By Sarthak Gupta

*Sarthak Gupta is a fourth-year law student at the Institute of Law, Nirma University.

 

Introduction

Buy Now Pay Later (BNPL) refers to a point-of-sale financial product where a borrower is allowed to purchase products on a deferred payment basis and pays in a predetermined number of installments. At present BNPL industry is booming and set to surge over ten-fold as tens of millions of online shoppers get lured by it.[1] However, BNPL has also raised certain fundamental concerns globally[2] from the consumer perspective including in India. Recently, the Reserve Bank of India sought data from BNPL providers regarding their working, reflecting a growing regulatory interest in the BNPL market in India.[3] Through this article, the author would like to discuss consumer concerns and the legal regulatory gap that exist today with reference to BNPL market in India.

Consumer and Risk Involved

BNPL is surely one of the most talked about financial services trends in recent times.  More and more consumers are embracing its ease and convenience, and retailers are benefiting from higher conversion rates. It is a new cost-free way to access credit easily and simply.  However, every side has two stories, the same is the case here. Although there are numerous benefits to BNPL, there are certain harms and risks involved also. In this part, the author will try to decipher those risks and harms, especially from the consumer perspective.

I.  Affordability

The Revenue Model of Buy Now Pay Later providers mainly depend upon three sources i.e., Merchant Transaction Fee, Late Payment Fee, and App Monetization Charge.[4] Among these sources also, it is the Merchant Transaction Fee that is the primary source of revenue for the BNPL provider.[5] It reflects that in the real sense, the target customers of BNPL providers are not borrowers, but the merchants with whom they engage They market themselves to retailers on the basis that consumers spend more when they use BNPL offers than they would be paying by traditional methods. As a result, merchants are ready to pay a charge to BNPL providers to cover the cost of lending. When this works, all three parties benefit, the consumer, the merchant, and the BNPL provider. However, there is a risk that a close relationship between the BNPL provider and the merchant would harm the customer. It is possible that the presentation of BNPL offerings and the whole customer journey will be geared to push sales without regard for affordability commitment, a prime consideration before granting any kind of credit.

II.  Ambiguity

BNPL offers are often presented as just one of the payment methods in a long list of almost indistinguishable options, as a result, consumers don’t necessarily view BNPL offers as credit, but just as another payment/financial service method.[6] It puts customers at risk because they may not apply the same amount of scrutiny to their decision-making as they would for other credit products, such as taking into account the possible implications of failing to repay. The E-Commerce Payments Bill in Sweden, which went into effect in July 2020 recognized this problem and hence provided credit alternatives from being provided before debit options on online retail platforms.[7] As a result, BNPL offerings cannot be promoted as the “first choice” above the lowest cost direct payment alternative.

III.  High-Levels of Indebtedness

The Regulatory bodies around the globe are concerned regarding the risk of financial distress posed by the BNPL services.[8] As discussed above, one of the key sources of revenue for the BNPL provider is the Late Payment Fee which keeps on getting compounded with each passing day hence the risk of consumers falling into a vicious cycle of debt, also keeps on rising. It may be argued that even a similar risk is also possessed by the Credit Card and it is one of the most widely used products for the purpose of credit. However, it has to be understood that most BNPL providers complete a very basic credit assessment, usually through a combination of soft credit searches and previous repayment history, which makes the cost of switching between the platform for consumers almost nil. An analysis by Financial Conduct Authority in the UK  revealed even though the average amount borrowed per BNPL platform is comparatively quite small (almost between £65 and £75) however multiple outstanding transactions across different providers and almost a nil switching cost between the platforms makes it relatively easy for a consumer to amass around £1000 of BNPL credit using multiple lenders, and this when the focus of BNPL provider at present is predominantly on fashion and accessories when this focus shift to higher-value item, this can become a big headache for both the regulators and the consumer.[9]

Legal Lacuna in India

Some of the world’s largest and most renowned BNPL markets, including the United States[10], the United Kingdom[11], Australia[12], etc have recently come under regulatory scrutiny. India has been slightly behind the curve with respect to the regulations, only recently Reserve Bank of India has specifically sought relevant data from BNPL providers with respect to their working and other aspects.[13] A few months back Reserve Bank of India has also published a detailed 150 plus page report on Digital Lending[14], however, the prime focus of the report was on Online Instant Loan platforms.

Entities engaged in BNPL services are broadly divided into two categories – Balance Sheet Lenders (BSLs) and Lending Service Providers (LSPs).[15] BSLs are entities in the business of lending that carry the credit risk in their balance sheet/provide capital for associated credit risk. These are often RBI-regulated enterprises (RE), like banks, non-banking financial firms (NBFCs), or other businesses registered to conduct out lending operations under State Money Lenders Acts, Chit Funds Act, 1982, etc. LSPs are essentially technology-centric entities that act as ancillary lending service providers. They are not in ‘business of a financial institution’ as defined under the Reserve Bank of India (RBI) Act, 1934, and the loans, which are sourced, appraised, or serviced by them, are not their assets. They are a marketplace that helps to connect the lender and the borrower. In India majority of BNPL providers fall under the latter category i.e., they act as LSPs. These platforms act in partnership with BSLs for example one of the leading BNPL providers in India, named LazyPay (LSP) has partnered with an NBFC named PayU Finance India Private Limited (BSL) to conduct its lending operations smoothly.

When LSPs act in partnership with regulated BSLs entities such as Bank and NBFC, their activities are governed by certain detailed guidelines, for instance in the case of partnership with Banks, 2006 RBI issued Guidelines on Managing Risks and Code of Conduct in Outsourcing of Financial Services[16] are applicable. These guidelines take into consideration various risks including strategic risk, reputation risk, compliance risk, operational risk, etc., and provide detailed direction with respect to important subjects such as Confidentiality, Security, Responsibilities of Recovery Agents, etc. However, there are no similar guidelines on outsourced activities by other BSLs (which are not regulated), thus precluding the LSPs from partnering with them from compliance to any rules and regulations.

Further, these transactions are not reported to the Credit Information Company as they do not fall under the definition of ‘credit’ as there is no interest charged on these transactions.[17] In India, there are 4 Credit Information companies named The Credit Information Bureau Limited, Equifax, Experian Credit Information Company, and High Mark Credit Information Services, and they are governed by Credit Information Companies Regulation Act, 2005. As per Section 15 read Section 17 of the Act, it is mandatory for credit institutions to join any of the credit information companies and provide details to that company with respect to the credit facilities granted or to be granted, by a credit institution to any borrower, however, these transactions remain not affected by these provisions. This creates a blind spot in lending[18] and an environment of lack of transparency where a regulated credit provider never gets a complete picture of a customer’s financial position when assessing affordability, creating a clear recipe for some serious financial crisis in the long run. There are further various other issues associated with BNPL like first loss default guarantee, grievance redressal measure, etc of which also there is no clear answer at present.

Conclusion

Even though BNPL platforms have a lot of benefits like the ease of credit access, no interest charges, etc., however, there are certain detrimental harms and risks associated with it also as discussed aforesaid. Hence in the view of the author, there is an urgent need to regulate the BNPL platform in India on various aspects like a clear guideline on outsourcing by Balance Sheet Lenders, reporting of transactions to credit bureau, first loss default guarantee aspect, etc.

 

[1] BNPL Industry Set to Surge Over Ten-Fold in India, BW BUSINESSWORLD (Nov. 09, 2021), http://www.businessworld.in/article/BNPL-Industry-Set-To-Surge-Over-Ten-Fold-In-India/09-11-2021-411290/.

