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Charging to Charge: Why Rate Transparency and Battery Storage are Needed to Expand EV Charging Infrastructure

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On October 2, 2020

In Blog Posts

By Kyle Durch

Transportation, even during a pandemic, is one of the most critical facets of a person’s life. Electric vehicles (EVs) are rising in popularity, and they improve lives in numerous ways.[1] Since the start of the COVID-19 pandemic, EV sales as a percentage of total new vehicle sales in the United States is at an all-time high.[2] Most EV owners enjoy charging their vehicles at home, spending far less money in electricity than they would have paid for gasoline in a similar combustion-engine-equipped vehicle.[3] But as the pandemic wanes, more people will seek to travel further distances with their EVs.[4] While fast charging exists to make these desires a reality, proliferation of charging options to meet rising demand is stifled in two key ways: (1) cost to provide energy through utility demand rates, and (2) time-based price structure for customers.

In order to understand the world of EV charging, some terminology must be considered.[5] First, a kilowatt (kW) is a measure of rate, or how fast electricity is transferred. A kilowatt-hour (kWh) is a measure of capacity, either in terms of battery capacity or in total energy transferred, defined by a kW in one hour. EV chargers exist in three basic types: Level 1, or 110 volt slow charger (1-2 kW); Level 2, or 220 volt moderate speed charger suited for home or work charging (6-17 kW); and Level 3/DC Fast Charge, or high-speed charging suited for enroute charging on long trips, or for owners lacking access to home charging (50-350 kW).[6]

In most states, EV charger operators may set prices “per kWh.”[7] This price structure enables transparency in two ways: (1) owners can compare the price they pay at these chargers directly with their “per kWh” home electricity rate; and (2) owners can predict the total cost of the charging session based on the kWh capacity of the vehicle’s battery, just as they would when purchasing gasoline or diesel, where the purchase is based on the gallons filled.[8]

On the other hand, some states require that EV charging commence on a “per minute” price structure.[9] If, like gasoline, the fill rate remained constant throughout a charging session, this price structure would be fine. But in reality, the charge rate changes dramatically throughout a session.[10] To compensate, operators offer varying prices for ranges of charge rates.[11] Even so, each minute of charge becomes more expensive as the charge rate slows and less energy is actually transferred.[12]

Further complicating the charging station operator’s perspective is the utility’s demand rate. While residential customers generally pay a fixed price for each kWh consumed, larger consumers of electricity—such as commercial and industrial users—are charged a fee for the rate (or speed) of electricity that they consume.[13] This scheme is especially problematic for DC Fast Charge operators, where each vehicle connected can pull anywhere from 100 kW to 250 kW or more.[14] Such high loads result in significant added fees that challenge the ability of operators to break even, let alone profit from providing service.[15]

Operators may mitigate demand rates through the use of large-scale battery systems installed at charging locations. Stationary batteries even out demand by drawing grid power at a continuous rate; the battery charges at a set rate when no vehicles are attached (until full), and it either reduces its own rate of charge or discharges to connected vehicles to serve the excess demand.[16] The net result is a constant demand on the grid regardless of whether, and how many, EVs are connected. This removes uncertainty caused by the random nature of vehicles connecting to charge. In turn, reducing the overall demand rate avoids cost to charger operators and stabilizes prices for EV owners.

But on-site batteries do not address the price structure available to EV owners. In jurisdictions that restrict charger operators from charging “per kWh,” an operator must charge a “per minute” rate that estimates its energy cost plus some return on investment, and might provide incentive for EV owners to minimize their time at the plug to make room for others.[17] Operators may estimate low or high, depending on their revenue goals.[18] At issue is transparency for EV owners: other than by comparing price with other charger operators, there is no objective way for an owner to tell whether an operator is exacting a fair rate of its customers.

The EV owner’s goal is to obtain a certain amount of driving range, which translates to number of kWh added to the battery.[19] Price “per kWh” translates immediately into the desired number of kWh required. By contrast, the “per minute” structure balances multiple variables outside of the EV owner’s control, such as rate-of-charge capability of the vehicle, actual charge rate delivered by the charger, and the utility’s energy and demand rates.[20] Since charge rate varies throughout the session, and maximum charge rate may depend on the energy available from the charger itself, the total time necessary to achieve the desired number of kWh is a mystery. These factors together render the EV owner’s calculation of total price impossible—prior to finishing the charging session.

Altogether, lack of simplicity in paying for fast charging on-the-go stifles proliferation of chargers by unnecessarily impacting the willingness of consumers to use them.[21] States that prohibit charger operators from using the “per kWh” payment model should remove that restriction in order to better protect consumers. Likewise, charger operators should invest in on-site battery systems, reducing their impact on grid demand and maximizing savings—benefiting both the electric utility and the EV owner. Investments such as these will encourage further expansion of charging infrastructure. This expansion will in turn inspire more consumers to switch to EVs, returning dividends in health and climate benefits.

[1] See Off. of Energy Efficiency & Renewable Energy, Electric Vehicle Benefits, Dep’t of Energy, https://www.energy.gov/eere/electricvehicles/electric-vehicle-benefits (last visited Sept. 18, 2020) (explaining that EVs “reduce emissions that contribute to climate change and smog, improving public health and reducing ecological damage,” as well as save time by eliminating trips to gas stations).

[2] U.S. Plug-In Electric Passenger Car Sales Hit 5.5% in January-April 2020, InsideEVs (June 1, 2020, 3:41 PM), https://insideevs.com/news/426383/us-plugin-car-sales-january-april-2020/.

[3] See Off. of Energy Efficiency & Renewable Energy, Charging at Home, Dep’t of Energy, https://www.energy.gov/eere/electricvehicles/charging-home (last visited Sept. 18, 2020); see also The True Cost of Powering an Electric Car, Edmunds (Mar. 6, 2019), https://www.edmunds.com/fuel-economy/the-true-cost-of-powering-an-electric-car.html (providing an explanation of the cost of energy and charging equipment, and how this paradigm compares to the cost of gasoline).

[4] See generally Roberto Baldwin, Post-Pandemic, You’re More Likely to Take More Road Trips, Car & Driver (June 6, 2020), https://www.caranddriver.com/news/a32784601/post-pandemic-youre-more-likely-to-take-more-road-trips/ (indicating that fear of flying with other passengers contributes to widespread plans to travel via road trip rather than by airlines for the foreseeable future).

[5] See Electric Vehicle Glossary of Terms, EV Safe Charge (2019), https://evsafecharge.com/ev-terms-glossary/.

[6] See How Does Electric Vehicle (EV) Public Charging Work, Electrify Am. (2020), https://www.electrifyamerica.com/how-ev-charging-works/; Supercharging, Tesla (2020), https://www.tesla.com/support/supercharging.

[7] See Charles Benoit, 30 States Allow kWh Pricing, but Non-Tesla EV Drivers Mostly Miss Benefits, Electrek (Aug. 12, 2019, 11:13 AM), https://electrek.co/2019/08/12/kwh-pricing-ev-drivers-miss-benefits/.

