order 14,008, 86 Fed. Reg. 7,619 (2021).

[5] Who We Are, supra note 2.

[6] Id.

[7] James Bruggers, Overwhelmed by Solar Projects, the Nation’s Largest Grid Operator Seeks a Two-Year Pause on Approvals, Inside Climate News (Feb. 2, 2022), https://insideclimatenews.org/news/02022022/pjm-solar-backlog-eastern-power-grid/?utm_source=Energy+News+Network+daily+email+digests&utm_campaign=715c70fbdc-EMAIL_CAMPAIGN_2020_05_11_11_36_COPY_01&utm_medium=email&utm_term=0_724b1f01f5-715c70fbdc-89303368.

[8] PJM Transition Plan, supra note 1.

[9] Id.

[10] Id.

[11] Bruggers, supra note 7.

[12] Id.

[13] PJM Transition Plan, supra note 1.

[14] Id.

[15] Id.

[16] Id. (stating that the plan was approved by 91% of the committee and was preferred over several alternatives).

[17] Bruggers, supra note 7.

[18] Id.

[19] Id.

Image source: https://www.rtoinsider.com/wp-content/uploads/PJM-Backbone-Transmission-System-PJM-web.jpg

By Madison Blevins

 

As technology has expanded, so have the constitutional implications attached to it. Because technological changes tend to expose existing law as inadequate to address and manage changes that innovation creates, the Supreme Court and the legislature must work to both create new law and reinterpret previous constitutional law as it relates to technology.[1] A great example of the Supreme Court of the United States reinterpreting previous constitutional interpretation is the case of Carpenter v. United States.[2] In this case, the Supreme Court held that “law enforcement collection of cell-site location information for an extended period was a search under the Fourth Amendment and required a warrant.”[3] The court in this case adjusted constitutional law because of a piece of digital technology that was disrupting relationships between the “governed and the government.”[4]

In Carpenter, the police tried to access historical cell site information without a warrant.[5] Because the information was able to be tracked simply by having his cell phone on, the government was able to use data to get over 12,000 location points and through that were able to match Carpenter to four different robberies.[6] The government in this case was accessing cell-site location information (CSLI) from Carpenter’s cell phone.[7] This was a narrow decision on CSLI data, with the question being if someone was a reasonable expectation of privacy under the 4th amendment to his physical movements, and was this a search of his phone?[8]

The court held that yes, this extremely extensive access to someone’s physical movements through access to their technology was a search and as such, a warrant was required.[9] The rule of law coming out of the case is that the government must generally obtain a warrant that is supported by probable cause to access cell phone data of this kind, subject to exigent circumstances.[10]

This was a change for the Supreme Court based on the expanding accessibility that technology gives in regards to the most private aspects of a person’s life.[11] While the government may have thought that the Third Party Doctrine of the past covered the use of interfering with Carpenter’s physical movements, because of the intrusiveness of accessing someone’s every move through their technology, the Supreme Court declined to expand this doctrine to the present circumstance.[12] While there is still an exception for exigent circumstances, if the government is interfering with physical movements, via technological advances or otherwise, it is a search and a warrant based on probable cause is required.[13]

The Supreme Court stressed that although this was a narrow decision and did not obliterate the Third Party Doctrine for technology completely, but they did decline to “mechanically appl[y]” the doctrine to information about a person’s location generated automatically by cellphones, devices which have become indispensable in modern society.[14]

I think this shows a huge step in the right direction for how the Supreme Court will handle data privacy and the 4th amendment right to privacy in the future. As technology expands, we as citizens should not lose our right to privacy as a consequence. Both the legislature and the Supreme court should be aware of these issues and keep them in mind as they consider how new technological advances might have adverse constitutional implications.

 

[1] David P. Fidler, The Supreme Court Adapts Constitutional Law to Address Technological Change, Council on Foreign Relations (July 11, 2018, 11:05 AM), https://www.cfr.org/blog/supreme-court-adapts-constitutional-law-address-technological-change.

[2] See id.

[3] Id.

[4] Id.

[5] See generally Carpenter v. United States, 138 S. Ct. 2206 (2018).

[6] See id at 2212.

[7] Id. at 2216.

[8] See id.

[9] See id. at 2223.

[10] See Carpenter, 138 S. Ct. at 2223.

[11] Id. at 2217–18.

[12] Id. at 2217.

[13] See id. at 2223 (explaining how the CSLI access here was a search requiring a warrant, but if law enforcement is confronted with an urgent situation, fact-specific threats will likely justify the warrantless collection of CSLI).

[14] Fidler, supra note 1.