[2] Brian Murphy, Rapid Growth of Buy Now Pay Later Market Raises Global Consumer Protection Concerns as CFPB Watches and Waits (For Now), JD SUPRA (Oct. 25, 2021), https://www.jdsupra.com/legalnews/rapid-growth-of-buy-now-pay-later-8246896/.

[3] Raghu Mohan, RBI seeks details of NBFCs’ ‘buy now, pay later’ deals with e-tailers, BUISNESS STANDARD (Jan. 19, 2022), https://www.business-standard.com/article/finance/rbi-seeks-details-of-nbfcs-buy-now-pay-later-deals-with-e-tailers-122011900037_1.html.

[4] Warikoo, Buy-Now-Pay-Later Explained, YOUTUBE (Jan. 04, 2022), https://www.youtube.com/watch?v=9vUuxP4QzGM.

[5] India Fintech Diaries, BNPL – A deep dive into the world of BNPL, YOUTUBE (July 16 ,2021), https://www.youtube.com/watch?v=9vtJKB1KW8U.

[6] FINANCIAL CONDUCT AUTHORITY, THE WOOLARD REVIEW – A REVIEW OF CHANGE AND INNOVATION IN THE UNSECURED CREDIT MARKET, 47 (2021), https://www.fca.org.uk/publication/corporate/woolard-review-report.pdf.

[7] New rules in Sweden to discourage online shoppers from paying with credit, NORDEA (June 29, 2020), https://insights.nordea.com/en/business/new-rules-in-sweden-to-discourage-online-shoppers-from-paying-with-credit/.

[8]BNPL Under Global Regulatory Scrutiny, With UK as Likely Frontrunner, PYMNTS (Dec.09, 2021), https://www.pymnts.com/buy-now-pay-later/2021/bnpl-under-global-regulatory-scrutiny-with-uk-as-likely-frontrunner/.

[9] FINANCIAL CONDUCT AUTHORITY, THE WOOLARD REVIEW – A REVIEW OF CHANGE AND INNOVATION IN THE UNSECURED CREDIT MARKET, 47 (2021), https://www.fca.org.uk/publication/corporate/woolard-review-report.pdf.

[10] CFPB Begins Scrutinizing Companies Using ‘Buy Now, Pay Later’ Credit, THE NATIONAL LAW REVIEW (Dec. 20, 2021), https://www.natlawreview.com/article/cfpb-begins-scrutinizing-companies-using-buy-now-pay-later-credit.

[11] UK government sets out regulation of Buy Now Pay Later (BNPL), LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=2f09844a-5a0b-43f7-af2b-7cc11ca27dab.

[12] Australia Takes the Lead in Buy Now Pay Later Regulation, PAYMENTS JOURNAL (Apr. 07, 2021), https://www.paymentsjournal.com/australia-takes-the-lead-in-buy-now-pay-later-regulation/.

[13] Raghu Mohan, RBI seeks details of NBFCs’ ‘buy now, pay later’ deals with e-tailers, BUISNESS STANDARD (Jan. 19, 2022), https://www.business-standard.com/article/finance/rbi-seeks-details-of-nbfcs-buy-now-pay-later-deals-with-e-tailers-122011900037_1.html.

[14] RESERVE BANK OF INDIA, REPORT OF THE WORKING GROUP ON DIGITAL LENDING INCLUDING LENDING THROUGH ONLINE PLATFORMS AND MOBILE APPS (2021), https://rbidocs.rbi.org.in/rdocs/PressRelease/PDFs/PR124479A17DED84DD4CCDAE790BCAC26F072C.PDF.

[15] India Fintech Diaries, BNPL – A deep dive into the world of BNPL, YOUTUBE (July 16, 2021), https://www.youtube.com/watch?v=9vtJKB1KW8U.

[16] Reserve Bank of India, Guidelines on Managing Risks and Code of Conduct in Outsourcing of Financial Services by banks (Issued on Nov. 03, 2006), https://rbi.org.in/scripts/NotificationUser.aspx?Id=3148&Mode=0.

[17] Sunainaa Chadha, How to make ‘buy now pay later’ work for you, THE TIMES OF INDIA (Jan. 07, 2022, 07:40 PM), https://timesofindia.indiatimes.com/india/how-to-make-buy-now-pay-later-work-for-      you/articleshow/88737863.cms#:~:text=%E2%80%9CBNPL%20transactions%20are%20not%20reported,may%20be%20converted%20into%20EMI.

[18] Ridhima Saxena, Popularity of ‘Buy Now, Pay Later’ Creates A Blind Spot in Lending, BLOOMBERG QUINT (Jan. 19, 2021, 08:41 AM), https://www.bloombergquint.com/bq-blue-exclusive/popularity-of-buy-now-pay-later-creates-a-blind-spot-in-lending.

By Mimi Perka

 

Covid-19 has undoubtedly affected the world on a massive scale for almost two years now. As employees return to a sense of normalcy in the workplace, a new set of privacy concerns have risen due to the increased use of biometric systems, aimed at combating the spread of the virus.^[1]

To mitigate the immediate risks and concerns as employees return to work, many employers have turned to biometrics devices such as facial recognition technology, non-contact infrared thermometers, thermal imaging, and wearable radiometric thermometry systems.^[2] While these systems could protect their workplaces from potential outbreaks of Covid-19, these systems could also lead to legal implications for those businesses that assume the risks of employing biometric systems in the workplace.^[3]

Biometric-enabled devices have become ubiquitous in the workplace due to the accurate, reliable, and facile methods of collecting and storing employee information.^[4] In recent years, many employers replaced the traditional paper-based time cards with biometric fingerprint readers.^[5] However, as these devices were among the most heavily touched devices in the workplace, many employers looked to facial recognition time and timekeeping systems to provide a contactless time and attendance solution.^[6]

As many helpful aspects that biometrics systems might have in the workplace, especially throughout the pandemic, these systems have caused widespread concern among employees whose data is being used, collected, and stored. Notably, employees worry about the transaction, lack of disclosure, and destruction of such biometric data.^[7]

As concerns rise, a few states have taken the lead on protecting individual rights and restricting the collection and use of biometric information by requiring notice and consent from individuals.^[8]

The Illinois Biometric Information Privacy Act (BIPA) has been the forerunner of modern biometric information privacy laws in the United States.^[9] BIPA prohibits private entities from collecting, using, storing, or disclosing biometric data without providing notice and obtaining a written release from individuals before collecting such information.^[10] In a recent decision in Cothron v. White Castle System, Inc., a federal court interpreting Illinois law found that employers could be liable for in excess of $1,000 per day, per employee, for each day that biometric information was collected, stored, or used improperly.^[11]

In this case, the named plaintiff was asked to use her fingerprint to access the computer system each time she needed access to the system. As the plaintiff was the manager, she frequently needed access in this capacity.[12] After several years of having her biometric data scanned and collected without written release, the plaintiff filed a class action lawsuit against her employer in violation of BIPA.[13]

The most notable aspect of BIPA is that the law does not require an “injury in fact” for legal standing– the person bringing an action under BIPA need not have sustained actual damage beyond the violation of the person’s rights under BIPA.^[14] The Seventh Circuit held in Fox v. Dakkota Integrated Systems, LLC that an employer who fails to adhere to restrictions on biometric data retention imparts as a concrete injury, as does a violation of restrictions on biometric data collection.^[15]

While BIPA is the most well-known law of this type, other states–such as Texas, California, Washington, and Arkansas–have enacted legislation to regulate biometrics.^[16] Additionally, many other states–including Arizona, Florida, and Massachusetts– have all proposed bills to protect biometric data.^[17]

Thus, as the country continues to face the challenges associated with Covid-19, and as more states enact legislation on biometric data, employers will undoubtedly continue to struggle with the dichotomy between using data to keep employees safe and to comply with biometric data legislation.