[8] See Paul A. Eisenstein, Public EV Charging Companies are Switching to More Logical Pricing Plans, Detroit Bureau (Sept. 16, 2020), https://www.thedetroitbureau.com/2020/09/public-ev-charging-companies-are-switching-to-more-logical-pricing-plans/.

[9] Jonathan M. Gitlin, Electrify America Switches to Per-kWh Billing in 23 States, ArsTechnica (Sept. 16, 2020, 11:27 AM), https://arstechnica.com/cars/2020/09/electrify-america-switches-to-per-kwh-billing-in-23-states/.

[10] See, e.g., Catherine Lane, Tesla Charging Stations: What to Know on the Go, SolarReviews (May 12, 2020), https://www.solarreviews.com/blog/tesla-charging-stations-everything-you-need-to-know (explaining that while Tesla Superchargers can charge to 80% capacity in just 40 minutes, the rate reduces thereafter protect battery health, resulting in another 35 minutes to reach 100% capacity).

[11] See, e.g., Pricing and Plans for EV Charging, Electrify Am. (2020), https://www.electrifyamerica.com/pricing/ (indicating two prices depending on the charge rate capability of the vehicle, effective where “per minute” prices are required, such as in Kansas and Georgia); Supercharging, supra note 6, at ¶ 2 (explaining two price tiers: one for any charging at or below 60 kW, and another for any charging above 60 kW).

[12] See Gitlin, supra note 9, at ¶ 3.

[13] See, e.g., Explanation of Demand Charges, Nw. Energy, https://www.northwesternenergy.com/docs/default-source/documents/E-Programs/E-demandcharges.pdf (last visited Sept. 18, 2020).

[14] See Dane McFarlane et al., Analytical White Paper: Overcoming Barriers to Expanding Fast Charging Infrastructure in the Midcontinent Region, Great Plains Inst. 13 (July 2019), https://www.betterenergy.org/wp-content/uploads/2019/08/GPI_DCFC-Analysis.pdf (finding that “demand charges are one of the most significant cost factors in [DC Fast Charge] operation”).

[15] See id.

[16] See Fred Lambert, Tesla Reaches Deal with Electrify America to Deploy Powerpacks at Over 100 Charging Stations, Electrek (Feb. 4, 2019, 11:04 AM), https://electrek.co/2019/02/04/tesla-electrify-america-powerpacks-charging-stations/; Fred Lambert, Tesla Powerpacks Batteries Deployed at ~60 Electrify America Charging Stations, More Are Coming, Electrek (Sept. 17, 2020, 6:20 AM), https://electrek.co/2020/09/17/tesla-batteries-60-electrify-america-charging-stations/.

[17] See Charles Morris, California to Ban Time-Based Billing for EV Charging, Charged (Dec. 27, 2019), https://chargedevs.com/newswire/california-bans-time-based-billing-for-ev-charging/.

[18] See, e.g., Jordan Golson, Tesla Details Supercharging Fees for New Buyers, Verge (Jan. 12, 2017, 9:10 PM), https://www.theverge.com/2017/1/12/14257914/tesla-supercharger-cost-electric-car-charging (explaining that “the Supercharging network will not be a profit center for the firm,” but that “any income from the network will be reinvested into new Superchargers”).

[19] See, e.g., Kevin Blackmore, Driving Long Distance in an Electric Vehicle, Fleet All. (Dec. 2019), https://www.fleetalliance.co.uk/drivers-ev/driving-long-distance-in-an-electric-vehicle/ (explaining that “it’s better, faster and cheaper to charge to 80% and then get back on the road”).

[20] See generally Areg Bagdasarian, Steep Utility Fees are Killing Electric-Car Charging Stations, GreenBiz (Jan. 12, 2018), https://www.greenbiz.com/article/steep-utility-fees-are-killing-electric-car-charging-stations (explaining the conflict inherent in the intersection of traditional utility rate models with the “spiky” nature of electric vehicle charging demand).

[21] See Sean Szymkowski, Survey Details Top Reasons Consumers Avoid Electric Cars, Road Show by CNet (Aug. 23, 2019, 1:15 PM), https://www.cnet.com/roadshow/news/electric-cars-price-range-charging/ (indicating that charging infrastructure and time to charge are among consumers’ top reasons to not buy an EV).

Image Sources: https://www.pv-magazine.com/2019/07/30/megapack-marks-teslas-new-play-for-utility-scale-storage/, https://media.electrifyamerica.com, https://www.autoblog.com/2019/05/25/tesla-supercharger-limit-80-percent-charging/

Zoomin’ Into the Future

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On September 30, 2020

In Blog Posts

By Noah Holman

As we have all become far too familiar with, the world we are now living in is the world of Zoom. Thanks to the COVID-19 pandemic, Zoom has become the platform of choice for the closest simulation of in-person human connectivity that technology can offer. While there is no perfect substitute for real, live connection, the technology that drives our lives continues advancing with each passing day. One of the latest examples of this innovation is the integration of Zoom with technology we have been using for years: Snapchat filters and lenses.[1]

Because Zoom is commonly used for large group meetings or educational classrooms, there are usually too many people on any one Zoom call to all talk at once. Although Zoom does have features like the chat, raise hand, and thumbs up and wave reactions, these features can feel inefficient. Snapchat filters and lenses may very well be a solution to this, albeit certainly not without its own drawbacks.

While the filters simply put a “filter” over an image or video that alters its color, balance, brightness, etc. with no discrimination for the persons, shapes, or surroundings of that image or video,[2] the lenses actually track faces, body movements, and even surroundings such that the lenses will superimpose interactive graphics over people’s faces and surroundings.[3] The coolest and most notable feature is that these lenses react to the things they are tracking.[4] For example, certain lenses will react in a certain way when the face on screen raises its eyebrows or opens its mouth.[5] Others will react to movements of the whole body, like swinging arms.[6] And while Snapchat produces many filters and lenses of its own, the Lens Studio is what allows artists, creators, and everyday people everywhere to create their own.[7]

Through the “Snap Camera” app, Snap Inc. (inventor/owner of Snapchat) has allowed users to take these filters and lenses that were traditionally exclusive to the Snapchat app and utilize these features on platforms beyond Snapchat, such as Zoom.[8] Most people are sticking to the silly and entertaining uses of these features, like appearing on screen as a potato or a horse, but thanks to the innovation of Cameron Hunter, an engineer at Netflix, these Snapchat lenses can be used for a variety of practical purposes.[9]

Hunter utilized the Lens Studio to create a package of lenses designed for Zoom meetings.[10] This group of lenses adds comic book dialogue boxes to react to a number of different situations universally applicable to Zoom meetings, like saying “hello,” “yes” or “no,” a question, laughing, and goodbye.[11] There is even a feature that creates a “Be right back” speech bubble when the user steps out of frame.[12]

This is extremely valuable for providing instantaneous feedback, which allows for a professor or other speaker to continue talking without having to pause and allow others to talk, feel a need to constantly monitor the chat, or look for the tiny blue icons that indicate a raised hand. It also allows for those in the meeting to provide this feedback without having to unmute themselves.