Image source: https://smallbiztrends.com/2019/12/history-of-cell-phones.html

By Austin Wade-Vicente

 

“‘Just call the guy.’” The verbatim managerial command to call a Taylor Company approved technician to fix the infamously broken McDonald’s ice cream machine.[1] In 2017, A former employee of the fast-food giant told The Wall Street Journal that routine maintenance and timing is the source of this sweet treat trouble. “‘Customers who come in during [maintenance] may encounter a longer wait time or soft-serve dessert unavailability.’”[2] However, while franchisees were vocal that the machines were “temperamental and expensive to repair,” their creator, Taylor Company (Taylor), declined to comment on the matter.[3] Today, it is precisely Taylor’s repair practices and intriguing response to innovative solutions solving their blatant dairy dilemma that has now landed the company in the middle of a Federal Trade Commission (FTC) investigation.[4]

       I.   Taylor’s C602 McDonald’s ice cream machines are built to maintain a maintenance monopoly.

Until 2017, McDonald’s restricted its franchisees to the C602 ice cream machine because it was, and is, “manufactured exclusively for McDonald’s.”[5] However, this agreement benefits Taylor more than the McDonald’s franchisees purchasing the machines. Though failure is infamously frequent, McDonald’s franchisees are contracted to rely on Taylor to perform recurring parts and maintenance requests, which generates nearly 25% of Taylor’s total annual profits.[6] To maintain the revenue stream, Taylor produced one service manual for McDonald’s employees and one exclusive to Taylor authorized technicians. The latter withholds “critical operating parameters for the machine” from the former.[7]

Nearly every page of the McDonald’s employee troubleshooting guide section features the phrase “call a service technician.”[8] Meanwhile, the service technician guide reveals a secret access code, 5231, and the sequence of cryptic icon inputs used to access an exclusive service menu.[9] The code 5231 empowers only the Taylor authorized technician to accurately diagnose and solve even the most mundane hitches—keeping machines ‘broken’ and Taylor paid.[10] This secret service menu, not mentioned one singular time in the McDonald’s employee guide, effectively forces employees, managers, and franchise owners to “just call the guy” as their only hope for machine repair.[11]

       II.   McDonald’s corporate is nearly unaffected by Taylor’s maintenance monopoly.

The website, McBroken, tracks and collects data on all malfunctioning McDonald’s ice cream machines across the U.S., U.K., and Germany in real-time.[12] I personally purchased a vanilla cone from a designated green restaurant and failed at a marked red location using this application. McBroken appears to hover at an average 10% failure rate for McDonald’s ice cream machines around the world yet has U.S. States that sometimes double or even triple that number.[13] “What widespread industrial machine has a failure rate of 30%? Or even 11%? That is an absurd rate of failure,” remarked video journalist Johnny Harris from NPR’s The Indicator from Planet Money podcast.[14] If McBroken is correct that Taylor’s C602s have an average 10% failure rate, why does McDonald’s put up with it?[15]

Firstly, McDonald’s wants to maintain its long-running good relationship with Taylor, who supplies McDonald’s restaurants with their vital grills.[16] Secondly, the 93% franchisee-owned restaurants bear the cost of thousands of dollars a year in Taylor maintenance contracts, not McDonald’s corporate.[17] According to franchisees, the bulk of maintenance comes from “[l]eaving the machine with a bit too much or too little ingredient mixture in its hoppers, accidentally turn[ing] it off or unplug[ging] it at the wrong moment or fall[ing] victim to myriad other trivial errors or acts of God,” causing the machine to shut down with no hope outside of “just call the guy.”[18] The result is years of lost profits, especially in March when people go gaga for the Shamrock Shake.[19]

Regardless, with repairs in 2017 costing franchisees $80 million in the U.S. alone, and years of public outcry, McDonald’s chose a perfect public relations solution that same year.[20] Since 2017, McDonald’s now permits franchisees to purchase Italian Carpigiani FDM 312 machines, which McDonald’s claims, “require less downtime to clean and dispense[s] more flavors.”[21] However, this permission was simply a PR bandage on Taylor’s monopolistic wounds plaguing McDonald’s franchises.

The FDM 312 is more user-friendly and better designed, both mechanically and in its manual. However, it is still an expensive replacement for franchisees that requires up to a week to get Italian replacement parts.[22] Essentially, franchisees have the option to scrape together thousands of dollars to move from the devil they know to the devil they do not. Though the switch from Taylor machines is slow, a startling solution arrived in 2020 to save McDonald’s Taylor C602 franchisees and threatened to end Taylor’s maintenance monopoly.

        III.   As Taylor’s maintenance monopoly slips, so too does its dedicated repairman facade.

Taylor employs 1,700 technicians in the U.S. under an ethos of “what can I do to help either the customer or somebody that is helping the customer.”[23] Taylor Vice President of Operations Balaji Suresh proclaims the company does, “whatever it takes to get the job done.”[24] Yet it was Jeremy O’Sullivan, founder of startup Kytch, that delivered on this proclamation in 2020. O’Sullivan argued Taylor was committing “nothing short of a milkshake shakedown,” so his company responded with the eponymous device Kytch.[25]

Install the small, paperback book-sized, Wi-Fi connected device directly into your Taylor machine, and it would soon display the ice cream machine’s once hidden diagnostics and troubleshooting solutions through a user-friendly phone app.[26] It would even learn your store’s schedule to find the best downtimes to start the necessary and lengthy dairy pasteurization process.[27] After selling many units to McDonald’s franchisees, Taylor unveiled its competing device alongside McDonald’s corporate emails stating Kytch is a breach of “confidential information” that threatens “serious human injury.”[28] Despite many franchisees abandoning Kytch, the cat was out of the bag for the public that Taylor was not exactly doing “whatever it takes to get the job done.”

        IV.   Amid an FTC investigation after a damaging lawsuit, the innovative Kytch device could spell trouble for Taylor and McDonald’s corporate.