 

^[1] David Oberly, Biometric Data and COVID-19 in the Workplace, JDSUPRA Legal News (Nov. 23, 2020), https://www.jdsupra.com/legalnews/biometric-data-and-covid-19-in-the-86112/.

^[2] Mary Margaret Moore, Patrick DePoy, & Lauren J. Caisman, U.S. Covid-19: Biometrics and Business Re-Opening, BCLP At Work (May 14, 2020), https://www.bclplaw.com/en-US/insights/blogs/bclp-at-work/u-s-covid-19-biometrics-and-business-re-opening.html.

^[3] Christopher Jevsevar, The Legal Minefield Surrounding Biometrics In The Workplace, Fisher Phillips Insights (Oct. 2, 2020), https://www.fisherphillips.com/news-insights/the-legal-minefield-surrounding-biometrics-in-the-workplace.html.

^[4] Id.

^[5] Oberly, supra note 1.

^[6] Id.

^[7] Susan Gross Sholinsky, Shawndra G. Jones, & Brian G. Cesaratto, Updates on Biometrics in the Workplace: Scanning the Legal Landscape in New York and Beyond, Epstein Becker Green Insights (Aug. 19, 2021), https://www.ebglaw.com/insights/updates-on-biometrics-in-the-workplace-scanning-the-legal-landscape-in-new-york-and-beyond/.

^[8] Id.

^[9] Jevsevar, supra note 3.

^[10] Oberly, supra note 1.

^[11] Joel W. Rice & Franklin Z. Wolf, The Illinois Biometrical Landscape Gets Even Tougher for Employers, Fisher Phillips Insights (Sep. 17, 2020), https://www.fisherphillips.com/news-insights/the-illinois-biometric-landscape-gets-even-tougher-for-employers.html.

[12] Id.

[13] Id.

^[14] Sholinsky, Jones, & Cesaratto, supra note 7.

^[15] Id.

^[16] Natalie A. Prescott, The Anatomy of Biometric Laws: What U.S. Companies Need to Know in 2020, Nat’l L. Rev. (Jan. 15, 2020), https://www.natlawreview.com/article/anatomy-biometric-laws-what-us-companies-need-to-know-2020.

^[17] Jevsevar, supra note 3.

Image source: https://www.jonesday.com/en/insights/2017/11/biometric-data-in-the-workplace-could-trigger-privacy-litigation-wave

By Christopher Vinson

 

Internet giants such as Facebook, Twitter, and Google have found themselves the subjects of increased political scrutiny. While much of the focus is on content moderation, the latest efforts from Congress aim to address a perceived lack of competition in the tech industry.[1] Large companies like Yelp have equally lamented the barriers to competition currently in the tech industry.[2] In a bipartisan effort on January 20, 2022, the Senate Judiciary Committee advanced the American Innovation and Choice Online Act.[3] Experts view this bill as the best opportunity for substantial legal reform in this area.[4] The advancement by the Senate Judiciary Committee will see the bill move to the full Senate for debate.[5]

The bill is designed to prevent self-preferencing by dominant platforms.[6] Self-preferencing occurs when platforms on their sites place or rate their products above similar third-party products.[7] Eliminating this tactic will prevent Amazon from placing their products at the top of search results or Google from rating their apps higher than similar third-party apps.[8]

Naturally, this effort has been met with stiff opposition from both industry leaders and commentators.[9] Critics of the legislation claim that Congress is moving too quickly without considering the ramifications of this bill.[10] Advocacy groups working for these large tech platforms believe additional hearings are necessary to gather more information.[11] In response, proponents have noted that this bill has been debated, researched, and marked-up extensively.[12] This is a delay tactic being implemented by large tech companies to prevent a vote on the bill.[13] The advancement of the bill out of committee demonstrates the Senate’s desire to enact meaningful antitrust tech legislation. Whether rushed or not, Congress should move quickly on issues they deem of major importance, especially considering the ever-present criticism that Congress moves too slow to enact legislation.

The CEOs of Apple and Alphabet, Tim Cook and Sundar Pichai, have worked tirelessly to convince Senators to vote against the bill.[14] For example, Tim Cook made direct phone calls to Senator Ted Cruz to lobby against the bill.[15] The main argument is that this bill may decrease consumer data privacy.[16] Apple’s Senior Director of Public Affairs, Timothy Powderly, claimed that the bill would open up serious risks of privacy due to security breaches.[17]

This is a legitimate concern and one that Senators shared during the debates in the Committee.[18] However, Senators Amy Klobuchar and Chuck Grassley pushed back against these claims saying that they distort the intention of the bill.[19] The bill requires changes to these platforms’ marketplaces, but Senators believe it will not have a serious impact on data privacy.[20] It will not make it more difficult for Apple to let consumers opt out of monitoring from apps.[21]

While increased competition is a worthwhile goal, commentators are concerned that antitrust policy in the tech industry may lead to the fracturing of services and increased costs for services that are currently low-cost or free.[22] There is also concern that it will disincentivize innovation and start-up companies by lowering potential acquisition costs.[23] These concerns preview a debate that may make the passage of this legislation difficult.

Additionally, several senators that ultimately voted to advance the bill expressed concerns about its language and potential effects.[24] It is very possible that these individuals will vote “no” if their concerns are not assuaged.[25] Furthermore, Senate leaders would need to make this legislation a priority.[26] This is no guarantee as the current focus has been on national voting legislation and filibuster reform. Nevertheless, this bill enjoys bipartisan support which bodes well in its quest for adoption.[27]

 

[1] Mark Sullivan, U.S. Senators Are Parroting Big Tech’s Anti-trust Talking Points, Fast Company (Jan. 21, 2022), https://www.fastcompany.com/90714797/big-tech-antitrust-objections-senators-klobuchar-grassley-bill.

[2] Lauren Feiner, Senate Committee Votes to Advance Major Tech Antitrust Bill, CNBC (Jan. 20, 2022, 12:54 PM), https://www.cnbc.com/2022/01/20/senate-committee-votes-to-advance-major-tech-antitrust-bill.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Cristiano Lima & Aaron Schaffer, Tech Giants Say Antitrust Legislation is Being ‘Rushed.’ History Suggests Otherwise., MSN (Jan. 20, 2022), https://www.msn.com/en-us/news/politics/tech-giants-say-antitrust-legislation-is-being-e2-80-98rushed-e2-80-99-history-suggests-otherwise/ar-AASYeWe?ocid=BingNewsSearch.

[11] Id.

[12] Id.

[13] Id.

[14] Breck Dumas, Apple’s Tim Cook and Google’s Sundar Pichai Working Capitol Hill Together to Stop Big Tech Bill, Fox Business (Jan. 21, 2022), https://www.foxbusiness.com/politics/apple-tim-cook-google-sundar-pichai-working-capitol-hill-big-tech-bill

[15] Sullivan, supra note 1.

[16] Id.

[17] Id.

[18] Id.

[19] Sullivan, supra note 1; Lima and Schaffer, supra note 10.

[20] Lima and Schaffer, supra note 10.

[21] Dumas, supra note 14; Lima and Schaffer, supra note 10.

[22] Tracy Hernandez & Ahmad Thomas, Federal Antitrust Bills Threaten California Businesses Big and Small, OC Register (Jan. 24, 2022, 3:25 PM), https://www.ocregister.com/2022/01/24/federal-antitrust-bills-threaten-california-businesses-big-and-small/.

