Richmond Journal of Law and Technology

By: Stephanie Seibert

Are you planning on travelling by plane on or after October 1, 2020? Do you have your state issued Real ID yet? If not, dig out your identification documents and proof of residence and plan a trip over to your local DMV to get your new and improved, Real ID certified, identification card. United States residents have until October 1, 2020 to become compliant with the Real ID Act of 2005 in order to fly, even domestically.

In the aftermath of the tragic terrorist attacks that occurred on September 11, 2001, President Bush signed the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror and Tsunami Relief.”[1] Included in this act was the “Real ID Act of 2005” (hereinafter “The Act”).[2] The Act aims to create national standards for all states and territories regarding the issuance and production of driver’s licenses.[3] The Act also prohibits federal agencies (such as the Transportation Security Administration “TSA”) from accepting non-compliant identification cards.[4] Essentially, The Act created a new form of ID card known as “Enhanced Driver’s License” (“EDL”). An EDL card will be used as a state driver’s license but will also act as proof of identity and U.S. Citizenship.[5] The EDL card is notated as such by a star icon in the upper right corner of the card.[6] The Act changed documentation requirements that individuals must provide when getting a Real ID identification card.[7] The Act created a narrow list of documents that people can provide to prove their identity and requires documentation that proves residency.[8]

Starting October 1, 2020 Homeland Security is requiring that anyone boarding a plane must have an EDL card or show a valid passport in order to travel. Airports are warning of the major consequence that this deadline will have and are requesting an extension to the deadline.  As of February 2020, only 34% residents in the country have EDL licenses. Leaving seven months for about two-thirds of the country to get the updated license if they plan to use their license to board a plane [emphasis added].[9] Beyond that, the U.S. Travel Association estimates that 57% of Americans do not even know about this deadline.[10] The Airports Council International – North America is warning that thousands of passengers will be left stranded and denied boarding if this deadline is enforced.[11] They warn that this deadline will create absolute chaos, and could create a $300 million in economic loss in the first week that Real IDs become mandatory in airports.[12]

Additionally, not every state is even compliant with the standards that Homeland Security imposed on them. Oregon and Oklahoma are not yet certified to distribute EDL cards to their residents.[13] Oregon is estimating that it will not begin distributing EDL cards until June of 2020.[14] New Jersey’s certification is still under review.[15] Further, states that are compliant with The Act they are still having issuance problems. State motor vehicle offices are unequipped to handle the capacities that are flooding their offices for the opportunity to upgrade their IDs before the deadline[16]. For example, Washington State, whom is compliant with The Act, is urging its residents to just go get a passport because it will be faster than going through the process of getting an EDL.[17]

The president of The Airports Council International – North America is calling for action from the government to make a definitive statement on the impending deadline.[18] Additionally several members of Congress sent a letter to Homeland Security requesting a contingency plan so that if the deadline is enforced, people are not denied access to their flights.[19] While Homeland Security solicited ideas, solutions, proposals from various sectors earlier this week, they have failed to respond to the notion of changing the deadline.[20] They did however make some changes to the processes that residents have to go through to obtain the IDs. States are now able to have online platforms where residents can submit their information prior to arriving at the DMV.[21] While this may reduce the amount of time that residents need to spend in the DMV, will it solve the access problems completely? It will be interesting to see if Homeland engages in further activity as we move closer to the proposed deadline.

[1] Hayley Hoff, Comment: Get Real: Implications and Impositions of the Real ID Act of 2005 on Vulnerable Individuals and States, 68 Cath. U.L. Rev. 379, 383 (2019).

[2] Id.

[3] Real ID, U.S. Department of Homeland Security, https://www.dhs.gov/real-id.

[4] Id.

[5] Hoff, supra note 1.

[6] Millions of Americans may not have new Real IDs before deadline: “The potential is catastrophic”, CBS News (Feb. 21, 2020) https://www.cbsnews.com/news/real-id-deadline-us-airports-worried-millions-of-americans-wont-have-required-identification-card/.

[7] Hoff, supra note 1.

[8] Id.

[9] Tom Costello, Airports warn of chaos with looming Real ID license deadline, NBC News (Feb. 19, 2020) https://www.nbcnews.com/news/us-news/airports-warn-chaos-looming-real-id-license-deadline-n1138811.

[10] Id.

[11] Id.

[12] https://www.cbsnews.com/news/real-id-deadline-us-airports-worried-millions-of-americans-wont-have-required-identification-card/

[13] Real ID, supra note 2.

[14] Costello, supra note 9.

[15] Real ID, supra note 2.

[16] Tom Costello, Airports warn of chaos with looming Real ID license deadline, NBC News (Feb. 19, 2020) https://www.nbcnews.com/news/us-news/airports-warn-chaos-looming-real-id-license-deadline-n1138811.

[17] Id.

[18] Id.

[19] Millions of Americans may not have new Real IDs before deadline: “The potential is catastrophic”, supra note 6.

[20] DHS Announces Streamlining Measures To Help States In Issuing REAL IDs, U.S. Department of Homeland Security, (Feb. 19, 2020)  https://www.dhs.gov/news/2020/02/19/dhs-announces-streamlining-measures-help-states-issuing-real-ids

[21] Id.

image source: https://www.forbes.com/sites/geoffwhitmore/2019/10/15/what-you-need-to-know-about-flying-with-the-upcoming-real-id-deadline/#e46d3069d6ad

By: Anne Groves

What is “FERPA”?