O’Sullivan sued Taylor, alleging “corporate espionage and the extreme steps one manufacturer has taken to conceal and protect a multi-million-dollar racket.” The complaint further claimed that Taylor had attempted to reverse engineer Kytch out of millions of dollars.[29] Despite Taylor arguing it only analyzed Kytch to assess whether “the radio frequency of the Kytch device would interfere with our software signal,” the Superior Court of the State of California for the County of Alameda ordered Taylor to turn over all ill-gotten Kytch devices within 24-hours.[30]

Even worse, subpoenaed emails reveal that McDonald’s may have orchestrated Taylor’s unsavory attempts to reverse engineer and mimic Kytch.[31] A 2020 email from Taylor president Jeremy Dobrowolski stated, “‘McDonald’s is all hot and heavy’ about Kytch’s growing presence at their franchises.” The FTC has also taken notice of its new presidential-approved crusade against anti-competitive repair schemes.[32] Biden’s Executive Order on Promoting Competition in the American Economy has spurred the FTC to both scrutinize manufacturer repairs and push for “the right of consumers to repair devices like smartphones, home appliances, cars, and even farm equipment.”[33]

The FTC has reportedly sent franchisees letters inquiring about the machines and their repair.[34] Though the commission has declined to comment, this investigation demonstrates the FTC takes the evidence against Taylor seriously and is “looking harder into franchising issues or right-to-repair concerns or both.”[35] Kytch Co-founder Melissa Nelson argues, “‘it’s past time to end shady business practices that create hundreds of millions of dollars of unnecessary repair fees from ‘certified’ technicians.’”[36] It is unclear where the case will go from here, how McDonald’s will be impacted, or if Taylor and McDonald’s will face further legal trouble. What is certain, however, is that the Kytch innovation, and others inspired from it, could soon allow us all to enjoy a McFlurry much more consistently without requiring franchisees to defeatedly spend millions a year to “just call the guy.”

 

[1] The Indicator from Planet Money, Why Are McDonald’s Ice Cream Machines Always Broken?, NPR, at 4:05, (Jan. 11, 2022), https://www.npr.org/2022/01/11/1072164745/why-are-mcdonalds-ice-cream-machines-always-broken.

[2] Julie Jargon, Why Is The McFlurry Machine Down Again?, The Wall St. J. (Jan. 19, 2017), https://www.wsj.com/articles/six-horrifying-words-the-mcflurry-machine-is-down-again-1484840520?mod=article_inline.

[3] Id.

[4] Heather Haddon, McDonald’s McFlurry Machine Is Broken (Again). Now the FTC Is On It., The Wall St. J. (Sept. 1, 2021), https://www.wsj.com/articles/mcdonalds-mcflurry-machine-is-broken-again-now-the-ftc-is-on-it-11630522266.

[5] Julie Jargon, McDonald’s Customers Scream, and Get New Ice Cream Machines, The Wall St. J. (Mar. 2, 2017), https://www.wsj.com/articles/mcdonalds-customers-scream-and-get-new-ice-cream-machines-1488476862; see Soft Serve/Shake Combination Freezer Taylor Model C602, TCMCD.co, https://www.tcmcd.co/MANUALS/C602op0.pdf (last visited Feb. 4, 2022).

[6] Taylor Acquisition Overview, MiddlebyCorporation.gcs, at page 2, https://middlebycorporation.gcs-web.com/static-files/5bd70207-96b1-48bd-a4a2-70dce00a247a (last visited Feb. 4, 2022).

[7]See generally Service Manual 057888-S, static-pt.com, https://static-pt.com/modelManual/TAF-C602_spm.pdf?v=1562905832341 (last visited Feb. 4, 2022); Soft Serve, supra note 5.

[8] Soft Serve, supra note 5.

[9] Service Manual, supra note 7.

[10] See Andy Greenberg, They Hacked McDonald’s Ice Cream Machines—And Started A Cold War, Wired (Apr. 20, 2021), https://www.wired.com/story/they-hacked-mcdonalds-ice-cream-makers-started-cold-war/.

[11] See Id.; The Indicator, supra note 1.

[12] Is The McDonald’s Ice Cream Machine Broken?, McBroken.com, https://mcbroken.com/ (last visited Feb. 4, 2022).

[13] See generally Id.

[14] The Indicator, supra note 1 at 3:23.

[15] See generally Id.

[16] Greenberg, supra note 10.

[17] Id.; How McDonald’s Makes Money, Investopedia.com, https://www.investopedia.com/articles/markets/032015/how-mcdonalds-makes-its-money-mcd.asp#:~:text=As%20reported%20in%20their%202019,%2Dterm%20goal%20of%2095%25 (Sept. 6, 2021).

[18] Greenberg, supra note 10; The Indicator, supra note 1.

[19] Greenberg, supra note 10.

[20] Jonathan Maze, McDonald’s Operators Get An Ice Cream Headache, Rest. Bus. Online (Sept. 2, 2021), https://www.restaurantbusinessonline.com/financing/mcdonalds-operators-get-ice-cream-headache.

[21] Jargon, supra note 5.

[22] See Greenberg, supra note 10; see generally FDM 312 US Shake/Ice Cream Combined Machine User’s Manual, carpiserve.net, http://www.carpiserve.net/uploads/1/2/3/9/123940898/um_fdm_312_us_v08_en.pdf. (last visited Feb. 4, 2022).

[23] Taylor Company, Built to Serve, YouTube, at 1:50-2:10, (Oct. 23, 2019), https://www.youtube.com/watch?v=jOEDEq3bS6U.