[23] Id.

[24] Feiner, supra note 2; Lima and Schaffer, supra note 10.

[25] Lima and Schaffer, supra note 10.

[26] Feiner, supra note 2.

[27] Lima and Schaffer, supra note 10.

Image Source: https://wacotrib.com/opinion/columnists/llewellyn-king-big-tech-should-be-left-alone-while-it-is-still-creating/article_c975f98c-4aee-11eb-88ff-9bb67d7ac293.html

By Brian Kennedy

 

Autonomous vehicle development is far from science fiction, but the technology that makes these vehicles operate raises serious concerns for many. Waymo, a subsidiary of Alphabet, is “an autonomous driving technology company.”[1] In August of 2021, the company announced the launch of its “Waymo One Trusted Tester program” in San Francisco.[2] The program allows accepted residents to ride in Waymo’s autonomous vehicles in the hopes of improving the service.[3] California is not new to the concept of autonomous vehicles considering the California Department of Motor Vehicles “oversees the largest autonomous vehicle testing program in the country, with over 60 companies permitted to operate test vehicles on public roads.”[4]

Now, Waymo is facing challenges to keep certain aspects of the autonomous technology secret.[5] The company recently filed suit against the California DMV in an effort to maintain secrecy on topics related to “how it plans to handle driverless car emergencies, what it would do if a robot taxi started driving itself where it wasn’t supposed to go, and what constraints there are on the car’s ability to traverse San Francisco’s tunnels, tight curves, and steep hills.”[6] It should be noted that these uncertainties are required by the DMV in order to issue a permit to companies using autonomous cars on public roads.[7] The question this lawsuit presents is whether Waymo has trade secret protection regarding this information.[8]

The lawsuit began after an unidentified party submitted a public records request to obtain the company’s deployment application.[9] Under Barclays Official California Code of Regulations “an autonomous vehicle shall not be deployed on any public road in California until the manufacturer has submitted and the department has approved an application for a Permit to Deploy Autonomous Vehicles on Public Streets…”[10] After receiving the public records request, the DMV then permitted the company to “censor sections” that may be sensitive with regard to trade secrets.[11] To which Waymo did, however, the requester objected to the censored information.[12] At which point the DMV invited Waymo to file a lawsuit against the agency.[13]

In the complaint filed by Waymo, the company argued that “[r]evealing this information to Waymo’s competitors, either directly or through publication in the media, would provide Waymo’s competitors with unique insight into Waymo’s approach and strategy on a number of critical technology, engineering and business issues central to its development of autonomous vehicle technology…”[14] Additionally, they argue that the company has taken steps to ensure the confidentiality of this information including limiting this information to certain individuals within the company, implementing software and physical barriers, requiring confidentiality agreements for certain individuals, and specifically marking information provided to the DMV as “Confidential Business Information.”[15]

Despite this controversy, the company “has been more willing to share data then most AV companies, but largely on its own terms.”[16] For example, Waymo published “6.1 million miles of driving data from 2019 and 2020 from its test fleet in Arizona, including 18 crashes and 29 near-miss collisions.”[17] Regardless of its previous disclosures, this lawsuit raises serious questions as to what information should be available to the public.[18] Consumers may want to know more about these vehicles before they put their own safety in the hands of robots.

 

[1] General: What is Waymo?, Waymo, https://waymo.com/faq/ (last visited Jan. 28, 2022).

[2] Welcoming our First Riders in San Francisco, Waymo (Aug. 24, 2021), https://blog.waymo.com/2021/08/welcoming-our-first-riders-in-san.html.

[3] See Jennifer Elias, Waymo Opens Self-driving Car Testing to Some San Francisco Residents, CNBC (Aug. 24, 2021, 12:43 PM), https://www.cnbc.com/2021/08/24/waymo-opens-self-driving-car-testing-to-some-san-francisco-residents.html.

[4] Andrew J. Hawkinis, Waymo Sues California DMV to Keep Diverless Crash Data Under Wraps, the Verge (Jan. 28, 2022, 12:36 PM), https://www.theverge.com/2022/1/28/22906513/waymo-lawsuit-california-dmv-crash-data-foia.

[5] Russ Mitchell, Waymo Sues State DMV to Keep Robotaxi Safety Details Secret, L.A. Times (Jan. 28, 2022, 5:00 AM), https://www.latimes.com/business/story/2022-01-28/waymo-robot-taxi-sues-state-secret-black-ice.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Cal. Code Regs. tit. 13, § 228.06 (2021).

[11] Mitchell, supra note 5.

[12] Id.

[13] Id.

[14] Complaint at 8, Waymo LLC v. Cal. Dep’t of Motor Vehicles (Cal. App. Dep’t Super. Ct. Jan. 21, 2022).

[15] Id.

[16] Hawkins, supra note 4.

[17] Id.

[18] See Mitchell, supra note 5.

Image source: https://waymo.com/careers/

By: Sophie Thornton

 

Conservatorships typically apply to the elderly or severely mentally incapacitated.[1] However, a different view of conservatorships was suddenly thrust into the public eye when Britney Spears was placed under a conservatorship in 2008.[2] The #FreeBritney movement began to gain momentum in 2019.[3] By 2021, pop culture icon Britney Spears’ 13-year long conservatorship was terminated.[4] A movement that started on social media gained enough traction to not only change the course of Britney’s life but to spur potential reactive legislation against harsh and abusive conservatorships. [5]

A conservatorship is “the appointment of a conservator by the court to manage a person’s affairs who is unable to handle them due to their mental capacity, age, or physical disability.”[6] Conservatorships can be short-term, temporary, or permanent in duration.[7] They may also be financial, physical, or both.[8] A financial conservatorship gives the conservator “full authority over the conservatee’s finances,” while a physical conservatorship gives the conservator authority over “the conservatee’s health and life.”[9] Finally, a conservatorship may be general or limited.[10] A general conservatorship provides the conservator with complete authority over all significant decisions concerning the conservatee. In contrast, a limited conservatorship gives the conservator control over only specific aspects of the conservatee’s life.[11]

Britney Spears was placed under a temporary conservatorship in 2008 after going through a divorce, losing custody of her two children, and attending two mental health facilities.[12] The media depicted her visits as evidence that she had a mental health condition.[13] Within that same year, Britney’s conservatorship was made permanent.[14] From 2008 until 2018, Britney continued to release albums, go on world tours, participate in long-term performance commitments in Las Vegas, and make other media appearances.[15] From 2008 to 2013, Britney’s father, Jamie Spears, acted as the conservator of Britney’s person.[16] From 2008 to 2019, he also acted as conservator of her finances.[17] This meant that Mr. Spears received a salary as Britney’s conservator and additional commissions from her career earnings.[18] The conservatorship also eliminated Britney’s autonomy in deciding her career path and financial choices. Most notably, the conservatorship also barred Britney from freedoms like getting remarried, having more children, or hiring her own legal counsel.[19]

As early as 2009, fan websites began speaking out against Britney’s conservatorship.[20] They believed that Britney’s continued work throughout her conservatorship proved that she was not legally incapacitated to the point of being unable to make any decisions about her life.[21] Fans also noticed that Britney was speaking out against the conservatorship and wanted to help.[22] Although the #FreeBritney movement does not have one pinpointed starter, it is entirely fan led.[23] Through podcasts, demonstrations outside court hearings, publishing court documents, and a social media frenzy, these fans brought attention to the violation of basic rights through Britney’s conservatorship.[24] This fan attention eventually led to a New York Times documentary on the subject, countless exposés and news articles, and even more public support in 2021.[25] Consequently, this growing pressure from social media helped terminate Britney’s conservatorship on November 12, 2021.[26]