If the next time you inevitably find yourself on a Zoom call, you decide you want to implement some of these features, it is relatively simple to do. First, you will need to download the Snap Camera app.[13] Next, you will need to open this app and select the filter you would like to use.[14] Once selected, open the Zoom meeting you wish to join and change the camera source Zoom will use.[15] To do this, find the video button on the bottom bar of the Zoom window, and click on the small arrow in the top right corner of that button.[16] Then, simply change the selected camera to “Snap Camera.”[17] You can change your filter at any time from the Snap Camera app, and from there, you should be good to go![18]

As for the legal implications of this, Snap, Inc. retains full ownership and control of the lenses that Hunter generated per its Snap Inc. Lens Studio Terms.[19] Not only does Snap own the lenses, but it was granted this ownership by mere virtue of Hunter using its Lens Studio software.[20] In other words, it pays no licensing fee to use the creative content that Hunter or other users like him create for Snapchat to disseminate to its millions of users.[21] Until someone challenges Snap Inc.’s severely restrictive terms agreements in court, Snap Inc. will continue profiting off of users’ creativity.

[1] See generally James Vincent, Add Comic Book Dialogue Boxes to Your Next Video Call with This Amazing Gesture-based Add-on, The Verge (Sept. 15, 2020, 11:26 AM), https://www.theverge.com/tldr/21437836/comic-book-dialogue-boxes-video-call-gesture-add-on-zoom-snap-camera-hangouts-google-meet.

[2] Cf. How to Use Photo Filters to Enhance Your Images, Canva, https://www.canva.com/learn/how-to-use-photo-filters-to-enhance-your-images/, (last visited Sep. 17, 2020).

[3] Cf. James Le, Snapchat’s Filters: How Computer Vision Recognizes Your Face, Medium (Jan. 28, 2018), https://medium.com/cracking-the-data-science-interview (scroll down through reverse chronological list of articles until you find Snapchat’s Filters: How Computer Vision Recognizes Your Face, dated Jan. 28, 2018).

[4] Cf. Id.

[5] Cf. Id.

[6] Cf. Lens Studio, Snap Inc., https://lensstudio.snapchat.com/, (last visited Sep. 17, 2020).

[7] See Id.

[8] Snap Camera, Snap Inc., https://snapcamera.snapchat.com/, (last visited Sep. 17, 2020).

[9] See Vincent, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Lance Whitney, How to Use Snapchat Filters on Zoom, PCMag (July 20, 2020), https://www.pcmag.com/how-to/how-to-use-snapchat-filters-on-zoom.

[14] Id.

[15] Id.

[16] See Id.

[17] Id.

[18] Id.

[19] See Snap Inc. Lens Studio Terms, Snap Inc., https://www.snap.com/en-US/terms/lens-studio-terms/, (last visited Sep. 17, 2020) (“You acknowledge and agree that Snap and our affiliates own all rights in the Lens product . . . .”).

[20] Id.

[21] Id. (“You agree that neither Snap nor our affiliates are under any obligation to pay you or any third party any consideration or compensation for the Assets or any use of the Assets.”).

Image Source: https://www.theverge.com/tldr/21437836/comic-book-dialogue-boxes-video-call-gesture-add-on-zoom-snap-camera-hangouts-google-meet

Using Data Analytics in Litigation

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On September 28, 2020

In Blog Posts

By Ken Kajihiro

 

Data analytics is becoming more and more prevalent within the legal profession; especially, within the litigation field.[1]  Legal analytics is on the rise to provide litigators with a winning argument.[2]  Current legal analytics software utilizes artificial intelligence to determine the success rate of previous arguments before particular judges in accordance with the user’s search inquiry.[3]  But data analytics can be used for much more than just analyzing a judge’s decision tendencies.

 

“Data analytics is the science of analyzing raw data in order to make conclusions about that information.”[4]  Data analytics can be used in conjunction with factual evidence and the common law to formulate legal arguments.  In short, stick to data the opposing counsel is not contesting – preferably data provided and conceded by opposing counsel.  Using opposing counsel’s own data against them will result in a data analytics conclusion and legal argument that will be difficult for opposing counsel to rebut.

 

In 1968, the California Supreme Court stated in People v. Collins that “[m]athematics . . . while assisting the trier of fact in the search for truth, must not cast a spell over [them].”[5]  In Collins, using data analytics, the prosecution sought to establish that there was an overwhelming probability that the defendants were guilty because they matched certain descriptions of the suspects provided by the victim and a witness.[6]

 

In dispute, however, were the very descriptions of the suspects; the victim’s description did not include a ponytail, whereas the witness’s description included a ponytail.[7]  Despite the ponytail description difference, the prosecution’s data analytics included that the female defendant had a ponytail.[8]

 

In addition, the prosecution’s data analytics included various factors such as the probability that a man has a beard and the probability that a man has a moustache; however, the prosecution did not take into account overlapping categories: the probability that a man has both a beard and a moustache.[9]  These discrepancies skewed the raw data; thus, the prosecution’s argument fell flat on its face because the data analytics conclusion was nothing more than a fallacious blunder.[10]

 

So, what is the solution?  The solution is to use data the opposing counsel is not contesting – preferably data provided and conceded by opposing counsel.  In a simple example, suppose in a False Claims Act case, Corporation ABC initially reported only $4,000 worth of government contracts; whereas, the government’s audit report found that the reported amount was supposed to be $20,000.[11]  In response, opposing counsel for Corporation ABC states that the reported amount was supposed to be $10,000.  With this, Corporation ABC motions for summary judgment.

 

In this hypothetical situation, it is important to note what has occurred.  Although, the amount that was supposed to be reported is in dispute (government says $20,000; Corporation ABC says $10,000), opposing counsel and Corporation ABC has conceded that at least $10,000 was supposed to be reported.  Therefore, because both the initial reported amount of $4,000 and opposing counsel’s conceded amount of $10,000 are undisputed, these two amounts can be used in a data analysis.

 

In our False Claims Act example, using data analytics, we can conclude that Corporation ABC had failed to report at least $6,000 ($10,000 – $4,000) of what was supposed to be reported.  Or, that Corporation ABC failed to report at least 60% ($6,000 / $10,000) of what was supposed to be reported.  Or, that Corporation ABC only reported at the most 40% ($4,000 / $10,000) of what was supposed to be reported.  Remember, these data analytics conclusions are based off of undisputed or opposing counsel provided and conceded data; thus, these data analytics conclusions will be difficult for opposing counsel to rebut.