[24] Id.

[25] Greenberg, supra note 10.

[26] Id.

[27] Kytch, https://kytch.com/landing (last visited Feb. 4, 2021).

[28] Greenberg, supra note 10.

[29] Compl. for Damages, Injunctive Relief and Demand for Jury Trial at 1, 23–25, Kych, Inc. v. Jonathan Tyler Gamble, et. al., 2021 Cal. Super. LEXIS 10047 (No. RG21099155).

[30] Matthew Gault, Why the McFlurry Machine Company Just Got Hit with a Restraining Order, Vice (Aug. 9, 2021), https://www.vice.com/en/article/93ymbp/why-the-mcflurry-machine-company-just-got-hit-with-a-restraining-order.

[31] Gillie Houston, What Newly Revealed Emails Mean For McDonald’s Ice Cream Machine Lawsuit, Mashed (Jan. 12, 2022), https://www.mashed.com/673599/what-newly-revealed-emails-mean-for-mcdonalds-ice-cream-machine-lawsuit/?utm_campaign=clip.

[32] Exec. Order No. 14,036, 86 Fed. Reg. 36987 (2021); Emily Matchar, The Fight for the “Right to Repair,” Smithsonian (July 13, 2016), https://www.smithsonianmag.com/innovation/fight-right-repair-180959764/.

[33] Aishvarya Kavi, The F.T.C. Votes to Use Its Leverage to Make it Easier for Consumers to Repair Their Phones, N.Y. Times (July 21, 2021) https://www.nytimes.com/2021/07/21/us/politics/phones-right-to-repair-FTC.html.

[34] Maze, supra note 20.

[35] Id.

[36] Gault, supra note 30.

Image Source: https://www.eatthis.com/mcdonalds-new-soft-serve/

By Michael Millstein

 

Throughout the pandemic, only the rise of participating in online fitness platforms has rivaled the spike in adhering to health-safety precautions. With gyms closed, leaving limited options for staying in shape, many across the world have turned to platforms such as Peloton, iFit, and many more. In spite of the simplistic nature of merely hopping on an exercise bike to attend an online class, many legal complexities have begun to bombard this rapidly growing industry.[1] In fact, some of these risks are even greater for online trainers than for in-person trainers.[2]

One of the primary concerns for online platforms is the exposure to further personal jurisdiction reaches.[3] By providing paid memberships for those wishing to participate, Peloton (for example), may subject itself to facing a lawsuit for an injury to a rider in Seattle, Washington despite having its headquarters in New York.[4] Furthermore, the trainer who led the class in which the injury occurred may be sued jointly and severally along with the employer.[5] Although Peloton, a massive corporation with the means necessary to defend itself, could make defending itself across the country feasible, its trainers may not have such fortune.[6] Part of what makes this such an interesting shift in the realm of law and technology is that previously, if one were to merely enter a bike studio in New York and suffer an injury there, then that is where personal jurisdiction would be appropriate barring an exception.[7] Therefore, this new online now exposes companies to further global liability. Nevertheless, the economic benefits of pursuing this business model do not cause enough trepidation to inhibit its expansion.[8]

On that note, prior to the pandemic, the online fitness industry was valued at $6bn.[9] For comparison purposes, the in-person fitness industry was valued at $96.7bn prior to the pandemic.[10] Despite this vast divergence in success, the online fitness industry is currently projected to reach a valuation of approximately $59bn by 2027.[11] Given the abundance of greater legal complexities in the online fitness realm than with the in-person realm, an increase in legal issues may run parallel with the expansion of the online fitness industry. Consequently, as our world shifts even more virtual, so too may the legal industry – and with it, job opportunities.

In addition to the personal jurisdiction concerns, non-compete agreements complicate online fitness.[12] One common element included in non-compete agreements is a restriction on geographic proximity for competition.[13] For example, if a gym in Virginia opted to remain open throughout the pandemic and had a non-compete with a former trainer, barring this individual from providing training services for clients in the region, online training may violate the agreement.[14] However, acquiring knowledge of the breach of this restrictive covenant is highly unlikely, thus generating two legal problems. The first is whether or not this constitutes a breach.[15] Second, and perhaps more complicated, is whether or not a failure to report a breach violates a statute of limitations, assuming the statute does not begin to run until notice of the breach.[16]

Despite the exciting leap towards a brave new world, the emergence of technology, and our societal immersion in it, invites a plethora of legal issues not previously considered. Although some positives may come from this, such as more job opportunities, there is also a significant danger associated with it. If the creation of new law cannot keep up with the growth of technologically based industries, thus leaving an abundance of gray area, this may leave both consumers and businesses extremely unprotected.[17] With little to no guidance on what may cause legal liability, we may start to witness more risk-conscious behavior – perhaps subsequently stunting progress.

 

[1] See generally Anna Rabe, LEGAL RISKS AND ISSUES TO CONSIDER FOR FITNESS TRAINERS WORKING ONLINE, Fit Legally, https://fitlegally.com/legal-risks-issues-consider-fitness-trainers-working-online/ (last visited Jan. 22, 2022) (discussing a myriad of legal issues arising from the online fitness world).

[2] See Id.

[3] Id.

[4] Id.; Betsy Kim, Peloton. Moves HQ, Expanding Six Times in Size to 312,000 SF, Globest (Nov. 19, 2018, 5:59pm), https://www.globest.com/2018/11/19/peloton-moves-hq-expanding-six-times-in-size-to-312000-sf/.