The #FreeBritney movement has also sparked public concerns over the ethics of conservatorships. Zoe Brennan-Krohn, an American Civil Liberties Union’s disability rights lawyer, spoke out against conservatorships in stating, “We don’t know how long they’ve been there in them. We don’t know whether they want to be there. We don’t know why they’re there. We don’t know whether they have their own lawyers.”[27] In response to such concerns brought forward by the #FreeBritney movement, Congress members have spoken out, including Ted Cruz, Seth Moulton, and Elizabeth Warren.[28] Additionally, a bipartisan bill entitled the Freedom and Right to Emancipate from Exploitation Act (“FREE Act”) was introduced.[29] The FREE Act would “allow a person under a legal… conservatorship the right to petition the court to have their court-appointed [conservator] replaced with a public [conservator].”[30]

The #FreeBritney movement has made not only Britney’s voice, but the public’s voices heard. It remains a pivotal social media movement that has come to stand for more than a pop star. The #Free Britney movement stands for the human rights of all those in a conservatorship, and it is evident that their call for change impacted the law. “The cumulative voices of a community are powerful for shaping policy… #FreeBritney shows how people can join together and use their voices to enact change.”[31]

 

 

[1] Complete Guide to Conservatorship, Trust & Will, https://trustandwill.com/learn/what-is-conservatorship [https://perma.cc/9XTZ-W4LS] (last updated 2021).

[2] Free Britney! What Is a Conservatorship?, The Legal Examiner (Aug. 25, 2021) https://www.legalexaminer.com/legal/free-britney-what-is-a-conservatorship/ [https://perma.cc/HRA4-MHXM].

[3] E.g., Conservatorship Timeline How Did We Get Here?, FREEBRITNEY.ARMY, https://www.freebritney.army/timeline [https://perma.cc/RP6V-C29X], (last visited Jan. 19, 2022) [hereinafter FreeBritney].

[4] E.g., Id.

[5] See Aishvarya Kavi, Push to ‘Free Britney’ Gains Steam on Capitol Hill, NY Times (July 15, 2021), https://www.nytimes.com/2021/07/15/us/politics/britney-spears.html [https://perma.cc/N6S8-BBNU] (last updated Nov. 12, 2021).

[6] Conservatorship, law.cornell.edu, https://www.law.cornell.edu/wex/conservatorship#:~:text=A%20conservatorship%20is%20the%20appointment,referred%20to%20as%20%E2%80%9Cconservatee.%E2%80%9D [https://perma.cc/HRQ9-YVM7] (last visited Jan. 19, 2022).

[7] Eric Reed, What Is a Conservatorship, and How Does It Work?, smartasset (July 1, 2021), https://smartasset.com/financial-advisor/what-is-conservatorship [https://perma.cc/9HYW-GNUL].

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] FreeBritney, supra note 1.

[13] See Id.

[14] Id.

[15] See Id.

[16] Id.

[17] Joe Coscarelli & Julia Jacobs, Judge Ends Conservatorship Overseeing Britney Spears’s Life and Finances, NY Times (Nov. 12, 2021), https://www.nytimes.com/2021/11/12/arts/music/britney-spears-conservatorship-ends.html [https://perma.cc/V89G-APUB] (last updated Nov. 15, 2021).

[18] Id.

[19] See Britney Spears: Singer’s conservatorship case explained, BBC News (Nov. 12, 2021), https://www.bbc.com/news/world-us-canada-53494405 [https://perma.cc/754T-J6L7]; Coscarelli & Jacobs, supra note 14.

[20] FreeBritney, supra note 1.

[21] See The history behind the ‘Free Britney’ movement, Spectrum 1 News (Sept. 23, 2021, 4:00 PM), https://spectrumnews1.com/ca/la-west/la-times-today/2021/09/23/the-history-behind-the–free-britney–movement [https://perma.cc/R5NB-CJJN].

[22] Coscarelli & Jacobs, supra note 14; See Blake Morgan, What The #FreeBritney Movement Teaches About The Power of Community, Forbes (Sept. 7, 2021, 6:07 PM), https://www.forbes.com/sites/blakemorgan/2021/09/07/what-the-freebritney-movement-teaches-about-the-power-of-community/?sh=40cbd1e43fae [https://perma.cc/S8SM-3CNY].

[23] See Dani Anguiano, The #FreeBritney movement finds its moment: ‘All the hard work was worth it’, The Guardian (Nov. 14, 2021, 4:00 PM), https://www.theguardian.com/music/2021/nov/14/freebritney-movement-britney-spears-conservatorship [https://perma.cc/8R2X-DKD6].

[24] Id.

[25] See FreeBritney, supra note 1.

[26] See Coscarelli & Jacobs, supra note 14.

[27] Kavi, supra note 3.

[28] Id.

[29] Bianca Betancourt, Why Longtime Britney Spears Fans Are Demanding to #FreeBritney, Harper’s Bazaar (Nov. 12, 2021, 5:39 PM) https://www.harpersbazaar.com/celebrity/latest/a34113034/why-longtime-britney-spears-fans-are-demanding-to-freebritney/ [https://perma.cc/TL57-QNCF].

[30] Id.

[31] Morgan, supra note 19.

Image Source: https://knowyourmeme.com/memes/cultures/free-britney-movement-freebritney

By: Nate Gilmore

 

Fentanyl overdoses are now the leading cause of death for adults between the ages of 18-45.[1] It was tied to nearly 64 percent of all drug fatalities in 2021, nearly doubling from 2020.[2] During this time, fentanyl overdoses have killed more people than car accidents, gun violence, breast cancer, and suicide.[3] It is not a political debate; it is an infestation. U.S. Customs and Border Protection confiscated over 11000 pounds of fentanyl coming over America’s southern border in 2021, almost three times greater than the year prior.[4] Immediate action must be taken to reduce the risk of these overdoses.

Fentanyl is a synthetic opioid commonly added to other drugs such as cocaine, heroin, and methamphetamine.[5] Deadly fentanyl levels mixed into these drugs cannot be detected by sight, taste, or touch.[6] Fentanyl test strips are inexpensive and are seen as one of the only ways to effectively determine if fentanyl is present.[7] With such a cheap and effective way to help lower the death tows rising, why are these strips not offered in stores across the country? The main problem is that these testing strips are only legal in a few states.[8] In states such as Florida, however, they are considered “drug paraphernalia,” where possession is a first-degree misdemeanor.[9] The potential life-saving strip could land you up to a year in prison.[10]

Things are looking up, however, in the sunshine state. This month, Florida State Representative Andrew Learned and State Senator Sevrin Jones have filed identical bills in the Florida House and Senate that would decriminalize fentanyl test strips.[11] Drug paraphernalia is currently defined as “all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. . . .”[12] “Testing” is to be removed from the definition, and the bills would also decriminalize drug testing equipment such as fentanyl test strips.[13] Passage of these bills would be a massive step forward in increasing the availability of fentanyl test strips across the state and hopefully help stall overdose rates. Opponents of fentanyl test strips say that this approach encourages illegal drug use, as it is not requiring that someone stops taking drugs.[14] While this is a valid claim, the staggering fentanyl overdose rates over the last few years show that immediate action should be taken in an attempt to lower these rates, and the research on fentanyl test strips shows how efficient it can be.[15]

Fentanyl has crossed over our borders and poisoned this great country from within. With overdose rates increasing every year, U.S. citizens should be outraged and demand immediate legislative action. Legalizing fentanyl test strips would help identify fentanyl in a substance and will help reduce the risk of overdose, saving the lives of struggling addicted citizens.[16]

 

[1] Dan Grossman, Fentanyl is the Leading Cause of Death in Americans Ages 18-45, The Denver Channel (Jan. 04, 2020, 7:28 PM), https://www.thedenverchannel.com/news/national/fentanyl-is-the-leading-cause-of-death-in-americans-ages-18-45.