 

The next step is to apply our data analytics conclusions to caselaw.  In United States (ex rel. Liotine) v. CDW Government, Inc., the court denied the defendant’s motion for summary judgment.[12]  The court rationalized that genuine issues of material fact existed because a deposed witness stated that approximately 10% of the time at least one item on the invoice or order was not reported to the government.[13]

 

In the case at hand, using opposing counsel’s provided and conceded data, we have concluded that Corporation ABC failed to report at least 60% of what was supposed to be reported.  Comparing Corporation ABC’s 60% with Liotine’s 10% is monstrous.[14]  Again, opposing counsel will have a difficult time rebutting the data analytics conclusion and legal argument because opposing counsel provided and conceded the data.  Therefore, a court is most likely to deny the defendant’s motion for summary judgment.

 

Overall, although, this is a simple example, data analytics can be used to formulate legal arguments.  Do not make the mistake in Collins.[15]  Just remember to stick to data the opposing counsel is not contesting – preferably data provided and conceded by opposing counsel.

 

[1] How Lawyers Use AI to Win Before It Begins, JD Supra (June 26, 2019), https://www.jdsupra.com/legalnews/how-lawyers-use-ai-to-win-before-it-90005.

[2] Id.

[3] Id.

[4] Jake Frankenfield, Data Analytics, Investopedia (July 1, 2020), https://www.investopedia.com/terms/d/data-analytics.asp.

[5] People v. Collins, 68 Cal. 2d 319, 320 (1968).

[6] Id. at 325.

[7] Id. at 321.

[8] Id. at 325.

[9] Id. at 328-29.

[10] See id. at 332.

[11] 31 U.S.C. § 3729 (2020).

[12] United States (ex rel. Liotine) v. CDW Government, Inc., No. 05-33-DRH, 2012 WL 2807040, at *12 (S.D. Ill. July 10, 2012) (considering summary judgment for overcharges on freight and unpaid Industrial Funding Fee).

[13] Id.  Important to note is that the witness stated that approximately 10% of the time at least one item on the invoice or order was not reported to the government.  Translated, this means that 10% of the time, the invoices or orders contained an error; whereas, if we were to consider each item irrespective of invoice or order, the percentage of error would be much less than 10%.  Thus, the genuine issue of material fact threshold is much lower than that of 10%.

[14] See id.

[15] See Collins, 68 Cal. 2d at 332.

Image Source: https://www.information-management.com/list/22-top-vendors-for-data-analytics-software

How Social Media is Playing a Role in the Upcoming Presidential Election

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On September 27, 2020

In Blog Posts

By: Joleen Traynor

With the presidential election fast approaching, voters and pundits alike are increasingly concerned about the integrity of our election systems. Outside groups have attempted to infiltrate our election systems in the 2016 election cycle[1], and the United States could be at risk again in the 2020 cycle. This concern grows by the day as we near election day. This comes after Microsoft recently issued a warning outlining a number of foreign governments, including Russia, China and Iran, that have attempted to access secure campaign data from both President Trump and Joe Biden’s campaigns.[2] Social media also has an increasing role to play in election security, and in ensuring that only verifiable, accurate information is presented to the public. However, exactly how this information is presented to the public is up for debate, and each platform is taking its own approach to how it plans to treat unverifiable information.

This begs the question: what role does social media have to play in securing our election system? Foreign adversaries often rely on artificial intelligence, often referred to as “bots” to disseminate misleading or false information online. A “bot” is “a computer that attempts to talk to humans through technology that was designed for humans to talk to humans.”[3] In fact, “researchers determined that bots accounted for roughly 25 percent of tweets concerning the 2016 presidential election.”[4]

Some platforms, like Twitter, are attempting to balance access to information, and ensuring that the information that is circulated is legitimate, seen in Twitter’s policy of suspending certain accounts for inappropriate behavior, in many instances these suspended accounts are “bots”, and are not actual people sharing links and information.[5] Another social media platform, Facebook, overhauled its advertising policy after the 2016 election.[6] Looking ahead, “Twitter said it plans to more aggressively label or remove election-related tweets that include disputed or misleading information, while Google said it would screen more auto-complete suggestions to avoid voters being misled.”[7] Are these actions sufficient?

Regarding the 2020 presidential election cycle, substantive steps are already being taken to appropriately label posts and information given by President Trump’s campaign team. Both Twitter and Facebook have issued warning labels for tweets and posts from President Trump’s official channels, however the posts have not been removed.[8] These actions provide a warning to followers and readers that the posts may contain inaccurate information, and it may encourage readers to independently verify information for themselves. These are valid and important steps that social media platforms are taking in order to better inform the public, but is it enough to stop unverifiable information and false news from spreading online? These are questions that can only be answered in the days and weeks after election day.

[1] See generally 2016 Presidential Campaign Hacking Fast Facts, CNN (Oct. 31, 2019, 1:10 PM), https://www.cnn.com/2016/12/26/us/2016-presidential-campaign-hacking-fast-facts/index.html.

[2] David E. Sanger and Nicole Perlroth, Russian Intelligence Hackers Are Back, Microsoft Warns, Aiming at Officials of Both Parties, N.Y. Times (Sept. 10, 2020), https://www.nytimes.com/2020/09/10/us/politics/russian-hacking-microsoft-biden-trump.html.

[3] Siobhan Roberts, Who’s a Bot? Who’s Not?, N.Y. Times (June 16, 2020), https://www.nytimes.com/2020/06/16/science/social-media-bots-kazemi.html.

[4] Ashley Fox, Automated Political Speech: Regulating Social Media Bots in the Political Sphere, 18 First Amend. L. Rev. 114, 117 (2020).

[5] Brice C. Barnard, The Tweet Stops Here: How Politicians Must Address Emerging Freedom of Speech Issues in Social Media, 88 UMKC L. Rev. 1019, 1033 (2020).

[6] Alex Rochefort, Regulating Social Media Platforms: A Comparative Policy Analysis, 25 Comm. L. & Pol’y 225, 237 (2020).

[7] Emily Glazer and Kirsten Grind, Google and Twitter Sharpen Tools to Stop False Claims About Election, Wall St. J. (Sept. 10, 2020, 4:11 PM), https://www.wsj.com/articles/twitter-to-label-remove-more-election-related-tweets-with-misleading-information-11599757200?mod=tech_lead_pos7.

[8] Brian Fung and Paul P. Murphy, Facebook and Twitter put warning label on Trump’s posts on voting twice, CNN (Sept. 12, 2020, 2:39 PM), https://www.cnn.com/2020/09/12/politics/twitter-facebook-trump-north-carolina/index.html.

Image Source: https://www.texomashomepage.com/news/national-news/social-media-giants-testified-on-capitol-hill-addressing-their-role-in-online-extremism/

How the Coronavirus Pandemic is Exposing a Dangerous Loophole in Federal Firearm Laws

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On September 25, 2020

In Blog Posts

By: Emma Phillips

The coronavirus pandemic has brought about many significant changes in the daily lives of Americans: social distancing measures have changed the way citizens live, work, and interact; businesses and governments have experienced unprecedented strife; and social unrest has, in some ways, reached a peak.  But amid the chaos, a specific and unexpected change in Americans’ behavior has served to illuminate a major flaw in current legislation: the sharp rise in gun purchases within the United States.