[5] Vicarious Liability, Corporate Financial Institute, https://corporatefinanceinstitute.com/resources/knowledge/other/vicarious-liability/ (last visited Jan. 22, 2022).

[6] See generally Peloton, Craft, https://craft.co/peloton-interactive (presenting key numbers in assessing Peloton’s market reach such as revenue (last visited Jan. 22, 2022).

[7] What is personal jurisdiction? Why is it important?, Womens Law, https://www.womenslaw.org/laws/preparing-court-yourself/court-system-basics/personal-jurisdiction/basic-info-and-definitions-1 (last visited Jan. 22, 2022).

[8] Fitness Industry Statistics 2022, Wellness Creative Co (Jan. 5, 2022), https://www.wellnesscreatives.com/fitness-industry-statistics-growth/.

[9] Id.

[10] Smiljanic Stasha, 19+ Statistics and Facts About the Fitness Industry, Policy Advice (Feb. 14, 2021), https://policyadvice.net/insurance/insights/fitness-industry-statistics/#:~:text=The%20global%20gym%20industry%20is,184%20gym%20members%20in%20total.

[11] Fitness Industry Statistics, supra note 7.

[12] Rabe, supra note 1.

[13] Adam Hayes, Non-Compete Agreement, Investopedia (June 29, 2021), https://www.investopedia.com/terms/n/noncompete-agreement.asp.

[14] Id.

[15] Id.

[16] Christina Majaski et al., Statute of Limitations, Investopedia (Mar. 29, 2021), https://www.investopedia.com/terms/s/statute-of-limitations.asp.

[17] Rabe, supra note 1.

 

Image source: https://www.nbcnews.com/business/business-news/peloton-recalls-pedals-27-000-bikes-after-reports-injuries-n1243564

By Sivaram Sajith

 

Introduction

The most important switch in the functioning of the global community during the Covid -19 crisis is the successful utilization of ITC and online resources. The seamless transformation of schools, colleges, and courts into the virtual world brings with it a few important takeaways. It is plain to see at this point in time, the advantages, disadvantages, and general features this transformation holds. Online education eliminates physical and distance-based barriers while bringing with it economic benefits as well. Online resources are easily accessible and more available now that the trend of using the internet is more widely used and accepted. While all of the aforementioned advantages can’t be reflected in online courts, aspects of dispute resolution could make positive strides by taking it online.

Understanding ODR and its potential

In today’s global scenario, with a sharp increase in cross-global transactions, the need for the resolution of disputes that arise from such transactions does not come as a surprise. ODR holds the key to resolving such disputes in a fast, flexible, and economically feasible manner.

ODR essentially means using technology to resolve disputes. Simply taking a dispute resolution issue online does not necessarily constitute ODR. It denotes the use of technology and ITC to completely resolve a dispute.[1] When the COVID-19 epidemic swept throughout the globe, the prospect of ODR was on the edge of being recognized globally. The ensuing lockdowns, which brought most of the courts of the world to a standstill, have only fuelled the ODR movement. The crisis has helped to dispel any remaining reservations that harnessing the actual power of technology to resolve disputes is the future of dispute resolution, both in India and abroad.

Essentially, ODR can be classified into three types based on the authority that runs it.

• Government-run ODR platforms
• Court Annexed ODR platforms
• Private run ODR platforms.

We would mostly discuss government-run and Court annexed ODR platforms comparing the ODR systems in place in the United States of America and India.

ODR in India

Describing India as a vast country would be an understatement. The necessity of dispute resolution mechanisms in India is better understood by analyzing the number of cases listed versus the number of cases heard. For example, in April 2020, the Supreme Court was able to schedule 357 cases for hearing, which is only 2.48 percent of the total number of cases in the Supreme Court’s docket.[2] The process of going through a court to resolve a dispute is taxing, lengthy, and often times resolved through simple arbitration. Technical issues like dawdles due to non-filing of documents, absence of witnesses and parties are all issues that could be fixed with ODR.

• Government Initiatives

The government of India has put forth many initiatives to support and grow the ADR framework in the country. Some of these commendable initiatives that involve ODR are, initiatives like The Department of Consumer Affairs’ National Consumer Helpline (NCH). It disseminates information on consumer issues and promotes consumer welfare. The Department of Consumer Affairs expanded this service in August 2016 when it launched the Integrated Consumer Grievance Redressal Mechanism (INGRAM) initiative, which provides a platform for consumers to have their complaints and grievances directly addressed by companies that have voluntarily partnered with NCH.[3] The Department of Justice kicked off the conversation about using ODR to resolve disputes involving government entities in 2017 by providing a list of ODR Platforms and encouraging government departments to resolve their disputes online.[4] While all of these initiatives are commendable, there is great untapped potential and moreover a necessity to utilize ODR.