 

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records through the regulation of their disclosure.[1] FERPA gives parents and guardians certain rights over their student’s educational records.[2] Once the student turns 18, they become an “eligible student” under FERPA and these rights that once belonged to the parent are transferred to the eligible student.[3]

 

What types of information does FERPA protect?

 

FERPA generally prohibits educational institutions from disclosing personally identifiable information from education records without the written consent of the parent or eligible student.[4] FERPA includes the following in the definition of personally identifiable information: a student’s name; the name of the student’s parents or other family members; the address of the student or student’s family; personal identifiers such as a social security number, student number, or biometric record; other indirect identifiers such as birthday, place of birth, and mother’s maiden name; and other information that alone or in combination is linkable to a specific student would allow a reasonable person in the school community who does not have personal knowledge of the relevant circumstances to identify the student with reasonable certainty; or information requested by a person who the education agency or institution reasonably believes knows the identity of the student to whom the education record relates.[5]

 

Can my college or university ever disclose my personally identifiable information without my consent?

FERPA does allow certain disclosures without obtaining consent, including but not limited to disclosing the student’s information to other “school officials” with a “legitimate educational interest.”[6] The legitimate education interest exception is explained in 34 C.F.R. § 99.31 in part as follows: “An education agency or institution may disclose personally identifiable information from an education record of a student without . . . consent . . . if the disclosure meets one or more of the following conditions: The disclosure is to school officials, including teachers, within the agency or institution whom the agency or institution has determined to have a legitimate educational interest.”[7]

 

What types of information could my college or university disclose to non-school officials without needing my consent?

Under FERPA, schools can disclose information categorized as “Directory Information” to any party, and it doesn’t require the student’s consent.[8] The Directory Information exception outlined in FERPA provides that Directory Information can be disclosed to third parties without the consent of the eligible student as long as the following conditions are satisfied: (1) The institution gives public notice of the types of information it categorizes as “Directory Information”;[9] (2) The institution informs the eligible student of their right to restrict the disclosure of such information;[10] and (3) The institution provides the time frame in which the eligible student can notify the school that they wish to limit disclosure of this information.[11]

What further protections do I have if I attend college or university in Virginia?

The Virginia legislature has afforded Virginia students further protections than the baseline requirement that federal government provides through FERPA. Virginia law specifies that no school is permitted to disclose the address, telephone number or email address of a student pursuant to the Virginia Freedom of Information Act unless the parent or eligible student has affirmatively consented in writing to such disclosure.[12] This is unlike the baseline standard provided in the directory information standard in FERPA, which does not require affirmative consent by the eligible student or parent for the disclosure of address, telephone number, or email address.[13]

           

[1] See Family Educational Rights and Privacy Act (FERPA), U.S. Dept. of Ed. (last updated Mar. 1, 2018) https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

[2] See id.

[3] See id.

[4] See 34 C.F.R. § 99 et. seq.

[5] See id.

[6] See Family Educational Rights and Privacy Act (FERPA), supra note 1.

[7] 34 C.F.R. § 99.31.

[8] See 4 C.F.R. § 99.3 and 99.37.

[9] See id.

[10] See id.

[11] See id.

[12] See Va. Code Ann. § 22.1-287.1.

[13] See 4 C.F.R. § 99.3 and 99.37.

 

image source: https://www.southalabama.edu/departments/registrar/ferpa.html

By: Jonathan Walter

On January 8^th, the Virginia General Assembly convened for its 2020 session. This year’s session marked the first time Democrats have had a majority in both the House of Delegates and the State Senate since 1996. The new majority has wasted no time, with the House passing over 800 bills and the Senate passing over 600.[1] Many of these pieces of legislation aim to bring the Commonwealth into the 21st century with regard to the technology used by state government, payment systems and revenue sources, and regulation of emerging technologies.

 

Although no legislation has been approved by both chambers, and major pieces of legislation will certainly require some negotiation, there is a presumption that many of these bills will pass. Further, Virginia Governor Ralph Northam is a Democrat and it is likely he will approve almost all of the bills that come across his desk.

 

Below are just a few of the major pieces of legislation that are currently moving through the General Assembly:

 

Although most of the discussion has been around a bill that would allow five cities to seek a public vote on building casinos, both the House of Delegates and the State Senate have passed bills allowing sports betting and the online purchase of lottery tickets.[2] After negotiations, it is anticipated that Virginia will award between six and ten online licenses for sports betting.[3]

 

HB1414 and SB 890 are both large transportation bills aimed at modernizing the Commonwealth’s transportation laws.[4] Measures in these bills include an increase in the gas tax, a ban on the use of handheld phones while driving, an increase in passenger rail service and expanded use of speed cameras, among other things.[5]

 

The Virginia Clean Economy Act, which passed in the House of Delegates on a 52-47 vote, a massive energy bill that would require Dominion Energy and Appalachian Power Company to get 100% of their electricity from renewable sources by 2050.[6]  To do this, the legislation encourages these companies to invest in wind and solar power.[7]

 

There are also a number of small, but important bills moving through the General Assembly:

 

HB172E would allow Virginia state troopers to use an electronic ticketing system.[8] The new electronic ticketing system would reduce the length of time it takes a state trooper to write a ticket and help improve the efficiency of the state court system.[9]

 

HB957, also known as the Virginia Cyber Initiative Act, directs the Virginia Information Technology Agency (VITA) to “develop a cyber alliance” to encourage economic development in the cybersecurity field.[10] Additionally, the bill creates a fund “for the purpose of improving cybersecurity and the economy of the Commonwealth.”[11]

 

HB742 allows Virginia localities to develop their own regulations for the takeoff and landing of unmanned aerial systems.[12] This bill builds on legislation passed during previous General Assembly sessions to develop the Commonwealth’s drone infrastructure and regulatory environment.