[2] Deidre McPhillips, Drug Overdose Deaths Top 100,000 Annually for the First Time, Driven by Fentanyl, CDC Data Show, CNN Health (Nov. 17, 2021, 12:27 PM), https://www.cnn.com/2021/11/17/health/drug-overdose-deaths-record-high/index.html.

[3] Adam Shaw & Andrew Mark Miller, Fentanyl Overdoses Become No. 1 Cause of Deaths Among US Adults, Ages 18-45: ‘A National Emergency’, Fox 10 Phoenix (Dec. 16, 2021), https://www.fox10phoenix.com/news/fentanyl-overdoses-become-no-1-cause-of-death-among-us-adults-ages-18-45-a-national-emergency.

[4] See id.

[5] The Facts About Fentanyl, CDC (Nov. 2, 2021), https://www.cdc.gov/stopoverdose/fentanyl/index.html.

[6] Id.

[7] Id.

[8] Fentanyl Test Strips: Why Are They Illegal, Addiction Resource (Jan. 13, 2022), https://www.addictionresource.net/blog/fentanyl-test-strips/ (stating that in Alaska, Colorado, Maryland, Nebraska, New York, South Carolina, Virginia, Washington D.C., and Wyoming, fentanyl test strips are legal or decriminalized).

[9] Fla. Stat. § 893.147.

[10] Fla. Stat. § 775.082.

[11] McKenna Schueler, Florida Lawmakers File Legislation to Decriminalize Fentanyl Test Strips, WMNF (Jan. 7, 2022), https://www.wmnf.org/florida-lawmakers-file-legislation-decriminalize-fentanyl-test-strips/.

[12] Fla. Stat. § 893.145.

[13] Schueler, supra note 11.

[14] Fentanyl Test Strips: Why Are They Illegal, supra note 8.

[15] Fentanyl Test Strips: Why Are They Illegal, supra note 8.

[16] Fentanyl Test Strips: Why Are They Illegal, supra note 8.

 

Image Source: https://www.brown.edu/news/2019-01-18/fentanyl

By Charlie McCarthy

 

No-code legal software stands uniquely positioned to provide the legal industry with cost-effective and highly versatile solutions for delivering legal services in the new workforce environment.  The legal industry faces retention challenges and a call to modernize from both employees and clients.[1] The 2022 CLIO report found that firms were more likely to invest future spending in software solutions than any other investment.[2] Firm leadership held this viewpoint because they viewed software as strategic investments that create lower-cost tools to boost revenue to allow long-term and higher-cost staff investments.[3] No-code legal software stands apart to adapt to the legal industry’s dynamic fiscal and operational needs.[4]

No-code application platforms provide lawyers with building elements to create their own applications tailored to their specific automation and digital workflow needs.[5] Low-code software, a predecessor to no-code, is “visual-focused software… targeted towards developers… for those skilled in programming to program faster.”[6] Low-code is often discussed alongside no-code as an answer for simplifying software delivery for legal services.[7] However, low code is solely focused on the software developer, which requires the legal provider to outsource costly IT integration and adhere to rigid perimeters once the software is implemented.[8] Conversely, no-code software is centered on lawyers as builders and eliminates the need for the lawyers to have any programming knowledge to build their applications.[9] Operationally, no-code features “visual building such as drag and drop tools, (allowing) lawyers to manipulate pre-built blocks of code to handcraft technological solutions while the platform auto-generates the code in the background.”[10] Typical no-code applications involve automating intake procedures, auditing compliance, automating document and contract creation review and management, providing automatic business flow updates, tracking financial metrics, and automated performance review processes.[11] Additionally, no-code eliminates the expensive, complex, and time-intensive process of having software developers build specific code for particular business needs.[12] A significant benefit to no-code software is that it allows lawyers to prototype their applications, update as needed, and scale to meet their clients’ needs.[13]

BRYTER, a leading no-code service automation platform, provides “the backend capability of a powerful corporate solution with a more user-friendly, intuitive design, so all users have access… allow(ing) users in the organization to start creating digital tools themselves and have them published and enterprise-ready”.[14] Their approach lets lawyers build their own digital applications in only a matter of weeks to manage their specific business needs while providing the capacity to build software on top as complexity requires.[15] Legal OS, another no-code platform, creates digital knowledge graphs “to be used to build legal service products, generate documents, embed compliance, or automate processes through the open-source Legal OS automation platform.”[16] No-code companies appeal to enterprises to allow their employees to become “citizen coders” and build their apps to increase workplace efficiency.[17]

The pandemic has broadened the acceptance of the role of technology in the effective delivery of legal services.[18] Despite expense cuts, law firms increased their technology spending by 7.1% during the 12-month period through November 2021.[19] As the delivery of legal services evolves with client and employee demands, no-code software stands apart as readily available technology to provide adaptable and cost-effective solutions in the delivery of legal services.

 

[1] Thomas Reuters Institute, 2022 Report on State of the Legal Market 1, 23-24 (2021).

[2] CLIO, LEGAL TRENDS REPORT, 44 (2021).

[3] Id.

[4] Olga Mack, Preparing for the No-Code and Low-Code Age of Law, Bloomberg Law (May 24, 2021), https://news.bloomberglaw.com/us-law-week/preparing-for-the-no-code-and-low-code-age-of-law.

[5] Id.

[6] What is no-code, BRYTER, https://bryter.com/trends/what-is-no-code/.

[7] Id.

[8] Id.

[9] Mack, supra note 4.

[10] Id.

[11] Id.

[12] Steven Lerner, Push For Attys To Code Loses Steam In No-Code World, Law 360 pulse (Aug 13, 2021), https://www.law360.com/pulse/articles/1412598/push-for-attys-to-code-loses-steam-in-no-code-world.

[13] BRYTER, No-code for Law Firms 28 (2021).

[14] Id. at 14.

[15] Id.

[16] Legal OS (2021), https://www.legalos.io/.

[17] No-code for law firms, supra note 13, at 14.

[18] See generally Legal Trends Report, supra note 2.

[19] State of the Legal Market supra note 1, at 23.

Image Source: https://zvolv.com/blog/blog/2020/02/03/the-rise-of-no-code-development-platforms/

Deepfakes and the Copyright Connection: Analysing the Adequacy of the Present Machinery

By Akhil Satheesh

Introduction:

As the United States, for the second consecutive year accounts for deepfakes in the National Defense Authorization Act, (NDAA), and calls for the Department of Homeland Security to prepare annual reports[1] on this technology for the next 5 years, the issued presented by it can no longer be swept under the rug.

Deepfakes consists of a pair of competing algorithms[2], a generator that renders artificial content and a discriminator that identifies which aspects are original or fake. This generative adversarial network (GAN) is self-learning, and each time the discriminator algorithm observes content to be fake, this information is supplied to the generator, resulting in the creation of more convincing images/videos with each new iteration.