• Potential and policy

The potential for ODR in India is summed up with this bold statement in the NITI Aayog report on the ODR policy plan in India which says that India can be at the forefront of the global ODR movement. To realize the potential of ODR in India NITI Aayog took several initiatives. The NITI Aayog took the first move in this direction on June 6, 2020, when it held a virtual consultation titled “Catalyzing Online Dispute Resolution in India” in partnership with civil society and other organizations.[5] On the 8th of August, the NITI Aayog convened another session on ‘Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’ in order to further the goal of broadening the base of ODR in India.[6] Following this, a committee was formed to discuss and form an action plan to popularize ODR and, as a response, benefit from it. The committee’s aims include amending existing laws, collaborating with the judiciary, studying global practices on ODR, and other initiatives that facilitate better ODR mechanisms in the country.[7]

• Challenges

The first and foremost necessity with respect to availing ODR is the knowledge of ODR in the first place. This is important provided India still has a relatively low literacy rate of 77.70% as of 2021.[8] Providing the knowledge of the arbitration mechanism and how to avail it would prove challenging but doable. Another challenge that would act as a corollary to the previous point would be the lack of infrastructure like computers, smartphones, etc.[9] Paranoia with respect to security and privacy could be another issue. Tampering with digital signatures or evidence, agreements, etc are very reasonable fears. Employing digital signatures[10] as well as encrypted documents could prove to help with building the trust and security of such processes.

ODR in the United States of America.

The United States is far more developed in ODR and providing ODR platforms. The most common forms of ODR disputes within the country are family disputes, small and commercial claims, mediation, case management, civil debts, and traffic violations. In the country, there are areas of 2019, 66 active sites of court-annexed ODR sites active.[11] The vast involvement of ODR in traffic violations, small taxes, and family courts helps the parties reach agreements quicker and surer. This is possible in an easier and more efficient way because almost 90% of the population has access to some type of computing device. This trumps several disadvantages that plague the Indian ODR scenario.[12] To understand and study how and why the country has a thriving ODR structure we have to analyze their ODR systems and their advantages.

• Court Annexed ODR platforms in the U.S.

The state of Utah saw a significant improvement in the number of people who appeared in court as well as the number of cases that reached agreements after the incorporation of ODR by the Utah Judicial Council. After seeing the significant amount of default judgments in small claims courts, Utah leaders decided to implement ODR. Their goal was to make it easier for defendants to participate in the process without having to appear in court in person.

In 2016 the Utah Judicial Council created an ODR Steerling Committee which focuses on ODR in small claims cases.[13] After the incorporation of the ODR program, there was a noticeable steep increase in cases that reached agreements. In the small claims/tax department alone, 93% of cases reached agreements while only 46% reached agreements without ODR.[14] In conjunction with Matterhorn, a private ODR provider, Michigan was one of the first states in the United States to start an ODR pilot program for settling traffic disputes.[15] The main crux of the program was to take the presentation of cases, submission of evidence, and provide explanations for defaults online and in a regulated ODR system. The American Bar Association has formed an ODR Task Force with the goal of increasing market transparency and user trust. Individuals from varied experiences and perspectives, including ICODR, American Arbitration Association, Self-Represented Litigants Network, American Law Institute, and others, make up the Task Force.[16]

Conclusion

ODR systems save the government, judiciary, and the citizens a lot of money and time. It creates a platform to be able to deliver justice more efficiently and if incorporated correctly would create interconnections even when physical interaction is not possible or necessary. ODR is easily one of the most innovative, brilliant, and efficient methods of delivering justice and should be incorporated in every legal, governmental and judicial system.

 

[1] U.N.C.I.T.R.A.L Technical Notes on Online Dispute Resolution, United Nations Commission on International Trade Law (Apr. 2017), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/v1700382_english_technical_notes_on_odr.pdf.

[2] Shreya Tripathy and Tarika Jain, ‘Caseload During COVID-19 (April 2020): A Look at the Numbers’, Vidhi Centre for Legal Policy (2020), https://vidhilegalpolicy.in/research/supreme-courts-caseload-during-covid-19-april-2020-a-look-at-the-numbers/.

[3] Annual Report 2019, Department of Consumer Affairs (2019), https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1596167686_Annual%20Report%202019-20.pdf.

[4] Online Dispute Resolution through Mediation, Arbitration and Negotiation, Department of Justice (2017), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[5] NITI Aayog, ‘Catalyzing Online Dispute Resolution in India’, Press Information Bureau (June 7, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1630080.

[6] Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’, NITI Aayog (Aug. 25, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1644465.

[7] Designing the Future of dispute resolution, The ODR policy plan for India, NITI Aayog (Oct. 2021), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[8] Literary Rate of India 2021, Find easy (Oct. 17, 2021), https://www.findeasy.in/indian-states-by-literacy-rate/#:~:text=Literary%20Rate%20of%20India%202021,As%20per%20the&text=According%20to%20National%20Statistical%20Office,female%20literacy%20stands%20at%2070.30%25.

[9] Joseph W. Goodman, ‘The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites’, Duke Law & Technology Review (2003), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr.

[10] Esther van der Heuvel, ‘Online Dispute Resolution as a Solution to Cross Border e-Disputes’ (2000), https://www.oecd.org/digital/consumer/1878940.pdf.

[11] Online Dispute Resolution in the United States, ABA Center for Innovation (Sept. 2020), https://www.americanbar.org/content/dam/aba/administrative/center-for-innovation/odrvisualizationreport.pdf.

[12] Id.

[13] Melisse Stiglich, Utah Online Dispute Resolution Pilot Project, NCSC (Dec. 2017), https://ncsc.contentdm.oclc.org/digital/api/collection/adr/id/63/download.

[14] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.