 

While many of these bills may only seem like they make small changes, they represent a positive step forward and will help the Commonwealth adapt to a rapidly changing world.

[1] Lowkell, At Halfway Point of 2020 Virginia General Assembly Session, Half of Bills Still Alive; Surges in Dem Legislative Success and Also Close Votes, Blue Virginia (Feb. 14, 2020), https://bluevirginia.us/2020/02/graphics-at-halfway-point-of-2020-virginia-general-assembly-session-half-of-bills-still-alive-surges-in-dem-legislative-success-and-also-close-votes.

[2] Gregory S. Schneider, Laura Vozzella and Patricia Sullivan, Virginia Democrats Push Liberal Agenda – With a Dose of Caution, Wash. Post (Feb. 11, 2020), https://www.washingtonpost.com/local/virginia-politics/virginia-democrats-push-progressive-agenda–with-a-dose-of-caution/2020/02/11/3c4e7388-4c37-11ea-b721-9f4cdc90bc1c_story.html.

[3] Ryan Butler, Virginia Sports Betting, Casinos Are Close After Key Votes, Gambling.com (Feb. 12, 2020), https://www.gambling.com/news/virginia-sports-betting-casinos-are-closer-after-key-votes-2207800.

[4] Ashley Curtis, Virginia House Passes Bill That Bans Phones While Driving, Open Containers of Alcohol in Cars and More, WSLS News (February 10, 2020), https://www.wsls.com/news/local/2020/02/10/virginia-house-passes-bill-that-bans-phones-while-driving-open-containers-of-alcohol-in-cars-and-more/; Keith Goble, Virginia Lawmakers Advance Plans to Boost Transportation Revenue, Landline (Feb. 13, 2020), https://landline.media/virginia-lawmakers-advance-plans-to-boost-transportation-revenue/.

[5] Luz Lazo, Va. Gov. Northam Proposes Gas Tax Increase as Part of Major Transportation Bill, Wash. Post (Jan. 27, 2020), https://www.washingtonpost.com/local/trafficandcommuting/va-gov-northam-proposes-gas-tax-increase-as-part-of-major-transportation-bill/2020/01/26/7562d39a-3ee9-11ea-8872-5df698785a4e_story.html.

[6] Laurence Hammock and Amy Friedenberger, Clean Economy Act Would Bring Changes to Virginia’s Electric Utilities, The Roanoke Times (Feb. 15, 2020), https://www.roanoke.com/news/local/clean-economy-act-would-bring-changes-to-virginia-s-electric/article_5822f02f-cc10-51c0-832e-079f197aa34b.html.

[7] Id.

[8] Frank Green, Virginia State Policy Say Electronic Ticketing System Will Save Time and Lives, Richmond Times-Dispatch (February 17, 2020), https://www.richmond.com/news/virginia/virginia-state-police-say-electronic-ticketing-system-will-save-time/article_58d43704-d978-5f2d-b349-2232852e20b8.html.

[9] Id.

[10] HB957 (available at http://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB957).

[11] Id.

[12] HB742 (available at http://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB742).

 

image source: https://en.wikipedia.org/wiki/Virginia_State_Capitol#/media/File:Va_State_Capitol.JPG

By: Katie Ryan Syder

Have you ever heard of TikTok? In the last year, TikTok has taken the world by storm, becoming one of the most popular social media outlets with over 1 billion users.[1] TikTok is an application that “is the leading destination for short-form mobile video.”[2] Users can find short videos of dance routines, recipes, comedy skits, and more. Most recently, doctors and lawyers have taken to TikTok to provide users with information regarding their professions.[3] It has become an easy way to relay messages and connect with Generation Z.[4] As of now, doctors and attorneys are using the platform to create videos that address common myths, but as TikTok continues to gain users, will we see a shift to these professionals using TikTok for advertising?

 

Currently, advertising on TikTok is still somewhat unknown.[5] TikTok provides a new market of individuals, specifically young teens.[6] This new market and the ability to advertise to this generation could be extremely lucrative if done right.[7] Although TikTok allows companies to purchase advertisements, many users advertise products through their personal accounts. Jacob Pace, CEO of a media and advertising company, explained, “Gen Z doesn’t mind being advertised to, as long as its quality content.”[8] Rather than purchase advertisements between each video, users are drawn to personal videos that contain a level of quirkiness.[9] Professionals such as doctors or attorneys have begun to use the platform to create these quirky videos to gain views, and some have been extremely successful.[10] In an interview with BBC, doctors and attorneys described how they are using TikTok to educate users because of its accessibility.[11] All persons can download the application for free.[12] While some doctors use it to debunk myths about fertility, some attorneys use it to educate individuals about the immigration laws in the United States.[13] Anthony Barbuto, an attorney and user of TikTok with over 2 million followers, stated he uses TikTok “to inspire young people and change the perception of the legal practice, which is often viewed as a cold and rarefied profession of calculating and emotionless lawyers.”[14] Although these professionals might not technically be using TikTok as an advertisement tool, they are gaining a level of notoriety among Gen Z.