Deepfakes possesses immense potential for malicious use, with over 90%[3] of deep fake content being false pornographic videos of individuals without their consent and false political propaganda.[4]

Read More

By Chris Jones*

 

I. Introduction

As technology continues to evolve, private companies are weaponizing consumers with surveillance tools ultimately utilized for purposes far beyond the average user’s expectation. Ring doorbells are effectively turning neighborhoods into “surveillance hotbeds” while allowing the government to track neighbors’ movements on the curtilage of their own property.[1] Amazon provides police access to Ring’s footage without obtaining a warrant. This footage can be used to continuously track ones movement in both private and public spaces by connecting footage from multiple Ring doorbells. As a result, individuals are subjected to unwanted surveillance from neighbors acting as conduits for law enforcement, without probable cause or judicial oversight.

This article argues the utilization of Ring doorbells—as a neighborhood surveillance tool—have become a considerable threat to ones privacy in their own home. In October, 2021, an Oxford County Court determined that a neighbor’s Ring video and audio recording doorbell violated the UK General Data Protection Regulation (“GDPR”). Thus, in order to integrate the benefits of technology with the sanctity Americans expect in their own homes, Congress should require informed consent for recording from all entities that own property within the range of a surveillance doorbell.

II. Overview of Ring Doorbell Surveillance

In 2018, Amazon acquired Ring and partnered with local law enforcement agencies in the U.S. to expand neighborhood surveillance.[2] Amazon’s partnerships provide police departments with access to an online portal where officers can view footage from local Ring users without obtaining a warrant.[3] Cities promote Ring doorbells to local residents and purchase subsidized Ring devices with taxpayer funding.[4] In turn, these partnerships benefit Amazon by expanding Ring’s nationwide surveillance network and promoting its devices.[5]

Ring doorbells are essentially surveillance cameras that replace a traditional doorbell.[6] A video doorbell detects motion ranging from people approaching the door, to cars driving by, to neighbors entering their homes on property within the camera’s range.[7] The software is synchronized with an online application that allows the owner to “see, hear, and speak to visitors in real time from anywhere.”[8] Ring doorbells have the capacity to record audio from as far as 40 feet away.[9] While Ring includes a Privacy Zone option to block the taping of a neighbor’s property, it requires the user take affirmative action to utilize this setting.[10]

Ring uses the data to access, use, preserve, or disclose content to law enforcement, government, or third parties for various purposes.[11] By utilizing footage from Ring, law enforcement can essentially track an individual’s movements through private and public spaces by linking together one camera after another. Deleted content and user recordings may still be retained by Ring in order to comply with certain legal obligations.[12] Therefore, once footage is recorded, the user does not control their personal content.[13]

Additionally, Amazon has been found to utilize footage of consumer doorbell cameras for its own advertising purposes, further violating the privacy of unsuspecting neighbors.[14] Recent reports believe that Ring is implementing facial recognition into its surveillance devices, adding an entirely new spectrum of surveillance.[15] Thus, Ring doorbells endanger the privacy of all individuals, even those who do not have an Amazon account.[16]

III. Legal Background

An individual’s reasonable expectation of privacy is often measured by the standard established in Katz v. United States.[17] In Katz, the court moved away from constitutionally protecting ones privacy in physical spaces to protecting the privacy of an individual themselves.[18] The court implemented the Reasonable Expectation of Privacy Test where an individual’s expectation is measured by whether it is one that society is prepared to recognize as reasonable.[19]

In United States v. Antoine Jones, the court determined that law enforcement should not have immediate access to every move a person makes over an extended period of time without consent or a warrant.[20] The court held that the warrantless placement of a GPS tracking device on a person’s vehicle—in order to track all of the movements of a person on public streets—was considered an unlawful search, violating the “effects” portion of the Fourth Amendment.[21]

In Jones, Justice Sotomayor’s dissent contemplated the mosaic theory of privacy where individuals have a reasonable expectation that their movements will not be recorded and aggregated “in the sum” to infer one’s personal beliefs, habits, and potentially sensitive information.[22] While substantial privacy indicators, Katz and Jones only apply to the government leaving individuals vulnerable to exploitation from private entities.[23]

Minimal federal statutes currently exist to regulate the use of private surveillance cameras. The Wiretap Act allows for silent video recording through a network; however, places restrictions on the recording of aural communications.[24] Some states allow audio recording for conversations in which one participating party has provided consent.[25]

In October, 2021, Oxford County Court Judge Melissa Clarke determined a neighbor’s Ring video and audio recording doorbell violated the UK Data Protection Act 2018 and the GDPR.[26] According to Clarke, “the video images and audio files that the Ring doorbell and cameras captured of the neighbor” were property belonging to the neighbor.[27] While the United States relies on a patchwork of federal and state statutes, private tort claims, sectoral laws, and FTC rules to enforce privacy regulation, it lacks a comprehensive federal privacy law, comparable to the GDPR.[28]

IV. Ring Doorbell Owners Lack Consent to Publicize Neighbor’s Footage

In the United States, there is a gap in legal protection for recording ones movements on the curtilage of their own home, something the public considers private. For example, Google recognized this need for privacy and instituted a policy to blur the data that appears in Google Street View photos.[29] This data includes license plate numbers, people’s faces, and other indentifying marks of a person or place—especially those with sensitive ramifications.[30]

“Persistent and targeted surveillance collapses individual moments of interaction, spread out over time and mitigated through human forgetfulness, into one long story of an individual’s life.”[31] This type of surveillance can lead to inferences about highly sensitive areas of a person’s life, such as addictions, health, religion, or sexual activities.[32] When one is under surveillance for a long period of time—as a Ring camera does—the nature of the harm changes with the scope of the protectable right of privacy.[33] For example “one photograph of a person in public may offend his dignity. Twenty-eight days of targeted tracking meaningfully disrupts his environment and his behavior.”[34]

Ring intrudes on ones right to privacy while on the curtilage of their home.[35] As the Court determined, “the curtilage of the home is considered as ‘part of the home itself for Fourth Amendment’ purposes and, thus, afforded the same protections.”[36] The curtilage “consists of the area immediately surrounding a home where the private details of the home naturally extend, and it is ‘intimately linked to the home, both physically and psychologically.’”[37] Thus, the reasonable expectation of privacy afforded to individuals in their home should be extended to the curtilage and should apply to private parties—like Ring.

Moreover, concerns exist over what technology companies actually do with the footage once they collect it, potentially aggregate it, and retain it.[38] Mission creep occurs when parties gather data for one reason; however, end up using it in bad faith or find other uses for it, even when not explicitly authorized.[39] Here, Ring is owned by Amazon—one of the world’s largest retailers—known for its excessive marketing efforts.[40] If Amazon and Ring were to exchange data revealing a consumer’s every movement near their own home, it would likely benefit Amazon’s marketing division,

In response to the Oxford County Court’s ruling, Amazon issued a statement encouraging users to respect their neighbor’s privacy and comply with applicable laws.[41] Ring’s violation of wiretapping laws is discussed in a forum on Amazon’s website. Here, various individuals focus on obtaining consent from those standing on the user’s front porch—not from neighbors who happen to live nearby.[42]

Critics argue that The Wiretap Act allows general surveillance footage to be obtained without informed consent from those in the video, provided there is no aural component. However, Ring’s video doorbells have the ability to record audio from 40 feet away. Thus, a property owner’s conversation in their own yard could very well be captured by a neighbor’s doorbell. While some states allow recording aural conversations with consent from one party, the consenting party must participate in the conversation. Therefore, the recording of neighbor’s aural conversations—in which the recording party is not participating—likely violates The Wiretap Act.