March 2020 saw a dramatic increase in the attempted purchase of firearms, and the requisite background checks that accompany them; 3.7 million background checks were requested in the National Instant Criminal Background Check System (NICS), 1.1 million more than the previous year.[1]  While these background checks are being requested according to procedure, the uptick in gun purchases combined with the coronavirus pandemic has shone a spotlight on a dangerous loophole in the current digital background check system.  The Brady Handgun Violence Prevention Act, passed in 1993, mandates that those who wish to purchase a firearm must pass a background check, which are currently conducted through the FBI-run NICS interface.[2]  It also states, however, that if three days should pass without a result returned by the background check service, then the person hoping to purchase the gun should be allowed to do so anyway, and no further regard should be paid to the pending background check.[3]

Since it is conducted through an electronic server, most of the background checks conducted through NICS are returned almost immediately.  Studies have shown, however, that the FBI does often struggle to complete many background checks on time; up to three percent of background check results are delayed for three days or longer.[4]  Furthermore, up to 30% of the background checks of those who have been convicted of misdemeanor crimes of domestic violence have been shown to be delayed for over three days, thus allowing those convicted of those crimes to purchase firearms anyway.[5]  Ultimately, this loophole allows guns to fall into the hands of the criminals the law was trying to keep them from, and provides a dangerous avenue for crimes to be committed.

With the massive uptick in gun purchases due to the coronavirus pandemic, this avenue has widened.  The combination of over a million more background checks being run through NICS, and the FBI only stating that it would “allocate more resources” to the overwhelmed NICS system in July indicate that no immediate fix to this loophole is on its way.[6]  Ultimately, only new gun legislation or an updated NICS interface will serve to fix this problem, but with a raging pandemic, political tumult, and an upcoming election all in the forefront of the government’s psyche, it does not seem to be likely to place urgent emphasis on either.

[1] NICS Firearm Checks: Month/Year (Aug 31, 2020), https://www.fbi.gov/file-repository/nics_firearm_checks_-_month_year.pdf/view.

[2]  Brady Handgun Violence Prevention Act, Pub. L. No: 103-159, 107 Stat. 1536.

[3] Id.

[4] Joshua Eaton, FBI Never Completes Hundreds of Thousands of Gun Checks, Roll Call (Dec. 3, 2019, 11:54 AM), https://www.rollcall.com/2019/12/03/fbi-never-completes-hundreds-of-thousands-of-gun-checks/.

[5] Gov’t Accountability Office: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records (2016), https://www.gao.gov/assets/680/678204.pdf.

[6] Betsy Woodruff Swan, Blocked gun sales skyrocket amid coronavirus pandemic, Politico (Jul. 23, 2020, 4:30 AM), https://www.politico.com/news/2020/07/23/blocked-gun-sales-skyrocket-amid-coronavirus-pandemic-379452.

Football, Myocarditis, and Heart Transplants: Was The Big Ten Conference Ahead of the Curve?

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On September 23, 2020

In Blog Posts

By: M. Walker Upchurch

On August 11th, the Universities’ Presidents within The Big Ten Conference met and decided to cancel football for the upcoming season. The Presidents of the Universities cited public health concerns and a startling correlation with myocarditis as one of the primary reasons to cancel the season. However, after mounting public pressure and the forging onward by three of the power five conferences, on September 16th, The Big Ten Conference announced that the college football season is back. Additionally, The Big Ten Conference is scheduled to start the season on the weekend of October 23-24.

While it is in the best interest of the fans and the college-students dreaming of going to the National Football League to have college football this season, The Big Ten Conference may have made a mistake by choosing the short term gain of a season over the long term effects of serious litigation.

The Mayo Clinic has defined myocarditis as “[A]n inflammation of the heart muscle (myocardium). Myocarditis can affect your heart muscle and your heart’s electrical system, reducing your heart’s ability to pump and causing rapid or abnormal heart rhythms (arrhythmias). A viral infection usually causes myocarditis, but it can result from a reaction to a drug or be part of a more general inflammatory condition. Signs and symptoms include chest pain, fatigue, shortness of breath, and arrhythmias. Severe myocarditis weakens your heart so that the rest of your body doesn’t get enough blood. Clots can form in your heart, leading to a stroke or heart attack.”[1]

On August 31st, 2020, a team Doctor at Pennsylvania State University painted a grim picture of what the future could hold for many college athletes. Dr. Wayne Sebastianelli, an Orthopedic Surgeon and Sports Medicine Doctor who serves as Pennsylvania State’s Director of Athletic Medicine, stated that many student-athletes had not recovered their full pulmonary function.[2] He also said that: “When we looked at our COVID-positive athletes, whether they were symptomatic or not, 30 to roughly 35 percent of their heart muscles (are) inflamed.”[3] While this number of 30 to roughly 35 percent has been met with some scrutiny, a separate report is coming out of Ohio State University from Cardiologist Dr. Curt Daniels. [4] It reports to have found that almost 15 percent of athletes who had contracted COVID-19 had myocarditis.[5] The procedure that was performed to uncover the myocarditis at Ohio State was a cardiac M.R.I., and additionally, nearly all of the athletes who developed myocarditis had mild or no COVID-19 symptoms.[6]

According to a paper published in the Journal of Heart and Lung Transplant by Dr. Edward D. Moloney FRCPI FCCP in 2005: “Myocarditis is a major cause of end-stage heart failure and is responsible for up to 10% of cases of idiopathic dilated cardiomyopathy (IDC). Worldwide, approximately 45% of all heart transplants are performed for IDC and up to 8% for myocarditis.  Early reports suggested that survival after transplantation for myocarditis was poor and patients had an increased risk of rejection.”[7] While these statistics are from patients who did not develop myocarditis due to COVID-19, it sheds light on how severe the long-term effects of COVID-19 may be.[8] Last year, according to the United Network of Organ Sharing, 3,552 were performed. [9]  Thus, approximately 285 of the 3,552 heart transplants that were performed last year result from the new condition that the student-athletes have been diagnosed with.[10]

As of September 3rd, 2020, according to the Center for Disease Control, there have been 6,087,403 total diagnosed cases and 185,092 deaths involving COVID-19.[11] These statistics translate to a fatality rate of 3.04%.[12] Likewise, in the past week, 288,357 people have been diagnosed with COVID-19.[13] If this newfound effect is lingering in the population that is the most resistant to COVID-19, than it seems likely that it could also affect many others who have had COVID-19 that have not had a cardiac M.R.I.

Many legal questions will need an answer. How will these athletes receive treatment? Who will be responsible for paying for the necessary treatment? And, if an athlete was never diagnosed with COVID-19, but had the viral infection and developed myocarditis after they had played at the University, who will be responsible for their care? There are two certainties in the fluid time of the COVID-19 pandemic. First is that we do not know all of the long-lasting effects of the virus. And lastly, when the time comes, litigation will occur.