 

Attorneys have not always been permitted to advertise their services. Previously, attorneys were not allowed to use advertisements to acquire clients. Attorneys gained clients through avenues, such as word of mouth and reputation. In 1977, this changed with the Supreme Court of the United States’ holding in Bates v. Arizona State Bar.[15] Bates was a turning point for advertisements in the legal profession. Arguments in support of this ban included the desire to protect the image of the legal profession, the potential risk of circulation of misleading information, and the idea that advertisements could lead to the encouragement of litigation.[16] While these arguments had been successful before the Supreme Court of Arizona, the Supreme Court of the United States reversed in part.[17]

 

The Supreme Court of the United States found that these arguments for the ban on advertisements were unconvincing.[18] They held that the First Amendment protected commercial free speech, which meant attorneys were permitted to identify and describe their services.[19] The Court did permit state bar associations to regulate misleading information, disclaimer requirements, and on-real time solicitations.[20]

 

In addressing the issue of advertising in the legal profession, the Court was concerned about the potential circulation of misleading information.[21] Without regulation, attorneys might be allowed to exaggerate their expertise. Lack of regulation could put those with little legal knowledge at risk of being misled.[22] Bates determined that advertising was not completely prohibited, but permitted the American Bar Association (ABA) and state bar associations to place some limitations.[23] For example, the ABA has created regulations, one being Rule 7.1, which prohibits attorneys from using false or misleading communications.[24]

 

Although advertising is now allowed in the legal profession, regulations can vary among states. The increased use of social media, specifically platforms like TikTok, has resulted in a new realm of advertising for all professions. Some attorneys are using TikTok to debunk myths, while others are using it to bring a new perspective to the legal profession. But, before you post your next TikTok, be sure your video does not violate any ABA or state regulations on advertisements.

[1] Zoe Schiffer, TikTok’s Teen Stars Want Money – Marketers Are Starting To Catch On, The Verge (Nov. 26, 2019, 8:00AM), https://www.theverge.com/2019/11/26/20975168/tiktok-bytedance-advertising-brands-sponsorship-flighthouse.

[2] Our Mission, TikTok, https://www.tiktok.com/about?lang=en.

[3] Shria Popat, The Doctors And Lawyers Giving Advice On TikTok, BBC News (Feb. 17, 2020), https://www.bbc.com/news/av/world-us-canada-51507802/the-doctors-and-lawyers-giving-advice-on-tiktok.

[4] Schiffer, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Popat, supra note 3.

[11] Id.

[12] Id.

[13] Id.

[14] Adam Mawardi, Meet The Lip-Syncing Lawyer With Nearly 2 Million TikTok Followers, Legal Cheek (Oct. 25, 2019, 8:57 AM), https://www.legalcheek.com/2019/10/meet-the-lip-syncing-lawyer-with-nearly-2-million-tiktok-followers/.

[15] Bates v. Arizona State Bar, 433 U.S. 350 (1977).

[16] Id. at 368-374.

[17] Id. at 384.

[18] Id. at 379.

[19] Id. at 364.

[20] Id. at 384.

[21] Id. at 375.

[22] Id.

[23] Id. at 384.

[24] Model Rules of Prof’l Conduct r. 7.1 (Am. Bar Ass’n 1980).

image source: https://marketoonist.com/2019/03/tiktok.html

By: Joey Rugari

Introduction

It was fairly recently that I discussed, to some extent, the possibility of using artificial intelligence (“AI”) to search the trademark register and determine both whether there are suspicious marks that need to be challenged for cancellation and what is needed to improve the ability to establish the distinctiveness of new image marks in the course of application.[1] There, I discussed the use of technologization (the implementation of modern computer technologies) of trademark in light of the need for harmonization of trademark systems globally, as well as touching on the potential use of AI in the process.[2] There, the primary thrust of the piece was to advocate for the use of technology-based solutions like AI to try and resolve some of the current issues in trademark.[3] Though it is hardly surprising or particularly unexpected, this is exactly the sort of discussion and deliberation that has been going on at the USPTO regarding systematic technological change.[4] In other words, the discussion is moving forward.[5]

The USPTO’s Movement Towards AI Solutions

The USPTO has not been idle in establishing its footing on the potential use of AI. Late last year, the PTO sent out a notice seeking comment on the applicability of AI to intellectual property.[6] In doing so, the primary concerns were made clear – of the available issues facing the utilization or implementation of AI, very few dealt specifically with trademarks.[7] Of the 12 questions asked in the trademark/copyright/trade secret notice, only two of the questions dealt specifically with issues facing trademark.[8] The plurality of questions (six) dealt with issues facing copyright, and the majority of the other questions dealt with general issues facing the use of technology by the office.[9]

With that being said, the questions asked regarding trademarks are the only ones that are important for determining the use of AI as a matter of trademark registration. Those questions were: “7. Would the use of AI in trademark searching impact the registrability of trademarks? If so, how? 8. How, if at all, does AI impact trademark law? Is the existing statutory language in the Lanham Act adequate to address the use of AI in the marketplace?”[10] In short, the issues that the PTO is concerned with are whether registrability will be easier or harder as a result of AI and if the Lanham Act (the primary act determining federal trademark registration and enforcement) would need to be amended as the result of application of AI.