[15] Amy J. Schmitz, ‘Measuring “Access to Justice” in the rush to digitize’, https://fordhamlawreview.org/wp-content/uploads/2020/06/Schmitz_May_S_11.pdf.

[16] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.

By Miracle Amo

 

Last month, the Internal Revenue Service (IRS) announced that it will suspend the use of private facial-recognition technology, after receiving bipartisan criticism over privacy concerns.^[1] This decision came months after the IRS announced the launch of its “improved” identity verification and sign-in process last November.”^[2]

In a November 17^th press release, the agency had announced its plan to transition into a verification process that would eventually require all taxpayers utilizing certain online services to provide identification verification through ID.me software.[3]

ID.me is a private company that was formerly known as TroopSwap— a site that provided daily deals and retail discounts to veterans, service members, and their families.[4] As TroopSwap, the company launched Troop ID, an authentication tool that allowed military members and their families to access deals through the verification of military identification.[5] In 2013, the company changed its name to ID.me and started to market its verification services more broadly.[6] Last year, ID.me obtained a $86 million contract with the IRS.[7] This deal, in addition to the widespread use of their ID verification services to more than half of all state unemployment agencies, has allowed the company to experience growth during the pandemic.[8] According to ID.me, they serve “27 states, multiple federal agencies, and over 500 name brand retailers.”[9]

Both Republican and Democrat lawmakers have expressed concern about ID.me’s deal with IRS.[10] Last week, Senate Republicans sent a letter to IRS Commissioner Chuck Rettig. In it they wrote, “[w]hile we understand the IRS’s use of ID.me is intended to protect data and reduce fraud, we have serious concerns about how ID.me may affect confidential taxpayer information and fundamental civil liberties.”[11] This week, Democrats also wrote to Mr. Rettig, urging the agency to pause its use of facial-recognition technology for taxpayers logging into their IRS accounts, citing concerns over privacy, data security, and access for people without internet access.[12]

ID.me performs identification verification by asking users to upload their personal information, including their Social Security number, a selfie, and pictures of a government-issued ID.[13] It then uses facial recognition and “liveness detection” on the pictures, to compare the submitted information to data from “telecommunications networks, credit card bureaus, financial institutions,” and other sources, according to its privacy policy.[14] If there is a match, an account is created that uses image recognition for identification. If there are any errors or if a match is not found, users have the option of contacting a “trusted referee” who will help with the problem.[15]

ID.me collects a large amount of personal information. The company states in its privacy policy that it will “access, preserve and share” personal information with law enforcement if asked.[16] “We reserve the right to disclose your Personally Identifiable Information as required by law and when we believe that disclosure is necessary to protect you, our rights and/or comply with a judicial proceeding, court order, or legal process,” ID.me writes.[17] While the company claims to not part with most personal information, various information about user’s internet use and website visits is still sent to other partners. Critics warn that, without sufficient guardrails, information collected by one agency for a seemingly benign purpose could easily be re-used in other ways.[18]

In a recent press release, IRS Commissioner Chuck Rettig stated, “The IRS takes taxpayer privacy and security seriously, and we understand the concerns that have been raised. Everyone should feel comfortable with how their personal information is secured, and we are quickly pursuing short-term options that do not involve facial recognition.”^[19] While it is not clear what those short-term options may be, one thing remains true: whether you’re filing your taxes by hand, through mail or by a tax preparer, this year’s deadline to file taxes (for most) is April 18, 2022.[20]

 

[1] Richard Rubin, IRS Retreats from Facial Recognition to Verify Taxpayers’ Identities, Wall St. J. (Feb. 7, 2022, 3:51 PM), https://www.wsj.com/articles/irs-backs-away-from-facial-recognition-to-verify-taxpayers-identities-11644264843.

[2] IRS Unveils New Online Identity Verification Process for Accessing Self-Help Tools, IRS (Nov. 17, 2021), https://www.irs.gov/newsroom/irs-unveils-new-online-identity-verification-process-for-accessing-self-help-tools.

[3] Id.

[4] Rebecca Cooper, IRS to Halt Use of ID.me’s Facial Recognition Software for Identity Authentication, Bus. J. (Feb. 8, 2022), https://www.bizjournals.com/rhodeisland/news/2022/02/08/irs-to-halt-use-of-idme-s-facial-recognition.html.

[5] Gregory Ferenstein, Military ID Verification Service, Troop ID, Raises $2.1 Million, TechCrunch (March 18, 2013, 12:51 AM), https://techcrunch.com/2013/03/17/military-id-verification-service-troop-id-raises-2-1-million/.

[6] Cooper, supra note 4.

[7] Rachel Metz, The IRS Website Will Soon Require Facial Recognition to Log in to Your Account, CNN: Business (Jan. 28, 2022, 4:38 PM), https://www.cnn.com/2022/01/27/tech/facial-recognition-irs-idme/index.html.

[8] Id.

[9] About Us, ID.me, https://www.id.me/about (last visited Feb. 8, 2022).

[10] See Rubin, supra note 1.

[11] Under Pressure from Congress, the IRS Won’t Use Facial Recognition for Online Account Access, Thomson Reuters (Feb. 8, 2022), https://tax.thomsonreuters.com/news/under-pressure-from-congress-the-irs-wont-use-facial-recognition-for-online-account-access/.