[1] Mayo Clinic, Myocarditis,https://www.mayoclinic.org/diseases-conditions/myocarditis/symptoms-causes/syc-20352539

[2] See State College Area Board of School Directors Meeting | 8/31/20 LIVE 7:00 p.m., YouTube (Aug. 31, 2020), https://www.youtube.com/watch?v=4Ju2PRFyDK4&t=4059s

[3]  Id.

[4] See Billy Witz, Doctors Enter College Football’s Politics, but Maybe Just for Show, N.Y. Times, Aug. 24, 2020, at D1.

[5] See Id.

[6] See Id.

[7] Moloney ED, Egan JJ, Kelly P, Wood AE, Cooper LT Jr. Transplantation for myocarditis: a controversy revisited. J Heart Lung Transplant. 2005;24(8):1103-1110. doi:10.1016/j.healun.2004.06.015

[8] See Id.

[9] UNITED ORGAN SHARING NETWORK, https://unos.org/data/transplant-trends/ (last visited Sep. 4, 2020)

[10] See Id.

[11] CENTER FOR DISEASE CONTROL, Covid Data Tracker, https://covid.cdc.gov/covid-data-tracker/#cases (last visited Sep. 4, 2020)

[12] See Id.

[13] See Id.

Say “I Might” to Zoom: Weddings During a Global Pandemic

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On September 21, 2020

In Blog Posts

By: Logan Childress

Social distancing, self-isolation, and travel restrictions resulting from the COVID-19 global pandemic have led to unfavorable circumstances for hopeful couples looking forward to becoming married in 2020.[1] Still, despite these unexpected interruptions, wedding bells continue to ring across the globe.[2] Earlier this year, many couples decided to postpone their weddings; but others opted out of traditional wedding venues for untraditional weddings via Zoom.[3] However, if you are considering a Zoom wedding, do not virtually say “I do” just yet. In the United States, the requirements for a legal marriage vary across the states and localities.[4] Accordingly, Zoom weddings are not legally binding in all 50 states.[5] Check before you plan!

One of the biggest obstacles to becoming legally married earlier on in the pandemic was obtaining a marriage license.[6] In the early stages of the pandemic, many local clerks’ offices across the United States shut down in response to the spread of COVID-19.[7] As a result, thousands of appointments for marriage licenses were canceled, postponed, or otherwise halted.[8] Since this a process that is typically required to be done in person, legal marriages came to a temporary stand-still.[9]

To meet the new obstacles presented by the pandemic, California, New York, and Colorado were the pioneers of Zoom weddings.[10] Not only did these states temporarily allow residents to apply for marriage licenses remotely, but also some recognized virtual ceremonies during these unprecedented times.[11] For example, in California, the Governor issued an executive order on April 30 to allow California residents to (1) obtain marriage licenses virtually, rather than in-person and (2) officially wed via video conference as long as both parties are present, and have at least one witness who can join the live video conference.[12] Similarly, in New York, the Governor issued an executive order on April 18 to allow New York residents to (1) obtain marriage licenses remotely and (2) allow clerks to perform ceremonies via video conference.[13] And, in Colorado, the Governor issued an executive order on March 26 to allow clerks to issue marriage licenses through an application by mail.[14] While these executive orders did not immediately make Zoom weddings legally binding, it gave local clerks the discretion and opportunity to develop a system through which marriage licenses could be issued and, in some cases, legally binding marriages could be performed for a limited period of time.[15]

However, in some states, changes never came, even on a temporary basis.[16] For example, in Virginia, the law required, and continues to require, that couples and their wedding officiant be physically present for the vows and the signing of the marriage license.[17] So, unless the couple was willing to invite their officiant to be physically present with them, a Zoom wedding was not a legally binding option.[18]

Thankfully, as states are beginning to reopen, obtaining a marriage license is not as big of an obstacle.[19] However, many couples remain cautious about large gatherings, if such gatherings are permitted at all.[20] And, the original executive orders issued by states like New York, Colorado, and California have since expired[21] leaving Zoom weddings in a grey area. And, “while it is possible for some marriage bureaus to make exceptions in light of current affairs, it should not be assumed that [Zoom] weddings will be considered [legally binding] across the country, and officiants and couples should be cautious.”[22]

Like many things these days, weddings have changed. Get creative, read your local laws and regulations, and start planning!

[1] See, e.g., Alyson Krueger, Weddings as a Coronavirus Super-Spreader Worry, N.Y. Times, Aug. 4, 2020, https://www.nytimes.com/2020/08/04/fashion/weddings/weddings-as-covid-super-spreaders.html.

[2] See id.

[3] Mary Meisenzahl, This Is What Getting Married Over Zoom Is Like, According to 2 Couples Who Had to Change Their Wedding Plans Due to the Coronavirus, Business Insider (Apr. 23, 2020, 12:09 PM), https://www.businessinsider.com/zoom-weddings-during-coronavirus-photos-2020-4.

[6] See, e.g., Jeong Park, Coronavirus Means No Marriage License for Lovebirds, For Now, The Orange County Register (Mar. 17, 2020, 7:14 AM), https://www.ocregister.com/2020/03/17/coronavirus-means-no-marriage-license-for-orange-county-lovebirds-for-now/ (discussing the closure of a local clerk’s office due to COVID-19); Lila Seidman, How to Get Legally Married During the Coronavirus Crisis, Los Angeles Times (May 8, 2020, 4:00 AM), https://www.latimes.com/lifestyle/story/2020-05-08/legal-marriage-during-coronavirus (discussing difficulties of receiving a marriage license in California).

[7] See id.

[8] See id.

[9] See Maggie Kreinenberg, Zoom Weddings Are Now Legal!: Start Sending Your Zoom Invites, Brides (May 1, 2020), https://www.brides.com/virtual-weddings-legal-new-york-4842735.

[10] Id.

[11] Id.

[12] Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf.

[13] N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[14] Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf.

[15] See Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf (expiring 60 days after issuance); N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency (expiring on May 18, 2020); Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf (expiring 30 days after issuance); see also Lila Seidman, How to Get Legally Married During the Coronavirus Crisis, Los Angeles Times (May 8, 2020, 4:00 AM), https://www.latimes.com/lifestyle/story/2020-05-08/legal-marriage-during-coronavirus (acknowledging executive order does not instantly make Zoom weddings legally binding).

[16] See, e.g., Marriage Requirements, Virginia Department of Health, https://www.vdh.virginia.gov/vital-records/marriage-requirements/ (last visited Sept. 10, 2020) (no changes); About Wedding Laws in Virginia, American Marriage Ministries, https://theamm.org/marriage-laws/virginia (last visited Sept. 10, 2020) (highlighting Virginia never made exemptions, temporary or binding, for Zoom weddings during the pandemic).

[17] Id.

[18] See id.

[19] See Rachel Treisman, West: Corona-Related Restrictions by State, National Public Radio (Sept. 3, 2020, 3:30 PM), https://www.npr.org/2020/05/01/847416108/west-coronavirus-related-restrictions-by-state (listing clerks offices are reopened).