To the first, it’s worth noting that registrability of a trademark (in the Federal Register) requires that mark to be used in commerce.[11] If it’s a goods mark, then the goods need to be sold, at least once.[12] If it’s a service mark, the service has to have been rendered, at least once.[13] The primary effect that AI technologies (that would be used in trademark) would have on the trademark search process is most likely in the determination of distinctiveness. AI would not specifically make a mark more or less distinctive on the Abercrombie scale[14], for instance, but it could affect the rate at which trademark examiners can effectively evaluate whether there are senior users. Namely, by reducing the workload involved by utilizing recognition algorithms that would do point matching on image marks, similarly to proposals to use AI to more quickly evaluate prior potential use.[15] The effect, as the quality of AI learning algorithms improve, would be to make the trademark registration process more efficient.

To the second, AI as it could be used in the process of determining registrability would likely not need any substantive changes to the Lanham Act. Since the AI does not impact the registrability requirements, and since it would only be used in the limited context of establishing that there are no senior users, it would not change the substantive requirements for registration.[16] However, it is worth noting that there may be some need to establish challenges to registrability rulings (in particular regarding senior users) that rely solely on the AI matching. Namely, the process would need to take into account appeals on the grounds of improper matching by AI. It could be the case that a tiered process, starting with an AI-focused search, supplemented by human examiner search and quality assurance, would be necessary to fully capture the needs of trademark registration here. In other words, it might be necessary to amend the Lanham Act in the case that the concerns outlined above are more than mere paranoia.

Concerns About the Use of AI in these Fields

The primary concern – which was alluded to above – in the use of AI is that the learning algorithms are insufficient to effectively do the work required.[17] If humans are necessary a significant portion of the time just to assure effectiveness, then it is hardly the “silver bullet” or even a “powerful tool” towards the effective administration of the system.[18] Another concern is the effectiveness of the available data for training the machine learning systems (what we typically understand as “artificial intelligence”). This is an issue that persists in all fields of intellectual property,[19] and trademark has no particular features that would otherwise distinguish it in that regard.

The PTO Reaches out for Comments

The issue raised above has been echoed by several groups who responded to the notice for comment.[20] The most common concerns were that the AI technologies would need significant training data[21] and that (at least in the field of copyright) procuring such data has certain legal hurdles, like fair use protections[22]. However, those same comments state that the issue is ultimately met by the statutory language and case law (again, in the copyright case).[23]

Ultimately, the other issue that was commented on by the industry was about the protectability of AI-generated works under copyright.[24] While some of this information is transferrable[25], the most valuable feedback (regarding the copyright issues) that transfers over is the question of effect on need to protect databases and data sets.[26] The conclusion being that there needs to be some sort of forced third-party access to prevent data set monopolization and unfair practices that result therefrom.[27] While there wasn’t that much noise from the industry regarding trademarks (that I found) the issues facing copyright law that do transfer over are important to consider. Effective damages, knowing infringement, and monopolization of data sets are something that would universally (and negatively) affect intellectual property.[28]

The USPTO has taken these comments into account.[29] They’re turning the information that they’ve received into a dialogue and developing an online portal where all the feedback can be centralized.[30] Based on the comments by the PTO’s Deputy Director, we can expect their response sometime this spring.[31]

Conclusion

It’s clear that this issue is on the mind of the PTO. It’s clear that they’re looking to work on potentially applying technology solutions to combat efficiency issues where possible. It’s clear that the industry is behind the idea, if carefully applied. It’s clear that the PTO should apply these ideas. The one thing that isn’t clear is exactly how the new standards would be applied, both across IP and in trademark in particular. It is this author’s hope that such solutions are both considered viable and applied carefully.

[1] See Joey Rugari, It’s Hard to Come Up With a Good Title – Or Trademarks. The Technologization of the USPTO’s Filing System Is Tackling The Issue of Those Marks That Shouldn’t Apply. (Maybe Then I Can Think of Something.), JOLT Blog (Sept. 30, 2019), https://jolt.richmond.edu/2019/09/30/its-hard-to-come-up-with-a-good-title-or-trademarks-the-technologization-of-the-usptos-filing-system-is-tackling-the-issue-of-those-marks-that-shouldnt-apply-ma

[2] See Id.

[3] See Id.

[4] Department of Commerce, Patent and Trademark Office, Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation, 84 Fed. Reg. 58141 (Oct. 30, 2019).

[5] See id.

[6] See id.

[7] See id at 58142.

[8] See id.

[9] See id.

[10] Id.

[11] See 15 U.S.C. § 1127 (2018).

[12] See id.

[13] See id.

[14] See Udi Cohen, Artificial Intelligence Will Help to Solve the USPTO’s Patent Quality Problem, IPWatchdog (Nov. 23, 2019), https://www.ipwatchdog.com/2019/11/23/artificial-intelligence-will-help-solve-usptos-patent-quality-problem/id=116302/.

[15] See id.

[16] See 15 U.S.C. § 1127 (2018).