Other critics argue the owners are lawfully on their own property and possess rights to the footage recorded. Thus, the owners can provide informed consent to viewing and sharing of the recordings to others. This position may lead to high privacy walls constructed around individual properties. Even then, Ring would still track the comings and goings of cars entering the property.

As the Supreme Court has exemplified the principles recognizing an individual’s right to privacy in their own autonomy,[43] the same concept should apply to private entities. If state actors are prohibited from tracking ones every movement, private parties should be prohibited as well. Therefore, Ring’s recording of residents on the curtilage of their private homes should be viewed as unauthorized access and property of the subject being recorded. Ring is a private party and the footage subjects have not consented to the recording or publishing of their movements or conversations.

V. Solution

While many bills have been proposed, there are still no comprehensive privacy laws at the federal level, let alone any statutes to specifically regulate neighborhood doorbell surveillance.[44] The Supreme Court has implied that Congress is the “best-situated body to protect privacy interests in the face of burgeoning technological advances.”[45] In Jones, the Supreme Court has “shown a willingness to uphold legislation providing for appropriate uses of and safeguards against the sort of technology whose abuse may result in substantial encroachments by the government into private life.”[46]

Absent a comprehensive federal privacy law, this article proposes Congress should enact legislation to require informed consent for recording from all entities that own property within the range of a surveillance doorbell’s camera. This statute should include a private right of action that allows ordinary citizens to bring suit against neighbors who record surveillance footage of their property without consent. The private right of action is necessary for increased compliance as a doorbell owner would be far more likely to honor a neighbor’s refusal to consent if they knew that individual could bring a private lawsuit against them. Without a private right of action, it would be incredibly costly and onerous for a regulatory agency—such as the FTC—to enforce. This right would minimize the role and expenses required for enforcement of this law and increase the likelihood that neighbors would police themselves.

Compliance with this statue would be simple as Ring doorbells have the ability for a property owner to block out areas of footage through Privacy Zone settings. This would only necessitate companies, like Ring, to provide doorbell owners with a standard consent form that complies with the statute. Prior to activating the Ring device, users would be required to sign a contract stating they would obtain a signed consent form from any property owners within the camera’s range. Therefore, the responsibility for compliance would fall entirely on the owner, relieving Ring of any burdensome enforcement.

Thus, while an individual’s movements in public spaces may be subject to taping and publicity, ones movements and conversations while on the curtilage of their own home should be sacred. An individual’s personal space requires special consideration to end this substantial encroachment into ones private life.

VI. Conclusion

Congress is well positioned to deal with the new surveillance issues resulting from Ring doorbells and similar technological devices. Action must be taken at the federal level in order to curtail this significant invasion of privacy occurring from neighbors’ recording. By providing sweeping protection for all U.S. residents from unwanted doorbell surveillance, Congress can help to balance the benefits of technology with the sanctity we have all come to expect in the privacy of our own homes.

 

* J.D., Gonzaga University School of Law. Acknowledgments and gratitude to Noelle Green and Professor Drew Simshaw for their invaluable insights and continuing support.

[1] See Dan Milmo, Amazon asks Ring Owners to Respect Privacy after Court Rules Usage Broke Law, Guardian, (Oct. 14, 2021),  https://www.theguardian.com/uk-news/2021/oct/14/amazon-asks-ring-owners-to-respect-privacy-after-court-rules-usage-broke-law  (Hannah Hart, a digital privacy expert at ProPrivacy, explains that Ring’s doorbells enable “a small number of residents [to] effectively transform public spaces into surveillance hotbeds, and even share their recordings with police”).

[2] Grace Egger, Ring, Amazon Calling: The State Action Doctrine & the Fourth Amendment, 95 Wash. L. Rev. Online 245, 245-46 (2020).

[3] Id. at 253.

[4] Id. at 251.

[5] Id. at 254.

[6] See Ring Video Doorbells, Ring, https://ring.com/doorbell-cameras/ (last visited May 6, 2021).

[7] See generally id.

[8] Ring Terms of Service, Ring, https://ring.com/terms (last updated Dec. 8, 2020).

[9] See Ring, supra note 6.

[10] Understanding Privacy Zones, Ring, https://support.ring.com/hc/en-us/articles/360027979331-Understanding-Privacy-Zones (last visited May 3, 2021).

[11] Ring, supra note 8.

[12] Ring, supra note 8.

[13] See Ring, supra note 8.

[14] See Ariana Aboulafia, Greg Fritzius, Tessa Mears, & Macy Nix. The Price of Prime: Consumer Privacy in the Age of Amazon. 42 Mitchell Hamline L. J. Pub. Pol’y & Prac. 138, 149 (2021).

[15] Hannah Bloch Wehba, Visible Policing: Technology, Transparency, & Democratic Control, SSRN 1, 39  (Mar. 10, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3552240.

[16] See Aboulafia, Fritzius, Mears, & Nix, supra note 14, at 140.

[17] See Katz. V. United States, 389 U.S. 347, 358 (1967).

[18] See id.

[19] Id.

[20] See United States v. Jones, 132 U.S. 945, 955-57 (2012).

[21] Id. at 946-47.

[22] See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 328 (2012).

[23] See Wayne Unger, Katz and COVID-19: How a Pandemic Changed the Reasonable Expectation of Privacy, SSRN 1, 24 (Sept. 14, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3692652.

[24] The Electronic Communications Privacy Act of 1986, Title 1. 18 U/S.C. §§2511.

[25] See id.

[26] See Milmo, supra note 1.

[27] See Milmo, supra note 1.

[28] See Chris Jones, The iOS 14.5 Update: A Game Changer for Federal Privacy Law, 28 Rich. J. L. & Tech., no.1, (2021).

[29] Patrick Gallo & Houssain Kettani, On Privacy Issues with Google Street View, 65 S.D. L. Rev. 608, 610  (2020).

[30] Id.

[31] Margot E. Kaminsky, Privacy and the Right to Record, 97 Boston U. L. Rev. 167, 215 (2015).

[32] Id.

[33] See id. at 217.

[34] Id.

[35] See generally Matthew R. Koerner, Drones and the Fourth Amendment: Redefining Expectations of Privacy, 64 Duke L. J. 1129, 1139-40 (2015).

[36] Id. at 1139.

[37] Id.

[38] Richard M. Thompson II, Domestic Drones and Privacy: A Primer, Cong. Research Serv. 1, 8-9 (Mar. 30, 2015), https://fas.org/sgp/crs/misc/R43965.pdf.

[39] Benjamin White, Clipped Wings: Domestic Drone Surveillance and the Limits of Due Process Protection, 86 U. Cin. L. Rev. 357, 360 (2018).

[40] Lauren Debter, The World’s Largest Retailers 2020, Forbes (May 13, 2020), https://www.forbes.com/sites/laurendebter/2020/05/13/the-worlds-largest-retailers-2020-walmart-amazon-increase-lead-ahead-of-the-pack/?sh=56601dd18d35.

[41] See Milmo, supra note 1

[42] See Can you disable audio recording to avoid violating wiretapping law requiring 2 party consent in states like ma, ca, pa, il, wa, ct, etc?, Amazon  (Jan. 21, 2018),  https://www.amazon.com/ask/questions/Tx1OXUJ8ZWUHROA/?.

[43] See Katz, 389 U.S. at 358; See Jones 132 U.S. at 955-57.

[44] White, supra note 39, at 373.

[45] White, supra note 39, at 373.

[46] White, supra note 39, at 389.

Source image: https://www.howtogeek.com/thumbcache/2/200/17aed3e8a5b5d78d4cc204c52c0e704e/wp-content/uploads/2020/01/digital-surveillance-eye.jpg