[20] Considerations for Events & Gatherings, Centers for Disease Control and Prevention (July 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html; see also Dena Bunis, List of Coronavirus-Related Restrictions in Every State, American Association of Retired Persons (Sept. 10, 2020), https://www.aarp.org/politics-society/government-elections/info-2020/coronavirus-state-restrictions.html (highlighting restrictions on public gatherings).

[21] Cal. Exec. Order No. 58-20 (Mar. 4, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/04/4.30.20-EO-N-58-20.pdf (expiring 60 days after issuance); N.Y. Exec. Order No. 202.20 (Apr. 18, 2020), https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency (expiring on May 18, 2020); Colo. Exec. Order No. D 2020 014 (Mar. 26, 2020), https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf (expiring 30 days after issuance).

[22] Can I Officiate a Skype Wedding?, American Marriage Ministries (Mar. 20, 2020), https://theamm.org/articles/268-can-i-officiate-a-skype-wedding.

Image Source: https://www.flickr.com/photos/23408922@N07/5592082610

Self-Driving Cars May Make Roads Safer, But Will They Make Our Lives Simpler?

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On September 19, 2020

In Blog Posts

By: Melisa Azak

Self-driving cars are predicted to usher in a new era of vehicles free from the perils of human error. Some of the top companies in the autonomous vehicles field, like Waymo, a subsidiary of its ubiquitous parent company, Alphabetic, Inc., have deployed commercial self-driving services in select cities across the country.[1] Waymo’s main mission is to make roads safer by removing human error from the equation, a fact clearly presented on the first page of their lengthy testing report released in 2019.[2] Public officials appear to be convinced by Waymo’s claims. In March, the National Highway Traffic Safety Administration proposed changes to its vehicle safety rules to facilitate the increasing use of self-driving cars across the nation.[3]

Although autonomous vehicles may make roads safer, will they lead to a decrease in accidents? And in turn, will that lead to fewer lawsuits involving those accidents? A closer look at the state of the autonomous vehicles industry indicates that while accidents caused by human error may decrease, the new era of fully automatic vehicles may herald increases in product liability litigation and potentially complicated issues in electronic discovery.

Self-driving cars are traditionally thought of as the Teslas and Ubers of the world that operate completely without human interference. The perception that self-driving cars are fully autonomous is hardly surprising given that CEOs like Elon Musk often make bold predictions in bids to get consumers and investors on board. Musk was criticized for saying “full self-driving capability is there” in Tesla’s new Navigate on Autopilot feature, but subsequently yanking the “full self-driving option” from Tesla’s website, claiming it was confusing consumers.[4]

Although no cars currently on the road are fully autonomous, most partially autonomous technologies have been in cars for years. The first autonomous vehicle technologies were introduced in 2006, with features like adaptive cruise control and parallel-park assist.[5] Features previously out-of-reach for the average consumer, like driverless parking, are now available in the new lines of family-friendly brands like Toyota.[6] So many features fall under the umbrella category of autonomous vehicles that the Society of Automotive Engineers categorizes driving features by the amount of human assistance necessary for operation into levels 0-6, ranging from simple driver support features like blind spot warnings (level 0) to fully autonomous vehicles in which a vehicle can drive without any assistance in all conditions (level 6).[7]

Given all the features that fall under the category of self-driving vehicles, self-driving cars may increase product liability suits as traditional cars leave the roads, and autonomous vehicles with various automation features and products replace them. Although accidents involving human error will decrease as cars operated traditionally by humans leave the roads, personal injury suits involving drivers or insurance companies will transmute into suits concerning the safety and adaptability of certain technologies.[8] Further, it seems more and more likely that ride-sharing apps like Uber and Lyft will use fleets of self-driving cars in the future, presenting questions of who takes the blame when a car inevitably hits a pedestrian or injures a passenger.[9]

Self-driving cars may also complicate the discovery process. The technology in most autonomous vehicles operate by gathering information about the car’s surroundings, evaluating that information and the risks involved, and planning decisions based on that information with or without a driver’s input.[10] More products within cars will store electronic information, which may lead to increased complexities about how to obtain information from those sources.[11]

Although the societal benefits of self-driving cars are noteworthy, the technologies overall may make consumers’ lives, and in turn their lawsuits, more complex overall. Will the trade-off be worth it? Only time will tell.

[1] Andrew J. Hawkins, Waymo launches iOS app as it reflects on first year of its robot taxi service, TheVerge.com, Dec. 5, 2019, https://www.theverge.com/2019/12/5/20995334/waymo-ride-hail-app-ios-apple-self-driving-car-robot-taxi-service-phoenix-arizona; Rob Verger, Where to find self-driving cars on the road right now, Popular Science, Dec. 11, 2018, https://www.popsci.com/self-driving-cars-cities-usa/.

[2] Waymo, Waymo Safety Report: On the Road to Fully Self-Driving, https://storage.googleapis.com/sdc-prod/v1/safety-report/Safety%20Report%202018.pdf (last visited Sep. 4, 2020).

[3] Aarian Marshall, New Rules Could Finally Clear the Way for Self-Driving Cars, Wired.com, Mar. 26, 2020, https://www.wired.com/story/news-rules-clear-way-self-driving-cars/.

[4] Andrew J. Hawkins, No, Elon, the Navigate on Autopilot feature is not ‘full self-driving’, TheVerge.com, Jan. 30, 2019, https://www.theverge.com/2019/1/30/18204427/tesla-autopilot-elon-musk-full-self-driving-confusion.

[5] Xavier Mosquet et al., Revolution in the Driver’s Seat: The Road to Autonomous Vehicles, Boston Consulting Group, Apr. 11, 2015, https://www.bcg.com/publications/2015/automotive-consumer-insight-revolution-drivers-seat-road-autonomous-vehicles.

[6] Fernelius Toyota, How to Use Intelligent Park Assist, FerneliusToyota.net, Jan. 11, 2019, https://www.ferneliustoyota.net/how-to-use-toyota-intelligent-park-assist/#:~:text=For%20Toyota%20vehicles%2C%20this%20features,come%20with%20parking%20assist%20sensors.

[7] Jennifer Shuttleworth, SAE Standards News: J3016 automated-driving graphic update, Society of Automotive Engineers International, Jan. 7, 2019, https://www.sae.org/news/2019/01/sae-updates-j3016-automated-driving-graphic.

[8] Tiffany Y. Gruenberg, Self-Driving Cars Will Likely Increase Product Liability Litigation, 9 Nat’l L. Rev., no. 22, Jan. 22, 2019, https://www.natlawreview.com/article/self-driving-cars-will-likely-increase-product-liability-litigation.

[9] Id.

[10] Jim Gill, How 3 Cases Involving Self-Driving Cars Highlight eDiscovery and the IoT, iprotech.com, Aug. 29, 2019, https://iprotech.com/industrynews/how-3-cases-involving-self-driving-cars-highlight-ediscovery-and-the-iot/.

[11] Id.