[17] Cf. Eileen McDermott, Users Lament PAIR Changes During USPTO Forum, IPWatchdog (Jan. 30, 2020) (“‘Down the chain you’re finding paralegals and assistants spending hours and hours per day to get basic information about patent applications . . . .’”), https://www.ipwatchdog.com/2020/01/30/users-lament-pair-changes-uspto-forum/id=118409/.

[18] Cf. Cohen, supra note 14.

[19] As a matter of course, any information that affects the use of AI and data sets generally will affect all IP, including trademark.

[20] See Caleb Watney, Comment on Intellectual Property Protection for Artificial Intelligence Innovation, R Street (Jan. 13, 2020), https://www.rstreet.org/2020/01/13/comment-on-intellectual-property-protection-for-artificial-intelligence-innovation/.

[21] See id.

[22] See id.

[23] See Stan Adams, Comments On the USPTO’s Intellectual Property Protection for Artificial Intelligence Innovation, Center for Democracy & Technology (Jan. 16, 2020), https://cdt.org/insights/comments-on-the-usptos-intellectual-property-protection-for-artificial-intelligence-innovation/.

[24] See, e.g., Nigel Cory & Daniel Castro, Comments to the U.S. Patent and Trademark Office on the Impact of Artificial Intelligence on Intellectual Property Law and Policy, Information Technology & Innovation Foundation (Jan. 10, 2020), https://itif.org/publications/2020/01/10/comments-us-patent-and-trademark-office-impact-artificial-intelligence.

[25] While copyright and trademark don’t fully overlap, any issue that affects intellectual property will affect both. The underlying rationales behind copyright and trademark may differ but concerns of legality of using AI in those areas still affect both.

[26] See James Love, KEI Comments on Intellectual Property Protection for Artificial Intelligence Innovation, for USPTO Request for Comments, Knowledge Economy International (Jan. 13, 2020), https://www.keionline.org/32101.

[27] See id.

[28] See generally id.

[29] See Laura Peter, Remarks by Deputy Director Peter at Trust, But Verify: Informational Challenges Surrounding AI-Enabled Clinical Decision Software, United States Patent and Trademark Office (Feb. 3, 2020), https://www.uspto.gov/about-us/news-updates/remarks-deputy-director-peter-trust-verify-informational-challenges.

[30] See id.

[31] See id.

image source: https://www.pxfuel.com/en/free-photo-eptck

 

By: Matt Romano

In September of last year, I wrote about law enforcement’s growing use of facial recognition technology and the need for federal regulation on the issue.[1]  Last month, Kashmir Hill of the New York Times reported on one facial recognition app in particular that led a privacy professor at Stanford Law to state, “Absent a very strong privacy law, we’re all screwed.”[2] The app is called Clearview AI, and it is now being used by over six hundred law enforcement agencies around the country ranging from local cops to the FBI.[3] Using Clearview AI, law enforcement input an image of a suspect or victim, and it is compared to a database of images to find a match.[4] What separates this app from other facial recognition software used by law enforcement is where the images in the database come from.[5]  Unlike other image databases that are compiled of mugshots or drivers licenses photos, Clearview AI scrapes image of people from millions of websites including Facebook, Twitter, Instagram, and even Venmo.[6] This method of colleting images has allowed the app to create a database that dwarfs all other databases on the market with over 3 billion images.[7]

Facebook and other social media sites prohibit scraping users’ images like this in their terms of service, but Clearview is doing it anyway.[8]  In defense of his company’s actions, the app’s creator Hoan Ton-That claims that the company has a First Amendment right to access data in the public domain.[9]  Since this statement and Hill’s article, Facebook, Google, YouTube, and Twitter have all sent cease-and-desist letters to Clearview demanding it to stop scraping from their sites.[10] So we will probably find out soon if Ton-That is right. In the meantime, it is pretty safe to assume that if you’re on social media, your image is in Clearview’s database.  When Hill’s image was run through the app, it returned several results, including photos she had never even seen before.[11]

There is no denying that law enforcement having access to Clearview’s database will help them identify more suspects and victims.  In one instance, the Indiana State police identified a suspect in a shooting within twenty minutes of experimenting with the app.[12] The shooter didn’t have a driver’s license or criminal record, so government database were useless.[13] The app was able to match an image of him to a video on the internet that had his name in the description.[14]

Along with the obvious privacy concerns, the app’s algorithm has never been tested by an independent party such as the National Institute of Standards and Technology, so it is unclear how accurate it is.[15]  A researcher at Georgetown University’s Center on Privacy and Technology emphasized that “the larger the database, the larger the risk of misidentification because of the doppelgänger effect.”[16]  There is also the concern over whether law enforcement agencies using a database like this is legal.[17]  Clearview’s lawyer sent out a memo to prospective clients in August ensuring them that law enforcement agencies “do not violate the federal Constitution or relevant existing state biometric and privacy laws when using Clearview for its intended purpose.”[18]  A man in Illinois disagrees and has filed a class action lawsuit against the company for violating the Illinois Biometric Information Privacy Act.[19]  Maybe all this litigation involving Clearview will encourage for the federal government to make regulating law enforcement’s use of facial recognition a priority.