[12] Aimee Picchi, IRS Says it Will Scrap Facial-Recognition ID.me Plan Following Backlash, CBS News (Feb. 8, 2022), https://www.cbsnews.com/news/irs-id-me-facial-recognition-tax-returns-backlash/.

[13] Caroline Haskins, When You Log in to Your IRS Account This Tax Season You’ll Likely Have to Use ID.me to Verify Your Identity, Bus. Insider (Feb. 4, 2022, 12:28 PM), https://www.businessinsider.com/irs-partner-idme-logs-inferred-citizenship-all-users-data-privacy-2022-2.

[14] Id.

[15] See Tim Cushing, Facial Recognition’s Latest Failure Is Keeping People from Accessing Their Unemployment Benefits, Techdirt (June 29, 2021), https://www.techdirt.com/articles/20210620/16473147029/facial-recognitions-latest-failure-is-keeping-people-accessing-their-unemployment-benefits.shtml.

[16] Privacy Policy, ID.me, https://www.id.me/privacy (last updated Feb. 4, 2022).

[17] Id.

[18] Ina Fried, IRS Face Recognition Program Raises Hackles, Axios (Jan. 24, 2022), https://www.axios.com/irs-face-recognition-hackles-id-me-0235a30d-8066-4664-82b2-383313bd1962.html.

[19] IRS Announces Transition Away from Use of Third-Party Verification Involving Facial Recognition, IRS (Feb. 7, 2022), https://www.irs.gov/newsroom/irs-announces-transition-away-from-use-of-third-party-verification-involving-facial-recognition.

[20] 2022 Tax Filing Season Begins Jan. 24, IRS (Jan. 10, 2022), https://www.irs.gov/newsroom/2022-tax-filing-season-begins-jan-24-irs-outlines-refund-timing-and-what-to-expect-in-advance-of-april-18-tax-deadline.

Image source: https://medium.com/@linhdanhanguyen/facial-recognition-the-latest-trend-in-user-authorization-and-social-control-c05d4d14395c

By Jeffrey A. Phaup

 

An American hacker says he singlehandedly took down the North Korean internet in January of 2022, according to a report from Wired.[1] Observers reported seeing apparent outages in North Korea’s internet and at times all of the country’s websites, which only amount to a few dozen, appeared to be down.[2] The outages occurred after North Korea carried out a series of missile tests, prompting some experts to wonder if the outages were caused by cyberattacks from a foreign country.[3]

The hacker, who goes by the name P4x, says he had been targeted by the hermit dictatorship’s spies who cyber-attacked Western security researchers in 2021.[4] P4x then launched repeated ‘distributed denial of service’ (DDoS) attacks against the communist state, crippling the country’s few government-operated public-access websites and slowing email traffic.[5] DDoS attacks flood a system with fake traffic, consuming available bandwidth, and limiting processing capacity of servers so that a website becomes unavailable.[6]

In North Korea only a small number of trusted officials and academics are permitted to use the World Wide Web.[7] At the same time, only a small number of North Korean websites are connected to the wider global internet, including the state airline Air Koryo and the official web portal of the North Korean government Naenara, which spreads state news and propaganda on behalf of the Communist Party and Kim Jong Un.[8]

P4x says he’s found numerous known but unpatched bugs in North Korean systems that have allowed him to launch denial-of-service attacks on the servers and routers on which the country’s few internet-connected networks depend.[9] He declined to reveal the specifics of the bugs but did give one example of a known vulnerability that could be exploited to knock servers offline.[10]

P4x told Wired that it was “pretty interesting how easy it was to actually have some effect in there”.[11] He further elaborated that “It felt like the right thing to do here.[12] If they don’t see we have teeth, it’s just going to keep coming,” he told the publication.[13] “I want them to understand that if you come at us, it means some of your infrastructure is going down for a while.”[14]

He explained that his cyber attacks on the state came after he himself was unsuccessfully targeted by Pyongyang, with DPK hackers attempting to break into his own personal network a year ago to get access to his hacking technology.[15] He was able to catch the breach, open the file the hackers used in an attempt to gain access to his network with a virtual computer (thus isolating the breach), and study it himself.[16] He found the hack had been launched, to his surprise, from North Korea.[17] He added that he reported the incident to American authorities such as the FBI, but was ignored.[18] ‘If no one’s going to help me, I’m going to help myself,’ he said.[19]

 

[1] Bree Fowler, American hacker says he took down North Korean internet Wired reports, CNET (Feb. 3, 2022) [https://perma.cc/5FUE-8RLD].

[2] Andy Greenberg, North Korea Hacked Him. So He Took Down Its Internet, WIRED (Feb. 2, 2022) [https://perma.cc/VS38-Z3MC].

[3] Fowler, supra note 1.

[4] Graeme Massie, AMERICAN HACKER SAYS HE KEEPS TURNING OFF INTERNET IN NORTH KOREA, INDEPENENT (Feb. 3, 2022) [https://perma.cc/L4RK-QC6C].

[5] Chris Jewers, US hacker ‘in his pyjamas’ takes down North Korea’s internet in revenge for cyber attack carried out against him by Pyongyang, Daily Mail (Feb. 3, 2022) [https://perma.cc/R3G2-E8RX].

[6] Id.

[7] Id.

[8] Id.

[9] Fowler, supra note 1.

[10] Id.

[11] Massie, supra note 4.

[12] Jewers, supra note 5.

[13] Id.

[14] Id.

[15] Greenberg, supra note 2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.