Image Source: https://cdn.vox-cdn.com/thumbor/anf7oVDiE-yVYa9ODsHYlMmf_Ps=/0x0:3000×2000/1200×800/filters:focal(1260×760:1740×1240)/cdn.vox-cdn.com/uploads/chorus_image/image/65650157/acastro_180205_1777_0003.0.jpg

How the Return of Sports Could Help Pull Off a Major Comeback Against COVID-19

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On September 17, 2020

In Blog Posts

By: Noah Holman

We, as a country, have yearned for many relics of normalcy throughout the uncertain times that the COVID-19 pandemic has created. Sports are one of those relics. After months of cries for their return, they are here at last. And they have not disappointed, providing value far beyond mere entertainment. While sports’ potential as a catalyst for positive change is perhaps more well-known, or at least more accepted, now than ever before, it may nevertheless remain understated.

Colin Kaepernick kneeling for the national anthem in 2016 cemented his legacy as the martyr for athletes speaking out about racial inequality.[1] If Kaepernick is the martyr, Lebron James is the torchbearer. Never quiet to speak out about social and political issues, Lebron has spearheaded the NBA’s ongoing “More Than a Vote” campaign with the lofty goal of eradicating voter suppression.[2] While all of these racial inequality and social reform initiatives have garnered much publicity in recent weeks, and deservedly so, there has been noticeably less attention on the potential sports have to advance medical research and improve the effectiveness of COVID-19 protocols.[3]

When I speak of sports in such optimistic light, I am largely referring to the National Basketball Association (NBA) and the National Hockey League (NHL) to a lesser extent. While both the NBA, going on five weeks of no new cases of COVID,[4] and the NHL have been incredibly successful, Major League Baseball (MLB) has quite a conflicting track record.[5] Ultimately, though, the NBA has shown us the potential of sports at their height.

Professional sports aid in our collective response to the COVID-19 pandemic by funding research.[6] Specifically, the NBA funded new saliva test research at Yale.[7] It should come as no surprise that professional sports leagues are committing their resources, as much as half a million dollars in the aforementioned case,[8] to fund such research given not only their vast capital resources but also their economic interest in insuring their players and personnel take the most effective precautions. In addition, live sporting events are a significant source of revenue for the leagues, so they want to return to having full stadiums as quickly as possible. However cynical you may be of their motives, that major sports leagues are helping to fund research relating to COVID-19 is good for all.

In addition to funding research, much new technology is being tested in the NBA’s famous “bubble.”[9] Perhaps most well-known is the Oura rings, which monitor users’ temperature, heartrate, and other biometric data.[10] Players are also using logging their daily vitals on an app, using Bluetooth thermometers, and smart pulse oximeter devices.[11] The NBA, along with the host of its bubble, Disney, has repurposed the “Disney Magic” bands that guests at its amusement parks would typically wear to track the whereabouts of the players and personnel in the bubble.[12] Although it is difficult to say any one of these particular measures is cause for the NBA’s success in returning to play without an outbreak of the virus, all of them together seem to be effective.

Even despite the NBA bubble’s success, it is not a perfect case study. Although the NBA allegedly ordered 2,000 of them, apparently only around 25% of players and personnel are wearing the Oura rings, which is optional under the NBA’s policy.[13] Similar to wearing masks and the COVIDWISE contact tracing app that Virginia rolled out not long ago,[14] the technology that these rings provide is only effective if the overwhelming majority of the population under study is wearing them.[15] Thus, their actual effectiveness is far from proven.[16]

All that being said, the return of sports should be celebrated for many reasons beyond giving us something to watch other than the “gay, gun-toting cowboy with a mullet” that captured America by storm in the beginning of quarantine.[17] Sports are directly funding the medical research needed to save hundreds of thousands of lives, and indirectly stimulating the economy that needs to be revitalized to save the livelihoods of just as many others.[18] We can only hope that we have reached the fourth quarter of this physically and mentally tolling quarantine, but no matter what: sports will not give up until they hear the final whistle. And they will win, along with all of us.

[1] See Tadd Haislop, Colin Kaepernick Kneeling Timeline: How Protests During the National Anthem Started a Movement in the NFL, Sporting News (June 9, 2020), https://www.sportingnews.com/us/nfl/news/colin-kaepernick-kneeling-protests-timeline/xktu6ka4diva1s5jxaylrcsse.

[2] Cf. Emmanuel Morgan, More Than a Vote is More Than a Statement for Lebron James and Other Athletes, L.A. Times (July 30, 2020), https://www.latimes.com/sports/story/2020-07-30/more-than-a-vote-lebron-james.

[3] E.g., Kevin Stankiewicz, NFL’s Goodell: “We’re Going to Stand Behind Our Players” Against Any Backlash Over Protests, CNBC (Sep. 2, 2020, 1:29 PM), https://www.cnbc.com/2020/09/02/nfls-roger-goodell-on-backlash-to-player-protests-over-racial-justice.html.

[4] Lisa Eadicicco, The NBA Bubble Has Rolled Out Some Wild Technology to Help Keep Players, Coaches, and Staff COVID-free — Including a $300 Smart Ring that Can Monitor Biometric Data, Business Insider (Aug. 26, 2020, 2:04 PM), https://www.businessinsider.com/nba-bubble-oura-smart-ring-used-by-quarter-of-campus-2020-8.

[5] Nick Lichtenberg, The NBA and MLB Show Opposite Reopening Strategies — and One of Them is Already Striking Out. Here’s What Businesses and Schools Can Learn from the Great Pro Sports Reboot, Business Insider: Newstex Blog (July 29, 2020), https://www.businessinsider.com/nba-mlb-reopening-lessons-for-businesses-schools-coronavirus-2020-7; Markham Heid, NBA Bubble – How Does It Work? Science Behind the NBA Bubble, Popular Mechanics (Aug. 25, 2020), https://www.popularmechanics.com/science/health/a33796756/nba-bubble/.

[6] See infra note 7.

[7] Chris Hine, COVID Saliva Test Gets Big Boost from Wolves, NBA, StarTribune (Aug. 25, 2020), https://www.startribune.com/timberwolves-doctor-playing-key-role-in-covid-fighting-saliva-test/572208252/?refresh=true.

[8] Id.

[9] Eadicicco, supra note 4.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Geoffrey A. Fowler, I Downloaded America’s First Coronavirus Exposure App. You Should Too., Wash. Post. (Aug. 18, 2020), https://www.washingtonpost.com/technology/2020/08/17/coronavirus-exposure-notification-app/.

[15] Cf. Eadicicco, supra note 4.

[16] Id.

[17] See generally Taylor Borden, One Murder-for-Hire Plot, 5 Husbands, and 176 Tigers: Meet Joe Exotic, the Man Nicholas Cage Will Play in an Upcoming TV Series, Business Insider (May 4, 2020), https://www.businessinsider.com/who-is-joe-exotic-maldonado-passage-tiger-king-netflix.

[18] See generally Hine supra note 7.

Image Source: https://www.vanityfair.com/news/2020/07/inside-the-nbas-covid-free-bubble

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