[1] Matt Romano, Lack of Federal Regulations as the Deployment of Facial Recognition Technology Increases Results in Drastic Measures, U. Rich. J. L. & Tech. Blog (Sept. 30, 2019), https://jolt.richmond.edu/2019/09/30/lack-of-federal-regulations-as-the-deployment-of-facial-recognition-technology-increases-results-in-drastic-measures/

[2] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See id.

[9] Charlie Wood, Facebook Has Sent Cease-and-Desist Letter to Facial Recognition Start-Up Clearview AI for Scraping Billions of Photos, Business Insider (Feb. 6, 2020), https://www.businessinsider.com/facebook-cease-desist-letter-facial-recognition-cleaview-ai-photo-scraping-2020-2.

[10] See id.

[11] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] Tim Cushing, Lawsuit Says Clearview’s Facial Recognition App Violates Illinois Privacy Laws, Tech Dirt (Jan. 30, 2020), https://www.techdirt.com/articles/20200127/20405043812/lawsuit-says-clearviews-facial-recognition-app-violates-illinois-privacy-laws.shtml.

 

image source: https://www.dailymail.co.uk/news/article-7970371/Google-YouTube-Twitter-send-cease-desist-order-facial-recognition-app-Clearview-AI.html

 

By: Brandon Baker

Technology is everywhere. It has invaded every aspect as our lives for better or for worse. Technology allows us to be in constant contact with one another, no matter how far away the other is. It helps to forecast trends and allows more people to be heard, from more places. Unfortunately, technology also has made us, as a society, extremely reliant upon it for our every need. Instead of driving to the grocery store, we can access an app that will get our groceries for us and deliver them to our door. We can spend countless hours seeing what everyone else on the earth is up to, without ever living a life of our own.

One aspect of technology which has a positive impact on society is telemedicine. Telemedicine is defined as “a method of providing clinical healthcare to someone from a distance by the use of telecommunication and information technology”. [1] Telemedicine, just like technology as a whole, is doing its part to shorten the distance between physicians and patients in rural areas. [2] Additionally, telemedicine can operate in conjunction with data analytical software, ensuring that the patient is receiving the best care possible. [3] Telemedicine truly has the ability to give citizens across the country access to world class medical care, without even having to leave their house. This is a massive breakthrough in rural health care and eliminates the burden that traveling to far away hospitals and clinics puts on the patient. Furthermore, telemedicine can play a major role in the treatment of patients who may not be totally mobile. Telemedicine allows them to skip the hassle and financial burden involved with getting medical transport to take them in for treatment. Telemedicine continues to break down barriers, allowing more and more people the chance to have first-class medical care, no matter where you might be.

While telemedicine has many benefits that have helped and will continue to help many patients across the country, there is an issue of whether that data that is shared electronically is secure and safe? Physicians need to make sure that the data in which they receive by way of the patient is secure pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), if it is applicable. [4] The great progress that telemedicine has achieved in recent years and the vast benefits of its services could all be at risk if a widespread data hack targeted these providers and stole sensitive information. Due to this concern, telemedicine providers are advised to conduct more frequent tests that examine the vulnerability of their IT systems. [5]

In conclusion, while telemedicine has been praised for its ability to connect individuals from around the country with top-notch medical care, it has not been without its risks or concerns. For telemedicine to continue to grow and allow its benefits to reach every single corner of the country, telemedicine providers need to be wary of the security and privacy risks that are present and how to effectively mitigate them.

[1]See What Are The Latest Trends in Telemedicine in 2018?, Forbes (July 31, 2018), https://www.forbes.com/sites/quora/2018/07/31/what-are-the-latest-trends-in-telemedicine-in-2018/#798893a06b9e

[2] Id.

[3] Id.

[4] See Joseph L. Hall et al, For Telehealth to Succeed, Privacy and Security Risks must be Identified and Addressed, Health Affairs (Feb. 2014), https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2013.0997

[5] Supra note 1.

image source: https://www.chmbinc.com/digital-doctor-visits/

By: Olivia Akl

In a world that mass-produces conspiracy theories from the moon landing being fake to black helicopters coming to bring the US under UN control, it can occasionally be hard to tell fact from fiction. That’s only getting harder thanks to technological advancements like deepfake videos[1], hyper-realistic silicone masks[2], and soon-to-be smart contact lenses.[3] When we can’t trust what we see with our own eyes, what can we trust? What does this advancement of technological trickery mean for the reliability of eyewitness accounts and video evidence in courts?

 

A deepfake PSA produced by Buzzfeed in 2018 seemed to show President Obama warning people about the threat deepfakes presented.[4] It ended with the reveal that the person speaking was not President Obama, but rather Jordan Peele doing an impersonation of President Obama overlaid with President Obama’s image using FakeApp and After Effects CC.[5] This video opened many eyes to the power of deepfake technology and how convincing it could be.[6] However, deepfake videos are hardly the first videos to fool people into thinking one person is doing something, when it’s truly another individual.

 

Security videos analyzed by the FBI of a string of robberies in San Diego from 2009 to 2010 led the FBI to offer a $20,000 reward for information that led to the arrest of the so-called “Geezer Bandit.”[7] While at least one witness thought the robber was wearing a “Halloween-style old man” mask, the authorities felt confident in the many other eye-witness accounts that he was a 60-70 year old man[8] and the reward notice described him as such.[9] Surveillance footage from outside the site of the Geezer Bandit’s last robbery on December 2, 2011 showed the supposed 60-70 year old sprinting across a parking lot after a dye-pack exploded.[10] This led the FBI to update its reward notice to include the line: “Possibly wearing a synthetic mask and gloves to hide true physical characteristics.”[11] The “Geezer Bandit” was never caught.

 

These technologies may seem like something out of a Mission Impossible movie or science fiction, but they are real, and the technology is getting both cheaper[12] and better[13]. Another technology that seems straight out of science fiction is a smart contact lens that may be only a few years away.[14] Mojo Vision, a California-based company, has been working on a smart contact lens—the Mojo Lens—for five years.[15] While the idea for the Mojo Lens is a discreet product to replace a smart phone’s screen like a less obvious Google Glass, it’s not a big jump to see how this could alter the wearer’s perception of the world.

 

Deepfake technology has already proven capable of working in real time to overlay one person’s image over a live speech.[16] If a smart contact lens could be hacked or infected with malware that allowed access to the view that an individual sees, is it possible a deepfake could be created for the wearer’s eyes only, altering the wearer’s perception of the world in real time? Imagine a smart contact lens wearer witnesses a crime and describes the perpetrator to the police. In a world with these two technologies, smart contact lenses and live deepfakes, can that eyewitness account be trusted?

 

There is already a worry over the reliability of eyewitness testimony today, without any potentially hacked or malware-ridden smart contact lenses to muddy the waters.[17] Human memory is fallible and people are not often as perceptive as lawyers hope their witnesses are, yet “jurors place heavy weight on eyewitness testimony when deciding whether a suspect is guilty.”[18] In the future, these smart contact lenses will present new issues with eyewitness accounts, perhaps to the point where eyewitnesses will no longer be trusted on the stand.

 

Another new worry for the courts will be if video evidence can be relied upon due to hyper-realistic silicone masks and deepfake technology. If the technology gets beyond what analysis can reveal as false, could an innocent person be framed for a crime using this technology? Even if the technology can be recognized upon analysis of the video, could the analysis be prohibitively costly for a court or defendant to bear? If so, future courts will need to ask: can video evidence be relied upon when there is a lingering issue of its veracity, and how expensive can cases relying on video evidence be allowed to become?

[1] See Daniel Thomas, Deepfakes: A Threat to Democracy or Just a Bit of Fun?, BBC (Jan. 23, 2020), https://www.bbc.com/news/business-51204954.

[2] Matt Simon, Gaze Into These Hyperrealistic Masks and See a Troubling Future, Wired (Jan. 6, 2020, 2:15 PM), https://www.wired.com/story/hyper-realistic-masks/.

[3] Juilan Chokkattu, The Display of the Future Might Be in Your Contact Lens, Wired (Jan. 16, 2020, 8:00 AM), https://www.wired.com/story/mojo-vision-smart-contact-lens/?itm_campaign=BottomRelatedStories_Sections_1.

[4] BuzzFeedVideo, You Won’t Believe What Obama Says in This Video!, YouTube (Apr. 17, 2018), https://www.youtube.com/watch?v=cQ54GDm1eL0.

[5] See id.

[6] See id.

[7] Reward of $20,000 Offered in “Geezer Bandit” Investigation, FBI San Diego (Dec. 15, 2010), https://web.archive.org/web/20101219040727/http://sandiego.fbi.gov/pressrel/pressrel10/sd121510.htm.

[8] FBI still seeking help catching ‘Geezer Bandit’; $20,000 reward offered, Los Angeles Times: L.A. Now (Dec. 15, 2010, 11:28 AM), https://latimesblogs.latimes.com/lanow/2010/12/the-fbi-on-wednesday-renewed-its-plea-for-public-help-in-finding-one-of-the-regions-more-illusive-crooks-the-geezer-bandit.html.

[9] See FBI San Diego supra note 7.

[10] Tony Perry, Geezer Bandit May Not Be a Geezer, Los Angeles Times (Dec. 23, 2011, 12:00AM), https://www.latimes.com/local/la-xpm-2011-dec-23-la-me-geezer-20111223-story.html.

[11] Darrell Foxworth, Reward of $20,000 Offered in “Geezer Bandit” Investigation, FBI (Dec. 2, 2011), https://archives.fbi.gov/archives/sandiego/press-releases/2011/reward-of-20-000-offered-in-geezer-bandit-investigation-1.

[12] See Simon, supra note 2.

[13] Pakinam Amer, Deepfakes Are Getting Better. Should We Be Worried?, Boston Globe (Dec. 13, 2019, 4:07 PM), https://www.bostonglobe.com/2019/12/13/opinion/deepfakes-are-coming-what-do-we-do/.

[14] See Simon, supra note 2.

[15] See id.

[16] Samantha Cole, This Program Makes it Even Easier to Make Deepfakes, Vice: Motherboard (Aug. 19, 2019, 11:50 AM), https://www.vice.com/en_us/article/kz4amx/fsgan-program-makes-it-even-easier-to-make-deepfakes.

[17] Hal Arkowitz, Why Science Tells Us Not to Rely on Eyewitness Accounts, Scientific American: Mind (Jan. 1, 2020), https://www.scientificamerican.com/article/do-the-eyes-have-it/.

[18] See id.

 

image source: https://interestingengineering.com/generative-adversarial-networks-the-tech-behind-deepfake-and-faceapp